Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2006] EWHC 1428 (QB)
Case No: 2004/196/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 16/06/2006
Before :
THE HONOURABLE MR JUSTICE AIKENS
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Between :
REGINA
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MUSAROF ALI (AKA SHAHID)
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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 AIKENS
Mr Justice Aikens :
1. On 6 March 2002 at the Crown Court at Oxford, Musarof Ali (“the Offender”) was convicted by a jury of the murder of Mr Abdul Bari. As the trial judge I sentenced the Offender to life imprisonment. In my report to the Secretary of State for the Home Department on the minimum term that the Offender should serve before his case was reviewed by the Parole Board for possible release on licence, I recommended a period of 12 years. That recommendation was endorsed by the Lord Chief Justice, Lord Woolf of Barnes.
2. Since those recommendations were made, the relevant provisions of the Criminal Justice Act 2003 (“the CJA”) came into force on 18 December 2003. By that date the Offender had not been notified in writing of the minimum term which, in the view of the Secretary of State, the Offender should serve before his release on licence. Accordingly, pursuant to paragraph 6 of Schedule 22 of the CJA, the Secretary of State has referred this case to the High Court for an order to be made by the High Court under section 269(2) or 269(4) of the CJA.
3. Having considered all the material before me, I make an order under section 269(2) of the CJA that:
i) the provisions of section 28(5) to (8) of the Crimes (Sentences) Act 1997 (“the early release provisions”) are to apply to the offender as soon as he has served the part of the sentence which I set out in (ii) below;
ii) the offender will serve a minimum term of 12 years, less the time he spent in custody prior to conviction which totals 191 days, so making a net period for the minimum term of 11 years and 174 days.
4. I set out below the reasons for this decision.
5. The Offender is a Bangladeshi national who entered the UK illegally sometime in 2000. In Bangladeshi he had been a heroin addict but he said that he was free of drugs when he came to the UK. He sought work as a waiter in restaurants. In September/October 2000 he was employed as a waiter in the Akash restaurant in Burnham, Buckinghamshire. (It is an Indian Tandoori Restaurant owned by Mr Foyso Ahmed, who gave evidence). The defendant had developed a drink problem and was cautioned about it by Mr Ahmed. The defendant abruptly left his job after about 4 weeks and went to London, where he stayed with his cousin, Mr Shabaz Ali, a taxi driver. The defendant’s drink problem got worse. Mr Shabaz Ali used to buy the defendant cans of lager. This was (apparently) in an attempt to keep the defendant from returning to drugs.
6. On 12 February 2001, the defendant decided that he would go to the Akash restaurant to try and regain his old job. He and his cousin, Mr Shabaz Ali, left the latter’s home at about 9.30am and Mr Shabaz Ali bought the defendant a can of lager at a store. The defendant said in evidence that he drank it. The defendant’s case was that he drank a great deal more that day (some 9 to 10 pints in all of lager and some spirits too), before going from London to the Akash restaurant by train and taxi later that day. It is impossible to say how much the defendant had actually drunk before getting to the restaurant at about 6pm. But, by their verdict, the jury came to the clear conclusion that he was not so drunk as to be incapable of forming a specific intent to do (at least) grievous bodily harm at the time of the murder of the victim, shortly after 6pm.
7. When the defendant arrived at the restaurant it was still closed. He asked a waiter to let him in. The defendant went into the kitchen and talked to the Tandoori chef, Mr Abdul Bari, who became the victim. The defendant asked Mr Bari if there was a job available and he said that there was not. The defendant then asked Mr Bari is he drank alcohol. Mr Bari was a devout Muslim to whom such a question was a gross insult. Mr Bari became angry and there was a short argument but it calmed down. Another waiter was in the kitchen whilst this argument was continuing but he then went out to a store for about 2½ minutes to get some flour. The witness’ evidence was that the atmosphere was calm when he left.
