Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2008] EWHC 466 (QB)
Case No: REF NO 2004/258/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MTR
Royal Courts of Justice
Strand, London, WC2A 2LL
At Sheffield
Date: 26/03/2008
Before :
THE HON MR JUSTICE LANGSTAFF
IN THE MATTER OF AN APPLICATION BY MICHAEL WILFRED ANDERSON
Pursuant to Paragraph 3, Schedule 22 of the Criminal Justice Act, 2003.
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 Langstaff:
D E T E R M I N A T I O N
1. On 23rd. November 1999 Michael Wilfred Anderson pleaded guilty at Newcastle Crown Court before Mrs. Justice Hallett to an offence of murder, committed on 29th. November 1998. His trial had already begun, he being accused jointly with Alan Finnigan of the murder. On the 30th. November 1999, Finnigan was convicted by the jury by a majority (10-2). Both were sentenced to life imprisonment, with a recommendation by the trial judge made on the 16th. December 1999 that Anderson should serve a minimum period of 14 years imprisonment before consideration for early release, and Finnigan 18 years.
2. Anderson had served 11 months and 15 days on remand prior to his trial.
3. On 20th. December 1999, the Lord Chief Justice, Lord Bingham, recommended to the Home Secretary that he impose the tariff recommended by the judge in the case of Finnigan, but indicated that he was inclined to recommend an increase to 15 years in the case of Anderson. He qualified this by recognising that the trial judge had the advantage of trying the case and assessing the relative culpability of the respective defendants.
4. On 6th. November 2002 the Home Secretary notified a minimum term of 16 years, thereby increasing the tariff beyond that recommended by the trial judge (by 2 years) and the Lord Chief Justice (by one).
5. I am now asked to review the minimum term, pursuant to the provisions of paragraph 3 of Schedule 22 to the Criminal Justice Act 2003.
Facts of the Offence
6. The facts, taken from the papers before me, show the following.
7. The Defendant was, at the date of the murder, 37 years old.
8. The deceased dealt in drugs. Finnigan was a friend of his, who involved himself in the deceased’s drug business. Anderson was in turn a friend of Finnigan. He acted as a “stashman” for the drugs.
9. Some two weeks before the shooting, Finnigan broke off his relationship with a woman, who promptly began a sexual relationship with the deceased, whom she decided to tell that Finnigan had been “ripping him off” by trading in cannabis on his own behalf. The deceased then looked for Finnigan and Anderson in an aggressive frame of mind – though Finnigan said in evidence that the deceased would not do anything more serious to him than beat him up.
10. Finnigan and Anderson decided to lay low. They talked about obtaining a fast car and a gun, to do a drive-by shooting. Finnigan borrowed a car to get to the scene. Anderson had the murder weapon. Both moved into a local Travel Lodge with their girlfriends on the weekend of the killing.
11. On the Sunday afternoon they met up. Finnigan drove Anderson to where the deceased’s wife lived. When the deceased left her home, Anderson took deliberate aim and fired. He emptied the magazine, hitting the deceased 4 times in the back.
12. Finnigan then drove away. He and Anderson attempted to dispose of the evidence, leaving clothes to be washed or burned by others. False alibis were concocted. When Finnigan failed to burn the getaway car, and went to the Police claiming to be frightened of the killers, Anderson became so angry with him that he decided to implicate him in the killing. He arranged for false evidence to be given. Fortunately, this was exposed by careful and painstaking police work.
13. It is clear from the judge’s report to the Home Secretary that other witnesses who eventually came forward to tell the truth had initially been threatened by the accused.
14. The trial judge said of the murder that it was effectively an execution. It was a cold blooded killing which the defendants had planned some days in advance. The only motives for the killing were a dispute about money and drug dealing, and/or sexual jealousy. The defendants were not under physical threat from the deceased. It aggravated the case that Anderson continued in attempts to frame others and to fabricate evidence against Finnigan. Anderson made certain of death by firing all the bullets in the gun into the back of the deceased, at short range.
15. Mitigating features were the plea of guilty – the evidence was not so overwhelming that a verdict of guilty was inevitable – and that Anderson had assisted the police to recover the gun and ammunition.
