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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 264 (Admin)

Case No: 2004/946/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Luton Crown Court
7 George Street, Luton, LU1 2AA

Date: 28/02/2006

Before :

THE HONOURABLE MR JUSTICE BEATSON
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R
v
CHARLES WILLIAM HANSON


Neither party was represented


Hearing dates: 17 April - 2 May 1996
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Approved Judgment


 
Mr Justice Beatson :
1. On 2 May 1996 at Winchester Crown Court Charles William Hanson (hereafter “the applicant”), then aged 50, was convicted of murder and sentenced to life imprisonment.  The period of imprisonment recommended by both the trial judge and the Lord Chief Justice to meet the requirements of retribution and deterrence was 14 years.  On 3 November 1997 the Home Secretary, after considering representations made by the applicant, set the tariff at 13 years. 
2. On 1 September 2004 the applicant applied pursuant to section 276 and schedule 22 paragraph 3 of the Criminal Justice Act 2003 (hereafter “the 2003 Act”) for the determination by the court of the minimum term following which the early release provisions referred to in Schedule 22 are to apply to him and his case can be considered by the Parole Board.  This is my determination of that minimum term.  For the benefit of the applicant, I 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. I have considered the representations and material submitted to the court on the applicant’s behalf, together with the guidance set out in Practice Direction (Crime: Mandatory Life Sentences) (No 2) [2004] 1 WLR 2551 (hereafter “the Practice Direction”).  That guidance reflects the judgment in Sullivan, Gibbs, Elener and Elener [2004] EWCA Crim 1762 as to how to ensure, as section 276 and schedule 22 of the 2003 Act require, that the minimum period for sentences where the offence was, as the applicant’s offence was, committed before 18 December 2003 does not breach the principle of non-retroactivity. 
4. As well the representations and reports and other material initially submitted in support of this application, the applicant submitted further representations and additional material on 12 March, 10 May, 29 July and 21 and 28 November 2005 and 16 January 2006 to notify the Court of developments since his initial application,  in particular his transfer to HMP Blantyre House, an open prison, on 23 March 2005 and progress there.  As well as these documents, I have considered the trial judge’s report to the Home Secretary, the submissions made to the Home Secretary before he set the tariff, and the Home Secretary’s decision setting a lower tariff period than that recommended by the trial judge and Lord Chief Justice.  The family of the deceased were asked whether they wished to make a statement but have not responded.  As I understand to be the usual practice in these cases, no representations have been submitted to me by the Secretary of State.
5. Paragraph 11 of Schedule 22 of the 2003 Act provides that the application is to be decided without an oral hearing.  In this case no application for an oral hearing has been made and I have concluded that this is not one of the “rare cases” (see R (Hammond) v Secretary of State for the Home Department [2004] EWHC 2753 (Admin)) in which an oral hearing is required.
The Background
6. The circumstances of the offence are described by the trial judge, Keene J, in his report to the Home Secretary and in the decision of the Court of Appeal dismissing the applicant’s appeal: [2005] EWCA] (Crim) 1142.  On 25 February 1995 the applicant fatally stabbed his ex-wife as she lay on the ground in the street outside her house in Bournemouth.  It was the prosecution case that the applicant had mounted a frenzied attack on the deceased and stabbed her a number of times with a five and a half or six inch knife: [2005] EWCA Crim 1142, paragraph 2.  The trial judge’s report states that the applicant was an alcoholic with a history of psychiatric problems.  For the previous two years he had been complaining of hearing voices and being persecuted and had two lengthy stays in psychiatric hospitals.  The report also states that on the morning in question he waited in a car near the house where the deceased and his son were living.  When they emerged together, he got out, ran over to them and stabbed her three times with the knife.  Two of the blows were very powerful, one passing through the breastbone and then completely through the heart.
7. The issues at the trial were provocation and diminished responsibility.  Five doctors gave evidence on the issue of diminished responsibility.  There was no dispute between them that the applicant suffered from an abnormality of the mind which impaired his responsibility for the killing to some extent.  The defence psychiatrists took the view that he was suffering from schizophrenia caused by a head injury in 1991 contributed to by a prolonged history of heavy drinking, and that his responsibility was substantially impaired.  The prosecution psychiatrists, however, considered that he suffered from a severe personality disorder combined with alcohol dependency, but that this did not substantially impair his responsibility for the killing.  The jury’s verdict showed they accepted the evidence of the prosecution psychiatrists.  Given the centrality of the psychiatric evidence, I observe that the Court of Appeal stated (paragraph 9) that no criticism is or could be made of the judge’s summing up. 
8. The trial judge commented as follows on the applicant’s degree of dangerousness and likelihood of re-offending: (a) the applicant was described by all the psychiatric witnesses as having a considerable number of mental problems; (b) he is unnaturally aggressive and jealous as well as experiencing periods of depression and paranoia; (c) he seems to present the greatest danger to those with whom he has a relationship, because there is then the greater scope for feelings of jealousy and of being rebuffed; (d) given his mental problems there could also be risks to the wider public.
9. The trial judge preceded his conclusion as to the length of detention necessary to meet the requirements of retribution and deterrence with the following comment:
"There was a modest degree of provocation, in the broad sense, in seeing his son and ex-wife together.  Nonetheless, this seems to have been a planned attack, in that he brought a knife with him and waited for her to emerge from the house.  The attack was carried out with great violence.  The jury's verdict indicated he was to be seen as responsible for his actions, despite his mental problems."
    The Lord Chief Justice stated that he agreed with the trial judge’s assessment.
10. On 28 April 2005 the applicant's appeal against his conviction came before the Court of Appeal (Criminal Division).  The main ground upon which leave had been given was the implication of two MRI scans of the applicant's brain performed in 1994 and 1996.  A consultant neuro-radiologist reported that he could not accept that the 1996 scan was normal.  While that was possible, the findings could be indicative of temporal lobe epilepsy.  Counsel for the Crown did not ensure that the neuro-radiologists report was disclosed as he should have done.  The grounds of appeal were that the neuro-radiologist's report should have been disclosed because it was capable of supporting the applicant's case that he was not guilty of murder due to diminished responsibility.  Further MRI scans were carried out on the applicant in 2004.  The result of those and of other tests to see whether the applicant had suffered significant brain damage at the time of his head injury in 1991 was that no evidence of such brain damage could be found.  The appeal was dismissed.  The Court stated that any unfairness in the trial process resulting from the failure to disclose the neuro-radiologist's report could and would have been cured on appeal if it had any affect on the safety of the conviction.  In the event what the neuro-radiologist had to say did not help the applicant and so did not affect the safety of the conviction.
The Statutory Regime
11. By virtue of paragraph 3 of Schedule 22 of the 2003 Act 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) of the 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.”