8. However, when that witness returned Mr Bari had the defendant in an arm lock. The defendant had a kitchen knife in his right hand and Mr Bari had a stab wound in the left hand side of his chest. Mr Bari said words to the effect: “he has stabbed me” or “he is killing me”. The defendant managed to escape the grip of Mr Bari, ran from the kitchen and then out of the front of the restaurant. He dropped the murder weapon on the ground just outside the front of the restaurant and he ran off.
9. The victim had been stabbed through the left lung and the left ventricle of his heart. He died in hospital later that evening. He was a married man of 46 who has four children. He had been living (legally) in the UK since 1985 and was described as a “good and kind man”, who was indeed a devout Muslim.
10. After the defendant ran out of the restaurant he went to a nearby public house, where he ordered a half a pint of lager and asked for a taxi. The taxi took him to Slough station. He then took another taxi to the taxi company where his cousin worked in Brick Lane, London, E1. There he said that he had stabbed someone. Later he made a further confession to another taxi driver. The next day the defendant took the Eurostar to Paris. In June 2001 he sought asylum in the Netherlands. He was extradited to the UK and arrested for the murder of Abdul Bari.
11. The defence case was that the defendant was so drunk that he could not remember what had happened in the kitchen on the evening of 12 February 2001. Three defences were run: (i) possible self defence; (ii) possible provocation; and (iii) lack of murderous intent through consumption of alcohol. The jury obviously rejected all three possibilities.
12. In deciding on the appropriate order as to the minimum term the offender should serve, pursuant to section 269(2) of the CJA, I must have regard to the matters set out in section 269(3) and (5) of the CJA, and the general principles set out in Schedule 21 to that Act. Also, because in this case the murder was committed before the CJA came into force on 18 December 2003 and the provisions of paragraph 6 of Schedule 22 apply, I must also apply paragraph 8 (a) of Schedule 22 of the Act.
13. Paragraph 8 provides:
“In dealing with a reference under paragraph 6, the High Court –
(a) may not make an order under subsection (2) of section 269 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, the Secretary of State would have been likely to notify as mentioned in paragraph 2(a), ..”
14. The words “…which… under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify as mentioned in paragraph 2(a)…”, appear in paragraph 8 of Schedule 22 and also paragraph 10, which applies to cases where, after the CJA came into force, the court has to pass a sentence fixed by law (such as a life sentence for murder), in respect of an offence committed before the Act came into force.
15. The problem with the words “under the practice of the Secretary of State” is that there are no written indications of the practice of the Secretary of State in relation to setting minimum terms in the period before December 2002. However, in R v Sullivan and others [2004] EWCA Crim 1762, in which the judgment was given by Lord Woolf CJ, the Court of Appeal Criminal Division held that the best guide to the Secretary of State’s practice prior to December 2002 was contained in three Practice Statements that were issued by Lord Bingham of Cornhill, (Lord Woolf’s predecessor) and by Lord Woolf CJ himself.
16. The first was contained in a letter dated 10 February 1997 which was addressed by Lord Bingham to all judges who had to make recommendations for minimum terms in murder cases. The second was in a Practice Statement handed down on 31 May 2002 by Lord Woolf. That followed an Advice given by the Sentencing Advisory Panel on 15 March 2002. The third was a Practice Statement set out in a letter dated 16 December 2003, which was sent by Lord Woolf to all judges who had to determine minimum terms under the CJA. But in his judgment in Sullivan, Lord Woolf held that this last Practice Direction should not be used as evidence of the practice of the Secretary of State as at December 2002 in respect of offences committed after May 2002: see para 42 of the judgment.
17. In Sullivan, Lord Woolf held that although the first two Practice Directions appear to be different as to the guidance given, their general effect is the same. Both give judges a considerable amount of discretion: see para 34. He also held that if the principles set out in Schedule 21 of the CJA were properly applied, then those principles and the Practice Statement of May 2002 would produce broadly similar results: see para 41. But if an application of the principles in Schedule 21 would result in a higher minimum term than the application of the principles set out in the May 2002 Practice Statement, then paragraph 8 (or where appropriate paragraph 10) of Schedule 22 of the Act requires that the May 2002 Practice Statement be used to arrive at the minimum term. That will result in a minimum term which will either be the same or shorter than the minimum term calculated using Schedule 21: see paragraph 43 of the judgment.
