Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: 2008 EWHC 792 (QB)
Case No: 2006/114/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 24/04/2008
Before :
THE HONOURABLE MR JUSTICE OWEN
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APPLICATION BY YUSUF ALI FOR THE SETTING OF A MINIMUM TERM PURSUANT TO SCHEDULE 22, PARAGRAPH 3, OF THE
CRIMINAL JUSTICE ACT 2003
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DECISION
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The Honourable Mr Justice Owen :
1. On 18 June 1999 the applicant, Yusuf Ali who was born on 31 May 1948, and his co-defendant Farah Cajee to whom he is now married, were convicted of the murder of Rechard Cajee, the husband of Farah Cajee. On 25 May 2000 both the applicant and his co-defendant appealed unsuccessfully against their conviction. The facts of the murder were succinctly summarised in the judgment of the CACD given by Henry LJ.
“3. The victim, Rechard Cajee was married to and lived with the appellant Farah Cajee at 85 Grove Road, South Woodford. They had been married 12 years and had two children. Farah Cajee was tiring of the marriage, and had had a number of extra-marital affairs. Her current affair was with the appellant Yusuf Ali (born Peter Bradfield). He was the victim’s step-father, having converted to Islam and married Rechard Cajee’s mother. He had separated from her and in January 1997 left to move into 85 Grove Road with Rechard and Farah Cajee. It was after that that their affair started.
4. Rechard Cajee worked nights. On the day of his death, when he returned from work as usual, exercised the dog, and went to sleep in the front bedroom. By 8.40 a.m. everyone had left the house. Farah Cajee was to tell the police that neither she nor Ali returned to the house until 3.45 p.m., except for a fleeting visit by her. That was not true. At about 4.05 p.m. she discovered the body and dialled 999. The emergency services arrived at 4.13 p.m.
5. Rechard Cajee was found dead on his bed. He had been shot four times in the head. There was no sign of a struggle. He had apparently been killed as he slept.
6. The appellants promoted the view that this was a burglary that had gone wrong. But the facts showed plainly that it was not …
8. The only person with any incentive to kill and then to attempt to make the scene look like a burglary would be those who wished to avoid suspicion, which would otherwise first fall on the adult inhabitants of the house, the appellants.
9. Investigations showed that the appellants had a motive for Rechard’s murder. They wished to continue their affair. Cajee would benefit financially from her husband’s death; from insurance policies on her victim’s life and from the matrimonial home. She had told two ex-lovers that she wished to leave her husband to live with her lover. But divorce was not realistic (the deceased was devoted to his family and home) and would not provide the money she required. Only her husband’s death would do that.”
The argument advanced on behalf of the appellant was that they had a shared alibi. The Crown argued that the alibi was manufactured and incomplete, an argument that prevailed.
2. In his report to the Home Secretary the trial judge expressed the view that “…Mrs Cajee was the more dominant of the two, the more resourceful and the more manipulative, although Ali was fully involved in the planning and execution of the crime”. He further commented:
“The murder was pre-meditated, and the planning quite elaborate, including the setting-up of a detailed alibi. Anyone who could carry out such a cold-blooded murder with a gun must be considered highly dangerous. Having said that, neither defendant had any previous convictions. The murder was, in my opinion, committed to get rid of Mr Cajee so that the defendants could start a new life together with financial benefits as well. I cannot see that there is a strong likelihood that either would do the same again because of the particular circumstances. Attention will no doubt be paid when considering release to what progress has been made in addressing the distorted thinking that allowed such a crime to be committed.”
3. He recommended a minimum term of 17 years in the case of Farah Cajee, and 16 years in the case of Yusuf Ali. Lord Bingham LJ agreed observing that:
“The use of a firearm, the financial motive and the evidence of pre-meditation in my view call for terms of the length recommended by the judge.”
4. Having considered written representations as to the appropriate tariff submitted on behalf of the applicant, the Secretary of State set the minimum term at 16 years in the applicant’s case.
5. This is an application under Schedule 22 of the Criminal Justice Act 2003. I have to decide whether I should order that the early release provisions under the 2003 Act should apply to the applicant after a shorter period than 16 years. It is not open to me to order that they should apply after a longer period.
6. In considering this application I must have regard to the seriousness of the offence of murder that the applicant committed, and in so doing, I must have regard to the 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.
7. 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; and should therefore, where appropriate, give credit for time spent on remand in consequence of his having been committed to custody by an order of the court made in connection with proceedings relating to the murder. I am satisfied that I should have regard to a period spent in custody on remand of 13 months 4 days.
8. I do not consider that the case falls within paragraph 4(1) of Schedule 21 of the Act, but as a murder involving the use of a firearm, and “… done in the expectation of gain as a result of the death”. (See paragraph 5(2)(b) and (c)), the appropriate starting point in determining the minimum term under the 2003 Act would be 30 years.