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13. The general principles involved in determining the minimum term set out in Schedule 21 can be identified from the three starting points set out in paragraphs 4 to 6 of Schedule 21, the direction in paragraph 8 that, having chosen a starting point, the court should take into account any aggravating or mitigating factors to the extent that it has not allowed for them in its choice of starting point, and the provision in paragraph 9 that consideration of these factors may result in a minimum term of any length, whatever the starting point, or a whole life order.
14. The first of these starting points is a whole life order.  Paragraph 4(1) provides that this is the appropriate starting point where 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 the offender was aged 21 or over when he committed the offence.  Paragraph 4(2) provides that cases that would normally fall within paragraph 4(1) 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."
15. The second starting point is a period of 30 years.  Paragraph 5 (1) provides that this is the appropriate starting point if 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 the offender was aged 18 or over when he committed the offence.  Paragraph 5(2) provides that cases that would normally fall within paragraph 5(1) 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."
16. The third starting point is a period of 15 years.  Paragraph 6  provides that this is the appropriate starting point 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).
17. Paragraphs 10 and 11 set out a number of matters that may be relevant to the offence of murder as aggravating and mitigating factors.  Paragraph 10 provides that 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."
18. Paragraph 11 provides that 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"
19. The use of the word “include” in paragraphs 10 and 11 make it clear that the matters set out do not define what may be an aggravating or mitigating factor and are in this sense only illustrative.
The guidance
20. Paragraph IV.49.17 of the Practice Direction, reflecting the judgment in Sullivan, Gibbs, Elener and Elener, states that the best guide as to what the practice would have been where the offence was committed before 31 May 2002 is the letter sent by Lord Bingham CJ to Judges on 10 February 1997.  In that letter it is stated that the period to be served for what is described as the average, normal or unacceptable murder is 14 years.  That letter also sets out factors his Lordship considered to be capable of mitigating or aggravating the offence (and see the Practice Direction IV.49.18-21).
The grounds upon which this application is made
21. The application is primarily based on the progress made by the applicant during his sentence and since his tariff was set at 14 years.  The applicant, however, also states that the trial judge’s view that the attack seemed to have been a planned attack was not accepted by the defence, that the applicant was in the habit of carrying a knife because his son had previously threatened him and he felt at risk, and that an account given by his son to a newspaper after the applicant’s conviction showed that there was more provocative conduct to him by his son than emerged at the trial.
The decision in this case
22. The first question for me in determining the applicant’s minimum term is whether, apart from the applicant’s progress during his sentence, there is a justifiable basis for differing from the tariff set by the Secretary of State, which was lower than that recommended by the trial judge and the Lord Chief Justice.  I note that, if this case came for sentence today, the starting point pursuant to paragraph 6 of Schedule 21 would be 15 years.  Furthermore, prior to the implementation of the Criminal Justice Act 2003, since this was an offence committed before 31 May 2002,  following the Practice Direction, 14 years is to be taken as the period to be served for the ‘average’, ‘normal’ or ‘unexceptional’ murder.  The guidance now contained in the Practice Direction lists mental abnormality as one of a number of factors capable of mitigating the normal penalty, and evidence of a planned killing and the use of dangerous weapons whether carried for defensive or offensive reasons as two of a number of factors that are likely to call for a sentence more severe than the norm: see para IV.49.17 & 18)).
23. In the present case in considering the circumstances of the offence and the applicant at the time of the offence and his trial, I take into account the applicant’s mental condition at the time of the offence.  On the other hand, I also take into account the fact that the trial judge’s report stated that the attack seemed to have been a planned attack and that the use of the knife whether or not it was carried for defensive reasons is an aggravating factor.
24. As regards the tariff originally set, I can find no basis for differing from the decision of the Home Secretary to which I have referred.  If sentenced today, it is likely that the applicant would receive a tariff in the 14 – 18 year bracket.  Moreover, a minimum term of 13 years, when a term of 14 years was to be taken at the time as the minimum period to be served for an “average” or “unexceptional” murder, cannot be sustainably criticised in view of the element of planning and the use of the knife, even by a person with the mental problems the applicant undoubtedly had.

