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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 2674 (QB)

Case Nos: 2004/113/MTS, 2004/114/MTS and 2004/115/MTS


Sheffield Crown Court
50 West Bar, Sheffield, S3 8PH

Date: 8 November 2006



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Neither party was represented

Hearing dates: 21 May - 3 July 2001
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Approved Judgment

Mr Justice Beatson:
1. On 3 July 2001 at the Central Criminal Court Angela Bristow, Paul Hayter and Raymond Ryan (hereafter respectively the first, second and third applicants), then aged 51, 34, and 34 respectively, were convicted of murder and sentenced to life imprisonment.  The period of imprisonment recommended by the trial judge to meet the requirements of retribution and deterrence in each case was 14 years.  On 5 August 2001 the Lord Chief Justice stated he regarded 16 years as the appropriate minimum. 
2. This matter comes before me pursuant to section 276 and schedule 22 paragraphs 5 and 6 of the Criminal Justice Act 2003 (hereafter “the 2003 Act”), to determine the minimum term following which the early release provisions referred to in Schedule 22 are to apply to them and their cases can be considered by the Parole Board.  This is my determination of those minimum terms. For the benefit of the applicants, 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 applicants’ 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 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 applicants’ offence was, committed before 18 December 2003 does not breach the principle of non-retroactivity. 
4. A joint statement was made by two of the deceased’s sisters and a third sister made a separate statement.  I have taken into account what is contained in these statements.  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 none of the applicants have sought an oral hearing and I have concluded that this is one of the many cases (see R (Hammond) v Secretary of State for the Home Department [2005] UK HL 69) in which fairness does not require an oral hearing.
The Background
6. The circumstances of the offence are fully set out in the report of the trial judge, The Recorder of London HH Judge Hyam QC.  For present purposes, however, the statement of the facts set out by the Court of Appeal ([2003] EWCA 1048) when dismissing an appeal by the second applicant suffice:
“On 30 March 2000 Mario Commatteo was shot in the head at point blank range with a twelve bore shotgun as he was leaving his home.  He died instantly.
Commatteo lived with Angela Bristow.  Bristow hated Commatteo and had spoken of killing him.  It was alleged that she had taken out a contract with the third applicant, Ryan, who had carried out the killing at her behest and for money.  It was said that the second applicant, Hayter, was the middle man who had recruited Ryan on behalf of Bristow.  Ryan, Bristow and Hayter were tried together.  Although Ryan was said to have carried out the killing, all three were indicted as principals pursuant to section 8 of the Offences Against the Person Act 1861.
The case against Ryan depended entirely on out of court admissions said to have been made by him to his then girlfriend.  The evidence against Bristow came from witnesses who described her hostility to Commatteo and having heard her speak about getting someone to kill him.  There was evidence that Hayter had been the conduit for Bristow’s payments to Ryan.  That evidence included Ryan’s girlfriend’s son Lee who spoke of carrying money from Bristow to Hayter.  The case against Hayter depended upon the prosecution being able to prove that Ryan was the killer and Bristow the procurer.
The trial judge also stated:
Each of the defendants played an important part in the crime; the parts played by Bristow and Ryan are obvious, but the part played by Hayter was of particular importance because he enabled the crime to be committed by concealing the link between the killer and Bristow.  He did so as a regular customer of Bristow and as an apparently passing acquaintance of Ryan.  The defendants would probably not have been found out had it not been for the confession by Ryan to his then girlfriend.”

7. There were no medical considerations before the court.  The trial judge commented as follows on the applicants’ dangerousness and likelihood of re-offending:-
“The factors which aggravate the offences were:
(1) there was considerable degree of planning to which all three defendants must have contributed;
(2) the killing was unusually cold blooded and none of the defendants showed any remorse.
As to mitigating circumstances the trial judge stated:
(1) Bristow: her life with the victim was turbulent because of his verbal but not physical abuse of her.
(2) Ryan and Hayter: none, save that neither could be regarded as “professional” contract killers or procurers.”

8. It was in view of these comments that the Lord Chief Justice stated “I agree with the comments of the trial judge but I would be slightly higher as to tariff: my figure would be 16 years”.  An appeal against conviction by the second applicant, Hayter, was dismissed: [2003] EWCA Crim 1048.
The Statutory Regime
9. Paragraph 6 of schedule 22 to the 2003 Act applies to a prisoner serving a mandatory life sentence who has not 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.  It provides that the Secretary of State must refer the prisoner’s case to the High Court, and that the High Court must determine the prisoner’s minimum period.  The significance of the 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 Sentencing Act 1997. 
10. Paragraph 7 of schedule 22 provides that, in considering the seriousness of the prisoner’s offence and determining the minimum period, the High Court must have regard to the matters mentioned in section 269(5) and to any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum period.  Paragraph 8 establishes a ceiling for the minimum terms based on the practice of the Secretary of State prior to December 2002.  Section 269(5) of the 2003 Act provides:
"In considering…..the seriousness of an offence (or the combination of an offence and one or more offences associated with it, the court must have regard to -

(a) the general principles set out in Schedule 21, and
(b) any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21."

