Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: 2008 EWHC 1242 (QB)
Case No: 2004/973/MTR
Case No: 2004/1029/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 05/06/2008
Before :
THE HONOURABLE MR JUSTICE ROYCE
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Between :
Regina
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Robert Joseph McCarthy
And
John Kevin Riley
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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.
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THE HONOURABLE MR JUSTICE ROYCE
Mr Justice Royce :
1. On 5th December 1997 the defendants were convicted of murder at Preston Crown Court and were sentenced to life imprisonment by Mr Justice Ognall.
2. Under schedule 22 of the Criminal Justice Act 2003 the case of each requires review of the minimum term he must serve before the early release provisions of section 28 (5) to (8) of the Crime Sentences Act 1997 can apply.
The facts
3. The defendants were part of a gang of doormen (or associates) at a Liverpool night club, who participated in the killing of a doorman in a rival gang of doormen employed at another night club. The deceased had been party to an unlawful stabbing of one of the defendants group. 7 days later, the group comprising some 50 to 60 men in a convoy of cars, hunted down the deceased and confronted him in a Liverpool public house. They were carrying machetes, knives and a meat cleaver. They (with others) hacked their victim to death in the presence of his wife and other witnesses. Both defendants admitted they were present but denied being party to the offence. Both were convicted on a second count of conspiracy to cause grievous bodily harm.
The relevant guidance at the time of sentence
4. This is contained in the letter sent to judges by Lord Bingham C.J. on 10th February 1997. His practice was to take 14 years as the period to be served for the “average, normal or unexceptional murder”. He then set out various mitigating and aggravating factors.
The recommendations of the trial Judge and Lord Chief Justice
5. The trial Judge recommended a tariff of 20 years in each case. He referred to his sentencing remarks as follows:-
“You two were involved in as brutal a killing as I have ever encountered in my professional life. All present during this trial have listened to a truly terrible chronicle.
The murder of Stephen Cole was the culmination of mob lawlessness on a scale calculated to make any city a place where fear casts a long shadow over decent inhabitants including those whose duty it is to police the streets and keep the peace.
Your victim was slaughtered in a frenzied attack of unrestrained ferocity and to the utter terror of ordinary folk who had the grievous misfortune to be in that place at that time and it should be noted the investigation and trial has been infected by the ugly stain of intimidation which, whoever is directly responsible, is another symptom of the gang culture of which both of you were adherents.”
He indicated that he had originally in mind 22 years but was persuaded to reduce that figure by reason of the fact that Riley had no previous convictions and McCarthy had no significant convictions. He also took the view that probably neither was a prime mover in the original plan. Furthermore by the year 2017 both men would be well into their 60’s.
The Lord Chief Justice said that he would certainly not recommend any minimum term shorter than that recommended by the Judge and but for his superior vantage point he would incline towards his higher figure.
6. The Secretary of State on 25th September 1998 notified the defendants that the tariff was set at 20 years.
Representations
Riley
7. An application is made for there to be an oral hearing. Such a hearing is necessary only in rare and unusual circumstances (R v Hammond). I do not consider that the circumstances here call for an oral hearing.
It is contended that a starting point of 15 or 16 years (or 15 years under schedule 21) would be appropriate. The only aggravating factor set out in Lord Bingham’s letter was the use of a dangerous weapon. An intention only to cause serious bodily harm and evidence of remorse were mitigating factors. Furthermore it is contended Mr Riley’s progress in prison has been exceptional.
McCarthy
I have read counsel’s original representations to the Home Secretary. The subsequent representations are principally concerned with the progress Mr McCarthy has made in prison. There is no doubt that this has been very good. He was also commended for his assistance in dealing with a serious incident at the prison in which a fellow prisoner was attacked. There is also a lengthy document from the defendant when he wrote to Mr Justice Ognall setting out the background and reasons for the attack on Cole.
It is contended that the 20 year tariff should be reduced.
The minimum term under schedule 21
8. I have to consider what the minimum term would have been had the murder taken place after the Criminal Justice Act 2003 had come into force. It is clear from the Judge’s sentencing remarks that from what he had seen and heard of the case he regarded it as one of great gravity. He would have been justified in concluding that it fell under paragraph 5 (1) of schedule 21 where the seriousness of the offence was particularly high. It is right to say that the particular examples in paragraph 5 (2) do not feature in this case. Nonetheless this was an appalling attack on a defenceless man by a gang in the most terrifying of circumstances. He was hacked to death before his wife and other witnesses. I consider that the Judge would have been perfectly entitled to take the starting point of 30 years under schedule 21. That would, in my judgment, have been reduced to 25 years.
My determination of the minimum term
9. I accept that both defendants have made very good progress whilst in prison. However it is not sufficiently “exceptional” as to justify a reduction in the term. The term that in my judgment would have been imposed under schedule 21 I must take into account but I am not entitled to increase the term notified by the Secretary of State. I have come to the clear conclusion that the term recommended by the trial Judge, endorsed by the Lord Chief Justice and notified by the Secretary of State is the appropriate one. I therefore set the term at 20 years in the case of each defendant. In the case of Riley he was on remand in custody for 18 months and 15 days. In the case of McCarthy he was in custody on remand for 107 days. These periods fall to be deducted in each case.
10. It is important that the public understands that the minimum term is just that. It does not mean that a defendant will be released once that term is served. His case will have to be considered by the Parole Board and it is if, and only if, the Parole Board concludes that it is safe for him to be released that he will be.