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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: [2006] EWHC 2779 (QB)

Case No: 2004/897/MTS

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL


Date: 20/11/2006

 

Before:

MR JUSTICE JACK
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Reference by the Secretary of State for the setting of a minimum term pursuant to paragraph 6 of Schedule 22 of the Criminal Justice Act 2003 in respect of Nicholas Walters.


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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.


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MR JUSTICE JACK

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DECISION
Mr Justice Jack:
 
1. This is a reference by the Secretary of State under paragraph 6 of Schedule 22 of the Criminal Justice Act 2003 for the making of an order under section 269(2) or (4) of the Act in respect of the life sentence passed on Nicholas Walters on 2 December 2002.  An order under section 269(2) would provide that the early release provisions apply to him as soon as he has served the part of the sentence to be specified in the order.  The effect is that when the specified part of the sentence has been served he is eligible for release on licence if the Parole Board so directs.  It is commonly called ‘the minimum term’.  An order under section 269(4) would provide that the early release provisions shall not apply.
2. The applicant was sentenced to life imprisonment for the murder of a police officer, PC Walker, following his trial.  The recommendation of the trial judge (Mr. Justice Hunt) was that he should serve 18 years before he might be released on licence.  The Lord Chief Justice did not make a recommendation.
3. I have received written representations on behalf of the applicant in support of the application.  I have been asked to hold an oral hearing if I am of a mind to reject the submission that I should approach the case on the basis that it cannot be safely concluded that there was an intention to kill.  I will revert to the question of an oral hearing.
4. Paragraph 7 of Schedule 22 provides:
“In considering under subsection (3) or (4) of section 269 the seriousness of an offence (or the combination of an offence and one or more offences associated with it) in a case referred to the High Court under paragraph 6, the High Court must have regard not only to the matters mentioned in subsection (5) of that section but also to 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.”
Section 269(5) provides that in considering the seriousness of the offence the court shall have regard to the general principles set out in Schedule 21 and any relevant guidelines relating to offences in general which are not incompatible to the provisions of Schedule 21.  Paragraph 8 provides that the court shall not make an order which is longer that would have been likely to have been notified by the Secretary of State under his practice before December 2002.
5. The facts relating to the murder itself as stated by the trial judge in his report to the Home Secretary were as follows.
“Male aged 22 with criminal history including robberies.  Buys new pump action shotgun for £500 within weeks of release on licence.  Intend to us it to rob jeweller’s shops.  Steals car and crashes it.  Shotgun found at his him.  Later steals another car.  Drives it recklessly.  Police motorcyclist gave chase and stopped him.  He reversed car at the policeman who avoided him and drove around him.  He went after the policeman chasing him with the car for about a quarter of a mile when he could easily have turned another way.  He drove into the rear of the motorcycle in such a way as to fling the policeman into a bollard and kill him.  He drove off.  Displayed no remorse in covert tapes.”
6. The judge had also to deal with other offences.  In passing sentence he stated:
“You are now aged 22 and a young criminal with a considerable history which includes previous offences of robbery and the like.  Within days of release from your last sentence, you began to offend again.  The first matters that I have to deal with you for are the theft of a sports car which you took from a forecourt and drove incredibly dangerously when disqualified.  The appropriate sentences on those offences are three years, one year and six months respectively.  You purchased a self-loading shotgun referred to you by the name of a “pumper”, a top of the range illegal weapon in your possession.  The sentence for that, which was the first count on the indictment, is one of eight years.  On the other counts on the indictment, that is 2, 3 and 4, the sentence will be three years on each.  All of those sentences will be made concurrent with each other.  That is a total of eight years for those matters.  On the matter which brought you before this jury, you stole a car and you drove it so dangerously that a police motorcyclist, doing his duty, gave chase to you.  You stopped.  You reversed at him with your stolen car.  It is plain you meant to hit him.  You missed him because he managed to drive round you.  You literally went after him.  It is quite plain you were determined to get him.  You chased him with a stolen car.  You caught up with him and using that stolen car as a weapon, you then deliberately drove into the rear of his motorcycle and knocked him into a bollard where he lost his life.  It was, indeed, a pointless death of a police officer doing his duty, as so many do up and down the country every day and you drove off regardless of his fate.  When you answered the car owner’s telephone in the minutes afterwards, having left him dying on the bollard, you displayed the very reverse of remorse or regret and you have persisted in that, not only in the covert tapes, but in the conduct which I have seen you display in the courtroom since.  As you know, the sentence for murder is fixed by law and it is one of life imprisonment.  That sentence I now pass and it will be passed to run concurrently with the eight years on the other offences.”
