Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Case No: 2004/254/MTR
Neutral Citation Number: [2005] EWHC 545 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday, 22 March 2005
Before :
MR JUSTICE LEVESON
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APPLICATION BY MARK ANDREW ALLEN FOR THE SETTING OF A
MINIMUM TERM PURSUANT TO PARAGRAPH 3, SCHEDULE 22
OF THE CRIMINAL JUSTICE ACT 2003
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(Transcript of the Handed Down Judgment of
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Judgment
As Approved by the Court
Crown Copyright ©
Mr Justice Leveson :
1. On 1st November 1993, in the Crown Court at Leeds before Waller J (as he then was), the Applicant, Mark Andrew Allen pleaded guilty to the murder of Kenneth Bastow who was then 59 years of age and the father of his co-accused, Craig Bastow. Both were sentenced to imprisonment for life. Mr Allen was 24 years of age having been born on 5th March 1969.
2. Pursuant to section 276 and Schedule 3 of the Criminal Justice Act 2003 (“the 2003 Act”), Mr Allen has applied for the determination of the minimum term following which the early release provisions referred to in Schedule 22 are to apply to him. This is my determination of that minimum term; for the benefit of Mr Allen, I set out the matter in some detail bearing in mind the provisions of paragraph 12 of Schedule 22 of the Act which requires me to give my reasons in ordinary language.
3. For the purposes of my decision, I have considered the representations and material submitted to the court on his behalf together with the guidance set out in Practice Direction (Crime: Mandatory Life Sentences) (No 2), unreported, 29th July 2004 set out in Archbold, Criminal Pleading Evidence and Practice, 2005 paragraph 5-251.
4. Paragraph 11 of Schedule 22 of the 2003 Act provides that the application is to be decided without an oral hearing. In Regina v. Secretary of State for the Home Department ex parte Hammond [2004] EWHC 2753 (Admin), the Divisional Court reviewed this provision and concluded that it did not exclude the possibility of an oral hearing in those cases in which the Judge considered such a hearing was required although it described the prospect as “rare”. Notwithstanding, the solicitors acting on behalf of Mr Alan have sought an oral hearing because of the complexity of the issues, the evidential reasons concerning the progress made by him since his imprisonment and his remorse. As to the first, although the statutory regime is complex, the issues of law and fact in this particular case are no more difficult to understand or to place into proper context than any other which requires resolution under these provisions and I do not consider that I would be assisted by oral representations. Similarly, the extent of the progress made since imprisonment and the remorse which Mr Allen has shown are clear from the papers and, again, do not need oral elaboration. This is not one of the rare cases visualised by Hammond and in the circumstances the application for an oral hearing is refused.
5. As I understand to be the usual practice in these cases, no representations have been submitted to me by the Secretary of State and neither have I received any representations from members of the family of the deceased.
The Offence and the Notified Tariff
6. The facts of the offence appear from the report of the trial judge in these terms:
“Craig Bastow was unemployed and unable to make ends meet. His father Ken Bastow was comparatively well off. Craig decided to kill his father in order to inherit some part of his father’s estate. He offered Mark Allen a substantial sum in order to assist in carrying out the plan. They bought a baseball bat and decided that the way it should be done was to batter Ken Bastow to death in his own home and make it look like a burglary. On the chosen night they got into the house, Craig Bastow took a CD player out of the house and left Mark Allen to carry out the plan. Allen was probably taken by surprise at the early arrival home of Ken Bastow, and initially attacked him with a knife he was carrying, cutting Ken Bastow round the front of his neck. That was not a cut that led to death. Allen then retrieved the baseball bat from where he had put it and battered Mr Bastow to death with three savage blows. Craig Bastow got his wife to provide him with a false alibi and Allen got his brother to provide him with a false alibi. It was only when these alibis began ultimately to tell the truth that the whole story came out. Ultimately, Craig Bastow and Mark Allen made confessions to the Police.
Despite the confessions, there was a stage when they both pleaded Not Guilty. However, some time before trial, Allen notified the Crown that he was intending to plead Guilty, and when, on the morning of the trial, Allen notified his intention that he would be prepared to give evidence for the Crown, Craig Bastow also pleaded Guilty.
I think in relation to culpability, it is difficult to distinguish between the two.”
7. Mr Allen had one previous appearance before the court in relation to motoring offences for which he was fined. I am told that Craig Bastow had been in more trouble with the police but I have not seen his antecedents and do not consider that I need to. In a life history document (prepared subsequent to conviction), Mr Allen describes himself as having become “a bit scared” of him.
