Principles of sentencing - Mandatory life sentence - Murder - Minimum term

R v Gill; R v Eccles; R v Abu-Neigh: CA (Crim Div) (Lord Chief Justice Lord Judge, Mr Justice Henriques and Mr Justice Irwin): 1 December 2011

Paragraph 3 of schedule 22 to the Criminal Justice Act 2003, so far as material, provides: ‘(1) On the application of the existing prisoner, the High Court must, in relation to the mandatory life sentence, either: (a) order that the early release provisions are to apply to him as soon as he has served the part of the sentence which is specified in the order, which in a case falling within paragraph 2(a) must not be greater than the notified minimum term; or (b) in a case falling within paragraph 2(b), order that the early release provisions are not to apply to the offender.

(2) In a case falling within paragraph 2(a), no application may be made under this paragraph after the end of the notified minimum term. (3) Where no application under this paragraph is made in a case falling within paragraph 2(a), the early release provisions apply to the prisoner in respect of the sentence as soon as he has served the notified minimum term (or, if he has served that term before the commencement date but has not been released, from the commencement date). (4) In this paragraph ‘the notified minimum term’ means the minimum period notified as mentioned in paragraph 2(a), or where the prisoner has been so notified on more than one occasion, the period most recently so notified.’

Paragraph 6 of schedule 22 to the Criminal Justice Act 2003 provides: ‘The secretary of state must refer the prisoner’s case to the High Court for the making by the High Court of an order under subsection (2) or (4) of section 269 in relation to the mandatory life sentence.’

Three applications for leave to appeal against sentence out of time were heard together because they all concerned defendants (G, E and A) who had been convicted of murder and sentenced to life imprisonment, with minimum terms to reflect the appropriate level of sentence for punishment and detention. In the case of G, the minimum term imposed was 15 years.

The defendants all sought reductions in the minimum term on the single ground that, after serving several years of their sentences, they had made exceptional progress. Until the commencement of the Criminal Justice Act 2003 (the 2003 act), it was the consequence of section 29 of the Crime (Sentences) Act 1997 (the 1997 act) that every prisoner serving a mandatory life sentence since 1997 had spent a significant part of the sentence under a regime in which exceptional progress had provided a recognised basis for a reduction in the minimum term.

By virtue of section 29 of the 1997 act, the secretary of state, with the involvement of the Parole Board, made the final determination of the period for which the convicted murderer should remain in prison for the purposes of retribution and deterrent. Section 29 was repealed. Schedule 22 to the 2003 act was enacted to manage the transition from the system by which the determination of the minimum term was made by the secretary of state to the new arrangements which made that an exclusively judicial decision.

By paragraph 3 of schedule 22 to the 2003 act, prisoners were enabled to apply to the High Court, in effect, to fix the minimum term. Some were existing prisoners who had been notified of the minimum term by the secretary of state. Others were existing prisoners who had not been notified by the secretary of state of the minimum term. The secretary of state was obliged to refer their cases to the High Court for decision. The applications for leave to appeal against the minimum term imposed in the case of each defendant were granted.

Consideration was given to the jurisdiction of the Court of Appeal to conduct a ‘review of sentence’ on the basis of exceptional progress. The issues which fell to be determined were, among other things: (i) when the Court of Appeal was reviewing a mandatory life sentence on grounds of exceptional progress, whether there was a distinction between cases under paragraph 3 and paragraph 6 of schedule 22 to the 2003 act; (ii) whether the same applied to a ‘modern’, post-December 2003, minimum term passed by a trial judge following a murder trial as part of the first instance sentencing process; and (iii) whether it would be open to the Criminal Cases Review Commission to refer the matter back to the Court of Appeal if the full court were to refuse to grant an extension of time for the application to be renewed, or whether a defendant who made an application too soon was to be denied a further application. Consideration was given to R v Bieber [2009] 1 All ER 295 and R v Barker All ER (D) 246 (Oct).

The appeal in the case of G would be allowed. The appeals in respect of E and A would be dismissed.

(1) It has been established that the interests of justice require that for cases falling within schedule 21 to the 2003 act, the High Court or the Court of Appeal should consider and reflect on evidence of exceptional progress in prison and, where it is established, make due, but modest, allowance for it against the minimum term (see [18] of the judgment).

(2) In accordance with the reasoning in Bieber and the observations of the court in Barker, the repeal of section 29 of the 1997 act, and the absence of any corresponding provision in the 2003 act, lead to the conclusion that the exercise of the review jurisdiction of tariff on the basis of exceptional progress has no application to cases governed by what is sometimes described as the ‘modern’, that is post-December 2003 legislative structure. In effect, therefore, no residual discretion in the court to reduce the minimum term on the basis of ‘exceptional progress’ survives. It was a temporary measure which applied to a formidable but ‘transitional’ problem (see [27] of the judgment).

(3) When considering the issue of exceptional progress, the court is not considering the correctness or otherwise of the sentences imposed at trial, or the tariff periods fixed by the relevant judge in the light of all the aggravating and mitigating circumstances of the individual offence. In short, the court is not revisiting the punitive and deterrent elements of the sentence, nor indeed the element of public protection, which is addressed by the sentence of life imprisonment.

Equally, it is not addressing the issues which will fall to be resolved by the Parole Board at the end of the minimum term (whether it is reduced on the grounds of exceptional progress or not), nor is it intended that the court should express any opinion about the exercise by the Parole Board of its separate responsibilities. This is a fact-specific decision. It is not susceptible of decision by reference to facts in different cases which are sometimes described as authorities when they are no more than fact-specific decisions. The principles in Caines have been consistently applied. There is no reason to deviate from or amplify them (see [28]-[29] of the judgment).

(4) A potential area of difficulty is that there will inevitably be cases where the defendant appealed against the minimum term, shortly after the sentence was imposed, on the basis that it was manifestly excessive, and without reference to any progress in prison. Whether successful or not, the conclusion of the appeal disposes of any further right to appeal against sentence. If there is a case where exceptional progress genuinely arises for consideration neither the High Court nor the Court of Appeal can create a further right of appeal against sentence which was not created by statute.

Where the question of exceptional progress genuinely arises in the context of schedule 22 to the 2003 act, but the normal appeal process has been exhausted, the case should be referred to the Criminal Cases Review Commission, which will decide in its turn whether or not to refer the case to this court. If so, then it would proceed as an appeal to this court without further reference to the High Court (see [31] of the judgment).

(5) In cases where the statutory appeal process on grounds independent of exceptional progress has not yet been exhausted, any application for a reduction in the minimum term on the basis of exceptional progress should be adjourned, with an indication about when it would be sensible for the court to reconsider it (see [32] of the judgment).

(6) The brief answers to the issues raised are: (i) for the purposes of the review, of a mandatory life sentence on the grounds of exceptional progress, there is no effective distinction between cases under paragraph 3 and paragraph 6 of schedule 22 to the 2003 act; (ii) possible reductions for exceptional progress in prison do not form part of any appeal process for sentences imposed after 18 December 2003; and (iii) the jurisdiction of the Criminal Cases Review Commission will continue to be exercised in accordance with its statutory functions (see [33] of the judgment).

The minimum term in the case of G would be reduced from 15 years to 14 years (see [44] of the judgment). Re Caines (application under paragraph 3 of schedule 22 to the Criminal Justice Act 2003), [2006] All ER (D) 479 (Mar) considered.

Paul Taylor (assigned by the registrar of criminal appeals) for G and E; S Field (assigned by the registrar of criminal appeals) for A; Iain Wicks (instructed by the Crown Prosecution Service) for the Crown.