Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2007] EWHC 499 (QB)
Case No: MTR/24/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 8 March 2007
Before :
MR JUSTICE WALKER
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Application by
MICHAEL JOHN ENSOR ALLEN
for the setting of a minimum term pursuant to Schedule 22 of the Criminal Justice Act 2003
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Judgment As Approved by the Court
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Walker:
1. On 6 July 1995 at Newcastle Crown Court, after a trial before Mr Justice Waller and a jury, the applicant was convicted on count 1 of murder of his wife Myrtle Allison Allen. He was sentenced to life imprisonment for murder with a recommendation that a minimum of 15 years be served before release. The applicant pleaded guilty on count 2 to an offence of doing an act tending to and intended to pervert the course of public justice, and for this he was sentenced to 10 years imprisonment concurrent. Appeals were lodged against conviction on count 1 and sentence on count 2. The Court of Appeal on 29 April 1996 dismissed the appeal against conviction but allowed the appeal against sentence. The result was that in addition to the life sentence on count 1 the applicant was sentenced to a concurrent period of 4 years imprisonment on count 2. The applicant was subsequently notified by the Home Secretary that in relation to count 1 the minimum period which should be served before his release on licence was 15 years. He has now applied under paragraph 3 of schedule 22 to the Criminal Justice Act 2003 for the court to determine his minimum term. These are the reasons for my decision on that application.
2. The circumstances of the offence, as set out in the trial judge's report to the Home Secretary, were as follows:
“On the evening of 9th July, or early hours of 10th July 1994, the defendant attacked his wife hitting her about 20 times with a hammer. He then cut her body up into seven pieces and hid those seven parts in a deep freeze. He at first pretended to his step-daughter, neighbours and the police that she had gone missing. However on Monday 11th July blood was seen near a drain outside, the body was discovered and he then pretended that he had found his wife in the bath with her throat cut and that she had committed suicide. To avoid the shame to the family he decided to dispose of her body.
Initially he claimed to have tried to smash his wife's head with a hammer to help him dispose of the body down the lavatory. Only when ultimately pathologists' reports showed that the cut to his wife's throat had occurred after she was dead and the hammer blows to the head occurred before she was dead did he then suggest that he was provoked. At the trial the main defence was provocation based on Myrtle Allen having treated him intolerably during their marriage in particular in the latter days, and ultimately challenging him on the Saturday evening during an argument as she retired to bed in the single bedroom to hit her and saying that she doubted whether he could even do that properly.
He said he snapped and picked up a hammer that was in the bedroom following DIY work during that day, and struck her 20 times albeit he could only remember two blows. The pathologist's evidence which was read by agreement, suggested that all but one blow was to the left side of the head and face, and that there were no defence wounds. The likelihood was that she was lying on her right side with her back to the defendant and never saw her attack coming. ”
3. The issues before the court were provocation and diminished responsibility. The trial judge commented:
“Diminished responsibility was only ultimately raised by the defence at the last moment. Dr Naismith for the crown (who gave evidence) and a Dr Davison for the Defence whose report I did not see and who did not give evidence for obvious reasons had agreed that the defendant was not suffering from any abnormality of mind; but a Dr Harkness (who was in a Senior position in the prison medical service and thus the Defendant's superior when the defendant worked in the prison hospital as a nurse), had visited the Defendant really only in a pastoral role some three days after he had been arrested; he thought that he had detected symptoms of hypomania and gave evidence to that effect at the trial; he was supported by another prison Doctor again visiting in a pastoral role. However no Doctor or any other member of the staff in the prison hospital where the defendant was being kept after his arrest detected any such signs and from the questions asked by the jury, it seems likely that they rejected rightly this line of defence.”
4. In determining the minimum to be served by the applicant, I have directed myself by reference to the provisions of the schedule 22 to the 2003 Act, in particular paragraphs 2 to 4. In assessing the seriousness of the offence I am required to have regard to the general principles set out in schedule 21 and to the recommendations made to the Secretary of State by the trial Judge and the Lord Chief Justice as to the minimum term to be served.
5. I have taken into account the Home Office's file, including representations made by and on behalf of the applicant. At my invitation additional representations have been made on two aspects. The first concerned a submission that a minimum term of less than 15 years was necessary in order to avoid punishing the applicant twice for the offence on count 2. The second concerned a submission that exceptional conduct on the part of the applicant in prison should result in a reduction in the minimum term. The applicant's solicitors have made a request for an oral hearing to deal with these matters. I decline that request, as I consider that these two aspects can be determined in a just and fair manner without the need for oral argument.
6. The judge's report to the Home Secretary included the following:
“The defendant had no previous convictions of any kind. He had married his wife 10 years previously, she being about 10 years older than him.
The defendant had been a prison officer serving as a nurse in the hospital wing for about 10 years. Many of his colleagues gave evidence and spoke in glowing terms of him. He was never going to gain promotion but he did his job extremely well. He did not seem to have a temper and seemed to be able to cope with mentally disturbed or aggressive inmates by talking calmly to them. Even while in prison awaiting trial he had been of considerable help to the staff in the prison with other inmates. No one could understand how he came to do what he did to his wife.
All his colleagues that knew his wife were very uncomplimentary about her. She was an outrageous flirt. She had in fact had an affair with a superior officer at the prison albeit the defendant said he did not know of that before he was arrested for the killing. She was said to have treated him with contempt in public. She was obsessively house-proud making him do some of the hoovering because she had tennis elbow. He used to work hard in the house while she would sun bathe and then she would criticise what he had done etc. In the pub which they both visited she was the centre of things while he sat quietly smoking his pipe.
