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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: [2007] EWHC 2451 (QB)

Case No: REF NO 2006/84/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MTR

At Birmingham Crown Court

Date: 09/11/2007

 

 


Before :

THE HON MR JUSTICE LANGSTAFF

 

IN THE MATTER OF AN APPLICATION BY PHILLIP DARREN MCDAID

 

Pursuant to Paragraph 3, Schedule 22 of the Criminal Justice Act, 2003.


 
Mr Justice Langstaff:
 
D E T E R M I N A T I O N


1. On 1st. December 1999 Phillip Darren McDaid was convicted at Bristol Crown Court before Mr. Justice Jackson of an offence of murder, committed on 18th. December 1998.  He was sentenced to life imprisonment, with a recommendation by the trial judge made on the 6th. December 1999 that he should serve a minimum period of 14 years imprisonment before consideration for early release.  He had served 11 months and 9 days on remand prior to his trial.

2. On 14th. December 1999, the Lord Chief Justice, Lord Bingham, recommended to the Home Secretary that he impose a tariff of 14 years.
3. On 18th. September 2000 the Home Secretary notified a minimum term of 14 years.

4. I am now asked to review the minimum term, pursuant to the provisions of paragraph 3 of Schedule 22 to the Criminal Justice Act 2003.

Facts of the Offence

5. The facts, taken from the papers before me, show the following.

6.  The Defendant was, at the date of the murder, 26 years old. 

7. After drinking heavily, the Defendant returned to his flat in Gloucester where he had a violent altercation with his girlfriend.  For no apparent reason he then took a knife from his kitchen, and fatally stabbed his next door neighbour, against whom previously there was no particular animosity, and who had not been involved in the domestic dispute.
8. The unchallenged account of the Defendant was that he had no recollection of the stabbing.   
9. The trial judge said of the murder that an aggravating feature was that the Defendant had previously lost his temper whilst drunk and caused substantial damage to property, yet knowing of his propensity to do this had drunk excessively at a time when he was extremely angry with his girlfriend.  Another was that he used a knife.
10. However, he regarded the severity of the offence as mitigated by the fact that the Defendant would not have acted as he did had he been sober, and was genuinely remorseful for the killing.
11. The Defendant had a criminal record, though it was short. In July 1996 he was convicted of communicating false information causing a bomb hoax, for which he was sent to prison for 12 months.  The other matters related to driving whilst drunk.
Representations
12. Michael Purdon, Solicitor for the applicant, argued in written representations to the Home Office received on 13th. September 2006  that the tariff should be reduced by a year, since no aggravating factor as identified by paragraph 11 of Schedule 21 to the 2003 Criminal Justice Act, and only one identified by Lord Bingham C.J. in a letter of 10th. February 1997, is present, whereas three mitigating features are - an intention to cause serious bodily harm rather than to kill (paragraph 11(a) of the Schedule), lack of premeditation (paragraph 11(b)), and genuine remorse (a feature not actually listed in paragraph 11).
13. Further, it is argued that the Defendant’s prison reports show how he has tried to better himself whilst in prison.  He has undergone 5 offending behaviour courses, listed for me, which are said to have had a positive and beneficial effect on him, he has completed educational courses, holds enhanced status, and has shown exemplary behaviour.  He has been trusted as a hospital red band orderly and wing cleaner.  Michael Purdon argues this should further reduce the tariff by another year, with the period spent on remand to be further deducted.
14. I have received no representations on behalf of the victim’s family. 
15. I have been asked for an oral hearing.  Statute itself provides (Paragraph 11, Schedule 22)  that the term should be set by me without such a hearing, although I have the power to depart from that in those exceptional cases where the interests of justice demand it (see R v Secretary of State for the Home Department on the application of Hammond [2004] EWHC 2753).  An argument has been mounted on paper before me that Articles 6 and 14 of the European Convention on Human Rights and Fundamental Freedoms entitle the defendant to such a hearing as a matter of principle, and that this is in any event an exceptional case in that counsel should be allowed to develop oral representations in relation to the relevance of the letter of 10th. February 1997 and the case of R v Sullivan [2004] EWCA Crim 1762.
16.  In Hammond it was submitted that paragraph 11 of Schedule 22 can, consistently with the approach of the House of Lords in R v A (No 2) [2002] AC 45 (and in particular the principles set out in the speech of Lord Steyn at paragraphs 37, 38 and 44), be read compatibly with Article 6 (1) by making it subject to the implied condition that a High Court Judge may in his discretion order a hearing where he considers such a hearing is required to comply with an existing prisoner's rights under Article 6 (1).  The Home Secretary was prepared to accept that
  “..then it would be open to him to indicate that was the case in his decision and it is our understanding that in those circumstances the Court of Appeal would grant permission and hold an oral hearing on appeal"
17. The Court accepted that there was no necessary incompatibility between Paragraph 11 of Schedule 22 and Article 6(1).  The example selected by the Court of the type of issue which might require such a hearing if it were to be resolved orally was for the judge to hear and test evidence. This echoed the submission of the Home Secretary in the case that a hearing might be appropriate  "if the High Court Judge felt that he could not fairly determine the matter without an oral hearing, for example, if he considers that the prisoner should be cross examined on his evidence….”.
18. There being no necessary incompatibility between the Convention and Article 6, it must follow that Article 14 adds nothing to the argument.  No suggestion has been developed on paper before me why it should do so.
19. The reasons suggested to me for holding an oral hearing in the present case do not relate to determining any issue of fact.  They concentrate on purely legal issues.  I am not told what the oral representations might add to that which the Defendant through his solicitors has advanced in relation to the letter of February 1997, or the case of Sullivan, with which I believe I am familiar and do not therefore need to have it explained to me in oral submissions.  In the absence of any developed or cogent reason why it is necessary to develop any argument orally further than can be developed in writing, I decline to conduct any oral hearing.