16. Finnigan sought, but was refused, leave to appeal the verdict. However, in representations made by him, which I am considering at the same time as I am reviewing the minimum term set in Anderson’s case, much is made of observations by the Court when refusing leave on a renewed application in open court. Finnigan argues that the Court decided that there was no prior plan between the two to murder the deceased. Rather, the Court regarded the verdict as justified on the basis that Finnigan knew of the real possibility that Anderson might in the event use the gun with homicidal intent. There was thus no intent to kill, and no significant pre-planning to do so.
17. If this point is well founded, then it may advantage this defendant too, for it would imply that the judge may well not have been entitled to conclude as she did that the killing had been planned some days in advance. That conclusion operates as an aggravating factor in both the recommendations she made, and if it is erroneous or unfounded in evidence would argue for a reduction in the tariff she set.
18. I do not accept that this is a proper reading, either in context or focussing upon the words used in paragraph 25 of the judgment where the view of the Court is summarised by Mr. Justice Ognall. He said:
“Once the jury rejected the applicant’s alibi there was, in the judgment of this Court, clear evidence from which they could safely conclude that the applicant knew that Anderson intended to shoot at Gallagher and drove him there for that purpose.”
Pausing there, this is entirely consistent with there having been an intent to kill, shared by both. Mr. Justice Ognall continued:
“On that basis it was also open to the jury to conclude that, at the very least, this applicant must have realised and recognised the real possibility that Anderson would, in the event, use the gun with homicidal intent…….” (Emphasis added).
19. By saying this, the Court was dealing with the application for leave by demonstrating that taken at its lowest against Finnigan there was no proper reason for regarding the verdict as unsafe. That does not amount to saying that in the view of the court there was no joint intention to kill – merely that there was no need to determine that issue for the purpose of deciding if an appeal against conviction was arguable.
20. In short, therefore, I see no proper ground to revisit the judge’s conclusion that this was a jointly pre-planned killing.
Representations
21. In mitigation before the trial judge, it was said that Anderson was remorseful, as his guilty plea indicated; that the intention was jointly to hurt the victim, perhaps by knee-capping, but that drink and drugs escalated this out of control, such that the killing itself was intended only on the spur of the moment; and that by his actions Anderson had helped the police recover the gun which had been used.
22. I have already indicated that I see no reason to depart from the judge’s assessment, having heard this mitigation as well as the evidence, that the killing was carefully pre-planned. Much points to that conclusion. The gun was obtained, and car, and the movements of the co-accused in the weekend of the killing consistent with it. If there was remorse, it was late in the day: for a determined attempt was made to inculpate others, rather than accept blame, until the very point of plea. Beyond the facts of plea, and of assistance to the Police, I reject the submissions made in mitigation as having any present force.
23. On 11th. May 2000, prior to the Home Secretary setting a tariff, Carpenters solicitors made representations that:
• Anderson believed himself to be in real danger from the deceased
• He believed it was “either him or us”, hence used a gun. (I note, in passing, that this suggests the killing was pre-planned rather than a spontaneous over-reaction)
• It had not been established on the evidence that the killing had been planned “for some days in advance”
• The recovery of the weapon was significant
• Whilst it was accepted that Anderson had falsely implicated one Scott Overy in the killing, there was no evidence that he had actually threatened him or others directly or overtly.
24. For present purposes, Alex Halliwell of Maidments Solicitors made representations which were received on 9th. July 2004. These argue:
• The plea of guilty is significant mitigation
• He assisted the Police in the recovery of the firearm
• He has engaged constructively with his prison regime, in particular demonstrating by repeated negative tests that he is clean of the drug misuse said to be contributory towards and background to the offence.
25. I shall consider the Defendant’s progress in prison below
26. I have received representations on behalf of the victim’s family: his widow, mother, child and grandchild. They speak of the dislocation and distress the murder has brought to the whole family. Trust in hospitals, the media and personal security has been compromised. The victim’s young grandchild has recurring nightmares that murderers are coming.
