R v Sullivan; R v Gibbs; R v Elener (Barry); R v Elener (Derek)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holland |
| Judgment Date | 08 July 2004 |
| Neutral Citation | [2004] EWCA Crim 1849,[2004] EWCA Crim 1762 |
| Docket Number | No. 2004/01971/B3. 2004/00619/B3/2004/0222/A3, 2004/02117/A3,Case No: 200401971 B3; 200400619 B3; 200402222 A3; 200402117 A3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 08 July 2004 |
[2004] EWCA Crim 1762
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
The Lord Chief Justice of England and Wales
Lord Justice Judge Deputy Chief Justice
of England And Wales
Mr Justice Holland
Mr Justice Astill and
Mr Justice Gross
Case No: 200401971 B3; 200400619 B3; 200402222 A3; 200402117 A3
Patricia Lynch QC and Katharine Moore for Sullivan
Rex Tedd QC and Sally Hobson for the Crown in Sullivan
Edward Fitzgerald QC and Paul Taylor for Gibbs
Nicholas Hilliard QC for the Crown in Gibbs
Ben Nolan QC and Oliver Jarvis for Barry Elener
Gareth Evans QC and Richard Gioserano for Derek Elener
Robert Smith QC for the Crown in Barry and Derek Elener
Introduction
The Criminal Justice Act 2003 (the "2003 Act") contains provisions of great significance to the sentencing of offenders. This judgment deals with the provisions dealing with offenders sentenced to life imprisonment for murder. It provides what is intended to be general assistance as to the approach that courts should adopt when applying those provisions. It does this in the context of 4 appeals (that we have heard together) against the minimum periods that the appellants had been ordered to serve before they could be considered for release on licence by the Parole Board under the early release provisions contained in Chapter 7 of the 2003 Act.
The catalyst for the need to include the early release provisions in the 2003 Act was the decision of the House of Lords in R (Anderson) v Secretary of State [2003] 1 AC 837 25 November 200Before the decision in Anderson the minimum period in the case of those sentenced to a mandatory life sentence was determined by the Secretary of State after considering recommendations made privately by the trial judge and the Lord Chief Justice. Following a series of decisions of the European Court of Human Rights (the ECHR), in Anderson the House of Lords made it clear that this involvement of the Secretary of State was unacceptable and contravened Article 6 of the European Convention on Human Rights. This was because the process of determining a minimum period is considered to be indistinguishable from that of determining a sentence. Both tasks should be performed by a judge and not by a member of the Executive. The Secretary of State after that decision ceased to determine minimum periods though trial judges continued to make recommendations until the new provisions came into force.
The decision in Anderson does not affect the fact that the mandatory sentence for murder remains life imprisonment. Although an offender may be released on licence, and the minimum period affects the date on which this may happen, the offender remains at risk of being returned to prison for the rest of his life. The sentence of life imprisonment has been treated, both as matter of reality and for many legal purposes, as containing two periods. The initial period, known as the minimum term, that is a period to be served by the offender as a punishment and a deterrent, and a subsequent period during which the offender can, but may not, be released on licence by the Parole Board if the Board decides that the safety of the public does not require the offender to remain in prison. (This is very much a simplification of a position that developed by stages over many years chronicled in a number of judgments. There is a brief history set out in Anderson (at p 842/5).)
The 2003 Act transferred the role of the Secretary of State in determining the minimum term to the trial judge. The relevant statutory provisions came into force on 18th December 2003.
To assist trial judges to make their recommendations under the pre- Anderson practice and to encourage greater consistency, the present and previous Lord Chief Justices had provided general guidance to sentencing judges as to the approach to be adopted. The 2003 Act, for the first time, includes the guidance in an Act of Parliament in section 269(5) and Schedule 21 in the form of "general principles".
The general principles in Schedule 21 apply to determinations made after 18 December 2003 even if the offence was committed before that date. The 2003 Act therefore contains transitional provisions that are intended to ensure that an offender is not made subject to a determination which contravenes Articles 5 and 7.1 of the ECHR. Under Article 5 every one has the right of liberty and security of person and Article 7.1 prohibits the imposition of a heavier penalty "than the one that was applicable at the time the criminal offence was committed".
We now turn to consider the relevant provisions of the 2003 Act. Before considering these in detail, it is desirable to make two general points. The first is that, while all murders are grave crimes, because murder can be committed without the offender having an intention to kill, an intention to inflict grievous bodily harm being sufficient, the offence covers a particularly broad spectrum of gravity. For example, besides the sadistic killer, it covers mercy killing by a caring member of the deceased's family responding to a plea to bring terminal suffering to a more rapid conclusion. Minimum terms can range from whole life to even less than 8 years. The second is that in order to compare a minimum term with a determinate sentence it is necessary approximately to double the determinate sentence. This is because in the case of a sentence of a fixed duration the offender is either released or eligible for parole at the half way stage. This is the position of a life prisoner only after the whole of the minimum term has been served.
The Statutory Provisions
For present purposes we shall start with the general provisions of Chapter 1 of Part 12 of the 2003 Act, which although not yet in force provides valuable insight into the overall intention of Parliament. The heading is "General Provisions About Sentencing", and under "Matters to be taken into account in sentencing", continues as follows:
"142 Purposes of sentencing
(1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing-
(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their offences.
(2) Subsection (1) does not apply—
(a) in relation to an offender who is aged under 18 at the time of conviction,
(b) to an offence the sentence for which is fixed by law."
The sentence for murder is, of course, fixed by law so section 142 does not apply to the determination of the minimum period in the case of a life sentence. However, the section is still important. This is because it underlines the very different task that a judge performs when deciding the length of a minimum term, having imposed a life sentence, from the task that he performs when he decides what should be the length of a determinate sentence. In the case of the minimum term he is only directly concerned with "seriousness", the protection of the public being provided by the imposition of the life sentence. After the minimum term has been served, protection of the public becomes the responsibility of the Parole Board, who then decide when it is safe to release the offender on licence. As to seriousness, section 143 is relevant. It provides:
"143 Determining the seriousness of an offence
(1) In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might forseeably have caused.
(2) In considering the seriousness of an offence ("the current offence") committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to—
(a) the nature of the offence to which the conviction relates and its relevance to the current offence, and
(b) the time that has elapsed since the conviction.
(3) In considering the seriousness of any offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravating factor.
(4) Any reference in subsection (2) to a previous conviction is to be read as a reference to—
(a) a previous conviction by a court in the United Kingdom, or
(b) a previous finding of guilt in service disciplinary proceedings.
(5) Subsections (2) and (4) do not prevent the court from treating a previous conviction by a court outside the United Kingdom as an aggravating factor in any case where the court considers it appropriate to do so."
Section 144 deals with the effect of guilty pleas and also applies to setting the minimum term. It provides as follows:
"144 Reduction in sentences for guilty pleas
(1) 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 must 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."
The appropriate credit for a plea of guilty should be deducted from the period of the minimum term which the judge would have determined if there...
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