Considerations

20. By paragraph 4 (i)(a) of Schedule 22 of the 2003 Act, I must have regard to the seriousness of the offence, and, by paragraph 4(2) of the same Schedule, in considering the seriousness of the offence, I must have regard to the general principles set out in Schedule 21 of the Act and to the recommendations of the trial Judge and the Lord Chief Justice.

21. In addition to the seriousness of the offence, I must have regard to the length of the minimum term notified by The Home Secretary (paragraph 4(i)(c) of Schedule 22).

22. The relevant general principles contained in Schedule 21 are those which indicate starting points relevant to offences of varying degrees of seriousness.  I accept that the circumstances of this offence fall under neither paragraphs 4(1) nor 5(1) of that Schedule, and that accordingly the starting point (emphasising those last two words) is a minimum term of 15 years since Phillip McDaid was over the age of 18 at the time he committed the offence.
23. The list of aggravating factors (at paragraph 10 of Schedule 21) includes no factor present in this case.
24. However, the list of aggravating features in Schedule 21 is not exclusive.  The judge took the view that it aggravated the offence that it was committed in drink when the Defendant knew it was a real risk that he would be indiscriminately violent when drunk, and that the killing involved the use of a bladed weapon. 
25. I can accept the first of these as potentially aggravating, even if it calls for a degree of insight which may be given to few rather than many.  I cannot accept the second, since murder by definition involves killing, and killing is all too frequently achieved by use of a weapon.  A killing by a knife does not seem to me materially to be worse than one by use of a gun, or by slow poisoning, or by brutal kicking and stamping with the shod foot (to take but three examples of instruments of death).
26. Mitigating factors identified by paragraph 11 of Schedule 21, similarly not an exclusive list, include (by paragraph 11(a)) “an intention to cause serious bodily harm rather than to kill”, and (by paragraph 11(b) “a lack of premeditation”. 
27. Since the Defendant could recollect nothing about it, it is very difficult to know what the jury concluded as to the intention of the Defendant, save that they were able to say that he had an intention either to kill or to cause grievous bodily harm. It was not obviously the former, though the killing was by knife which may suggest such an intent to kill rather than the alternative intent for commission of the offence.
28. I do, however, accept that remorse (though not referred to in Schedule 22) is capable of being a mitigating factor, and I accept the judge’s assessment that in this offender’s case it was entirely genuine.
29. Further considerations must be discussed. Section 143 of the 2003 Act requires a court when considering the seriousness of an offence committed by an offender who has one or more previous convictions to treat each previous conviction as an aggravating factor “if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to—  (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction.”  Here the conviction in respect of the bomb hoax is troubling, but in the absence of any evidence of a psychiatric condition, I do not feel able to regard it as the type of offence which should materially aggravate the tariff.  The conviction for “drink driving” may even be more relevant, since it indicates that the point the judge made to the effect that the Defendant was made aware by his conviction and sentence of the risk he posed to others whilst under the influence, if he was not already. However, I have concluded I should not significantly be influenced adverse to the Defendant by the fact of these previous convictions.
Discussion
30. I begin with the sentence I would impose if the defendant were convicted today.  In that case, the starting point would be 15 years, increased slightly by the fact that the Defendant should have known better than to drink whilst enraged.
31. The starting point however assumes that an intention to kill has been established.  Here, there is uncertainty as to what occurred.  To some extent, therefore, the term should be moderated to reflect this (even if it was the Defendant’s doing, or his condition at the time of the killing, that may have precluded a more damning view being taken).
32. Though there are the same difficulties of establishing motivation, he killing does not appear to have been significantly or at all premeditated beyond the extent necessary to constitute the offence itself.
33. Remorse, where genuine, reduces the tariff further. 
34. I turn to look at progress in prison, and the extent to which I may take that into account. In Cole and Others v. The Secretary of State for the Home Department [2003] EWHC 1789 Admin, the Vice-President, Rose L.J. said that in his opinion it was inconceivable that “exceptional progress” by a prisoner following conviction should not be taken into account in setting a minimum term. He did not himself define that which made progress in prison exceptional, as distinct from that which was reasonably to be hoped for, but cited without apparent criticism a passage from an affidavit in front of him which read:

“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”


35. I have accordingly taken the view that progress in prison is relevant, but I should adopt a restrictive approach to the extent to which, if at all, it is such as to justify a reduction in effective sentence which is that which a minimum term constitutes.  
36. In this case, the Defendant has purposefully engaged in programmes in prison.  However, on the necessarily restrictive approach I must take, he does not fall within the criteria accepted by the Vice-President as constituting the exceptional. I have no clear evidence of “good works for the benefit of others” persisted in for over a lengthy period at more than one prison. I therefore can make no allowance for this.
37. Taking these factors into account, it is my view that the mitigating features outweigh those which aggravate the offence: and I would have been inclined to adopt a tariff of 14 years if sentencing today for an offence such as he committed. 
38. The murder was committed before the 18th. December 2003.  s. 269 of the Criminal Justice Act 2003 applies.  A principle of non-retroactivity is applicable, such that I must be satisfied that on review I do not impose a minimum term which is greater than that which would have been imposed under the practice followed by the Secretary of State before 2002.  The best guide to that is a letter sent to judges by Lord Bingham CJ on 10th. February 1997 (only shortly before the offence here was committed), though the minimum term indicated by the Secretary of State is another.
39. In that letter, Lord Bingham CJ indicated that the starting point for an average, normal, unexceptional murder would be 14 years – one year less than the starting point indicated by Schedule 21. 
40. The practice adopted by the Home Secretary was (in general terms) to adopt the recommendation of the Lord Chief Justice in cases other than those of the greatest severity (see R v Sullivan and others [2004] EWCA Crim 1762, particularly at paragraphs 25 (b), 26 and 27). 

Time served on remand

41. The defendant spent 11 months 9 days on remand prior to his sentence.  This time should count towards satisfaction of his minimum term. 

Conclusion

42. I conclude that the appropriate minimum term taking into account all the matters I am required to consider, starting at the point indicated by Schedule 21, and considering the representations both old and new, would be 14 years (15 years as a starting point, with a year less for the mitigating features which I am satisfied would have been treated as such in 1999).  I might have thought that this would indicate a lower tariff still, when retroactivity is considered, were it not for the recommendations of the trial judge and Lord Chief Justice, and the term notified by the Home Secretary. 
43. I am required to take their recommendations into account.  I do not think that, in the light of this, I should differ in the result from that which the trial judge in particular thought appropriate having heard the evidence and seen the Defendant.  Although, therefore, I see no reason to increase this term on review, I think it would be wrong to reduce it for the reasons I have set out.  The views of all three are consistent, and reached at the time.  I therefore conclude that, on review, and subject only to the deduction of time spent on remand, the term should remain as notified by the Home Secretary. 
44. I therefore adopt the term of 14 years as the appropriate one in the present case.  However, the amount of the time spent on remand must be deducted from this term (reducing the figure of 14 years by a total of 11 months 9 days).  This is the term I set, on this review.

 


The Honourable Mr. Justice Langstaff

 

 

 

 

 

 

 


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