R Jordan Cunliffe v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Mrs Justice Carr |
| Judgment Date | 29 April 2016 |
| Neutral Citation | [2016] EWHC 984 (Admin) |
| Docket Number | Case No: CO/5272/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 April 2016 |
[2016] EWHC 984 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Mrs Justice Carr
Case No: CO/5272/2015
Mr Matthew Stanbury (instructed by Swain & Co) for the Claimant
Mr Ivan Hare (instructed by GLD) for the Defendant
Hearing date: 19 April 2016
Garry Newlove was murdered on 10 August 2007. A gang of youths were causing damage and behaving aggressively in the road outside his house. He attempted to restrain them but was set upon and repeatedly kicked while on the ground, causing injuries of such severity as to require him to be placed on a life support machine. He died two days later.
Five young men were tried for the murder in the Crown Court at Chester before Andrew Smith J and a jury. Three of the five were convicted. One of these was the present Claimant Jordan Cunliffe. He was born on 28 August 1991: he was thus just short of his 16 th birthday at the time of the murder. He was sentenced to life imprisonment with a minimum term of 12 years, subject to the usual allowance for the time spent in custody prior to sentence: this gave a figure of 11 years and 184 days from the date of sentence.
Since Mr Newlove's murder, his widow Helen has campaigned on issues relating to the treatment of victims and their families in the criminal justice system. In 2010 she was created a life peer and in 2012 was appointed Commissioner for Victims and Witnesses (generally known as the Victims' Commissioner).
Mr Cunliffe sought permission to appeal out of time to the Court of Appeal Criminal Division ("CACD") against his conviction: this was refused by the full court (Moses LJ, Kenneth Parker J and Judge Bevan QC) [2010] EWCA Crim 2483. No application was made for permission to appeal against the minimum term of 12 years set by Andrew Smith J. However, while the application for leave to appeal against conviction was before the court it was noticed that the sentence should have been expressed as one of detention at Her Majesty's Pleasure ("DHMP") rather than one of imprisonment for life. The CACD accordingly allowed an appeal against sentence on that technical issue only. Otherwise Mr Cunliffe's application to the CACD was unsuccessful.
Offenders sentenced to DHMP may apply for a review of the minimum term set by the trial judge at the halfway point of that term and thereafter at two yearly intervals. The application leads to the compilation of a tariff review dossier by the National Offender Management Service ("NOMS"), which is then referred to a High Court judge whose decision takes the form of a recommendation to the Secretary of State. I shall return to the nature of the judge's decision later.
Mr Cunliffe's application was placed before Mitting J, whose recommendation, announced on 19 th May 2015 [2015] EWHC 919 (Admin), was that the 12 year term should not be reduced. In the course of his judgment he referred to a five page statement dated 30 th September 2014 submitted by Baroness Newlove of Warrington describing the impact which her husband's murder had had upon her family, in particular her three daughters, and said:-
"She has asked that this statement is not made public or disclosed to the applicant, for particular reasons which have been notified to me by the Ministry of Justice. I accede to that request. What it does is to demonstrate graphically how deep and lasting the effect of the dreadful crime committed by the applicant and his associates has been; and inevitably, how unwelcome to his widow and daughters has been the need for them to prepare themselves for the outcome of my decision on this application."
On 10 th July 2015 James Hough of NOMS emailed the applicant as follows:-
"I am writing to confirm the outcome for your application for a review of tariff as an HMP detainee.
The High Court has recommended that there will be no change to your current tariff. I enclose a copy of the court's recommendation.
The Secretary of State has considered the recommendation and accepts it. This means that your minimum term remains 11 years and 184 days and will expire on 14 th August 2019. The timing of your next Parole Board is unaffected. You will be eligible to apply for a further tariff review in two years time, from the date of the High Court decision."