27. One representation is, I suspect, the product of some misunderstanding. The victim’s daughter observes that she sincerely believes that “when someone is given a ‘life sentence’ that is what they deserve, not serving 6 years, that is not justice.” I hope she may be reassured by two specific comments. First, a life sentence is one to which an offender is always subject, in that if released (which he is not to be unless the parole board regards it as reasonably safe) he is always subject to recall. This hangs over an offender’s head for the rest of his life. The time which must be served in custody before release may even be considered is the minimum term. The word “minimum” means just that. If a term is specified as a minimum, it does not mean that the defendant will necessarily be released immediately on the expiry of it, though it is possible he might be. Second, there is no suggestion in the papers before me of a period of “6” years, or anything like it. Although prisoners who receive custodial sentences of determinate length will serve half that period before release, such that a sentence (for instance) of 12 years imprisonment means that after 6 years the offender will be eligible for release, this regime does not apply to the minimum term provision. The minimum term is not reduced in that way. It is precisely what it says.
28. I have not been asked for an oral hearing. Statute itself provides that the term should be set by me without such a hearing, and although I have the power to depart from that in those exceptional cases where the interests of justice demand it, no reason has been suggested to me for taking such a course in the present case, and I decline to do so.
Considerations
29. By paragraph 4 (i)(a) of Schedule 22 of the 2003 Act, I must have regard to the seriousness of the offence, and, by paragraph 4(2) of the same Schedule, in considering the seriousness of the offence, I must have regard to the general principles set out in Schedule 21 of the Act and to the recommendations of the trial Judge and the Lord Chief Justice.
30. In addition to the seriousness of the offence, I must have regard to the length of the minimum term notified by The Home Secretary (paragraph 4(i)(c) of Schedule 22).
31. The relevant general principles contained in Schedule 21 are those which indicate starting points relevant to offences of varying degrees of seriousness. I accept that the circumstances of this offence do not fall under paragraph 4(1) of that Schedule. They appear to come within paragraph 5(1), in that murders involving the use of a firearm or explosive will normally come within that provision. Such murders attract a 30 year starting point. This is completely out of kilter with the approach which a highly experienced judge, the Lord Chief Justice and the Home Secretary took in the present case, such that it may be explicable either as reflecting a change in approach to the sentencing of such crimes as this by the legislature since 2002, taking a more highly punitive and clearly deterrent approach than previously (there was no category of “30 year minimum” at the time of the sentence), or else such a starting point should in the particular circumstances of this case be highly discounted for reasons particular to it.
32. The list of aggravating factors (at paragraph 10 of Schedule 21) over and above those used to determine whether the case is one which demands a 30 year, or, as the case may be, 15 year starting point, includes as (a) “a significant degree of planning or premeditation”. This is present here, as the judge had express reasons for finding, and as I accept.
33. The list of aggravating features in Schedule 21 is not exclusive. The judge took the view that it aggravated the offence that the Defendant sought falsely to implicate others in the crime which he himself had committed. Though this was not charged as a separate offence, the legislative policy is clear. It is to treat it as aggravating – whether as a conviction to be taken into account under section 143 of the Act, if charged with and convicted of it, or consistent with the approach in section 269(3)(a) (and elsewhere) that a sentence is one appropriate to the offence and any offence or offences associated with it. If it were not so, then overall criminality would go unreflected in a sentence. This conduct by Anderson is, therefore, to be taken into account by me in setting the minimum term.
34. Mitigating factors identified by paragraph 11 of Schedule 21, similarly not an exclusive list, include (by paragraph 11(a)) “an intention to cause serious bodily harm rather than to kill”. I have already dealt with this, to reject it as appropriate here.
35. The plea of guilty operates as a mitigating factor. Statute requires this. Sentencing guidelines have been issued, by the Sentencing Guidelines Council, most recently in July 2007. These suggest that a reduction is sentence should never exceed one sixth, or 5 years (whichever is less) and then only for a plea tendered at the first opportunity. There is a recommended 5% for a “late guilty plea”.
36. Adopting this last, and assuming that Anderson would be entitled to the full 5% on the basis that his was a “late” (as opposed to “very late”) plea, this would imply a reduction of 9 months if the starting point were 15 years; or 18 months if it were 30 years.
Discussion
37. I begin with the sentence I would impose if the defendant were convicted today. In that case, the starting point would be 30 years, increased by the brutal severity of the attack, the extent of pre-planning (as the judge found, on a sufficient basis in fact), and by the attempts to implicate others, totally falsely, in order to exculpate himself.
38. There is little mitigation to set against this. However, the plea of guilty justifies a maximum reduction of 18 months from a 30 year starting point, and the fact that Anderson helped to recover the gun must be taken into account.
