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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 No: 2004/1019/MTR
Neutral Citation Number: [2006] EWHC 206 (QB)

Snaresbrook Crown Court

Friday 17 February 2006

Before :


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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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As Approved by the Court

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Mr Justice Fulford :
1. Between 3 and 24 November 1994 the applicant (Gary Mayor, born 17 March 1975) was tried at the Nottingham Crown Court on an indictment containing two counts: murder and conspiracy to cause grievous bodily harm (with intent). He was convicted by unanimous verdicts of the jury and the judge, Gage J, sentenced him to life custody for life for the count of murder with a concurrent term of 5 years in a young offender institution for the conspiracy.
2. Pursuant to section 276 and paragraph 3 of Schedule 22 of the Criminal Justice Act 2003 (“the 2003 Act”), Mayor has applied for the determination of the minimum term following which the early release provisions referred to in Schedule 22 are to apply to him.  This is my determination of that minimum term; for the benefit of the applicant, I have set out the matter in some detail bearing in mind the provisions of paragraph 12 of Schedule 22 of the Act which requires me to give my reasons in ordinary language.
3. For the purposes of my decision, I have considered the representations and material submitted to the court on his behalf, together with the guidance set out in Practice Direction (Crime: Mandatory Life Sentences) (No 2) 29th July 2004 set out in Archbold, Criminal Pleading Evidence and Practice, 2005 paragraph 5-251. 
4. Paragraph 11 of Schedule 22 of the 2003 Act provides that the application is to be decided without an oral hearing.  In Regina v. Secretary of State for the Home Department ex parte Hammond [2004] EWHC 2753 (Admin), the Divisional Court reviewed this provision and concluded that it did not exclude the possibility of an oral hearing in those cases in which the Judge considered such a hearing was required although it described the prospect as “rare”.  Notwithstanding, the solicitors acting on behalf of Mr Mayor have sought an oral hearing because of the “difficulties (for the applicant) in expressing matters of this nature in writing” and to resolve the more general issue of the right to a hearing.  As to the first, although the statutory regime is relatively complex, the issues of law and fact in this particular case are no more difficult to understand or to place into proper context than any other which requires resolution under these provisions, and I do not consider that I would be assisted by oral representations. I have been very fully assisted by written submissions and by the reports that have been prepared during the applicant’s (lengthy) period in custody.  Similarly, the extent of the progress made since imprisonment and the remorse which Mr Mayor has shown are clear from the papers and, again, do not need oral elaboration.  This is not one of the rare cases visualised by Hammond and in the circumstances the application for an oral hearing is refused.
5. As I understand to be the usual practice in these cases, no representations have been submitted to me by the Secretary of State.

The Background Facts

6. The trial judge described the circumstances of this offence as follows:

“The Defendant was charged with four co-accused.  The allegations were that on 1 August 1993 four Defendants had set out in a car driven by the fifth to assault a youth, Saven Mackenzie.  They were armed with baseball bats (count 2).  Later in the early hours of 2 August 1993 they attacked the deceased.  The fatal blow was struck with a baseball bat by this Defendant (count 1).  At the close of the prosecution case, the crown accepted pleas of guilty by three Defendants to Manslaughter on Count 1.  The fourth was discharged.  Count 2 was allowed to remain on the file on the usual terms.  In view of these pleas the jury was discharged and this Defendant tried by a new jury.  He was convicted on both counts.  The three co-accused have not yet been sentenced.”

7. The issues before the court were described by the judge in the following way:

“1. Self defence and/or prevention of crime.

2. Intent

3.  Provocation”

8. The judge’s comments on the case generally and, in particular, on the degree of dangerousness presented by the applicant were expressed as follows:

