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Minimum terms

High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003



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Neutral Citation Number: [2009] EWHC 582 (QB)

Case No: 2006/100/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand
London WC2A 2LL

Date: 25/03/09

Before :

THE HONOURABLE MR JUSTICE BEATSON
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 R 
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 HAQ NAWAZ KHAN 

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Neither party was represented


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Approved Judgment


 
Mr Justice Beatson:
1. The applicant, Haq Nawaz Khan, then aged 28, was convicted of the murder of Ali Nawaz Khan at the Crown Court in Wolverhampton on 31 January 2001 and was sentenced to life imprisonment.
2. On 8 February 2001 the trial judge, Bell J, recommended that the applicant should not be considered by the Parole Board for release on licence until he had served a period of 17 years imprisonment. On 16 February 2001 the Lord Chief Justice stated he regarded 16-17 years as the appropriate minimum.  On 8 October 2002, after considering representations made on behalf of the applicant, the Home Secretary set the tariff at 16 years.  The matter comes before the court pursuant to Schedule 22 of the Criminal Justice Act 2003 ("the Act") for the determination of the minimum term.
The facts
3. The relevant facts, as described by the trial judge, were these:
“At about 6.25pm on 9 November 1999, the defendant shot and killed his half brother, Ali Nawaz Khan (“Big Ali”) while Big Ali was sitting in his car in Birchills Street, Walsall. He used a semi-automatic, 12 bore shot gun, which he discharged at Big Ali at close range through the driver’s window. Five shots were fired. Two blasts hit Big Ali on the right side of his head, blowing his face off and his brains out. Two shots hit his shoulder. The fifth missed. The defendant was accompanied by another gunman who did not fire. The other gunman was alleged to be Asghar Khan who was also accused of murder… [but was] acquitted by the jury. … The killing took place in a shopping street where the defendant, Big Ali and Asghar Khan were well known, as members of the local Pakistani community. The motive for the killing lay in family relationships.
…The defendant had a full sister (Big Ali’s half sister) called Shanaz, who lived in the family village in Pakistan. Asghar Khan was a cousin. Big Ali arranged for his daughter Saraya, who had been raised in England, to go to Pakistan and marry Shanaz’s son Israr in September 1997. As a result of allegations by Saraya that Israr had mistreated her, and allegations by her younger sister Sobia that Israr had raped her, Big Ali took Saraya back to his house and obtained a Muslim divorce for her from Israr whom he compelled to return to Pakistan. He blamed the defendant for allowing Israr to mistreat Saraya, although Israr denied any mistreatment of either Saraya or Sobia. Before all this the defendant and Big Ali had been close friends. They had grown up together. Big Ali was 10 years older than the defendant. The defendant resented Big Ali’s treatment of Israr and the fact of a divorce which was frowned on in their culture.
In June 1999, Big Ali went to Pakistan. He went to the house where Israr lived with his mother Shanaz, meaning to kill Israr with a Kalashnikov automatic rifle, but he shot Shanaz three times instead. Immediately after Shanaz’s death Big Ali returned to Walsall where he lived for part of his time in a small cul-de-sac opposite the defendant, with his wife and children. Big Ali was big in physique and reputation as a local gangster. He was known to have guns in England as well as Pakistan. The defendant himself had convictions for wounding. His case at trial was that over the months between June and November 1999, and on the very day of the shooting, Big Ali threatened to kill him and his family. There may be some truth in this. His defence was that he took a gun to frighten Big Ali but all went wrong. I do not believe this. The murder was a planned execution, in my view largely in revenge for the killing of Shanaz, but probably fuelled by pre-existing resentment relating to the previous treatment of Israr, and some fear about what Big Ali might do next so far as the defendant and his family were concerned. …”  
4. There were no medical considerations before the court.  The trial judge commented as follows on the applicant’s dangerousness and likelihood of re-offending:-
“17 Years. Had this been simply a planned, shotgun killing in the street, I would have said 20. But although the defendant’s essential defences of self-defence and provocation rightly failed, there was mitigation in the background to the offence, and particularly in Big Ali’s killing of Shanaz: hence 17. The period must be long enough to act as a deterrent to further revenge killings in the community in question.”
5. The Lord Chief Justice stated that his recommendation would be 16/17 years for the reasons given by the trial judge.
These proceedings
Representations on behalf of the applicant:
6. There are, before the court, two sets of representations on behalf of the applicant. The first is undated but is stamped as received by the Life Imprisonment Minimum Term Section on 13 February 2007. The second, dated 13 December 2008, is in response to representations on behalf of the prosecution (on which see paragraph [10] below). The court is asked to set the minimum term at 10 years 286 days. It is asked to do so on the basis that the aggravating and mitigating factors referred to in Lord Bingham’s letter mean that the starting point should be reduced from 14 years to 13 years, that the applicant’s progress in prison and his completion of offending behaviour and other courses, is enhanced status under the incentives and earned privileges scheme, and his participation in the voluntary drug testing programme justify a further reduction of one year, and the minimum term should be further reduced by the 14 months and 17 days for which the applicant was in custody on remand.