The decision to accept Mitting J's recommendation was in accordance with a policy originally set out by the then Home Secretary in a letter to the Lord Chief Justice dated 2 nd March 2006 that the judicial recommendations on tariff in every DHMP review case would be honoured. By a letter of 13 th December 2007 it was confirmed that "the Lord Chancellor and Secretary of State for Justice is content to adopt the previous Home Secretary's position and therefore will honour the judicial recommendations in every [D]HMP review case". The evidence is that this remains the position to this day.
Mr Cunliffe consulted solicitors. By a letter before claim dated 27 th August 2015 they sought disclosure of Baroness Newlove's victim statement; it appears that they and their client had been unaware of its existence until they received a copy of Mitting J's recommendation. They wrote:-
"The victim impact statement should have been disclosed. In the absence of the statement the defendant had allowed a recommendation to be reached which falls foul of the requirements of procedural fairness. The defendant took no steps to correct the unfairness and has ultimately reached a decision that is procedurally unfair.
The defendant has set out no detailed reasoning for accepting the recommendation of the court. The decision is terse and has led the claimant to feel that in all the circumstances the decision of the defendant does not meet the well established requirements of procedural fairness. This unfairness was compounded by the fact [that] the defendant did not invite further recommendations following receiving the recommendation of Justice Mitting following his decision which is now under challenge."
They sought disclosure of the statement and asked that a fresh decision be made after their client had had the opportunity to make further representations.
By a letter of 11 th September 2015 Mr Hough replied:-
"The decision to accede to Baroness Newlove's request that her VPS would not be disclosed to your client or made public and the decision to comment on the statement as part of the recommendation was a matter for the High Court and any challenge to that decision should be addressed to that court.
The recommendation of Justice Mitting in the High Court fully addressed the criteria set out in R v Secretary of State for the Home Departmentex parte Smith and it is clear from your recommendation (dated 19 th May 2015 and emailed to you the same day) that his decision not to reduce your client's tariff was based on his view that your client, whilst making good progress, had not at the point of this recommendation, made exceptional progress. Justice Mitting considered representations on behalf of your client and the report of the professionals working with your client to make his assessment on the progress that your client had made. There was nothing in the recommendation that would cause the Secretary of State to do anything other than he has done in all other cases on tariff reviews for offenders detained at Her Majesty's Pleasure, agree with the considered recommendation of an independent judicial body.
As such, the Secretary of State does not consider that your client has been subject to an unfair process and had your client any concerns about any reliance on Baroness Newlove's statement in the High Court then that matter should have been raised with the High Court on receipt of the recommendation on 19 th May 2015."
The present claim for judicial review is brought on three grounds:
(1) that the Secretary of State's "blanket policy" to accept the recommendation of the High Court judge in every DHMP tariff review amounts to an unlawful fetter of his discretion: I shall call this the "blanket policy" argument;
(2) that the Secretary of State operated an unfair procedure in not inviting submissions from the Claimant before deciding whether to endorse the judge's recommendation; and
(3) that there was "a further element of unfairness" in that Baroness Newlove's victim personal statement was taken into account by the judge, who directed that it be withheld from the claimant, and the Secretary of State refused to consider for himself whether the statement should be disclosed.
Detention at Her Majesty's Pleasure
DHMP is currently imposed pursuant to section 90 of the Power of Criminal Courts (Sentencing) Act 2000. The terminology was first used in the Criminal Lunatics Act of 1800, which provided that an offender found to be insane was to be "kept in strict custody until His Majesty's Pleasure shall be known".
The same language was adopted when in 1908 Parliament abolished the sentence of death in relation to children and young persons. Section 103 of the Children Act 1908 provided:
"Sentence of death shall not be pronounced on or recorded against a child or young person, but in lieu thereof the court shall sentence the child or young person to be detained during His Majesty's Pleasure, and, if so sentenced, he shall, notwithstanding anything in the other provisions of this Act, be liable to be detained in such place and under such conditions as the Secretary of State may direct and while so detained shall be deemed to be in...
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