Cymraeg | Access Keys | Site Map | Feedback
Legal / Professional
 
Advanced search

Minimum terms

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



<< Back

 

Neutral Citation Number: [2007] EWHC 2703 (QB)

Case No: 2004/1056/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/11/2007

Before :

THE HONOURABLE MR JUSTICE COOKE
- - - - - - - - - - - - - - - - - - - - -


 R 
 - v - 
 KENNETH ERSKINE 

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Neither party was represented

Hearing dates: 12-29 January 1988
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


.............................

THE HONOURABLE MR JUSTICE COOKE


 
Mr Justice Cooke :
 
1. This is a reference by the Secretary of State under schedule 22 paragraph 6 of the Criminal Justice Act 2003 in relation to the minimum period which should be served by the applicant before being eligible for release on licence.  The period recommended by the Trial Judge on 1 February 1988 was "40 years minimum for murders".  The Lord Chief Justice stated that "This is one of those rare cases where life imprisonment should mean what it says, from the point of view of punishment and quite apart from questions of risk.  The Judge's figure on that basis is one with which I do not disagree".  As the applicant was 24 at the time, it appears that the Lord Chief Justice was effectively equating a 40 year minimum term with "life" and was agreeing that 40 years was the appropriate minimum period. 
2. The Home Secretary never set a minimum period but by letter of 21 March 1996 stated that all that had been done was to fix the first formal review by the Parole Board after 17 years, following a predecessor's announcement on 1 March 1985 that no life sentence prisoner would be detained for more than 17 years without a formal review by the Parole Board, even where the tariff exceeded 20 years.  That letter referred to a decision in 1988, as to the first formal review date, "implying that in his view a tariff of at least 20 years was justified".  His comment was set out as follows:-  "I agree with Division but I think that this man should never be released.  The killing of 7 people merits a full life sentence - not to mention risk."
The letter of 21 March 1996 makes it plain that no exact tariff had been set. 
3. In these circumstances the provisions of schedule 22 paragraphs 5-8 apply.  The court may therefore not make an order under section 269(4), ordering that the early release provisions are not to apply to the applicant, unless the court is of the opinion that, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify the applicant that he did not intend that the applicant should ever be released on licence.  Equally, the court may not make an order under section 269(2) setting a minimum 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 notify as the period which should be served before the applicant's release on licence.
4. I have received detailed submissions on behalf of the applicant with a large bundle of documents including a considerable number of psychiatric and medical reports both pre-dating and post-dating sentence, right up to 2006.  All of these fall to be taken into account as affecting the seriousness of the offences of which the applicant was convicted.  I do not consider that the matter would be further advanced by an oral hearing in the light of the very full submissions made which I have carefully studied. 
5. In dealing with this application I have had regard to the matters specified in section 269(5), schedule 21 and schedule 22 of the Act and in particular to the seriousness of the offence and the recommendations made to the Secretary of State by the Trial Judge and the Lord Chief Justice. 
6. At the time of the offences the applicant was aged 22/23 and was 24 at the date of sentence, 29 January 1988.  As of the latter date he had spent 551 days in custody on remand.
7. The Trial Judge's report to the Home Secretary was commendably brief referring to the 7 murders of which the applicant was convicted in the following terms:-
"Manual strangulation of male and female victims aged between 67 and 94 in their homes.  Buggery of 5 of the victims at or about the time of death."
The only issue before the court was whether the applicant was the strangler.  No medical issue was raised before the jury but the Trial Judge's report referred to psychiatric evidence which "indicates probable schizophrenia and severe abnormality from an early age".  The Trial Judge, it appears, had available to him, at the time of his recommendation, a report from a psychologist, Mr Sharrock dated 20 January 1987, a report of a psychiatrist Dr Bowden of 9 November 1987 with appendices 1, 2 and 3 dated 7 January and 27 January 1988, together with a report from the Probation Officer who had supervised the applicant from April 1976, effectively through to 1985.  Reports from Dr Hamilton, Dr MacKeith, produced before or during the trial on the instructions of the applicant's solicitors may or may not be made available to him.  For the reasons given later, I consider that they were.