11. 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 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.
12. 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.”


13. 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.”

14. 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).
15. 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.”

16. 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”

17. 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
18. 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 Secretary of State's 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 (see also the Practice Direction IV.49.18-21).
The grounds upon which these applications are made
19. In respect of the first applicant I have considered a note dated 21 March 2002 from trial counsel, a letter dated 25 May 2004 from her solicitors which enclosed letters from her, and from her brother and sister.  No submission is made as to the appropriate number of years.  It is submitted that the deceased was very difficult to live with and that domestic violence suffered at his hand made the first applicant’s life a misery.  It is accepted that this took the form of verbal and other non-physical abuse but it is said this inflicted mental torture on her.  Secondly, it is said that although the first applicant pleaded not guilty she now wishes to admit her part in the commission of the offence.  It is said that, given the circumstances of her life and the mental torture that she suffered, it took some time for her to realise the dreadful crime she had committed.  Thirdly, it is stated that a greater distinction should be made between her culpability and that of her co-accused because whereas they were motivated by greed alone she had been living in abject misery for which she felt there was no escape. 
20. In relation to the second applicant, I have considered a letter dated 17 March 2005 from his solicitors.  No submissions as to the appropriate number of years are made.  It is said on his behalf that his role was that of a “middleman”.  There was no evidence to suggest that he was in the business of such crime.  His involvement in this offence was apparently instigated by his involvement with the first applicant.  It is also said that prior to the offence he had no history of violence.  His record is one of petty crime only and there is nothing to suggest that he presents a continuing danger to the public. 
21. In relation to the third applicant, I have considered representations dated 22 July 2004 by his solicitors.  It is submitted that the appropriate tariff should be between the 14 years recommended by the trial judge and the 16 years recommended by the Lord Chief Justice.  It is stated that the third applicant only has one previous conviction for violence which pre-dates this offence by 8 years. 
22. The primary factor relied upon on behalf of the third applicant, however, is delay in fixing the tariff.  It is accepted that the delay is primarily due to the change in the regime for setting minimum terms following the decisions of Thompson and Venables in the European Court of Human Rights and R v Home Secretary, ex parte Anderson [2002] UKHL 46 in the House of Lords.  It is, however, submitted that there are unexplained and unjustifiable aspects to the lapse of time in this case.  First, that the third applicant was informed in November 2001 that his papers would be put to the Minister to set a tariff in May 2002 but no tariff was set in May 2002 or in the six months from that date and the decision of the House of Lords in R v Home Secretary, ex parte Anderson.  Secondly, it is said, in reliance on AG’s Ref No 2 of 2001 [2003] UKHL 68, that where there is breach of the duty to determine a criminal charge within a reasonable time and it is established retrospectively after there has been a hearing the appropriate remedy may be a public acknowledgement of the breach, a reduction of the penalty imposed, or the payment of compensation.  It is submitted that in the circumstances of Mr Ryan’s case that while he has not had a guarantee as to the approximate final minimum term he could expect to receive he has had a clear indication, namely the trial judge’s and the Lord Chief Justice’s recommendations of 14 and 16 years respectively.  If the court takes the view that a minimum term of more than 16 years is appropriate in his case, the appropriate remedy for the extended period of delay is for the court to fix a minimum term of between 14 and 16 years.
The decisions in this case
23. The first question for me in determining the minimum terms of these applicants is whether there is a justifiable basis for differing from the recommendations of the Lord Chief Justice.  Notwithstanding the lower recommendation of the trial judge, my conclusion on this first question can be shortly stated.  I can find no basis for differing from the view of 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 30 years, since it involved the use of a firearm and was done for gain.  Moreover, 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 considerable degree of planning to which all three applicants must have contributed and the fact that, as the trial judge stated, the killing was unusually cold blooded, meant that this was significantly more serious than an ‘average’, ‘normal’ or ‘unexceptional’ murder.
24. I agree with the aggravating and mitigating factors as set out by the trial judge.  I add that notwithstanding the life of misery which the first applicant is said to have lived with the deceased, this does not justify distinguishing her culpability from that of her co-accused.  It was she who initiated the process which led to the deceased being shot in the head at point blank range.  The killer must have known of the time she left for work and of her proposed movements on the fatal morning probably through the second applicant but from information given by the first applicant.  She thus not only initiated matters but contributed to the planning. 
25. In relation to the third applicant, I do not consider that, in the circumstances of this case, the lapse of time in setting his minimum term is unjustifiable.  While the position of adults was only finally settled by the decision in Ex parte Anderson in November 2002, it was likely after the decisions in Thompson and Venables and the decisions of the lower courts in Anderson that the House of Lords would hold that it was not compatible with the European Convention for the Home Secretary to set the minimum period in the case of adults.  Accordingly it was not unreasonable for the Home Secretary to await the final outcome of Ex parte Anderson.
26. In the circumstances, I am of the clear view that the appropriate minimum period which the applicants must serve before the early release provisions are to apply to them is 16 years.  From that period is to be deducted the period of remand in custody, namely in each case 10 months and 19 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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