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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: 2008 [EWHC] 137 (QB)

Case No: 2007/29/MTR

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28/02/2008

Before :

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Between :

 - and - 
 Robert Ezekiel Brown















Mr Justice Field:

1. This is an application by Robert Ezekiel Brown under s. 276 of the Criminal Justice Act 2003 (“the Act”) and paragraph 3 (1) of Schedule 22 to that Act to have reviewed the minimum term of 17 years that he was ordered to serve before he can be released on parole pursuant to a recommendation of the Parole Board.

2. The applicant has not sought an oral hearing and I am satisfied that his application can be determined justly and in accordance with his rights under the Human Rights Act 1998 on the basis of the documents that have been provided to me and the detailed written representations prepared by his solicitors which have been laid before me.

3. On 14 June 1996, the applicant was convicted of the murder of Mr Femi Ayoola and was sentenced by the trial judge, Sir Lawrence Verney, to life imprisonment. The trial judge recommended a tariff of 20 years, a recommendation which was endorsed by the then Lord Chief Justice, Lord Bingham. In the event, the tariff notified to the applicant by the Home Secretary was 17 years.

4. The background facts of the offence are these. On 1st October 1995 the applicant was working as a doorman at the Granaries Nightclub in Overtons yard, Croydon. On that day a function was being held at the club to celebrate the 35th anniversary of the independence of Nigeria. The club was packed and many were unable to gain admission. Mr Ayoomi gained entry but after a disagreement with another doorman was forcibly ejected, receiving a cut lip in the process. Mr Ayoomi reacted to this angrily. He tried to get back into the club to confront the man who had hit him. During a struggle at the door, he struck a blow with his fist that landed on the face of the applicant, cutting his lip and causing his nose to bleed. Mr Ayoomi then fled the scene pursued by the applicant and four other doormen. After a 200 metre chase, the applicant caught up with Mr Ayoola and shot him with a firearm. A total of 13 bullets was fired, of which 7 or 8 hit the victim. It was not clear on the evidence how the applicant came to be in possession of the gun.

5. When recommending a minimum term of 20 years, the trial judge expressed the view that the use of a gun taken out loaded with at least 13 bullets indicated that the applicant was potentially dangerous and could repeat the same conduct. In Lord Bingham’s view a tariff of 20 years was justified in light of the wanton nature of the killing and the gratuitous use of a firearm.

6. Pursuant to paragraph 4 (1) and (2) of Schedule 22 to the 2003 Act, in dealing with an application to review a notified minimum term the court must have regard to the seriousness of the offence and in doing so must have regard, inter alia, to: (i) the length of the notified minimum term; (ii) the general principles set out in Schedule 21; and (iii) any recommendations made to the Secretary of State by the trial judge and the Lord Chief Justice as to the length of the minimum term to be served by the offender before release on licence. Further, the court cannot fix a minimum term of a greater duration than the notified minimum term (see para. 3 of Sched. 22).

7. Pursuant to paragraph 6 of Schedule 21, a murder involving the use of a firearm would “normally” attract a starting point for the minimum term of 30 years. However, in this case, since there was little if any premeditation and there is no evidence that the applicant was an armed gangster, I think the starting point under Schedule 21 would be 20 years. Next, the court must consider what increase (if any) there should be for any aggravating factors including any relevant previous convictions. Regard must also be had to the mitigating factors and to the minimum terms recommended by the trial judge and the Lord Chief Justice and notified by the Home Secretary.

8. Are there any aggravating factors which would justify an increase to starting point of 20 years? In my view there are none. The fact that a firearm was used is already reflected in the 20 year starting point.

9.  Next, one has to consider the mitigating factors. There is but one that goes to the seriousness of the offence – the applicant’s previous good character.

10. The notified term was 17 years. Is the applicant’s good conduct in prison a sufficient reason for reducing the term? In my opinion it is because the applicant’s conduct in prison has been exceptionally good over a period of some 11 years. On the other hand, any reduction must reflect the fact that the principal criterion that underlay the setting of the judicial recommendations and the notified term and which underlies Schedule 21, is the seriousness of the offence.

11. In my judgement the appropriate reduction is 6 months. Accordingly, I determine that the minimum term in this case should be 16 ½ years, from which must be deducted the time spent on remand, which I am instructed is 7 months and one day. I make it clear that this does not mean that it is automatic that the applicant will be released after this period. It means that the Parole Board can then consider whether it is safe to release him. If he is released he will remain on licence. 


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