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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 265 (Admin)

Case No: 2004/950/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

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

Date: 01/03/2006

Before :

THE HONOURABLE MR JUSTICE BEATSON
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R
v
MOHAMMED JAMIL


Neither party was represented


Hearing dates: 18-21 December 1998
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Approved Judgment


 
Mr Justice Beatson :
1. On 21 December 1998 at Leeds Crown Court Mohammed Jamil (hereafter “the applicant”), then aged 58, pleaded guilty to murder and was sentenced to life imprisonment.  The period of imprisonment recommended by the sentencing judge to meet the requirements of retribution and deterrence was 10 years.  The Lord Chief Justice reported that he recommended a period of 10-11 years.  The Home Secretary set the tariff at 10 years. 
2. Pursuant to section 276 and schedule 22 paragraph 3 of the Criminal Justice Act 2003 (hereafter “the 2003 Act”), the applicant has applied 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.  The application was undated but was received by the minimum term section on 17 August 2004.  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. The family of the deceased were asked whether they wish to make a statement but no response has been received.  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 sentencing judge, His Honour Judge Brian Walsh QC, in his report to the Home Secretary.  The body of the deceased, partly covered by a blanket, was found by the Fire Service on the living room floor of the applicant’s home in Huddersfield on 27 February 1998.  They attended because passers by noticed a fire at the address. There were seven seats of fire in the house.  The applicant and the deceased had been friends and drinking companions for many years.  On the day before the death, they had been drinking together and the deceased stayed at the applicant’s house.  They argued over money which the applicant said he had loaned to the deceased.  The applicant said that after some physical struggling he went to the kitchen, armed himself with a kitchen knife, returned to the living room and stabbed the deceased.  The deceased sustained nine deep stab wounds to his chest and abdomen and other injuries which the pathologist thought were caused by prodding with a knife.  The applicant stated that he did not call an ambulance, but went out to two local pubs and the bookmakers. He said he later bought some white spirit and spread it about the house and on the body because Indians cremate bodies, lit a number of fires, and left the house.  When arrested in a nearby street shortly afterwards, it was clear the applicant had been drinking heavily.
7. The sentencing judge referred to evidence that the offences (the applicant also pleaded guilty to arson) were “totally out of character” and stated that he suspected that drink and personal chemistry were at work and that the applicant, basically, is not a dangerous man.  His recommendation was that the tariff be 11 years but he stated that his age, plea and general character could just reduce this to 10.  The Lord Chief Justice agreed.
The Statutory Regime
8. 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.
9. 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.”
10. 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.
11. 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.”

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12. 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.”
13. 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).
14. 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.”
15. 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”
16. 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
17. 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
18. The application submits that the period recommended by the sentencing judge is too long in that it fails to acknowledge that the applicant never sought to deny the charge and pleaded guilty.  It is also submitted that there is no basis for any conclusion that there is a serious risk of the applicant re-offending in this or a similar manner, that the offence was an isolated and spontaneous event arising from very special and unusual circumstances, was behaviour by the applicant which was out of character, and that the applicant feels a deep sense of remorse for his crime.  It is also submitted that the applicant has made positive progress in prison which reduces any level of risk and has an exceptionally good record of behaviour.
The decision in this case
19. 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 view of the Secretary of State in the light of the Lord Chief Justice’s recommendation.  My conclusion on this first question can be shortly stated. I can find no basis for differing from the views to which I have referred.  The account of the circumstances of the offence set out in the application contains no material differences from that in the trial judge’s report.  I note that, if this case came for sentence today, the starting point pursuant to paragraph 6 of Schedule 21 would be 15 years.  I also note that the Sentencing Guidance Council stated that where it is appropriate to reduce the minimum term having regard to a plea of guilty, the maximum reduction will be one-sixth, and the reduction should never exceed five years: Reduction in Sentence for a Guilty Plea (2004) p 6.  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.
20. Of the factors capable of mitigating the normal penalty listed (see para IV.49.17 & 18), the following apply to the applicant’s case; spontaneity and lack of premeditation, a plea of guilty, and remorse.  As to the effect of alcohol, Lord Bingham's letter states that while the fact that a defendant was under the influence of drink at the time of killing is often a neutral factor because it is so common, where a married couple or two derelicts inflamed by drink indulge in a violent quarrel in which one dies against a background of longstanding drunken violence, he would tend to recommend a term somewhat below the norm: see also the Practice Direction, paragraph IV.49.20.  This has some relevance to this case where two longstanding drinking companions quarrelled while inflamed by drink.  However, notwithstanding the mitigating factors referred to above, I have concluded that in the circumstances of this case, a minimum term of 11 years cannot be criticised.
21. I turn to the submission that a tariff of 11 years is 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 and that normally, as well as the good progress in prison that is expected of all mandatory life sentence prisoners.  In broad terms what is required is 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.
22. 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 applicant’s successful completion of an alcoholics programme, his participation in a course to improve his reading and writing of English, and his record of good behaviour with no adjudications for a period of six years.  While the applicant’s progress is commendable, it comes nowhere near what is required for it to constitute exceptional progress which can be taken into account in determining the minimum period.
23. In the circumstances, I am of the clear view that the appropriate minimum period which the applicant must serve before the early release provisions are to apply to him is 10 years.  From that period is to be deducted the period of remand in custody, namely 9 months 18 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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