R v Caines and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgePresident of the Queen's Bench Division
Judgment Date23 November 2006
Neutral Citation[2006] EWCA Crim 2915
Date23 November 2006
Docket NumberCase No: 2006/1692/A1

[2006] EWCA Crim 2915

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM

MR JUSTICE GIBBS

ON APPEAL FROM

MRS JUSTICE COX

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The President Of The Queen's Bench Division

Mr Justice Holland And

Mr Justice Goldring

Case No: 2006/1692/A1

2006/2449/A1

Between
R
and
Caines
R
and
Roberts

Mr H. Southey for the Appellant

Mr Patrick Thomas QC for the Prosecution

Mr Steven Kovats for the Secretary of State for the Home Department

Mr P Weatherby for the Applicant

Mr J Clarke for the Prosecution

President of the Queen's Bench Division

President of the Queen's Bench Division:

1

In 1986 David Roberts was convicted of murder. In 1995 Timothy Caines was convicted of murder. Both were sentenced to life imprisonment. Before section 269 of the Criminal Justice Act 2003 (the Act) came into force they were notified by the Secretary of State of the minimum periods they should serve before release on licence. They applied unsuccessfully for orders which would have reduced their length. These cases raise important questions about the interpretation of the transitional provisions in schedule 22 TO the Act which have not yet been fully considered in this court, and on which there has been a difference of judicial view. (Re Waters [2006] 3All ER 1251: Re Cadman [2006] 3 All ER 1255).

2

The hearings were held on different dates. It is however convenient to provide a single judgment to cover both cases.

The facts —Roberts

3

The relevant facts are fully summarised in the judgment of Gibbs J, and we gratefully adopt his analysis.

4

Roberts was born in October 195On 1 st December 1986 in the Crown Court at Manchester, before Garland J and a jury, he was convicted of murder. It was his second such conviction for murder. He was sentenced to life imprisonment.

5

The victim of this second murder was an elderly woman, a local hotelier of some renown, who lived on her own in a cottage in the grounds of the hotel. In January 1986 the hotel was closed for winter. Roberts and his male partner were obliged to leave their room. Roberts entered the victim's cottage. In a brutal attack, he stabbed her in the throat, inflicted very serious injuries to her ribs by stamping on her as she lay defenceless on the ground, and finally strangled her with her own scarf. He then stole some of her belongings and drove away in her car.

6

The facts of the previous murder were alarmingly similar. At the beginning of March 1969, Roberts entered the bungalow of an elderly woman who lived on her own. He stabbed her many times with a knife. After ransacking her house and stealing her money and attempting unsuccessfully to drive her car away, he made away from the scene, leaving her dead or dying. Presumably because he was only fourteen years old at the time of this murder, he served seven years in custody before his release on a life licence.

7

Garland J suggested that the minimum term should be seventeen/eighteen years. The then Lord Chief Justice doubted whether Roberts should ever be released. He added "certainly eighteen years must be an absolute minimum". In 1988 the Secretary of State decided that the early release provisions should not apply to Roberts: in effect, he set what is described as a "whole life" tariff. However, following representations made on the applicant's behalf, by letter dated 14 November 2001, the applicant's tariff was reconsidered, and set afresh at twenty-two years.

8

An application was made under schedule 22(3) of the Act for the twenty-two year minimum term to be reconsidered. Representations were submitted in April 2005. Gibbs J did not consider that an oral hearing was necessary. He concluded that "by the standards current at the time of this sentence" a minimum term of at least twenty-two years was justified. The application was rejected. Hence this application. For completeness, in order to set the term to be served by Roberts, he deducted the period during which he was in custody on remand before his conviction, in order to set the term to be served by Roberts. This is a renewed application for leave to appeal.

The facts —Caines

9

The facts are summarised in Cox J's judgment, which again we gratefully adopt.

10

Caines was born in December 1960. He was convicted on 25 July 1995 in the Crown Court at Birmingham, before Ebsworth J and a jury of murdering a solicitor, Colin Hickman. Subsequently, in January 1997 his renewed application for leave to appeal against conviction was refused by the Court of Appeal Criminal Division.