39. I turn to look at progress in prison, and the extent to which I may take that into account. In Cole and Others v. The Secretary of State for the Home Department [2003] EWHC 1789 Admin, the Vice-President, Rose L.J. said that in his opinion it was inconceivable that “exceptional progress” by a prisoner following conviction should not be taken into account in setting a minimum term. He did not himself define that which made progress in prison exceptional, as distinct from that which was reasonably to be hoped for, but cited without apparent criticism a passage from an affidavit in front of him which read:
“In broad terms the Home Secretary would look for an exemplary work and disciplinary record in prison, genuine remorse, and successful engagement in work (including offence-related courses) that has resulted in substantial reduction in areas of risk. All these would have to have been sustained over a lengthy period and in at least two different prisons. To reach the threshold of exceptional progress there would also need to be some extra element to show that the lifer had done good works for the benefit of others. Examples would be acting as a Listener (helping vulnerable prisoners), helping disabled people use prison facilities, raising money for charities, and helping to deter young people from crime. Again there would need to be evidence of sustained involvement in at least two prisons over a lengthy period”
40. I have accordingly taken the view that progress in prison is relevant, but I should adopt a restrictive approach to the extent to which, if at all, it is such as to justify a reduction in effective sentence which is that which a minimum term constitutes.
41. In this case, the Defendant has purposefully engaged in programmes in prison. However, on the necessarily restrictive approach I must take, he would have a significant distance to go to fall within the criteria accepted by the Vice-President as constituting the exceptional. I therefore can make no allowance for this.
42. Taking these factors into account, it is my view that the aggravating features outweigh those which mitigate the offence, though just: and I would have been inclined to adopt a tariff of 30 - 31 years if sentencing today for an offence such as he committed. As I have already noted, this is heavily influenced by the starting point which I would be required to adopt, today, because of the deliberate use of the firearm in a targeted assault.
43. This tariff is significantly higher than that which the Home Secretary set. Schedule 22 to the 2003 Act provides at paragraph (3) that on an application by an existing prisoner the High Court must, in relation to the mandatory life sentence, order that the early release provisions are to apply to him as soon as he has served the part of the sentence which is specified in the order, “which in a case falling within paragraph 2(a) must not be greater than the notified minimum term”. The present case falls within 2(a), which relates to a case where the Home Secretary has indeed set a minimum term. The minimum term I set cannot therefore be greater than the 16 years he thought appropriate even if, on the law as it stands today, such a sentence would be imposed.
44. It follows that I shall, on this review, leave the minimum term undisturbed, as being 16 years, subject only to time served on remand.
45. I should add for completeness that if I had thought that the proper starting point was 15 years, I should have added time to reflect the fact that a gun had been used, and the magazine discharged into the victim in the attack. The result would still have been a tariff higher than that set by the Home Secretary (though in this case only slightly).
Time served on remand
46. The defendant spent 11 months and 15 days on remand prior to his sentence. This time should count towards satisfaction of his minimum term (s. 240) unless (by sub-section (4)(b)) it is in the opinion of the court just in all the circumstances not to give a direction under that section. This proviso has given me some cause to reflect, since the minimum term if imposed today would be significantly greater than that notified. However, it seems to me that the purpose of the provision in paragraph 3(a) of Schedule 22 is to ensure that the provisions for determining a minimum term judicially do not result in the imposition of a greater sentence now than probably would have been the case had a minimum term been determined judicially at the date of original sentence. This is confirmed by the fact that principle of retrospectivity, to which paragraph 8 gives effect in those cases where there has been no notification by the Secretary of State, operates in those cases. This provision has the same practical effect as that in paragraph 3(1)(b). In either case, therefore, the court should impose no greater a term now than would have been the case at the date of original sentence. At that date, credit would have been given for the days served on remand. It would not have been just, then, to give no credit. Accordingly, in my view the applicant is entitled to full credit now, as against the minimum term he must serve.
Conclusion
47. I conclude that the appropriate minimum term taking into account all the matters I am required to consider, starting at the point indicated by Schedule 21, and considering the representations both old and new, and those of the victim’s family, would be 16 years less the time spent on remand (reducing the figure of 16 years by a total of 11 months and 15 days). This is the term I set, on this review.
The Honourable Mr. Justice Langstaff