Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number:[2007] EWHC 3057 (QB)
Case No: 2004 /778 / MTR
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Chester Crown Court
Date: 19th December 2007
Before:
THE HON MR JUSTICE ANDREW SMITH
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
- and -
DAVID ANTONIO BARRETT
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
APPROVED JUDGMENT
I direct that 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 ANDREW SMITH
1. This is an application under schedule 22 of the Criminal Justice Act 2003. I have considered written representations dated 22 June 2004 in support of the application.
2. The applicant, David Antonio Barrett, is an “existing prisoner” within the meaning of schedule 22. On 11 May 1989 he was convicted of the murders of Colin Abrams and Clifford Brown in July 1988, and sentenced to life imprisonment. He was notified in writing by the Secretary of State that the minimum period which in the view of the Secretary of State should be served before his release on licence was 25 years.
3. I have to decide whether I should order that the early release provisions under the 2003 Act should apply to him after a shorter period than 25 years. It is not open to me to order that they should apply after a longer period.
4. In considering this application, I must have regard to the length of the minimum term recommended by the Secretary of State and to the seriousness of the combination of the two associated offences of murder that the applicant committed, and in doing so, I must have regard to general principles set out in schedule 21 of the Act and also to the recommendations made to the Secretary of State by the trial judge and by the Lord Chief Justice as to the minimum term to be served by the applicant before release on licence. In this case, the minimum term recommended by both the trial judge, Mr Justice Tudor Evans, and by the Lord Chief Justice, Lord Lane, was 25 years. Lord Lane observed, “This being an example of gang-warfare the recommended sentence of 25 years is appropriate as a deterrent to others. Apart from that consideration the risk element would no doubt have entailed a longer than usual term”.
5. I am also to have regard to the effect that section 67 of the Criminal Justice Act 1967 would have had if the applicant had been sentenced to a term of imprisonment, provided I am satisfied that, if he had been so sentenced, the length of his sentence would have been treated as reduced by a particular period under that section: therefore the court takes account of any period that a person has spent in custody only because he was committed to custody by an order of the court made in connection with proceedings relating to the murder. I am satisfied that here I should have regard to a period of 9 months, 12 days (or 285 days) spent in custody on remand.
6. The applicant was born on 1 February 1957. Therefore he was aged 31 years when he committed these murders and 32 years when he was convicted and sentenced. He is now aged 50 years. The circumstances of the offences are described by Mr. Justice Tudor Evans in his report to the Secretary of State in the following terms:
“The killings arose out of gang warfare for the control of prostitutes in Wolverhampton. Events began with an incident involving Abrams, David Brown, a man named Watson and a prostitute. I had no doubt on the evidence that this incident was reported to Barrett as an attempt by the three men to kidnap and force the prostitute to work for them. There was ample evidence that thereafter Barrett made threats to shoot the three men. On the 22nd July 1988, the three men beat up Barrett. Later on that day, he armed himself with a sawn off shotgun and ammunition which he had lodged with a minder and went, in company with his brothers and Harris, to find the three men. In the early hours of the next day, as Abrams came towards him in a street, armed with a bar and throwing a bottle or bottles, Barrett fired the gun and hit Abrams and the spread of the shot hit Clifford Brown who was not in any way involved in the dispute but who happened to be standing nearby. Several other innocent bystanders were also hit by the shot. J Barrett said that the gun went off accidentally as he ducked to avoid a bottle thrown by Abrams”.
7. The issues in the case included whether the killings might have resulted from accidental discharge of the gun, self-defence and provocation.
8. The thrust of the representations in support of the applicant’s contentions that the minimum period should be shorter than 25 years is that the killings did not arise from gang warfare, but from him seeking to help his girlfriend’s brother when he was being abused for dating a white girl. He does not seek to justify his actions and is, it is said, remorseful for what he did. It is also the case that he has used his time in prison constructively, completing many courses, successfully overcoming his drugs habit and achieving enhanced status.
9. The starting point for determining the minimum term under schedule 21 of the 2003 Act would be 30 years, both because two people were murdered and because the murders involved use of a firearm. Even leaving aside the question whether the background to this case was gang-warfare, there are to my mind no mitigating features of the applicant’s offending that would justify reducing this significantly, or to reduce it to less than 25 years.
10. As for the applicant’s conduct in prison, I am unable to accept that this would justify a reduction in his minimum term, although I readily that he has made commendable progress. The conduct of an applicant in prison may be brought into account when determining the minimum term, but this is done only in rare cases: see Cole v The Secretary of State for the Home Dept, [2003] EWHC (Admin) 1789.
11. I therefore consider that the early release provisions should apply to the applicant only when he has served 25 years. The 285 days that this applicant served in custody on remand is to count as time served by him as part of his sentence.