“On 1 August 1993 the Defendant set out with four other Defendants to attack a young man named Saven Mackenzie.  The Defendant was not the prime mover behind this expedition, but played a prominent part in it.  Despite making contact with Saven Mackenzie on two separate occasions during the course of the evening, the Defendant and his co-accused did not manage to cause other than superficial injuries to Saven Mackenzie.  In the early hours of 2 August 1993 the Defendant with three co-accused arrived at an Afro Caribbean centre in the St. Annes area of Nottingham.  The Defendant and his co-accused came from the Meadows area of Nottingham.  There was some evidence that the Defendant and the deceased belonged to rival gangs of youths.  The Deceased was a young man aged twenty five.  There was evidence that he had a reputation, if not for violence, for being able to look after himself.  The evidence showed that the Defendant got into an argument with the deceased outside the Afro Caribbean centre.  During the course of the argument the Defendant struck the deceased a very heavy blow on the jaw causing a fracture to the jaw to the left side and dislocation of the jaw on the right side.  The blow was delivered either with a fist or a baseball bat.  Following this incident the deceased was chased by the Defendant and at least two of the co-accused.  Minutes later the deceased stopped and stood by a lamppost outside his house.  He was surrounded by a number of youths probably from the Meadows area of Nottingham.  The deceased stood there for a short period of time arguing with another man who was standing beside him.  The evidence was that he either had his hands by his side or in his pockets.  The evidence showed that whilst standing there the deceased was struck to the right hand side of his head by a blow with a baseball bat delivered by the Defendant.  The Defendant had come round from behind the deceased and caught him unawares.  The pathologist’s evidence was to the effect that the blow was of such force that it fractured the deceased’s skull and caused severe brain damage.  The deceased died in hospital on 4 August 1993.  The Defendant disappeared from the scene of the incident but was arrested on the following day.  He made no comment to all questions asked by police officers and did not give evidence.  His defence as put by his counsel was that the decease was at all times carrying a meat cleaver which he used to threaten the Defendant and others.  It was suggested that the deceased was the aggressor and that the blow was delivered in order to disarm the deceased but accidentally struck his head.

The Defendant had three previous convictions for violence the last of which was an offence of wounding when he struck a young man on the head with a stick causing an injury which required sixteen stitches.  Since he refused to answer questions asked by police officers and gave no evidence, it was impossible to detect in him any trace of remorse.  My overall impression of him based upon the evidence in court and his antecedent history was that he was a violent young man who is likely to be a danger to the community for some years to come.”

9. The judge’s view of the length of detention necessary to meet the requirement of retribution and general deterrence was:

“14 years.  But for the Defendants age, I would have recommended a longer period.”

10. The Lord Chief Justice agreed, and, in the event, the Home Secretary imposed a term of 14 years. The Home Secretary considered some lengthy representations from the applicant, in which it was emphasised by him that these offences were not premeditated; he was only 18 at the time; his earlier offences were committed whilst he was very immature; he considered he had been unfairly treated in comparison with his co-accused; and his attitude in prison ha been good.

The Statutory Regime
11. By virtue of paragraph 3 of Schedule 22 a prisoner serving a mandatory life sentence who has been notified by the Secretary of State of a minimum period (“the tariff”) which in his view should be served before the prisoner is released on licence and whose term has not expired, may apply to the High Court for a reduction in that period. Paragraph 3(1)(a) provides that the High Court may not set a minimum period which is greater than the notified tariff.  The significance of this minimum period is that it is only thereafter that the Parole Board can direct the prisoner’s release on licence assuming first that the Secretary of State has referred his case to the Board and secondly that the Board is satisfied that it is no longer necessary for the protection of the public that he should be confined:  see section 28(5)-(8) Crime (Sentences) Act 1997.
12. Paragraph 4 of Schedule 22 provides:
“(1)  In dealing with an application under paragraph 3, the High Court must have regard to –
(a)  the seriousness of the offence, or of the combination of the offence and one or more offences associated with it,

(b) where the court is satisfied that, if the prisoner had been sentenced to a term of imprisonment, the length of his sentence would have been treated by section 67 of the Criminal Justice Act 1967 (c. 80) as being reduced by a particular period, the effect which that section would have had if he had been sentenced to a term of imprisonment, and

 (c) the length of the notified minimum term or, where a notification falling within paragraph 2(b) has been given to the prisoner, to the fact that such a notification has been given.
(2) In considering under sub-paragraph (1) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, the High Court must have regard to –
(a) the general principles set out in Schedule 21, and

(b) any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence.”


13. To identify the general principles involved in determining the minimum term set out in Schedule 21, I turn to the starting points set out in paragraphs 4 to 6 in these terms:
“4. (1) If –
(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and
(b) the offender was aged 21 or over when he committed the offence,
the appropriate starting point is a whole life order.
(2) Cases that would normally fall within sub-paragraph (1)(a) include –
(a) the murder of two or more persons, where each murder involves any of the following –
(i)  substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,
(b)  the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(c) a murder done for the purpose of advancing a political, religious or ideological cause, or
(d) a murder by an offender previously convicted of murder.
5. (1) If –
(a) the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and
(b) the offender was aged 18 or over when he committed the offence,
the appropriate starting point, in determining the minimum term, is 30 years.
(2) Cases that (if not falling within paragraph 4(1)) would normally fall within sub-paragraph (1)(a) include –
(a) the murder of a police officer or prison officer in the course of his duty,
(b) a murder involving the use of a firearm or explosive,