8. A considerable body of further psychiatric and medical reports, which have been produced since trial whilst the applicant was in secure hospital accommodation, has been presented by the applicant's solicitors as part of this application.  In reliance upon these materials, the applicant's representatives submit that there is "clear and overwhelming evidence that the applicant suffered from severe mental disorders at the time of the offences and that these substantially reduced his culpability".  The effect of these reports, it is submitted, is that, at the time of committing the offences, the applicant suffered from an abnormality of mind within section 2 of the Homicide Act 1957 which substantially diminished his responsibility.  It is said that this defence was not run at the trial because of the applicant's denial that he was the person responsible for any of the killings or the attempted murder.  It is submitted that the applicant suffered from a psychopathic disorder and from schizophrenia.  In particular, reliance is placed upon a report of Dr Horne dated 17 March 2006 in which there is reference to an assessment in September 2004.  In the report it is stated that the applicant would have met the criteria for an anti-social personality disorder at sentence but that this was no longer the case at the time of the assessment.  Dr Horne considered that this was strong evidence against the idea that the murders were driven by a grossly abnormal personality and therefore strongly suggested that his schizophrenic illness played a large part in the causation of the offences.  He concluded that, at the time of the offences, the applicant was suffering from chronic schizophrenia and anti-social personality disorder and that this had probably been the case since March 1980.  Had Dr Horne seen him at the time of his remand into custody prior to trial, he would have diagnosed schizophrenia and supported a defence of diminished responsibility. 
9. Immediately following sentence on 29 January 1988, the applicant was transferred to Broadmoor Hospital under sections 47 and 49 of the Mental Health Act by direction of the Secretary of State.  This must have been on the basis of reports from at least 2 registered medical practitioners and a restriction direction was made under section 49 which, although I have not seen it, must have been "without limit".
10. At the time of sentence there were in existence reports from Dr Bowden, Dr Hamilton and Dr MacKeith, which referred to personality disorder manifested since childhood and schizophrenia and recommended admission to a maximum security special hospital on a hospital order and a restriction order unlimited in time.  It is clear that the Trial Judge must have had Dr Bowden's report to hand at the time of making his recommendation and it would be highly surprising if the defence had not made available to the Judge their own medical and psychiatric reports at the time of sentencing and the recommendation made by him.  In my judgment, it is therefore clear that the Trial Judge, in making his recommendation had due regard to the state of the medical and psychiatric evidence at the time.  In such circumstances he must have considered the possibility that the applicant did suffer from an abnormality of mind which fell within section 2 of the Homicide Act.
11. I am informed that the applicant has lodged an application for an extension of time and for leave to pursue a late appeal against conviction, on the basis of all the medical evidence which, it is to be submitted, shows substantial impairment of responsibility of the applicant for his actions by reason of an abnormality of mind.  None of these reports were put before the jury but, for the reasons I have already given, it appears to me that those available at the time must have been before the Judge at the time of his recommendation.  I see no reason not to proceed with setting the minimum term because of the existence of the application for an extension of time and leave to appeal.  My function is to determine the minimum term and a life sentence for murder, whilst the Court of Appeal will consider whether that conviction should be upheld or whether it should have been a conviction for manslaughter by reason of diminished responsibility.
12. Whilst the Trial Judge's description of the offences was brief, it is probable that more was said in the sentencing remarks which are now no longer available.  In the applicant's submissions, details of the prosecution allegations are set out in paragraph 7.2-7.4.  These refer to evidence that there had been anal penetration of 2 of the victims, whereas the Judge regarded the evidence as showing that this had happened to 5 of them.  The 7 murders were plainly all brutal and whether buggery occurred before or after death is unclear.  All the victims were aged between 67 and 94 and lived alone or in single rooms in old people's homes.  The murders were all committed by strangulation with the hands and in most cases there were rib fractures which are thought to have resulted from the applicant jumping onto the chest of the victim.  In some cases there were fractures to the hyoid bones in the throat and in 2 cases also to the spine.  There was evidence of blows and, in some cases substantial bruising to the face, the neck, the shoulder, chest and ribs.  The attempted murder involved an attempted strangulation of an old man in bed between 3 and 4 in the morning.  The victim picked the applicant out in an identification parade.  In police interviews the applicant accepted having entered some of the properties of the victims in order to commit burglary (which explained the presence of his fingerprints) but maintained he had not killed or attempted to kill anyone.  He maintained that defence at the trial but did not give evidence and no psychiatric evidence was called on his behalf. 