8. The comments of the trial judge on the case generally and on the factors to be taken into account by the Home Secretary when considering release were as follows:
“There can be little more wicked than to plan to batter to death ones father or to take part in such a plan and there was absolutely nothing in the evidence to suggest that the father had done anything to Craig Bastow. Indeed, Craig had I the past borrowed money from his father and had, on one occasion, burgled the house of his father for money. The father’s only sin was to have accumulated an estate worth something like £50,000, which he Craig felt he should have been more ready to share with him, since he, the son, was unable to cope with his wife on the social security that they received. I suspect that Craig Bastow will commit burglaries and the like when he comes out of prison, but I doubt whether he will commit murder.
Mark Allen was clearly terrified after the incident. He was previously of good character, and I doubt whether he will commit other offences when he is released.”
9. Waller J had, of course, made it clear that as to culpability, he found it difficult to distinguish between the two and he expressed his view on the actual length of detention necessary to meet the requirements of retribution and general deterrence for the offence in these terms:
“This was a planned brutal killing, and without the pleas of Guilty, I would be suggesting at least 16 years. Even with the pleas, I am unable to come below 13 years.”
10. The Lord Chief Justice, Lord Taylor (who considered the recommendations in every single mandatory life sentence for murder and thus during his period as Lord Chief Justice was able to ensure a real measure of consistency throughout England and Wales) commented “I would recommend 14 years in each case”.
11. The Home Office disclosed the recommendations both of Waller J and Lord Taylor CJ to Mr Allen and invited representations. By letter dated 7th January 1994, his solicitors wrote:
“The planning and brutal murder of a meek old man, the father of our co-accused, is something that is extremely abhorrent and will attract a recommendation towards the higher end of the life tarrif (sic).
Mr Allen by his very brave plea accepts his major role in the joint enterprise and by entering that plea also accepts the enormity of that which he has done and the price that he will inevitably have to pay.
That being said however, it is of course right that our client should have the benefit of a discount on sentence as a result of his honest plea and as a result of his previous good character and modest age.
It is also right with respect that our client’s case ought to be distinguished from that of his co-accused and that this should reflect on the amount of time that our client has to serve.
Craig Douglas Bastow was indeed an evil young man who dogged his parents from first to last. He had previously burgled his father’s premises, assaulted his own mother and continued to hound his father for money throughout his old age, culminating in a detailed plan to murder his father in order to benefit from his estate.
To this end he recruited Mark Allen who was in the view of anyone who met him a meek and mind young man and being described as a gentle giant. Mark Allen was convinced in his naivity to follow Mr Barstow’s lead and was eventually placed in a situation where in a moment of panic he struck the fatal blows to the deceased.”
12. On 21st October 1994, the Home Secretary adopted the view of the Lord Chief Justice and set the tariff at 14 years. He gave fresh consideration to the matter in 2002 and permitted further representations. These referred to the earlier representations and made the primary submission that although a tariff of 14 years had been set both for Mr Allen and Craig Bastow, there was a “considerable and significant variance in the role played by each person” and that Mr Allen had “a number of redeeming aspects in relation to his involvement”. They referred in particular to paragraphs 5 and 9 of Waller J’s report, the fact that Mr Allen lacked social skills at the time and to the subsequent discovery that his lower self esteem arose because, as a child, he had been abused.
13. By letter dated 8th May 2002, the tariff was set afresh at 14 years. In dealing with the recent representations, the history of the offence was set out and it was observed:
“The Secretary of State has not been persuaded that the abuse that you allegedly suffered as a child is sufficient to mitigate the punishment merited by your offence. The Secretary of State does not accept that a tariff of 13 years, as recommended by the trial judge, is sufficient to satisfy the requirements of retribution and deterrence. The Secretary of State has attached weight to the fact that, in return for money, you agreed to help kill your co-defendant’s father and that you … killed him in his own home in a brutal way.”
14. Prior to his sentence, Mr Allen spent 11 months and 25 days on remand in custody. His notified tariff therefore expires on 6 November 2006. The question is whether, having regard to the terms of the 2003 Act, it is now appropriate to reduce the minimum period with the result that the date from which parole can be considered will fall earlier in time. It is thus necessary to set out the statutory regime within which I am called upon make this judgment.
The Statutory Regime
15. By virtue of paragraph 3 of Schedule 22 a prisoner serving a mandatory life sentence who has been notified by the Secretary of State of a minimum period (“the tariff”) which in his view should be served before the prisoner is released on licence and whose term has not expired, may apply to the High Court for a reduction in that period. Paragraph 3(1)(a) provides that the High Court may not set a minimum period which is greater than the notified tariff. The significance of this minimum period is that it is only thereafter that the Parole Board can direct the prisoner’s release on licence assuming first that the Secretary of State has referred his case to the Board and secondly that the Board is satisfied that it is no longer necessary for the protection of the public that he should be confined: see section 28(5)-(8) Crime (Sentences) Act 1997.
