Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2006] EWHC 1823 QB
Case No: 2004/710/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Manchester Crown Court,
Crown Square, Manchester, M3 3FL
Date: 26 July 2006
Before :
THE HONOURABLE MR JUSTICE BEATSON
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WARREN SIMEON RYAN
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Neither party was represented
Hearing dates: 20 May - 22 July 2002
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Approved Judgment
Mr Justice Beatson :
1. On 24 July 2002 at Manchester Crown Court Warren Simeon Ryan (hereafter “the applicant”), then aged 22, pleaded guilty to murder and was sentenced to life imprisonment. The period of imprisonment recommended by the trial judge to meet the requirements of retribution and deterrence was 5 years. On 31 July 2002 the Lord Chief Justice stated there were considerable mitigating factors and, although he considered the trial judge was being very merciful, he would endorse this recommendation.
2. The matter comes before me pursuant to section 276 and schedule 22 paragraphs 5 and 6 of the Criminal Justice Act 2003 (hereafter “the 2003 Act”), to determine the minimum term following which the early release provisions referred to in Schedule 22 are to apply to the applicant and his case can be considered by the Parole Board. This is my determination of that minimum term. For the benefit of the applicant, 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. I have considered the representations dated 24 January 2005 and the material submitted to the court on the applicant’s behalf, together with the guidance set out in Practice Direction (Crime: Mandatory Life Sentences) (No 2) [2004] 1 WLR 2551 (hereafter “the Practice Direction”). That guidance reflects the Court of Appeal’s judgment in Sullivan, Gibbs, Elener and Elener [2004] EWCA Crim 1762 as how to ensure, as section 276 and schedule 22 of the 2003 Act require, that the minimum period for sentences where the offence was, as the applicant’s offence was, committed before 18 December 2003 does not breach the principle of non-retroactivity.
4. The family of the deceased were asked whether they wished to make a statement for the purpose of the review of the tariff but the victim liaison officers have advised that attempts to contact the victim's family have met with no response. As I understand to be the usual practice in these cases, no representations have been submitted to me by the Home Secretary.
5. Paragraph 11 of Schedule 22 of the 2003 Act provides that the application is to be decided without an oral hearing. The applicant seeks an oral hearing should the court be minded to set his minimum term higher than that recommended by the trial judge. The grounds for this are that the circumstances of his case, including the recommendation by the trial judge and the Lord Chief Justice constitute exceptional circumstances for the purposes of Schedule 22. I have concluded that this is not one of the "rare cases" (see R (Hammond) v Secretary of State for the Home Department [2004] EWHC 2753 (Admin)) in which an oral hearing is required. The circumstances of the case are fully set out in the submissions in mitigation made on behalf of the applicant before sentence was passed and in the report of the trial judge to the Home Secretary. The reasons for the recommendations made by the trial judge and the Lord Chief Justice are in the report. These documents are before the court. The representations made on behalf of the applicant state that he does not wish to add anything to the circumstances of the offence contained in those documents. The representations do not identify a specific reason why, in addition to the full written representations on the merits which have been submitted to the court, an oral hearing is needed.
The Background
6. The circumstances of the offence are described by the trial judge, Sachs J as follows:
“Ryan was a member of a gang operating in the South Manchester area called the Pitt Bull Crew. Their business was selling class A drugs which they did in opposition to other gangs who had similar objectives. Guns were freely available to the Pitt Bull Crew as indeed they were to the other gangs and numerous deaths have been caused by gangs such as the Pitt Bull Crew in recent years by shooting. At the time covered by the indictment the Pitt Bull gang would kidnap people who they thought were members of another gang and operating in competition with them, also they falsely imprisoned innocent people who were abusers of drugs and used them to entice dealers to their homes or elsewhere where they were kidnapped by the Pitt Bull Crew. Ryan was one of six defendants facing trial, one was acquitted the others variously convicted, three of them of murder, the same murder for which Ryan was convicted.