The stepdaughter painted a slightly different picture of the defendant losing his temper with his wife and smashing furniture on a few occasions; and the defendant accepted there had been occasions when he had as he put it been goaded into smashing things. One friend of both the defendant and the wife in the public which they frequented also was less uncomplimentary about the wife, but was also complimentary about the defendant describing them as a couple who enjoyed pub life and no different from others doing the same.
It would seem that the defendant, a normally controlled man, did snap over the relevant weekend. I have however some doubts as to whether that loss of self control was due to anything more than a build up over a considerable period. His wife may well have been asleep when he attacked her, and he made great efforts to prevent bleeding; he ultimately cut her up in a businesslike way; he even neatly put wiring into place for the purpose of connecting the deep freeze. What he did was quite out of character with the man and it does seem unlikely that he will offend again, but the businesslike way that he disposed of his wife's body and his ability to stay calm and deceive so many people during the immediate aftermath does give me some cause for anxiety.”
7. The trial judge duly recommended a minimum period of 15 years, commenting:
“His good record in the past and the provoking circumstances, have to be balanced against the businesslike attempt to dispose of his wife's body. My recommendation is that 15 years is the appropriate period.”
8. The Lord Chief Justice agreed with this recommendation. The term notified by the Home Secretary was, as I have said, 15 years in line with the views of both the trial Judge and the Lord Chief Justice.
9. In terms of schedule 21, this case does not fall within paragraphs 4(1) or 5(1). Accordingly under paragraph 6 the appropriate starting point, in determining the minimum term, is 15 years. A significant aggravating factor in the present case is the concealment and dismemberment of the body: see paragraph 10(g). It is suggested on behalf of the applicant that treating this as an aggravating factor was inappropriate, or that the trial judge passed a sentence so severe on count 2 as to lead him into error both in sentencing for count 2 and in fixing the tariff. I have considered the judgment of the Court of Appeal of 29 April 1996. While it demonstrates that the judge fell into error in the sentence imposed on count 2, I can detect nothing to suggest that there was any error in relation to his setting of the tariff. Nor can I see any basis for thinking that there is any element of duplication. The sentence on count 2 was concurrent. This means that if – as it must - the overall sentence is to reflect the murder involved the aggravating feature of concealment and dismemberment of the body, this can only be achieved by imposing a higher minimum term for the murder than would otherwise have been the case. Such a course involves no element of duplication and in my view is not merely appropriate but essential.
10. The trial judge described the disposal of the body as being carried out in a “businesslike way”. This characterisation is challenged on behalf of the applicant, but I can detect nothing in the papers to lead me to think that it is inaccurate. After disposal of the body the applicant lied in various ways about what had happened. It has been suggested that on remand into custody the applicant admitted the killing when he arrived at the prison and had the opportunity of settling down. I am by no means satisfied that the trial judge misunderstood the position, but even if he had done I do not think that any misunderstanding in this regard had a significant adverse impact on the applicant.
11. As to mitigating factors, the trial judge did not deal expressly with whether there was a lack of intention to kill. I think the pathologist's finding of about 20 blows points clearly to there having been an intention to kill. It has been suggested that there was provocation, evidenced by the trial judge describing “a normally controlled man” who snapped “over the relevant weekend…due to a build up over a considerable period”. It is added that there appears to have been no premeditation, and that the applicant is now 55 years of age and was 44 at time of the offence. Further mitigating matters are remorse and good character. In my view when taken as a whole these mitigating factors, taken at their highest, do no more than counterbalance the aggravating features. It should be noted that the aggravating feature of concealment and dismemberment of the body does not stand on its own. This was part of a course of conduct over a sustained period in which the applicant sought to pervert the court of justice. The trial judge described the disposal of the body as being carried out in a “businesslike way”. He added that this, together with the applicant's “ability to stay calm and deceive so many people during the immediate aftermath” gave him some cause for anxiety. In the result, the aggravating factors being balanced by the mitigating factors, I conclude that the minimum term, subject to any adjustments for exceptional conduct in prison and for time in custody on remand, should be 15 years.
12. I turn to consider what, if any, further deductions from that figure are appropriate.
13. In R v Caines [2006] EWCA Crim 2915 the Court of Appeal confirmed that a reduction of the minimum term can be made where an applicant has made exceptional progress. It recommended requesting reports from the last two governors of prisons where the applicant has been held. In view of the late stage that has now been reached in the present case I accept the applicant's invitation to determine the matter without following this course, and instead to have regard to the documentary material I have seen. In this regard I take account of all that has been submitted on behalf of the applicant. The matters particularly relied on are assisting prison staff, lack of adjudications, employment as an orderly teaching assistant, acting as a Samaritan trained listener, drugs counselling, coping with periods when he has been placed at risk from other inmates because of his history as a prison officer, expressions of remorse, offence related course work and proposed further course work, one to one work with psychologists, educational and employment qualifications, charitable activity, successful town leaves, an enhanced level of incentives and participation in the earned privileges scheme. The cumulative effect of all these matters, and in particular the sustained involvement in the doing of good works for the benefit of others, in my view make his case truly exceptional and warrant a reduction of 1 year in the minimum term.
14. I am required by paragraph 4(1)(b) of schedule 22 to have regard to matters in s 67 of the Criminal Justice Act 1967 relating to police detention and periods of remand in custody. In my view there is no reason why the time spent by the applicant in custody on remand should not count towards the minimum period to be served by the applicant. In order to produce that result, it is necessary to deduct it from the otherwise appropriate minimum term.
15. Accordingly, the specified period is one of 14 years reduced by 358 days spent in custody on remand.