18. In accordance with the provisions of paragraphs 6 and 7 of Schedule 22 of the CJA 2003, in making an order under section 269 (2) of that Act in relation to the minimum term that the Offender must serve before the early release provisions will apply, I must have regard to several factors. First, I must consider the seriousness of the offence: section 269(3)(a). (As the offender did not plead guilty, section 269(3)(b) does not apply). In doing so, I must have regard to the general principles set out in Schedule 21 of the CJA: see section 269(5) and paragraph 7 of Schedule 22. Secondly, I must have regard to the recommendation made to the Secretary of State by me as the trial judge, and that of the Lord Chief Justice as to the minimum term to be served by this offender before release on licence: paragraph 7 of Schedule 22 of the CJA. Thirdly, I must not make an order under section 269(2) specifying a minimum term which, in the opinion of the court, is greater than would have been notified by the Secretary of State under his practice before December 2002. In that regard, I must consider the guidance given in the Practice Directions of Lord Bingham and Lord Woolf, which I have referred to above. Lastly, having arrived at a minimum term by this process, I must deduct from it the time spent on remand by the offender.
19. I consider first the seriousness of the offence and the general principles set out in Schedule 21 of the CJA. I have to decide first what the “starting point” for the minimum term should be in this case. This case does not fall within paragraph 4(1) of Schedule 21. I have considered carefully whether this is a case within paragraph 5(1), but in my view this case does not come within any of the categories set out in paragraph 5(2) of Schedule 21. Accordingly, the case falls within paragraph 6 of Schedule 21, so that the “starting point” in determining the minimum term is 15 years.
20. Next I have to consider the aggravating and mitigating factors, in accordance with paragraphs 8 to 11 of Schedule 21. None of the aggravating factors set out in paragraph 10 are present in this case. However, there were aggravating features of a general kind. In particular: (i) this attack was completely unprovoked and was on a man that the Offender had never met before and whom he had no reason to attack. (ii) The Offender fled the scene and then the country. (iii) He maintained a defence of “cannot remember” which was patently false.
21. As to mitigating factors, I am satisfied that the Offender did not intend to kill, but rather to cause serious bodily harm. There was no premeditation. The attack was a spur of the moment action, probably brought on by frustration, anger and drink combined. The Offender was a young man of about 22/23 at the time of the offence. (His actual date of birth was difficult to identify because of his lack of proper documentation, but at the trial I determined that his date of birth was 16 August 1978). I am satisfied that the Offender was, by the time of the verdict and sentence, very remorseful.
22. Taking these matters into account, I would have arrived at a minimum term of 13 years, if I was following the guidance set out in Schedule 21of the CJA 2003.
23. Next I have to consider the recommendation that I made to the Secretary of State, as endorsed by the Lord Chief Justice. My recommendation was 12 years for the minimum term.
24. Next I have to consider whether a figure of 13 years for the minimum term (following the guidance set out in Schedule 21) would be greater than that which would have been notified under the practice of the Secretary of State before December 2002. Because this murder was committed before 31 May 2002, to do this I must consider the 1997 Practice Direction of Lord Bingham in particular. (See: Practice Direction (Criminal Proceedings: Consolidation) paragraph IV.49.17). Lord Bingham’s “starting point” was 14 years for a so – called “normal” or “unexceptional” murder. Taking into account the mitigating and aggravating factors that I have set out above, I have concluded that a figure of 13 years would be greater than that which would have been notified under the Secretary of State’s practice as at December 2002. Using that practice he would have notified a minimum term of 12 years.
25. Accordingly, I set the minimum term at 12 years. From that figure I must deduct the time that the Offender spent on remand in custody in connection with this offence. That period was 6 months and 11 days, or 191 days.
26. Therefore I set the net minimum term at 11 years and 174 days.