16. Paragraph 4 of Schedule 22 provides:
“(1) In dealing with an application under paragraph 3, the High Court must have regard to –
(a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it,
(b) where the court is satisfied that, if the prisoner had been sentenced to a term of imprisonment, the length of his sentence would have been treated by section 67 of the Criminal Justice Act 1967 (c. 80) as being reduced by a particular period, the effect which that section would have had if he had been sentenced to a term of imprisonment, and
(c) the length of the notified minimum term or, where a notification falling within paragraph 2(b) has been given to the prisoner, to the fact that such a notification has been given.
(2) In considering under sub-paragraph (1) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, the High Court must have regard to –
(a) the general principles set out in Schedule 21, and
(b) any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence.”
17. The determining factor of “seriousness” reflects section 269(3)(a) of the Act and concerns the appropriate measure of punishment in a particular case taking into account “pure retribution, expiation, expression of the moral outrage of society, maintenance of public confidence in the administration of justice, deterrence, the interests of victims, rehabilitation and so on” (see per Lord Bingham of Cornhill in Regina v. Secretary of State for the Home Department ex parte Anderson [2002] UKHL 46 para 7, [2003] 1 AC 837 at page 874A.
18. To identify the general principles set out in Schedule 21, I turn to the starting points set out in paragraphs 4 to 6 in these terms:
“4. (1) If –
(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and
(b) the offender was aged 21 or over when he committed the offence,
the appropriate starting point is a whole life order.
(2) Cases that would normally fall within sub-paragraph (1)(a) include –
(a) the murder of two or more persons, where each murder involves any of the following –
(i) substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,
(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(c) a murder done for the purpose of advancing a political, religious or ideological cause, or
(d) a murder by an offender previously convicted of murder.
5. (1) If –
(a) the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and
(b) the offender was aged 18 or over when he committed the offence,
the appropriate starting point, in determining the minimum term, is 30 years.
(2) Cases that (if not falling within paragraph 4(1)) would normally fall within sub-paragraph (1)(a) include –
(a) the murder of a police officer or prison officer in the course of his duty,
(b) a murder involving the use of a firearm or explosive,
(c) a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),
(d) a murder intended to obstruct or interfere with the course of justice,
(e) a murder involving sexual or sadistic conduct,
(f) the murder of two or more persons,
(g) a murder that is racially or religiously aggravated or aggravated by sexual orientation, or
(h) a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.
6. If the offender was aged 18 or over when he committed the offence and the case does not fall within paragraph 4(1) or 5(1), the appropriate starting point, in determining the minimum term, is 15 years.”
19. Having chosen a starting point, the court is enjoined to take into account any aggravating or mitigating factors to the extent not allowed for in the choice of starting point (paragraph 8) and then, in the light of a detailed consideration of these factors, to determine a minimum term of any length (whatever the starting point) or a whole life order (paragraph 9). The aggravating and mitigating features set out in paragraphs 10-11:
“10. Aggravating factors (additional to those mentioned in paragraph 4(2) and 5(2)) that may be relevant to the offence of murder include –
(a) a significant degree of planning or premeditation,
(b) the fact that the victim was particularly vulnerable because of age or disability,
(c) mental or physical suffering inflicted on the victim before death,
(d) the abuse of a position of trust,
(e) the use of duress or threats against another person to facilitate the commission of the offence,
(f) the fact that the victim was providing a public service or performing a public duty, and
(g) concealment, destruction or dismemberment of the body.
11. Mitigating factors that may be relevant to the offence of murder include –
(a) an intention to cause serious bodily harm rather than to kill,
(b) lack of premeditation,
(c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c. 11)), lowered his degree of culpability,
(d) the fact that the offender was provoked (for example, by prolonged stress) in a way not amounting to a defence of provocation,
(e) the fact that the offender acted to any extent in self-defence,
(f) a belief by the offender that the murder was an act of mercy, and
(g) the age of the offender”
The Appropriate Minimum Period
20. For the purposes of this case, it is sufficient to list the criteria in paragraph 5 to appreciate that, had this case fallen to be sentenced today, it is inevitable that the starting point would have been 30 years: it is undeniable that this joint enterprise was a murder committed “done in the expectation of gain as a result of death”. Furthermore, to such extent as it is not covered by the starting point, the significant planning which lay behind Mr Bastow’s death is a clear aggravating feature. Mr Allen’s age provides little by way of mitigation and his plea of guilty would attract a discount broadly of no more one sixth or 5 years whichever be the less: see Regina v. Last [2005] EWCA Crim 106 referring to the view of the Sentencing Council Guideline expressed by Lord Woolf CJ (at paragraph 12) to be appropriately taken into account even in relation to offences even prior to the Guideline coming into force. Thus, the minimum period under the 2003 Act would be substantially in excess of the period of 14 years with the result that paragraph 3(1)(a) applies prohibiting the period which must elapse before the early release provisions apply from exceeding the notified minimum term.