The murder arose in this way, the Pitt Bull Crew suspected a particular Asian taxi driver of being a supplier and they lured him to a Macdonald's restaurant kidnapped him there compelled him to drive to another house where they suspected another drug dealer lived. Having satisfied themselves that the other drug dealer was not there a number of the gang left the house, one of them a man Paul Day, who had possession of a Mac 10 machine gun, he walked up to the deceased who was in the driving seat of his taxi and fired five bullets into his head. Ryan was one of 5 members of the Pitt Bull Crew present at the scene.
Effectively Ryan pleaded guilty at the first opportunity albeit it was the first day of the trial. Ryan had been a defendant in a three months trial of a similar nature, which concluded on 27 March, he was acquitted of all counts. His advisers took the view they should not make decisions about the instant indictment until that trial was concluded. Immediately their advice was accepted and the pleas were made known to the Crown, the Crown however were hopeful that other defendants might plead guilty and did not immediately accept the pleas, there being other counts upon which the Crown did not proceed. In the event nobody else pleaded guilty and the Crown accepted the pleas on a given basis namely and principally that Ryan was a secondary party to the murder.
Having pleaded guilty he gave extensive interviews to the police and made a statement served on the co-accused and he gave evidence at the trial over three days. The Crown accepted him as a witness of truth, the jury from the verdicts did likewise and I have no hesitation in saying that I believed his evidence. The usual consequences follow in his case from giving evidence against co-accused he is not in protective custody in prison and will be unable to return to live in Manchester where he has lived all his live.
His evidence was a very powerful factor indeed in the convictions of his co-accused.”
7. There were no medical considerations before the court. The trial judge commented as follows on the applicant’s dangerousness and likelihood of re-offending:-
“The aggravating features are the use of a gun, knowing it had been taken to the scene. The defendant's record in no way aggravates this matter.
His mitigation, his frankness and the giving of evidence, his age, he was 20 at the time, the fact that as a result of his giving evidence his life will be very difficult in future, the basis of his plea as a secondary party to the murder. It was clear in his giving of evidence that he did have real remorse.”
It was in view of these comments that the Lord Chief Justice endorsed this recommendation in the terms set out in paragraph 1 of this judgment.
8. I have also seen the trial judge’s recommendations in respect of the applicant’s three co-defendants, Butt, Day, and Gordon. He recommended 18 years for Butt, the eldest and the leader of the gang, and for Day, who did the shooting, but was younger than Butt. He recommended 14 years for Gordon who was not as involved as Butt and Day but played a significant role.
The Statutory Regime
9. Paragraph 6 of schedule 22 to the 2003 Act applies to a prisoner serving a mandatory life sentence who has not been notified by the Home Secretary 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. It provides that the Home Secretary must refer the prisoner’s case to the High Court, and that the High Court must determine the prisoner’s minimum period. The significance of the minimum period is that it is only thereafter that the Parole Board can direct the prisoner's release on licence assuming first that the Home Secretary 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) of the Crime Sentencing Act 1997.
10. Paragraph 7 of schedule 22 provides that, in considering the seriousness of the prisoner’s offence and determining the minimum period, the High Court must have regard to the matters mentioned in section 269(5) and to any recommendation made to the Home Secretary by the trial judge or the Lord Chief Justice as to the minimum period. Paragraph 8 establishes a ceiling for the minimum terms based on the practice of the Home Secretary prior to December 2002. Section 269(5) of the 2003 Act provides:
"In considering…..the seriousness of an offence (or the combination of an offence and one or more offences associated with it, the court must have regard to -
(a) the general principles set out in Schedule 21, and
(b) any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21."
11. The general principles involved in determining the minimum term set out in Schedule 21 can be identified from the three starting points set out in paragraphs 4 to 6 of Schedule 21, the direction in paragraph 8 that, having chosen a starting point, the court should take into account any aggravating or mitigating factors to the extent that it has not allowed for them its choice of starting point, and the provision in paragraph 9 that consideration of these factors may result in a minimum term of any length, whatever the starting point, or a whole life order.
