R v Emma Last, Lee David Holbrook and Others
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice |
| Judgment Date | 27 January 2005 |
| Neutral Citation | [2005] EWCA Crim 106 |
| Docket Number | Case No:(1) 2004/02818/A3 (3) 2004/02865/A4 (4) 2004/40699/A9 (5) 2004/06100/A9 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 January 2005 |
[2005] EWCA Crim 106
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
(1)THE CROWN COURT AT CHELMSFORD
THE HON MR JUSTICE NELSON
(2)THE CROWN COURT AT KINGSTON
HIS HON JUDGE TILLING
(3)THE CROWN COURT AT PLYMOUTH
HIS HON JUDGE WILLIAM TAYLOR
(4) & (5)THE CROWN COURT AT PRESTON
HIS HON JUDGE OPENSHAW QC
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice Of England And Wales
The Hon Mr Justice Silber
The Hon Mrs Justice Rafferty
Case No:(1) 2004/02818/A3
(2) 2004/05255/A6
(3) 2004/02865/A4
(4) 2004/40699/A9
(5) 2004/06100/A9
Miss Sonia Woodley QC and Mr Sean Enright (instructed by Stevens Solicitors, Saffron Waldron) for Appellant (1)
Mr Martyn Levett and Mr Steven Dyble (instructed by CPS, Chelmsford) for the Respondent
Mr R Taylor (instructed by Woollcomber Beer Watts, Newton Abbott) for Appellant (2)
Mr J Laidlaw (instructed by Her Majesty's Solicitor General) for the Respondent
Mr John Ryder QC and Mr Bill Evans (instructed by Attridge Law, Battersea, London) for Appellant (3)
Mr J Laidlaw (instructed by) for the Respondent
Mr D Fish QC (instructed by Cobains, Blackpool) for Appellant (4)
Mr M Hussain QC (instructed by) for the Respondent
Mr Paul Reid QC (instructed by Blackburn & Co, Fleetwood) for Appellant (5)
Mr M Hussain QC (instructed by) for the Respondent
Introduction
We have heard these five cases together. We have done so in order to provide further assistance as to the determination of the minimum term to be served by defendants convicted of murder and sentenced to life imprisonment prior to their being considered for release on licence by the Parole Board. The common feature of the five cases is that in each case the defendant pleaded guilty to murder.
Until recently, it was rare for a defendant to plead guilty to murder. This may have been a throwback to a time when the penalty for murder was death. In that situation, the legal profession regarded it as inappropriate to allow a defendant to plead guilty.
The catalyst for change was probably the House of Lords decision in Anderson v DPP [2003] IAL 837 and the legislation which was necessary as a result of that decision. The responsibility for decisions as to minimum terms when a mandatory life sentence was imposed for murder was transferred from the Home Secretary to the judiciary.
From 18 December 2003, the Criminal Justice Act 2003 ("the 2003 Act") requires the judge to determine in open court the minimum term that needs to elapse before a defendant is eligible for parole. This process, under the 2003 Act, is in marked contrast to the earlier process when the minimum term would be determined by the Home Secretary behind closed doors, having received private recommendations from the trial judge and the Chief Justice of the day as to the appropriate minimum term to be served.
When making their recommendations to the Home Secretary, the trial judge and the Lord Chief Justice would reduce the minimum period if the defendant had pleaded guilty. This was because of the benefit that flowed from the plea of guilty, both for the family of the victim, and the criminal justice system as a whole. The guilty plea could also demonstrate remorse on the part of the defendant. However, as the trial judges' and the Lord Chief Justice's recommendations were not made in public, that the judges made this deduction, apparently, was generally not appreciated. This position changed once the minimum term was determined by a judge in open court.
The leading authority on the process of determining the minimum term after the 2003 Act came into force, was the decision of this court in R v Sullivan & Others [2004] EWCA Crim 1762. In that case, this court referred to the relevant provisions of the 2003 Act and Practice Directions and in particular Schedules 21 and 22 of that Act, and indicated the approach which judges should adopt in setting minimum terms. However, Sullivan did not deal specifically with the effect of a plea of guilty on minimum periods.