21. Part of the submission that I have received is directed to the original calculation of the minimum period to be served and, in particular, to the fact that the same period was specified for Mr Allen and for Craig Bastow notwithstanding his record and what is said to have been the greater criminality of his part. Suffice to say that I am not satisfied that it is open to me to re-visit the original tariff specified: in addition to the seriousness of the offence (which brings in the recommendations of the trial judge and the Lord Chief Justice), I am required to have regard to the length of the notified minimum term (paragraph 4(1)(c) of Schedule 22). Further, it is not without significance that in those cases in which a minimum period had not been set by the Secretary of State, paragraph 8 requires the court not to make an order specifying a part of the sentence “which in the opinion of the court is greater than that which,under the practice followed by the Secretary of State before December 2002, [he] would have been likely to notify”. That demands an assessment of the likely period that would have been determined under the old law: in this case, I do not need to make that assessment for I know the period which was specified.
22. I accept that this places a maximum limit on the period and does not necessarily affect the ability of the court to determine a lesser period but to do so requires a justifiable basis for differing from the views of the judges originally charged with advising on this topic and the Secretary of State who had responsibility for fixing it. The view of the Lord Chief Justice is of particular importance given the value of consistency to which I have referred and, in this case, the Secretary of State did no more than adopt the view of Lord Taylor CJ.
23. I can find no such basis. In particular, I do not accept the proposition that Waller J, Lord Taylor CJ and the Secretary of State were wrong to impose the same tariff period on both Mr Allen and Craig Bastow. True it is that Mr Bastow had wickedly planned the murder of his father against the background of criminal offending against his parents. He maintained his denial longer than Mr Allen (although he also had admitted the matter in interview). On the other hand it was Mr Allen who entered Mr Ken Bastow’s home; it was he who struck him with the knife that he was carrying and it was he who, notwithstanding Mr Bastow’s condition, then fetched the baseball bat and battered the unfortunate 59 year old to death. At any stage, he could have abandoned the plan but he did not. I agree with the assessment that both deserved the same tariff and entirely endorse Lord Taylor’s view that the appropriate period was 14 years. As is clear from the foregoing, if the offence were committed today, a far higher tariff would result.
Subsequent Progress
24. It is also contended on behalf of the applicant that “his excellent progress in prison custody” justifies a reduction in the minimum term. The 2003 Act does not refer to this as a factor to be taken into account, although that is not determinative. In Regina v. Secretary of State for the Home Department ex parte Cole [2003] EWHC Admin 1789, prior to the passing of the Act, Rose LJ considered (at paragraph 88) that if the legislation were to be enacted as then contemplated, it was “inconceivable, in human terms” that exceptional progress in prison would not be taken into account.
25. In order for that progress to be taken into account, however, the progress has to be exceptional. Rose LJ referred to the evidence before the court of the then policy of the Home Secretary expressed in these terms:
“The Home Secretary 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 of all mandatory life sentence prisoners. 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".
26. Accepting this approach, as to exceptional circumstances, Rose LJ said (at paragraph 5):
“Such exceptional circumstances might include, for example, a prisoner whose tariff had 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 have otherwise caused extensive damage or loss of life.”
In relation to the case which he was then before the court, Rose LJ did not consider that a prisoner who was part of the Listeners’ Scheme, had done considerable work on his offending behaviour, showed significant remorse and who was working four days a week outside the open prison in which he was detained and one day on an Open University degree course in prison had shown himself to be sufficiently exceptional to require his progress to be taken into account when determining his tariff.
27. Against that analysis of the circumstances in which it is appropriate to make a reduction in the minimum term, I turn to Mr Allen’s progress in prison. I have read the material put before me and note that he moved to open conditions in September 2003 where, by November, he had adjusted very well. This, however, is the good progress that it is to be hoped (even if not expected) that all mandatory life prisoners achieve and will certainly stand him in good stead when his release comes to be considered in due course by the Parole Board. However, no exceptional feature of the type visualised by the Home Office or by Rose LJ is suggested and I find none. I regret that I do not consider that his need for major surgery represents an exceptional circumstance or that it is appropriate to reduce a tariff term ‘on a compassionate basis’ as a result.
Conclusion
28. In the circumstances, I am of the clear view that the appropriate minimum period which Mr Allen must serve before the early release provisions are to apply to him is 14 years. From that period is to be deducted the period of remand in custody, namely 11 months 25 days. The minimum period determined as required by Schedule 22 of the 2003 Act is, therefore, 13 years and 5 days. For the avoidance of doubt, the minimum period is unaltered and expires on 6 November 2006.