13. I have considered the submissions made and the criteria I am required to apply under the Act and its schedules.  I have had regard to all the medical and psychiatric evidence put before me in assessing the seriousness of the murders and the culpability of the applicant.  The gravity of the conduct and its consequences are self-evident.  Nonetheless, in the light of the psychiatric evidence I have come to the conclusion that I should not make an order under section 269(4) that the early release provisions are not to apply to the applicant and therefore order that the provisions of section 28(5)-(8) of the Crime Sentences Act 1997 are to apply when the applicant has served the part of the sentence which is specified in this order.  Although it appears that the Secretary of State in 1988 would have been likely to notify the applicant that he did not intend that he should ever be released on licence, had that been the contemporary practice, the letter of 21 March 1996, in referring to the Trial Judge's report makes no reference to the psychiatric evidence to which the Trial Judge himself referred.  But for that psychiatric evidence, I would have taken the same view as the Secretary of State at the time and would have considered that the multiplicity of offences and their seriousness would mean that the early release provisions were not to apply.  The Trial Judge however, taking into account the psychiatric evidence concluded that 40 years was the appropriate tariff and the Lord Chief Justice did not disagree with that.
14. When regard is had to schedule 21 of the Act, the seriousness of the offence is exceptionally high and would justify a whole life order if there was no reduction in responsibility.  It is not for me to second guess the jury's verdict, or any application for leave to appeal.  Paragraph 11(c) of schedule 21 is of application here, if the applicant at the time of the murders suffered from a mental disorder or mental disability which lowered his degree of culpability, without falling within section 2(1) of the Homicide Act 1957.  The Trial Judge had the benefit of hearing the evidence and of psychiatric reports which were written at the time and described his condition then, without the complication of later reports which may reveal a different condition following treatment in hospital.  He plainly took that into account and would have had the issue of diminished responsibility in mind, even though the point was not run before the jury.  It is inevitable that such matters would have been in his consideration whether or not he was addressed on the medical evidence with regard to the recommendation he had to make.
15. As I have decided against a whole life order, the appropriate starting point in determining the minimum term is 30 years because there was a murder of two or more persons where the murders involved sexual conduct and, notwithstanding the submissions of the applicant's representatives, a significant though unsophisticated degree of planning and pre-meditation.  I do not accept, as the Trial Judge did not accept, that these were merely planned burglaries where a murder had been committed as a by-product, to avoid recognition.  These were planned murders of targeted elderly, vulnerable victims.  The sheer volume of murders carried out in a short period of time, when coupled with the degree of planning, the vulnerability of the victims, the mental and physical suffering inflicted before death, including sexual assault or the further sexual conduct involving penetration after death, necessarily involves an increase from the starting point to a figure of 40 years, as the Trial Judge recommended.  These crimes are so horrific, that, in the absence of the psychiatric evidence, as I have already said, a whole life order would necessarily be imposed.
16. For the reasons set out above and taking into account all these factors, including the period spent on remand which would have been credited to him had he been sentenced to a fixed term of imprisonment and the progress made in hospital, I order that the early release provisions will apply to the applicant as soon as he has served 40 years in prison from the date of his conviction less the period of 551 days spent in custody on remand.  I emphasise for the sake of any members of the public present that my decision does not mean that the applicant who has received seven life sentences will ever be released. 
17. The applicant is currently receiving treatment at a secure hospital.  Whether or not it will ever be safe or appropriate to release him when the 40 year period expires is a matter for the Parole Board in the light of all medical evidence available at the time.


^ Top
This page was last updated on 24 November 2006 11:58. Web team.
Contact us . Terms and conditions .