In broad terms, regard has to be had to the starting points, and aggravating and mitigating features, referred to in Schedule 21, in determining the length of the minimum period required as a punishment to reflect the seriousness of the offence. Having calculated a minimum term under Schedule 21, the judge then has to apply paragraph 10 of Schedule 22 if the offence was committed before the 2003 Act came into force on 18 December 2003. This is to ensure that the minimum term does not exceed what would have been the likely minimum term based on the practice of the Secretary of State prior to December 2002. The purpose of this provision was to avoid a minimum term set by the judge being retrospectively set at a higher figure than that which would have been set at the time of the offence by the Home Secretary.
A difficulty that the 2003 Act creates is that it does not identify the practice of the Home Secretary prior to that date. However, as pointed out in Sullivan, it was only in the most serious cases that the Home Secretary tended to select a higher figure than that indicated by the judiciary. The practice of the judiciary was to follow the Practice Directions which had been issued by the Lord Chief Justice of the day, so the Practice Directions, in general, should be regarded as the most satisfactory evidence of the practice of the Home Secretary prior to December 2002. The desirability of the use of the Practice Directions in this way, is underlined by the fact that the Secretary of State had not made any determinations to minimum term, in a case where the offender was sentenced after the date of the latest Practice Direction (31 May 2002), by the time the law was changed.
Where a defendant pleads guilty, section 152 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act") provides:
i) "In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court, a court shall take into account –
a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty; and
b) the circumstances in which this indication was given.
ii) If, as a result of taking into account any matter referred to in subsection i) above, the court imposes a punishment on the offender which is less severe than it would otherwise have imposed, it shall state in open court that it has done so."
Section 152 of the 2000 Act on 4 April 2005 replaces in almost identical language by Section 144 and 174 (2)(d) of the 2003 Act, although section 174(2)(e) adds the requirement that the court must;
"(e) in any case, mention any aggravating or mitigating factors which the court has regarded as being of particular importance."
The Sentencing Guidelines Council has issued Guidelines for all offences as to how these statutory provisions should be applied in the case of pleas of guilty. In relation to offences other than murder, there was, prior to the Guidelines, no guidance as to what the level of reduction should be allowed. However, it had generally been assumed that the reduction should be approximately one third of the length of the sentence that would otherwise have been imposed. This was no more than a rule of thumb, and judges exercised a broad discretion to vary the level of reduction according to the circumstances. One of those circumstances was the stage of the proceedings at which the appellant had pleaded guilty. A late plea tended to receive a lower discount.
The purpose of granting a reduction was explained in the Guidelines as follows:
"2.1 A reduction in sentence is appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of more expeditiously), shortens the gap between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victims and witnesses from the concern about having to give evidence.
It is a separate issue from aggravation and mitigation generally.
The sentencer should address the issue of remorse, together with any other mitigating features present, such as admissions to the police in interview, separately, when deciding the most appropriate length of sentence before calculating the reduction for the guilty plea.
The implication of other offences that an offender has asked to be taken into consideration should also be reflected in the sentence before the reduction for guilty plea has been applied
A reduction in sentence should be applied to any of the punitive elements of a penalty. The guilty plea reduction has no impact on sentencing decisions in relation to any ancillary orders…"
The Approach that should be adopted by the Judge in Determining the Level of Reduction.
The judge both calculates and applies the reduction to the level of sentence or minimum term that there would have been if there had been no reduction as a result of the guilty plea. (See paragraph 3.1 of the Guideline) The Guideline continues by giving guidance as to how to determine the appropriate level of reduction. It indicates that it should be calculated as a proportion of the total sentence imposed, with the relevant proportion based upon the stage in the proceedings at which the guilty plea was entered (paragraph 4.1). Paragraphs 4.2 and 4.3 provide:
"4.2 Save where section 152(3) of the 2000 Act (section 144(2) of the 2003 Act) applies, [they apply to the minimum sentences for a third drug trafficking...
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