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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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Case Nos.:  MTR/771/2004
MTR/112/2005
Neutral Citation Number:  [2008] EWHC 701 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

15 May 2008

Before :

MR JUSTICE KEITH

Between :

The Queen

- and -


(1)  David James Johnson
(2)  Colin Peter Wake


Approved Judgment

 

Introduction

1. On 29 October 1998 at Winchester Crown Court, the defendants, David Johnson and Colin Wake, were sentenced to life imprisonment for the murder of Paul Bradshaw.   They had pleaded not guilty.   In addition, Colin Wake was sentenced to five years’ imprisonment to be served concurrently with the sentence of life imprisonment for an offence of conspiracy to pervert the course of justice, to which he had pleaded guilty.   The trial judge, Kay J, recommended that the defendants should serve 18 years in custody before they could be considered for release on licence.   The Lord Chief Justice, Lord Bingham of Cornhill, recommended that they should serve 17-18 years in custody before their release on licence could be considered.   Eventually, the Home Secretary notified the defendants that the minimum period which they should serve before they could be released on licence was 17 years.  
2. Schedule 22 to the Criminal Justice Act 2003 (“the Act”) came into force on 18 December 2003.   Since then, the defendants have applied to the High Court, pursuant to para. 3 of Schedule 22 to the Act, for the period set by the Home Secretary to be reviewed.   Para. 12(1) of Schedule 22 to the Act requires me to give the reasons for such order as I make in ordinary language.  
The facts
3. In the early hours of 5 July 1995, the defendants went to a park in Bournemouth which homosexuals tended to visit.   Their objective was to attack and rob any homosexual they found.   They took with them a pickaxe handle into which had been embedded 16 metal rivets so that the end of the rivets protruded from the handle.   When they came across Mr Bradshaw, they attacked him.   The head injuries he received were so severe that fragments of his skull were found up to 10 feet away from the body on one side, and 15 feet away on the other.   The Home Office pathologist who conducted the post mortem had never encountered more serious injuries.   The defendants then went through Mr Bradshaw’s pockets.   Afterwards, they returned to Johnson’s flat which was nearby where they hid the weapon and changed the worst of their bloodstained clothing before returning to the scene by a different route.   They then stopped a passing taxi, and reported that they had just found a body in the park.  
4. The trial judge was satisfied that Wake had been responsible for striking the fatal blows.   He had admitted as much a few months after the murder to his girlfriend’s niece.   The judge was equally satisfied that the instigator of the attack had been Johnson, who had provided the weapon.   In the circumstances, he found it impossible to distinguish between them in terms of their culpability, and I take the same view.  
5. Wake had taken part in the robbery of another homosexual in the park a week before Mr Bradshaw’s murder.   No weapon had been used on that occasion.   He was charged with robbery, but as a result of advancing an alibi which was false, he was acquitted.   There was evidence which showed that he had conspired with his girlfriend to put forward that false alibi.   That was the charge of conspiring to pervert the course of justice to which he pleaded guilty.   He claimed that Johnson had been a party to this robbery, but there was no evidence of that apart from Wake’s own assertion of it.  
6. Johnson’s case at the trial was that he had neither been present at, nor had he participated in, the attack on Mr Bradshaw.   He claimed that Wake had taken the weapon from his flat despite his efforts to stop Wake, and that Wake had gone to the park on his own to attack any homosexual he found there.   He said that the only thing he had done which was wrong was that he had covered up for Wake’s responsibility for the murder.   For his part, Wake admitted that he had been present at the attack on Mr Bradshaw, but claimed that Johnson had been solely responsible for the attack, and that he had tried to stop Johnson.  
7. Johnson was 20 years old at the time of the murder and Wake 21.   Both had previous convictions, and although Johnson had two previous convictions for assault occasioning actual bodily harm, none of Wake’s previous convictions were for offences of violence.   Johnson struck the trial judge as intelligent and calculating, and the judge detected no hint of any sympathy for Mr Bradshaw or any realisation of the extent to which other people would disapprove of such criminal activity as he was prepared to admit to.   As for Wake, the evidence of his girlfriend’s niece was that when Wake had admitted his involvement in the murder, he had broken down and cried.   She had pressed him over what was troubling him, and he had confided that what was troubling him the most was that he had “enjoyed it”.   The judge found her to be “an impressive and compelling witness”.  
The appropriate minimum term
8. The minimum term which the defendants should serve must reflect the seriousness of their offence.   That involves choosing the appropriate starting point, and then taking into account any aggravating or mitigating features to the extent that they were not allowed for in the choice of the appropriate starting point.   Under the current law, the appropriate starting point for the minimum term in the defendants’ case would be 30 years, since this was a murder which was aggravated by the sexual orientation of their victim.   However, whatever the minimum term which would now be set under the current law, the minimum term which I must set may not be any longer than the minimum term set by the Home Secretary.  
9. This was, on any view, a shocking murder.   The weapon which was used to attack Mr Bradshaw was rightly described by the trial judge as “dreadful”, and the fact that he was targeted simply because of his vulnerability as a homosexual is a significant aggravating factor.   The ransacking of his body for whatever he had on him after he had been left for dead was another aggravating feature of the case, even if it could not be said that this was a murder committed for gain.   In my opinion, a minimum term of less than 17 years which these defendants should be required to serve before their release on licence can be considered would not be appropriate, though from that term there must be deducted the 14 months and 12 days which they spent on remand in custody prior to sentence.  
Conclusion
10. I therefore order that the early release provisions in sections 28(5)-(8) of the Crime (Sentence) Act 1997 apply to the defendants as soon as they have served 15 years 9 months and 18 days of their sentence.   That is the minimum term which I set for their case.  


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