Periodic Review of Tariffs for Prisoners Sentenced to Detention during HM Pleasure Decision upon the application of Hyrone, Hart (Under Paragraph 3 Schedule 22 to the Criminal Justice Act 2003)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh |
| Judgment Date | 07 April 2016 |
| Neutral Citation | [2016] EWHC 3533 (Admin) |
| Docket Number | 2015/11/MTR/ |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 April 2016 |
[2016] EWHC 3533 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Singh
2015/11/MTR/
Mr N Armstrong (instructed by Bhatt Murphy) appeared on behalf of the Applicant
Mr R Evans (instructed by the Government Legal Department) appeared on behalf of the Secretary of State
Introduction
This is an application under paragraph 3 of schedule 22 to the Criminal Justice Act 2003.
In 1999, the applicant was convicted at the Central Criminal Court of a number of offences, including two offences of murder. The incidents occurred in June and July 1998.
The applicant was sentenced by the Common Serjeant, HHJ Neil Denison QC. In accordance with the practice as it was at that time a tariff was recommended by him, and that tariff was 22 years. Again, in accordance with the practice at that time, the case was then considered by the Lord Chief Justice, Lord Bingham of Cornhill.
The recommendation made by the Lord Chief Justice was that the tariff should be 24 years. The tariff which was, in fact, set by the Secretary of State was 28 years. The number of days spent on remand was 498.
The victim's family are no longer engaging with the victim liaison officer, therefore a victim impact statement has not been filed with the court. The applicant has now applied for the minimum term to be reduced to that recommended by the Lord Chief Justice of the day, that is, 24 years.
In this case, having considered the application on the papers, I took the relatively unusual step of directing that there should be an oral hearing. I have been assisted by the written and oral submissions made on behalf of the applicant. I also have been assisted by the written and oral submissions on behalf of the Secretary of State.
Quite properly, Mr Evans, who has appeared on behalf of the Secretary of State, has made those submissions in order to assist the court, in particular as to the background and the applicable law and, takes a neutral stance on the question of what the minimum term in this case should be. As will be apparent, that question is one for determination exclusively by an independent judge.
The facts
The applicant is a national of Jamaica, and was born on 5 August 1971. He came to the United Kingdom illegally. The trial at the Central Criminal Court took place between 18 November 1999 and 21 December 1999. There was a co-defendant in the case, called Curt Roberts. The defendants were convicted of the following offences:
Count 1, having a firearm with intent to commit an indictable offence; Count 2, robbery; Count 4, attempted murder.
Counts 1 to 4 related to an incident on 16 June 1998, where the applicant, his co-defendant and a third person broke into a flat where a man and a woman were present. They were brandishing firearms. The woman was forced into the kitchen where she was raped by the co-defendant. The applicant was not charged with that offence.
While this was taking place, the applicant and the third person hit the male victim with a gun, tied him up with electrical flex and forced him to tell them where his money was kept. After the money was found, the applicant and the third person started kicking the victim and the co-defendant stabbed him in the chest. The men then left the flat.
Returning to the matters on which the applicant and his co-defendant were convicted, Count 5 was an offence of murder; Count 6, attempted murder; Count 7, having a firearm with intent to commit an indictable offence; and Count 8, robbery.
Counts 5 to 8 related to an incident on 25 June 1998, where the applicant, his co-defendant, and a third person broke into the victim's flat at about 10.00pm. The victims were a husband and wife and their two young children.
The male victim tried to grab the gun, but was stabbed in the neck. The men then took the victims into the bedroom where they tied up the man and woman with electrical flex, made them lie on the bid and forced the children to lie under the mattress. They then proceeded to steal some jewellery, a mobile phone and some money. Before they left, the applicant shot the female victim in the head and fired a shot at the male victim. The second shot missed, but the male victim pretended to be dead. The female victim was pronounced dead the following day.
