R v Bieber
| Jurisdiction | England & Wales |
| Judgment Date | 23 July 2008 |
| Neutral Citation | [2008] EWCA Crim 1601 |
| Docket Number | Case No: 200603065 D3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 23 July 2008 |
[2008] EWCA Crim 1601
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL CRIMINAL DIVISION
On appeal from the Crown Court at Newcastle Upon Tyne
The Honourable Mr Justice Moses
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice Of England And Wales
The Honourable Mr Justice Pitchford and
The Honourable Mrs Justice Dobbs Dbe
Case No: 200603065 D3
Mr A.D.H Trollope QC and Miss R. Z. Bright for the Appellant
Mr R. Smith QC and Miss J. Simor for the Respondent
Hearing dates: 22 April and 25 June 2008
Lord Phillips CJ:
Introduction
On 2 December 2004 at the Crown Court at Newcastle upon Tyne before Moses J and a jury the appellant was convicted of one count of murder, two counts of attempted murder and two counts of possession of a firearm and ammunition with intent to endanger life. He pleaded guilty to possession of ammunition without a certificate. On the count of murder he was sentenced to life imprisonment with an order that the early release provisions should not apply. On 2 December 2006 this court gave permission to appeal against that sentence, while refusing permission to appeal against conviction.
The facts
On 26 December 2003, two uniformed police constables, Ian Broadhurst and Neil Roper, were on routine patrol in a marked police car on Dib Lane, Oakwood, Leeds. They came across a black BMW which was parked partially on a pavement outside a parade of shops. There was one occupant in the driver's seat, reading the Racing Post. This man was the appellant. The officers approached the car having noticed that it appeared the tax disc was not genuine. The appellant was escorted to the patrol car and placed in the nearside seat. PC Broadhurst sat in the front passenger seat while PC Roper carried out checks on the BMW. These checks revealed that the car had been stolen and the appellant was told that he was under arrest.
A recovery vehicle was called to collect the BMW and a third officer, PC Banks, arrived in order to assist in taking the arrested man to the police station. All three officers went to the nearside rear door in order to handcuff him. At this point the appellant produced a handgun and within eight seconds had fired five rounds of ammunition. The first shot hit PC Broadhurst in the chest. The second hit PC Roper, who had turned to run, in the lower back. The third hit PC Roper and PC Banks, both of whom were running from the scene. PC Broadhurst was now lying on the ground and the appellant stood over him and shot him through the head. The appellant then ran off still holding the gun. He approached a Renault car parked some yards down the road and pointed the gun at the passenger. However, the car drove off and he approached a second vehicle, a green Rover, owned by Stephen Wright who had just finished shopping nearby whilst his wife waited in the passenger seat. The appellant approached him still holding the firearm and Mr and Mrs Wright ran off leaving him to take the car.
The three injured officers were taken to hospital where PC Broadhurst was pronounced dead.
The reasons for the sentence
Murder carries a mandatory life sentence but under the Criminal Justice Act 2003 the judge is required, either to specify a minimum period to be served before the offender is considered for early release by the Parole Board, or to order that the early release provisions are not to apply. Section 269 of that Act provides:
“269 Determination of minimum term in relation to mandatory life sentence.
(1) This section applies where after the commencement of this section a court passes a life sentence in circumstances where the sentence is fixed by law.
(2) The court must, unless it makes an order under subsection (4), order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this Chapter as 'the early release provisions') are to apply to the offender as soon as he has served the part of his sentence which is specified in the order.
(3) The part of his sentence is to be such as the court considers appropriate taking into account –
(a) the seriousness of the offence, or the combination of the offence and any one or more offences associated with it, and
(b) the effect of any direction which it would have given under section 240 (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment.
(4) If the offender was 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2), the court must order that the early release provisions are not to apply to the offender.
(5) In considering under subsection ( 3) or (4) the seriousness of an offence (or of 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.”
An order made under subsection 4 has the result that the offender is sentenced to serve the remainder of his life in prison. Such an order is described as a 'whole life order.'
Schedule 21 of the Act, in so far as material, provides:
“Starting points
(1) If -
(a) 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
(b) the offender was aged 21 or over when he committed the offence, the appropriate starting point is a whole life order.
(2) Cases that would normally fall within sub-paragraph (1)(a) include-
(a) the murder of two or more persons, where each murder involves any of the following-
(i) a 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.
(1) If-
(a) 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
(b) the offender was aged 18 or over when he committed the offence, the appropriate starting point, in determining the minimum term, is 30 years.
(2) Cases that (if not falling within paragraph 4(1)) would normally fall within sub-paragraph (1)(a) include –
(a) the murder of a police officer or prison officer in the course of his duty,
(b) the murder involving the use of a firearm or explosive,
…
(f) a murder of two or more persons.”
After summarising the facts, the judge gave the following reasons for the sentence that he imposed:
“Parliament has recognised that the killing of a Police Officer in the course of his duty normally leads to the conclusion that the seriousness of the offence is particularly high, and in determining the minimum term the appropriate starting point is 30 years. But that is only a starting point. There is one particular aggravating feature which is not allowed for in the fact that you killed a Police Officer in the course of his duty, and that aggravating feature is that you did not need to shoot him through the head. You had already disabled him and he was defenceless, you could have escaped then, but you chose to wait and fire a second shot at point blank range. It must be acknowledged that he might have died as a result of your first shot, but you made certain of his death.
I regard this aggravating feature of such significance as to lead to the conclusion that the murder of PC Broadhurst was so grave that I must order that the early release provisions shall not apply and you must spend the rest of your life in prison.”
Grounds of appeal
Two grounds of appeal are advanced. The first contends that the facts of this case did not justify the imposition of a whole life order. The second contends that a whole life order infringes Article 3 of the European Convention on Human Rights and, for this reason, should not have been imposed. The latter ground was advanced before the decision of the Grand Chamber of the European Court of Human Rights in Kafkaris v Cyprus (Application no. 21906/04), which was delivered on 12 February 200Mr Trollope QC for the appellant submits that this decision strongly supports that ground of appeal. The issue raised is one of general importance and we propose to consider it first.
Article 3 of the Convention
Article 3 provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”
Mr Trollope's submission is that an irreducible life sentence, that is to say a life sentence 'without any prospect of release or any reconsideration of the facts of the case and regardless of any changes which might occur in the mind or behaviour of the inmate or progress made by him towards rehabilitation', amounts to inhuman treatment. In support of this submission Mr Trollope referred us not merely to European jurisprudence, both within and outside the Strasbourg Court, but to international instruments that he submitted implicitly endorsed his case.
For the Crown, Mr Robert Smith QC first referred us to domestic jurisprudence in order to demonstrate that a whole life order has been held to be lawful by the House of Lords. He then...
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