12. The first of these starting points is a whole life order. Paragraph 4(1) provides that this is the appropriate starting point where 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 the offender was aged 21 or over when he committed the offence. Paragraph 4(2) provides that cases that would normally fall within paragraph 4(1) 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.”
13. The second starting point is a period of 30 years. Paragraph 5 (1) provides that this is the appropriate starting point if 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 the offender was aged 18 or over when he committed the offence. Paragraph 5(2) provides that cases that would normally fall within paragraph 5(1) 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.”
14. The third starting point is a period of 15 years. Paragraph 6 provides that this is the appropriate starting point 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).
15. Paragraphs 10 and 11 set out a number of matters that may be relevant to the offence of murder as aggravating and mitigating factors. Paragraph 10 provides that 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.”
16. Paragraph 11 provides that 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”
17. The use of the word “include” in paragraphs 10 and 11 make it clear that the matters set out do not define what may be an aggravating or mitigating factor and are in this sense only illustrative.
The guidance
18. Paragraph IV.49.17 of the Practice Direction, reflecting the judgment in Sullivan, Gibbs, Elener and Elener, states that the best guide as to what the Home Secretary's practice would have been where the offence was committed before 31 May 2002 is the letter sent by Lord Bingham CJ to Judges on 10 February 1997. In that letter it is stated that the period to be served for what is described as the average, normal or unacceptable murder is 14 years. That letter also sets out factors his Lordship considered to be capable of mitigating or aggravating the offence (see also the Practice Direction IV.49.18-21).
The grounds upon which this application is made
19. The representations state that, save in one respect, the applicant does not wish to add anything to the circumstances of the offence as documented in the mitigation and sentencing remarks. The representations highlight the fact that the applicant took full responsibility for his participation in the murder although he was not aware that such murder would take place and that he showed remorse and contrition evidenced inter alia by his assistance to the Crown in the pursuit of other culprits. The court is invited to fix the minimum period to be served no higher than that recommended by the trial judge and endorsed by the Lord Chief Justice but also states that the minimum period "could be reduced somewhat in light of the progress which [the applicant] has made whilst in custody". This progress is described as "nearing the exceptional".
The decision in this case
20. The first question for me in determining the applicant's minimum term is whether, apart from the applicant's progress during his sentence, there is a justifiable basis for differing from the view of the trial judge endorsed in the terms set out above by the Lord Chief Justice. Although a five year minimum for punishment and retribution might at first sight seem insufficient, for the reasons given in the following paragraphs I have concluded that there is no justifiable basis for differing from the recommendations of the trial judge and the Lord Chief Justice, and indeed that it would be wrong to do so. I note that, if this case came for sentence today, the starting point, pursuant to paragraph 6 of Schedule 21 to the 2003 Act, would be 30 years. Before the 2003 Act since this was an offence committed before 31 May 2002, following the Practice Direction, 14 years was to be taken as the period to be served for the ‘average’, ‘normal’ or ‘unexceptional’ murder.
21. The trial judge has set out the aggravating and mitigating factors. The applicant took part in this gang operation knowing that a machine gun had been taken to the scene and foreseeing the possibility that it might be used. As against this his age, his plea and the time it was tendered, the assistance he gave to the Crown in giving evidence, which the trial judge regarded as a very powerful factor in the convictions of his co-accused, the fact that he had placed himself and his family in danger as a result of this, and his remorse are considerable mitigating factors.
22. Apart from the powerful mitigation available to the applicant, it is clear from the guidance in the Practice Direction that prior to the 2003 Act, participating in the enterprise knowing a gun was being taken and might be used indicates a minimum period longer than the 14 year norm. A gang killing using a machine gun is undoubtedly very serious, as the trial judge recognised in the minimum periods he recommended for the applicant’s three co-defendants. The trial judge was well placed to assess the respective roles of the defendants. He stated that Butt was the eldest and the leader of the gang, Day, was the man who pulled the trigger. His recommendation for them was 18 years. His recommendation for Gordon who, although not as involved as Butt and Day, played a significant role, was 14 years. The judge described the applicant as one of five members of the gang present at the scene.