Finally, there were:
Count 11, having a firearm with intent to commit an indictable offence, and Count 12, murder. Counts 11 and 12 related to an incident on 17 July 1998, where the applicant called at the victim's flat looking for the victim.
The victim's girlfriend was present with her young daughter and she confirmed that he was expected back shortly. The applicant returned later and the victim answered the door. There was argument and a struggle. This culminated in the applicant shooting the victim in the head. He was subsequently pronounced dead. The defendant had denied being involved in any of the incidents and entered pleas of not guilty but was convicted.
Following conviction, as usual mitigation was made on his behalf. There was also a psychiatric report which demonstrated the applicant was not suffering from any mental illness.
The applicant was sentenced as follows:
On Count 1, 4 years' imprisonment. On Count 2, 8 years' imprisonment. On Count 4, attempted murder, 15 years' imprisonment. Count 5, life imprisonment. Count 6, 15 years' imprisonment. Count 7, 4 years' imprisonment.
Count 8, 8 years' imprisonment. Count 11, 4 years' imprisonment and finally, on count 12, another offence of murder, the mandatory sentence of life imprisonment.
The applicant had a number of previous convictions in Jamaica, which it is not necessary for present purposes to recite in detail.
Following sentence on 21 December 1999, the trial judge submitted his report to the Secretary of State, giving his view as to the recommended tariff to be served in this case. As I have mentioned, that was a period of 22 years.
In making his report, the judge said:
"This was a dreadful case with a drugs-related background. The prosecution said the motive for the attacks was robbery, which was correct, but a further motive was rivalry between gangs of drug dealers.
[The applicant] has previous convictions for violence in Jamaica […] Neither [defendant] has any respect at all for human life. They both lied to the police and then told a different lying story to the jury. I could find no mitigating factors (except in the case of [the co-defendant] his youth)."
As I have mentioned, the case was then considered in accordance with the then practice by the Lord Chief Justice of the day. He took a different view from the sentencing judge and recommended the tariff should be 24 years' imprisonment. In making his report to the Secretary of State, on 10 January 2000, he stated:
"It would seem to me that given the [applicant's]
greater age, involvement, a worse record and the [co-defendant's] relative youth, lesser involvement in killing, and clean record, there should be greater differentiation between the two."
As I have mentioned, the Secretary of State took a different view again and gave notification of the tariff to be served on 2 August 2001. That tariff was one of 28 years.
The Secretary of State, in setting out his reasons for that view, so far as material, stated:
"[…] Whilst noting that you chose to come to the United Kingdom (illegally), the Secretary of State has made some allowance for it being likely that you will have to serve your sentence in the United Kingdom, far from your family and friends, who will find it difficult to visit you. He has not attached weight to any of your convictions in Jamaica.
The Secretary of State does not accept that a tariff for 24 years, as recommended by the Lord Chief Justice, would be sufficient to satisfy the requirements of retribution and deterrence for your offences. He has attached weight to the fact that you have murdered two people on separate occasions, each time using a firearm and shooting the victims in the head, indicating the clearest possible intention to kill. He has attached weight to your convictions for attempted murder and for the associated offences of robbery. He has had regard to the trial judge's view that the motives for your offences were robbery and rivalry between gangs of drug dealers.
Having regard to all the circumstances of your case, the Secretary of State has concluded that a tariff of 28 years can satisfy the requirements of retribution and deterrence for your offence."
Legal background
At the material time, as is well known, the Secretary of State had the function of determining the minimum period to be served by a mandatory life sentence prisoner, known as 'the tariff'. That power, as a matter of law, was derived from section 29 of the Crime(Sentences) Act 1997.
That section in itself gave little indication as to the procedure to be adopted. However, as will be apparent from the brief outline of the facts of this case, the practice at the time was well understood and followed.
Ultimately, as I have said, all that the judiciary could do was to make a recommendation to the executive. The actual power of decision in specifying the tariff (in other words the minimum term to be served) before a mandatory life sentence prisoner...
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