7. The applicant’s solicitor has also submitted that the court should not determine the minimum term without hearing oral representations by counsel as to the appropriate period. Although paragraph 11 of Schedule 22 of the 2003 Act provides that the application is to be decided without an oral hearing, in R (Hammond) v Secretary of State for the Home Department [2004] EWHC 2753 (Admin), the Divisional Court applied section 3 of the Human Rights Act 1998 and held that this provision could be rendered Convention compatible by reading into the provision a discretion enabling the judge to order an oral hearing in the “exceptional cases” where such hearing is required to comply with a prisoner’s Article 6 rights. The House of Lords ([2005] UKHL 69) did not have to decide whether this use of section 3 was permissible because neither the Secretary of State nor the prisoner challenged the Divisional Court’s approach and Lord Bingham, Lord Hoffmann and Lord Rodger reserved their positions.  The issue is thus whether the particular circumstances of a case make it one of the exceptional cases in which fairness requires an oral hearing. It is incumbent on those submitting that an oral hearing is required to demonstrate why this is so and why full written submissions will not suffice.
8. In the present case the applicant’s solicitor makes three submissions. First, it is submitted that the circumstances of this case, given the divergence of judicial opinion about the minimum term, are such that it would be unfair to the applicant to have it determined without oral representations. Secondly, it is submitted that the applicant is entitled to an oral hearing as a matter of principle by reason of Articles 6 and 14 of the European Convention on Human Rights. Thirdly, it is said that this is an exceptional case within the decision in Hammond’s case and that counsel should be permitted to make oral representations on three matters on which he has not had an opportunity to do so: the divergence of judicial opinion as to minimum term, the relevance of the Practice Direction dated 10 February 1997, and the case of Sullivan [2004] EWCA Crim 1762.
Other representations:
9. As I understand to be the usual practice in these cases, no representations have been submitted to me by the Secretary of State. The deceased’s family were invited to submit a victim input statement but have not responded to letters from the Victim Liaison Officer.
10. On behalf of the prosecution, it is submitted that there are three aggravating features in this case. These are the use of a firearm, a significant degree of planning or premeditation, and the applicant’s previous convictions for wounding with intent in 1989 and possessing an offensive weapon in 1996. The prosecution accept that the defendant had reasons to be afraid of the deceased and may have been provoked in a way not amounting to a defence.
Discussion
11. In determining the seriousness of this offence I have paid careful regard not only to section 269(5) of the Act, which came into force on 18 December 2003, but also to the recommendations of the trial judge and the Lord Chief Justice. Furthermore, I have been careful not to impose a term which is greater than that which under the practice followed by the Secretary of State before December 2002 the Secretary of State would have been likely to set.
12. This murder was committed on 9 November 1999 i.e. before 31 May 2002, and as a result the best guide is Lord Bingham CJ's letter of 10 February 1997. In summary, under that indication, 14 years is the starting point for an "average" unexceptional offence.  In Sullivan 2004 EWCA Crim.1762, at [29] the Court of Appeal stated that the fact that Lord Bingham listed an absence of intention to kill and lack of premeditation as mitigating factors showed that the 14 year period was intended to cover more serious murders.
13. I deal first with the application for an oral hearing. The applicant’s solicitor has made two sets of written representations and has had the opportunity to put all the matters on which he relies before the court. He does not indicate what representations could only be put before the court at an oral hearing. He also does not engage with the thrust of the decision in R(Hammond) v Secretary of State for the Home Department.
14. Two of the three reasons given for having an oral hearing are reasons that apply in every case of this sort but the decision in Hammond’s case makes it clear that oral hearings are only to occur in exceptional cases. As far as the argument that there is a divergence between the trial judge’s recommendation and the Lord Chief Justice’s is concerned, the divergence is small and the term notified by the Home Secretary is the lesser number of years. It is not explained what representations as to the divergence could only be made in an oral hearing. Indeed, no representations at all are made as to this in the written representations.
15. The applicant’s solicitor has acted on behalf of a number of those seeking the determination of their minimum term by the court. An experienced representative should not make an application for an oral hearing in such an unparticularised manner and without engaging with the decision in Hammond’s case. 