11

Colin Hickman, a solicitor working for a firm in central Birmingham, was killed in the hallway of his home in Coventry at about 6.30pm on 1 st March 1994. He was the victim of a knife attack and, among a number of injuries, he sustained a fatal stab wound which penetrated the carotid artery. His attacker had used force sufficient to bend the blade of the knife. On the evidence it seemed clear that more than one person was present when the deceased was attacked. Although Caines had initially given a false alibi, and admitted telling lies to the police, he gave evidence at trial that he had been present when the violence was started by others, but that he was not involved in the actual killing.

12

The prosecution case was that Caines and another man, seen leaving the scene by the deceased's widow, committed the offence together. Caines had been following the deceased for some days before the killing, with the murder weapon in his possession. Indeed there was no dispute that this knife belonged to him. There was scientific evidence which suggested that the deceased had been restrained while he was being fatally attacked. He sustained injuries to the face and head, with a number of slicing or slashing wounds, some superficial, some deeper, together with six stab wounds, including the fatal wound. No defence injuries were present. The trial judge observed that the pattern of injuries suggested that the deceased had first been taunted before the fatal would was inflicted.

13

The prosecution case was that the appellant's motive arose from his dishonest activities as a "con man", who murdered the deceased in order to prevent the imminent exposure of his dishonest financial activities. He owed approximately £300,000 to his creditors. The precise extent and nature of the dealings between the appellant and the deceased were not entirely clear. The appellant himself, in written representations, referred to their both having been involved in an ongoing business relationship, with a number of financial transactions taking place on a cash basis, but leaving no paper trail.

14

The jury rejected the appellant's defence that he was not involved in the murderous attack on the deceased.

15

On conviction, the appellant was sentenced to life imprisonment. On 26 th May Ebsworth J recommended to the Secretary of State that the length of the detention necessary to meet the requirements of retribution and general deterrence for the offence was a period of fourteen years. On 6 th June the then Lord Chief Justice agreed with her recommendation. Written representations were made on the appellant's behalf and submitted to the Secretary of State for consideration during 1998. On 14 th January 1999, he was notified that the Secretary of State had set the minimum term at fourteen years.

16

The appellant applied to the High Court under the provisions of schedule 22(3) of the Act for his notified minimum term to be reconsidered. Detailed written representations and accompanying documents were presented to the court. Cox J rejected the application for an oral hearing.

17

In essence, the appellant sought to demonstrate that since he started his sentence, he had made "exceptional progress". The material before us suggests that the appellant's general behaviour in prison has been of a high standard throughout his sentence, and at each prison where it has been served. He has done considerable work on his education, and is now in the second year of a degree course. He has also undertaken to address what is described as "offending behaviour", and worked hard to rehabilitate himself. He had now been released on temporary licence on a regular basis, sufficiently to obtain employment. This indicates that he is assessed at low risk of reoffending. He continues to deny that he was guilty of murder. That, however, does not preclude the finding that he has made exceptional progress. Credit should be given where it is due, and the refusal to admit guilt is not a necessary prerequisite to the conclusion that the progress of the prisoner has been exceptional. Among work done for others during his sentence, the appellant has raised money for charity at two prisons; worked with groups of the disabled at one prison; acted as a listener at four prisons; acted as a host for official visitors at one prison; and helped with events like the Lifer Day at another prison. He has worked as a volunteer for a Heritage Trust, and arranged physical education for elderly and disabled prisoners.

18

There are a number of reports from different prisons suggesting in the opinion of the writers that he has made exceptional progress. At one prison he was described as "one of the most focussed people" the lifer manager had met: another prison officer, who knew him at two prisons, observed that he was one of the hardest working inmates the prison officer had encountered, and yet another who worked with him at a fourth prison commented to the same effect. At his last planning review, his progress was described as excellent.

19

Cox J agreed, and further, considered that...

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