(c) a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),
(d) a murder intended to obstruct or interfere with the course of justice,
(e) a murder involving sexual or sadistic conduct,
(f) the murder of two or more persons,
(g) a murder that is racially or religiously aggravated or aggravated by sexual orientation, or
(h) a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.
6.  If the offender was aged 18 or over when he committed the offence and the case does not fall within paragraph 4(1) or 5(1), the appropriate starting point, in determining the minimum term, is 15 years.”
14. Having chosen a starting point, the court is enjoined to take into account any aggravating or mitigating factors to the extent not allowed for in the choice of starting point (paragraph 8) and then, in the light of a detailed consideration of these factors, to determine a minimum term of any length (whatever the starting point) or a whole life order (paragraph 9).  The aggravating and mitigating features set out in paragraphs 10-11:
“10. Aggravating factors (additional to those mentioned in paragraph 4(2) and 5(2)) that may be relevant to the offence of murder include –
(a) a significant degree of planning or premeditation,
(b) the fact that the victim was particularly vulnerable because of age or disability,
(c) mental or physical suffering inflicted on the victim before death,
(d) the abuse of a position of trust,
(e) the use of duress or threats against another person to facilitate the commission of the offence,
(f) the fact that the victim was providing a public service or performing a public duty, and
(g) concealment, destruction or dismemberment of the body.
11. Mitigating factors that may be relevant to the offence of murder include –
(a) an intention to cause serious bodily harm rather than to kill,
(b) lack of premeditation,
(c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c. 11)),  lowered his degree of culpability,
(d) the fact that the offender was provoked (for example, by prolonged stress) in a  way not amounting to a defence of provocation,
(e) the fact that the offender acted to any extent in self-defence,
(f) a belief by the offender that the murder was an act of mercy, and
(g) the age of the offender”

The applicant’s past

15. Notwithstanding his relative youth, Mayor has a bad criminal record which includes two convictions for assault occasioning actual bodily harm, one conviction for affray and once conviction (in October 1993) for wounding.

Recent representations and the applicant’s progress in custody

16. In helpful written submissions, Bhatt Murphy, on the applicant’s behalf, have advanced the following main factors for this court to take into consideration:

i) the applicant now fully accepts he was properly convicted of this offence, although it is suggested Mayor was only armed with a baseball bat because he feared the victim may have been armed (that said, he now expresses remorse for his actions);

ii) it is suggested a minimum term of 14 years inadequately reflected the mitigation afforded by his age;

iii) his progress in custody has been exemplary and justifies a reduction at this stage in the tariff;

iv) the average starting point at the time of this offence was 12 years;

v) if the applicant had been slightly younger, the sentence would have been detention at Her Majesty’s pleasure, which automatically carries a “welfare component”.

vi) certain tariffs set in other cases are rehearsed;

vii) taking into account what is said to be the guidance set out in the relevant Practice Direction, the minimum terms set in other cases and the particular relevant factors in the instant case, a minimum term of no more than 12 years should have been set.

17. The applicant is now in an open prison conditions at HMP Sudbury. The Parole Board recently commented:

“(The applicant) has used his time in custody well. He had no adjudications at Swinfen Hall where he was in 1995. He showed signs of motivation and the need to change his thinking. In Gartree he continued his good behaviour. Not adjudications there either. He achieved enhanced status … He has worked hard to understand his offending behaviour and put into practice strategies learned from his prison behaviour and his Christian faith.

He maintained his good behaviour and record at Blundeston and now recognised angry feelings and used self calming techniques. He has maintained his good progress at Ashwell and in the Langham Unit. The seconded probation officer is of the opinion that risk has reduced significantly.

He is reported as having worked extremely hard in all areas of risk reduction… The Lifer manager has no hesitation in recommending a transfer to open conditions …

Having considered all these matters the panel consider it is right to recommend that he be transferred to a category D prison, preferably near his family. The panel considers that the risk of serous offending has been greatly reduced and there is a minimal risk of absconding.”

18. The reports that have been prepared during the applicant’s imprisonment reflect his polite and respectful attitude; he is known to be a committed Christian and he has been given certain jobs that have carried both responsibilities and privileges (such as acting as the prison barber). He has taken advantage of the educational opportunities provided to him, and he has completed Anger Management, Drug Awareness, Reasoning and Rehabilitation, Assertiveness and Decision-Making and Transactional analysis courses. He has also taken courses in bricklaying and electrical house wiring. He has given up boxing because he considers it an unacceptably aggressive sport.

19. Notwithstanding the terrible nature of this offence, there is little doubt but that the applicant is progressing down the path of turning into an intelligent and mature young man (see para 3.8 Rachel Cooper’s psychological report dated 21 October 2003).

