Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2007] EWHC 2783 (QB)
Case No: 2004/1101/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Birmingham Civil Justice Centre
33 Bull Street, Birmingham B4 6DS
Date: 06/12/2007
Before :
MR JUSTICE NELSON
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
- and -
Benjamin James Allen
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
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 NELSON
Mr Justice Nelson :
Review of minimum term in relation to Benjamin James Allen pursuant to paragraph 3, schedule 22 of the Criminal Justice Act 2003.
Decision
1. On 29 September 1998 Benjamin James Allen was convicted of the murder of Rachel Searle on 1 January 1998. The trial judge, Mr Justice Grigson, recommended a minimum term of 14 years to meet the requirements of retribution and general deterrence. The Lord Chief Justice, Lord Bingham, recommended 11 – 12 years and the Secretary of State on 28 September 1999 set the tariff at 12 years.
2. The Applicant, Benjamin James Allen, has applied to the High Court for the tariff set by the Secretary of State to be reviewed pursuant to the provisions of Schedule 22 paragraph 3 of the Criminal Justice Act 2003. I have had regard to the report of the trial judge, the recommendations of the Lord Chief Justice, the representations made on behalf of Mr Allen by his solicitors, Andersons, dated 11 January 2005, and the victim impact statements from Georgina and Robert Blowers, the deceased’s mother and step father and Charmaine Woodvine and Gina Blowers, her sisters, received on 5 April 2005. I have also considered the representations made on behalf of Benjamin James Allen before the tariff was originally set in 1999. These consist of his then solicitor’s letter of 13 July 1999, Benjamin James Allen’s own letter to the Home Secretary, together with a Probation report and a medical report prepared for the trial judge 1998.
3. In carrying out this review I have had regard to the seriousness of the offence in accordance with the general principles set out in Schedule 21 of the Act. Paragraph 8 of Schedule 22 provides that the High Court may not make an order specifying a minimum term which in the opinion of the Court is greater than that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify. For the purposes of applying this requirement I have considered the Practice Direction of the Lord Chief Justice Lord Bingham set out in his letter of 10 February 1997.
4. The facts of this case are that the Applicant, who was himself then 18, lived with Rachel Searle. She was 16 years old, still at school, and the mother of his child. She objected to his drug taking and threatened to leave him, taking their son with her, if he did not stop. During the evening of the 1st January 1998 he took a combination of drugs before returning home. There was an argument. He strangled her by wrapping a telephone cable tightly four times around her neck and then knotting it. Thereafter, he, with a friend, made attempts to dispose of the body by burning it. His defence to the charge of murder, which was rejected by the jury, was that he was so heavily under the influence of drugs that he had not formed the necessary mental intent to commit the offence.
5. The starting point under Schedule 21 of the 2003 Act is one of 15 years as the starting points in paragraphs 4(1) and 5(1) of Schedule 21 were not applicable. Under the Practice Direction of 10 February 1997 the starting point was one of 14 years.
6. The aggravating features are that the victim was only 16 years of age at the time of her death and attempts were made to dispose of her body by burning it. The mitigating features which are emphasised in the representations, are that the Applicant was himself only 18 years old at the time of the offence, that he lacked premeditation or an intent to kill, that he had shown remorse and made substantial progress whilst in prison including dealing with his drug addiction.
7. When these aggravating and mitigating factors are taken into account I consider that the minimum term of 12 years set by the Secretary of State was appropriate. Whilst it was at the upper end of the Lord Chief Justice’s recommendation it was 2 years lower than the trial judge’s recommendation. The Applicant’s age at the time of the offence, namely 18, is a significant mitigating feature but the victim was even younger and the attempts to dispose of the body by burning were undoubtedly an aggravating factor. When the lack of premeditation or intent to kill, remorse and progress whilst in prison, which is to be commended but is not exceptional, are also taken into account 12 years is in my judgment the correct minimum term.
8. The minimum term under Schedule 21 of the 2003 Act, with a starting point of 15 years, may be somewhat higher, but I do not believe that the Secretary of State, following the relevant practice prior to December 2002 would have notified a higher tariff than 12 years. Apart from paragraph 8 of Schedule 22, it would be wrong in principle to apply today’s standards, reflected by the provisions of the 2003 Act, to the setting of a term in September 1998 which had to be in accordance with the pre December 2002 Practice Direction.
9. I therefore conclude that the appropriate minimum term in this case is one of 12 years less 8 months 16 days spent in custody on remand which falls to be deducted. I order that the early release provisions are to apply as soon as that term has been served. This minimum term is the minimum amount of time Mr Allen will spend in prison, from the date of sentence, before the Parole Board can order early release. If it remains necessary for the protection of the public, the prisoner will continue to be detained after that date. If released Mr Allen will remain on licence for the rest of his life and may be recalled to prison at any time.