16. In relation to premeditation, the submissions on behalf of the applicant do not accept that there was a significant degree of planning or premeditation. They state that, if there was any premeditation, it was not “beyond that necessary to constitute the offence”. No reason is given for this submission. It is on the facts a fanciful submission. In his recommendation to the Home Secretary the trial judge stated “the murder was a planned execution, in my view largely in revenge for the killing of Shanaz but probably fuelled by pre-existing resentment relating to the previous treatment of Israr and some fear about what Big Ali might do next so far as the defendant and his family were concerned.” In light of those comments it is difficult to understand how an experienced solicitor can believe it was proper to make this submission.
17. It is also submitted that, although the applicant pleaded not guilty at trial he did so on the basis of defences of provocation and self defence. Accordingly, it is said the plea did not call into question his involvement in the offence and presupposed an acceptance by the applicant that he committed the offence. It is not arguable that this is one of the factors to which Lord Bingham’s letter refers as a potential mitigating factor. The judge took account of the family background and what had happened in his determination and in my judgment did so appropriately. It is clear that, but for that family background, the judge would have recommended a period of 20 years which he regarded as appropriate for a “planned shotgun killing in the street”. It was only because of the background, the deceased’s killing of the applicant’s sister, and the applicant’s fear of harm to himself and his family that the recommendation was for 17 years. 
18. I turn to the submission that the minimum term should be reduced by a year to reflect the applicant’s progress in prison. Although the 2003 Act does not refer to progress made by a prisoner during his sentence as a factor to be taken into account in determining the minimum period, it is clear from the cases that it can be: see R (Cole, Rowland and Hawkes) v Secretary of State for the Home Department [2003] EWHC 1789 (Admin); Caines & Roberts [2006] EWCA Crim 2915; Cadman [2006] 3 All ER 1255.  But, as is clear from what Rose LJ stated in R (Cole, Rowland and Hawkes) v Secretary of State for the Home Department at [88] it was “inconceivable, in human terms” that exceptional progress in prison would not be taken into account.  That observation has been treated as decisive.
19. It is clear from the evidence of Mr Morris, the Head of the Tariff Section in the Lifer Unit, which was before the court in the case of R (Cole, Rowland and Hawkes), from Rose LJ’s judgment in that case , and from the decision of the Court of Appeal in Caines & Roberts at [52] that the hurdle that must be overcome for progress to be regarded as “exceptional” is a high one. In Caines & Roberts it was said that the standard should be “very high”.
20. Normally, as well as the good progress in prison that is expected of all mandatory life sentence prisoners, in broad terms what will be needed is an exemplary work and disciplinary record in prison, genuine remorse, and successful engagement in work (including offence-related courses) that has resulted in substantial reduction in areas of risk.  All these would have to have been sustained over a lengthy period and in at least two different prisons.  To reach the threshold of exceptional progress there would also need to be some extra element to show that the lifer had done good works for the benefit of others.
21. In Caines and Roberts [2006] it was also stated (at [52]) that even where the very high standard required for progress to be “exceptional” is reached, the impact on the total tariff period is likely to be very modest, that progress falls to be considered when the minimum period is coming towards its end and that it is a prerequisite to any reduction that the risk assessment should be favourable, and (at [53]) that the reports from the two prisons should provide assistance on how the applicant’s progress should be assessed by comparison with similar prisoners.
22. It is against this background that the representations made on behalf of the applicant in this case must be assessed.
23. The representations on behalf of the applicant rely on his completion of courses as evidence of his deep and genuine remorse. They do not, however, assist in relation to the matters of which the court must be satisfied before concluding that progress is exceptional. Although the applicant has made commendable progress, the reports do not provide assistance on how that progress is when compared with similar prisoners. A report dated December 2004 describes his progress as “steady” and “good” and say that he is keen to address reducing his risks and has met the targets reached, they do not provide assistance on how his progress is when compared with similar prisoners it says it is “exceptional”. Accordingly, there is no material before me from which I am able to conclude that he has made the sort of exceptional progress that will justify a modest reduction from the minimum period.
24. I have concluded that a minimum period of 16 years appropriately reflects all the aggravating and mitigating factors relied on in the submissions. It is precisely that which the Secretary of State set on 8 October 2002.
25. Accordingly, I am of the view that the appropriate period to fix is 16 years. From that term the period of his remand in custody, namely 14 months and 17 days is to be deducted.

 


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