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25. I turn to the submission that a tariff of 13 years is now unwarranted because the applicant has made exceptional progress during his sentence.  The 2003 Act does not refer to this as a factor to be taken into account, although that is not determinative.  The issue was considered by the Divisional Court in R (Cole, Rowland and Hawkes) v Secretary of State for the Home Department [2003] EWHC 1789 (Admin) when the Bill that became the 2003 Act was before Parliament.  Rose LJ stated (at paragraph 88) that if the Bill were to be enacted without referring to progress as a factor (as it has been), it was “inconceivable, in human terms” that exceptional progress in prison would not be taken into account.  The Divisional Court had before it evidence by Mr Morris, the Head of the Tariff Section in the Lifer Unit.  Paragraphs 5-10 of his statement are set out in paragraph 11 of Rose LJ’s judgment; paragraph 8 stated that the Home Secretary accepted that the Bill, now the 2003 Act, left it open to the courts to take into account exceptional circumstances, including exceptional progress in prison, in appropriate cases.  It is, however, clear from Mr Morris’s statement and from Rose LJ’s judgment that the hurdle that must be overcome for progress to be regarded as “exceptional” is a high one.
26. Mr Morris expressed the then policy of the Home Secretary as to what constitutes progress in paragraph 10 of his statement as follows: 
"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."
27. An earlier part of his statement (paragraph 5) stated:
"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.”
28. The approach of Rose LJ to the circumstances of Rowland, one of the claimants in R (Cole, Rowland and Hawkes) v Secretary of State for the Home Department shows the height of the hurdle that must be overcome for progress to be regarded as “exceptional”.  Rowland was part of the Listeners’ Scheme, had done considerable work on his offending behaviour, showed significant remorse and 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.  Nevertheless, Rose LJ (see paragraphs 90 and 92) did not consider that Rowland had shown himself to be sufficiently exceptional to require his progress to be taken into account when determining his minimum period of detention.
29. It is against this background that the representations made on behalf of the applicant in this case must be assessed.  The representations rely on the large number of courses completed by the applicant at HMP Wormwood Scrubs, HMP Kingston and HMP Shepton Mallett.  He has completed all courses that he was asked to complete, including courses in Alcohol Awareness (in 1998 and 2004), Anger Management (in 1998), Relationships (in 1998), Reasoning and Rehabilitation (in 2002), and Lifer Resettlement (in 2004).  He achieved a rating of 4 in all but two of the units of his Reasoning and Rehabilitation course, where a 3 denotes some need of improvement and a 5 denotes no immediate need of improvement.  The Lifer Manager at HMP Shepton Mallett states that he made an outstanding contribution to the Life on Licence and in Open Conditions Course which he took in 2004.  Reliance is also placed on the applicant’s educational achievements, in particular gaining Diplomas in Criminology, Psychiatric Studies, and Mental Health Welfare, and achieving distinctions in the first two.  He received a Hardman Trust Award in November 2000 in recognition of special commitment to the process of personal rehabilitation and Koestler Awards for writing in 2001 and 2004.  He has achieved these despite being totally deaf in one ear and having a significant loss of hearing in his other ear.