20. As I have already outlined, it is contended on behalf of the applicant that his excellent progress in prison custody justifies a reduction in the minimum term.  The 2003 Act does not refer to this as a factor to be taken into account, although that is not determinative.  In Andrew Cole, Philip Rowland and Steven Hawkes v Secretary of State for the Home Department [2003] EWHC 1789 Admin, prior to the passing of the Act, Rose LJ considered (at paragraph 88) that if the legislation were to be enacted as then contemplated, it was “inconceivable, in human terms” that exceptional progress in prison would not be taken into account.

21. In order for that progress to be taken into account, however, the progress has to be exceptional.  Rose LJ referred to the evidence before the court of the then policy of the Home Secretary, which included the following passages which are taken from the statement of Mr Morris, the Head of the Tariff Section in the Lifer Unit:

"… the Home Secretary remains open to the possibility that he would review an existing tariff where wholly exceptional circumstances are shown.  Such exceptional circumstances might include, for example, a prisoner whose tariff had not long to run who displays exceptional bravery in preventing the death or serious injury of a member of staff or fellow prisoner, or in preventing the spread of fire which would have otherwise caused extensive damage or loss of life (para 5).”

“The Home Secretary has never issued a definition of what constitutes progress in prison. Cases are considered on an individual basis and exceptional progress has to stand out clearly from the good progress in prison that is expected of all mandatory life sentence prisoners. In broad terms the Home Secretary would look for 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. Examples would be acting as a Listener (helping vulnerable prisoners), helping disabled people use prison facilities, raising money for charities, and helping to deter young people from crime. Again there would need to be evidence of sustained involvement in at least two prisons over a lengthy period (para 10)".

22. In relation to the case which was then before the court, Rose LJ did not consider that a prisoner who was part of the Listeners’ Scheme, had done considerable work on his offending behaviour, showed significant remorse and who was working four days a week outside the open prison in which he was detained and one day on an Open University degree course in prison had shown himself to be sufficiently exceptional to require his progress to be taken into account when determining his tariff.

The Decision in this case

23. The first question for me on this application for a reduction of the minimum term is whether there is a justifiable basis for differing from the views of the judges originally charged with advising on this topic and the Secretary of State who had responsibility for fixing it. I note that if this case came for sentence today, the starting point pursuant to paragraph 6 would be 15 years.  Furthermore, contrary to the submissions advanced on behalf of the applicant, prior to the implementation of the Criminal Justice Act 2003 and following the Practice Direction (Crime: Mandatory Life Sentences) (No 2), 29th July 2004 (supra) 14 years was to be taken as the period to be served for the ‘average’, ‘normal’ or ‘unexceptional’ murder with youth being one of a number of mitigating factors (this being an offence committed before 31 May 2002 (see para IV.49.17 & 18)).

24. Against that background, my conclusion on this first question can be shortly stated. This applicant delivered a savage blow to the head of the deceased, who he caught unawares: the force was such that it fractured the victim’s skull and caused severe brain damage. Although the applicant was able to pray in aid his youth, balanced against that mitigation was both the severity of this attack and his previous convictions for violence.  Bearing those particular matters in mind, as regards the tariff originally set, I can find no basis for differing from the consistent views to which I have referred.  If sentenced today, it is likely that Thomas would receive a tariff in the 14 – 16 year bracket, and, moreover, a minimum term of 14 years, when 14 years was to be taken at the time as the minimum period to be served for an “average” or “unexceptional” murder, cannot be criticised when the mitigating and aggravating circumstances are weighed in the way I have outlined.

25. The second question, therefore, is whether Mayor’s progress since this sentence was imposed justifies any reduction in the tariff at this stage. I have anxiously considered this suggestion. The evidence summarised by Rose LJ indicates, in all probability, that not many of those applying for a review will be able to take advantage of progress in prison as a basis for justifying a reduction in what should otherwise be the minimum term, and that the applicant will usually need to have demonstrated a strong element of “selfless” behaviour during a significant part of this time in detention, in the sense that he has undertaken important work for the benefit of others (as well as addressing his own position in truly positive ways). On the basis of all the material I have seen, this applicant is due significant praise for the approach he has adopted whilst in custody. His attitude has been, in the main, consistently excellent and these matters have been considered very carefully by the Parole Board, and have, properly, operated to his advantage. However, what is missing as far as the tariff period is concerned is the long-term work and activity on his part directed at others – the “selfless” element referred to above – and in the result I am unable to find that this applicant’s case comes within the (narrow) exceptional category described by Mr Morris. This will have seemed a long tariff period for a young offender, but on careful analysis there are no proper grounds for disturbing it at this stage.

26. In the circumstances, I am of the clear view that the appropriate minimum period which Mayor must serve before the early release provisions are to apply to him is 14 years.  From that period is to be deducted the period of remand in custody, namely 15 months 22 days.  For the avoidance of doubt, save for the reduction to reflect the period served on remand, the minimum period is unaltered.


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