A sentence of 3 years concurrent was passed for the theft of the second car.
7. The trial judge gave as an aggravating feature in respect of the murder “Determined pursuit of a police officer with intent at least to cause really serious injury.”
8. The trial judge was in a much better position to form a view of the intent of Walters than I could be even if I had a hearing at which I heard counsel for Walters on the issue.  I would not consider an oral hearing helpful.  The trial judge set out his view.  He did not conclude that Walters intended to kill.  He did conclude that he deliberately drove into the back of the motorcycle.  That was inherently a very dangerous act putting the officer’s life at risk even if there was no intent to kill.  That is the basis on which I should approach the minimum term.
9. Walters had a large number of previous convictions.  They included on 14.5.97 robbery – 2 years YOI, on 4.9.97 aggravated vehicle taking – 6 months YOI, and on 12.7.00 dangerous driving (among other offences) 18 months.  He was born on 22 July 1980 and so was 20 at the time of the murder.
10. I begin by considering the position under Schedule 21 of the 2003 Act.  Paragraph 5 provides that the murder of a police officer in the course of his duty will normally have a starting point of 20 years. Relevant matters listed in paragraph 11 as matters of mitigation include “an intention to cause serious bodily harm rather than to kill”, “lack of premeditation”, and “the age of the offender”.  In addition to the application of Schedule 21 to the facts of the case I must have regard to the recommendations of the trial judge 18 years as a minimum term.
11. The minimum term should not be longer than that likely to have been set under previous practice.  I should take the practice followed by the Secretary of State in at the time of sentence from the letter of Lord Bingham to judges dated 10 February 1997: see Sullivan [2004] EWCA Crim 1762.  That gave 14 years as the period to be served for the ‘average’, ‘normal’ or “unexceptional” murder.  Lord Bingham included the killing of a policeman as an aggravating feature and “the absence of an intention to kill” and “spontaneity and lack of premeditation” among mitigating factors.  The approach set out in Lord Bingham’s letter would have been in the mind of the trial judge when he recommended 18 years in this case.
12. I have been provided with a copy of the statement of the Home Secretary to the House of Commons made on 30 November 1983 which stated that, among others, murderers of police officers should have to serve at least 20 years.  I have a note from the Home Office dated 22 April 2004 that this was the practice followed from that date to December 2002.  It is not reflected in Lord Bingham’s letter of 10 February 1997 nor is it referred to in the judgment delivered by the Lord Chief Justice in Sullivan [2004] EWCA Crim 1762.  But I have no reason to doubt that it is a correct statement of the practice.
13. I do not think that in the circumstances it is helpful to consider further what the appropriate sentence would be applying Schedule 21 of the 2003 Act.  That is because the exercise will result in a sentence at least equal to and probably longer than that under the previous practice.  Applying that practice it is a seriously aggravating feature that the murder was of a policeman.  It is also an aggravating feature that the murder was committed while Walters was engaged in criminal conduct – driving a stolen car.  I have set out my approach to intent in paragraph 8.  In the circumstances the mitigating effect of the lack of a proven intent to kill is much reduced.  Likewise when the murder takes place in circumstances as here the mitigating effect of a lack of premeditation is reduced.  I have concluded bearing in mind also the age of Walters at the time, 20 years, a minimum term of 18 years is appropriate.  Given Walter’s age at the time that is also not inconsistent with the policy I have referred to above in paragraph 12.
14. I have concluded that balancing the various factors a minimum term of 18 years is appropriate.  There must be deducted from the 18 years the time spent in custody prior to sentence, namely 13 months and 16 days.  It is therefore ordered that the early release provisions apply to Nicholas Walters when he has served 16 years and 318 days commencing with his sentence on 2 December 2002.
15. Lastly I should say that I have read a letter from PC Walker’s wife as to the effect of his death on her and their children.


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