30. Reports dated 20 June and 31 July 2004 describe the applicant’s behaviour at HMP Shepton Mallett as “exemplary” and “excellent”.  The Parole Board’s panel recommended his transfer to open conditions in December 2004.  Its report states that his prison behaviour is described as impeccable having had no adjudications, no positive drug tests, having spent his time positively engaged in educational, vocational and work activities, and having displayed trust and responsibility on escorted visits outside the prison.  The report also states that he has accepted full and complete responsibility for his offence, has exhibited genuine sorrow and contrition and in the panel’s opinion is no longer a threat to himself or to the public.  In accepting the panel’s report, the SEO, Miss Osman, stated “there is no doubt that Hanson has made significant progress over the years and I believe that there has been sufficient reduction in risk to allow him to safely transfer to open conditions”.  A report since his move to HMP Blantyre House states that he settled in well, that he has agreed when asked to become a pro-social modelling trainer, and that all the risk factors originally identified in him are deemed inactive but will form the basis of monitoring and testing in the community.  In October 2005 he started taking a course leading to an NOCN Advanced Certificate in Information, Advice and Guidance at Canterbury College and the assessments to date indicate good progress.
31. In 2001 the applicant was accepted for training as a Listener in 2001 although the reports before me do not refer to his working as a Listener.  In 2002 he attempted to render first aid to another prisoner who was suffering a heart attack.  In 2005 one of his award winning essays was posted on a website aimed at young offenders.  The organiser of the website said that he found the essay moving and poignant and that no one else could bring such authority in influencing others to choose a better route in life.  Since arriving at HMP Blantyre House he has acted as a volunteer transporting disabled people to and from a rehabilitation centre. 
32. I have anxiously considered whether the applicant’s progress since this sentence was passed justifies any reduction.  The examples given in the evidence considered by Rose LJ in R (Cole, Rowland and Hawkes) v Secretary of State for the Home Department indicate, 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 an applicant will usually need to demonstrate both 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 and a strong element of “selfless” behaviour during a significant part of his time in detention, in the sense that he has undertaken important work for the benefit of others.  The evidence before the Court in that case indicated that in order to qualify as exceptional progress both the exemplary work and disciplinary record and the “selfless” behaviour have to have been sustained or demonstrated over a lengthy period and in at least two different prisons.
33. This applicant has undoubtedly addressed his own position in truly positive ways.  He has done very well in his courses, educational achievements, and in addressing the risks he posed both at HMP Kingston and at HMP Shepton Mallett.  His behaviour in prison has been described as “exemplary”, “excellent” and “impeccable”, although none of the reports state that this or his performance in the offender related courses is above and beyond what the authorities are entitled to expect.  His grades in his Reasoning and Rehabilitation course are good, but not the highest.
34. The applicant has also undertaken work and activity directed at others: in other words, the “selfless” element referred to above.  This has in my judgment, however, not been sustained or demonstrated over a lengthy period and in at least two different prisons.  His attempt in 2002 to render first aid to another prisoner, who was suffering a heart attack, while highly praiseworthy, is not an example of a continuing activity.  His work transporting disabled people to and from a rehabilitation centre and his help, as a result of the posting of his essay on a website, in seeking to deter young people from crime are activities that he has been undertaking in the last year.  I have concluded that, overall, despite his significant progress, he does not fall within the exceptional category of prisoner whose progress during sentence has been such that his minimum term should be reduced.
35. In the circumstances, I have concluded that the appropriate minimum period which the applicant must serve before the early release provisions are to apply to him is 13 years.  From that period is to be deducted the period of remand in custody, namely 15 months 5 days.  For the avoidance of doubt, the minimum period is unaltered, save for the deduction of the period served whilst on remand.

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