23. Before the trial judge announced what minimum period he would be recommending, the applicant's representatives drew his attention to several decisions of the Court of Appeal, including the decision in King [1986] 82 Cr. App. R. 120. These set out the approach to be used where a defendant has pleaded guilty and has also given evidence for the prosecution. They state that this should be recognised by a significant reduction in the sentence particularly where the evidence was accepted and where the defendant has put himself or his family at risk. They indicate a reduction of between one half and two thirds depending on the circumstances, the importance of the evidence, and the danger to the defendant who has given evidence.
24. Although the matter was not articulated in this way by the trial judge, and in any event the matter is not to be determined mathematically, a minimum period of 5 years for a defendant who has pleaded guilty and given valuable evidence implies a starting figure somewhere between 10 and 15 years. The Lord Chief Justice's comment that the trial judge had been "very merciful", may reflect the fact that in the applicant’s case the reduction appears to have been two thirds.
25. By paragraph 10 of Schedule 22 to the Criminal Justice Act 2003 the court may not specify a minimum period which in the opinion of the court is greater than that which under the practice followed by the Home Secretary before December 2002, the Home Secretary would have been likely to notify. As has been noted in paragraph 18 above, the best guide as to what the Home Secretary's practice would have been at that time is the letter sent by Lord Bingham to judges on 10 February 1997. In Sullivan, Gibbs, Elener and Elener the Court of Appeal stated ([2004] EWCA Crim 1762, at paragraph 35) that the area in which the records show the Home Secretary could differ significantly from the figure recommended by the judiciary is at the top of the range for the most serious crimes. A gang killing using a machine gun is undoubtedly very serious, as was recognised by the minimum periods recommended by the trial judge for the applicant's three co-defendants. As far as the applicant was concerned, however, in view of his plea, his frankness, and the fact he gave important evidence with the consequent danger to him, he does not fall into that category. Accordingly, there is no reason for differing from the recommendation of the trial judge and the endorsement of that by the Lord Chief Justice.
26. I turn to the submission that the tariff of 5 years could be reduced "somewhat" in the light of the progress which the applicant has made whilst in custody. The 2003 Act does not refer to progress made during a sentence as a factor to be to be taken into account, although that is not determinative. The issue was considered by the Divisional Court in R (Cole, Rowland and Hawkes) v Secretary of State for the Home Department [2003] EWHC 1789 (Admin) when the Bill that became the 2003 Act was before Parliament. Rose LJ stated (at paragraph 88) that if the Bill were to be enacted without referring to progress as a factor (as it has been), it was “inconceivable, in human terms” that exceptional progress in prison would not be taken into account. The Divisional Court had before it evidence by Mr Morris, the Head of the Tariff Section in the Lifer Unit. Paragraphs 5-10 of his statement are set out in paragraph 11 of Rose LJ’s judgment; paragraph 8 stated that the Home Secretary accepted that the Bill, now the 2003 Act, left it open to the courts to take into account exceptional circumstances, including exceptional progress in prison, in appropriate cases. It is, however, clear from Mr Morris’s statement and from Rose LJ’s judgment that the hurdle that must be overcome for progress to be regarded as “exceptional” is a high one. Normally, as well as 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.
27. It is against this background that the representations made on behalf of the applicant in this case must be assessed. The representations rely on the fact that the applicant has availed himself of all the relevant existing offending behaviour courses, has continued to demonstrate a heartfelt desire to become a pro-social person, to honour the memory of the deceased and to pay his debt back to society. I have carefully considered the reports prepared by the staff at HMP Wakefield which were submitted with the representations. While these show commendable progress they have not reached the threshold of exceptional progress that is needed in this context. Nor do the representations argue that they do. Paragraph 7 submits that the applicant's behaviour and progress in custody "can be classed as nearing the exceptional".
28. In the circumstances, I am of the clear view that the appropriate minimum period which the applicant must serve before the early release provisions are to apply to him is 5 years. From that period is to be deducted the period of remand in custody, namely 1 year and 1 day. For the avoidance of doubt, the minimum period is unaltered, save for the deduction of the period served whilst on remand.