9. But as the murder was committed in July 1997, I am also obliged to take account of the guidelines set out in the Practice Direction issued by Lord Bingham CJ on 10 February 1997. His practice was to take 14 years as the period actually to be served for the “average”, “normal” or “unexceptional” murder. Amongst the factors that he identified as likely to lead to a sentence more severe than the norm was “evidence of a planned … killing” and “killing for gain (… insurance fraud etc.)”. Those were factors that were no doubt taken into account by Lord Bingham in agreeing the recommendation made by the trial judge of a minimum term of 16 years in the case of the applicant.
10. I have the benefit of a victim impact statement made by the mother of the victim and received by the Life Imprisonment Minimum Term Section on 24 January 2007. In it she explains the devastating effect of the death of her son by murder and of her sense of betrayal that the murder had been committed by the applicant and Farah Cajee, two people whom she trusted. In August 2007 the applicant wrote to the lifer imprisonment minimum term section in response to the victim impact statement made by Mrs Ansoo Ali. In it he expresses an understanding of the loss that she has suffered, and secondly expresses contrition for the hurt that he and his co-defendant caused her by their infidelity.
11. Written representations have been submitted on behalf of the applicant. It is necessary to preface a consideration of those representations with the observation that the applicant continues to deny any involvement in the death of the victim. But as is clear from the material that he has submitted, that has not prevented his full co-operation with the lifer sentence plan directed to reduction of risk of further offending. The question then arises as to whether the progress that the applicant has made in prison is of so exceptional a nature as to be taken into account in setting the minimum term. That issue was considered by the Court of Appeal (Criminal Division) in R v Caines and R v Roberts [2006] EWCA Crim 2915 in which the judgment of the Court was given by Sir Igor Judge, President of the Queen’s Bench Division. In considering the ambit of exceptional progress in prison Sir Igor Judge referred to the policy adopted by the Secretary of State as described in R (Cole, Roland, Hawkes v Secretary of State [2003] EWHC 1789 (Admin) in which Rose LJ observed in the Divisional Court that it is “inconceivable in human terms, that if the legislation is enacted, as presently contemplated, in relation to prisoners serving a notified tariff, progress in prison will not be taken into account on the intended High Court review.” The policy of the Secretary of State was described in Cole in the following terms:
“5… The Secretary of State remains open to the possibility that he would review an existing tariff where wholly exceptional circumstances are shown. Such exceptional circumstances might include, for example, a prisoner whose tariff has not long to run who displays exceptional bravery in preventing the death or serious injury of a member of staff or fellow prisoner, or in preventing the spread of fire which would otherwise have caused extensive damage or loss of life …
10… The Secretary of State has never issued a definition of what constitutes progress in prison. Cases are considered on an individual basis and exceptional progress has to stand out clearly from the good progress in prison that is expected in prison on mandatory life sentence prisoners. In broad terms the Secretary of State would look for an exemplary work and disciplinary record in prison, general remorse, and successful engagement in work (including offence-related causes) that has resulted in substantial reduction in areas of risk. All these have to be sustained over a lengthy period and in at least two prisons. To reach the threshold of exceptional progress they would also need to be some extra element to show that a lifer has done good works for the benefit of others. Examples would be acting as a “Listener (helping vulnerable prisoners), helping disabled people to use prison facilities, raising money for charity, 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.”
12. Having cited that passage from Cole Sir Igor Judge continued:
“From this statement, it is possible to discern some clear features. Good behaviour is not enough to constitute exceptional progress. We agree that the standard should be very high; the progress must be exceptional, outstanding, and bearing in mind that it provides the basis for a reduction in a period fixed for the purposes of punishment and deterrence, so it should be. Even where the necessary high standard is reached, the impact on the total tariff period is likely to be very modest. The longest reduction so far has not exceeded two years, and in the significant majority of cases where exceptional progress has been established, the reduction has been for one year. It also appears, and logically it is plain, that such progress falls to be considered when the minimum period is coming towards its end. Finally, it is a pre-requisite to any reduction that the risk assessment should be favourable.”
13. The applicant’s record in prison is impressive. He has completed all the courses required of him by his lifer sentence plans. His behaviour in prison has been exemplary. His latest OASys assessment places him at very low risk of further offending. He has also successfully undertaken the range of educational courses. All targets set by the sentence planning board have been met. The progress that he has made is reflected in the recommendation for a progressive move to category C conditions after 7 years 3 months of the minimum term.
14. But for his record in prison, I would have found no reason to depart from the minimum term set by the Secretary of State. But in my judgment his performance has been exceptional, and warrants a reduction in the period fixed for the purposes of punishment and deterrence. The term will be reduced by one; and I therefore set the minimum term at 15 years less 13 months and 4 days served in custody on remand.
15. The minimum term is the minimum amount of time that the applicant 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 applicant will continue to be detained after that date. When the applicant has served the minimum term, and if the parole board decides to direct his release, he will remain on licence for the rest of his life and may be recalled to prison at any time if in breach of the terms of his parole.