Caines, R v

In 1986 David Roberts was convicted of murder. In 1995 Timothy Caines was convicted of murder. Both were sentenced to life imprisonment. Before section 269 of the Criminal Justice Act 2003 (the Act) came into force they were notified by the Secretary of State of the minimum periods they should serve before release on licence. They applied unsuccessfully for orders which would have reduced their length. These cases raise important questions about the interpretation of the transitional provisions in schedule 22 TO the Act which have not yet been fully considered in this court, and on which there has been a difference of judicial view. (Re Waters [2006] 3All ER 1251: Re Cadman [2006] 3 All ER 1255).

The hearings were held on different dates. It is however convenient to provide a single judgment to cover both cases.

The relevant facts are fully summarised in the judgment of Gibbs J, and we gratefully adopt his analysis.

Roberts was born in October 1954. On 1^st December 1986 in the Crown Court at Manchester, before Garland J and a jury, he was convicted of murder. It was his second such conviction for murder. He was sentenced to life imprisonment.

The victim of this second murder was an elderly woman, a local hotelier of some renown, who lived on her own in a cottage in the grounds of the hotel. In January 1986 the hotel was closed for winter. Roberts and his male partner were obliged to leave their room. Roberts entered the victim’s cottage. In a brutal attack, he stabbed her in the throat, inflicted very serious injuries to her ribs by stamping on her as she lay defenceless on the ground, and finally strangled her with her own scarf. He then stole some of her belongings and drove away in her car.

The facts of the previous murder were alarmingly similar. At the beginning of March 1969, Roberts entered the bungalow of an elderly woman who lived on her own. He stabbed her many times with a knife. After ransacking her house and stealing her money and attempting unsuccessfully to drive her car away, he made away from the scene, leaving her dead or dying. Presumably because he was only fourteen years old at the time of this murder, he served seven years in custody before his release on a life licence.

Garland J suggested that the minimum term should be seventeen/eighteen years. The then Lord Chief Justice doubted whether Roberts should ever be released. He added “certainly eighteen years must be an absolute minimum”. In 1988 the Secretary of State decided that the early release provisions should not apply to Roberts: in effect, he set what is described as a “whole life” tariff. However, following representations made on the applicant’s behalf, by letter dated 14 November 2001, the applicant’s tariff was reconsidered, and set afresh at twenty-two years.

An application was made under schedule 22(3) of the Act for the twenty-two year minimum term to be reconsidered. Representations were submitted in April 2005. Gibbs J did not consider that an oral hearing was necessary. He concluded that “by the standards current at the time of this sentence” a minimum term of at least twenty-two years was justified. The application was rejected. Hence this application. For completeness, in order to set the term to be served by Roberts, he deducted the period during which he was in custody on remand before his conviction, in order to set the term to be served by Roberts. This is a renewed application for leave to appeal.

The facts are summarised in Cox J’s judgment, which again we gratefully adopt.

Caines was born in December 1960. He was convicted on 25 July 1995 in the Crown Court at Birmingham, before Ebsworth J and a jury of murdering a solicitor, Colin Hickman. Subsequently, in January 1997 his renewed application for leave to appeal against conviction was refused by the Court of Appeal Criminal Division.

Colin Hickman, a solicitor working for a firm in central Birmingham, was killed in the hallway of his home in Coventry at about 6.30pm on 1^st March 1994. He was the victim of a knife attack and, among a number of injuries, he sustained a fatal stab wound which penetrated the carotid artery. His attacker had used force sufficient to bend the blade of the knife. On the evidence it seemed clear that more than one person was present when the deceased was attacked. Although Caines had initially given a false alibi, and admitted telling lies to the police, he gave evidence at trial that he had been present when the violence was started by others, but that he was not involved in the actual killing.

The prosecution case was that Caines and another man, seen leaving the scene by the deceased’s widow, committed the offence together. Caines had been following the deceased for some days before the killing, with the murder weapon in his possession. Indeed there was no dispute that this knife belonged to him. There was scientific evidence which suggested that the deceased had been restrained while he was being fatally attacked. He sustained injuries to the face and head, with a number of slicing or slashing wounds, some superficial, some deeper, together with six stab wounds, including the fatal wound. No defence injuries were present. The trial judge observed that the pattern of injuries suggested that the deceased had first been taunted before the fatal would was inflicted.

The prosecution case was that the appellant’s motive arose from his dishonest activities as a “con man”, who murdered the deceased in order to prevent the imminent exposure of his dishonest financial activities. He owed approximately £300,000 to his creditors. The precise extent and nature of the dealings between the appellant and the deceased were not entirely clear. The appellant himself, in written representations, referred to their both having been involved in an ongoing business relationship, with a number of financial transactions taking place on a cash basis, but leaving no paper trail.

The jury rejected the appellant’s defence that he was not involved in the murderous attack on the deceased.

On conviction, the appellant was sentenced to life imprisonment. On 26^th May Ebsworth J recommended to the Secretary of State that the length of the detention necessary to meet the requirements of retribution and general deterrence for the offence was a period of fourteen years. On 6^th June the then Lord Chief Justice agreed with her recommendation. Written representations were made on the appellant’s behalf and submitted to the Secretary of State for consideration during 1998. On 14^th January 1999, he was notified that the Secretary of State had set the minimum term at fourteen years.

The appellant applied to the High Court under the provisions of schedule 22(3) of the Act for his notified minimum term to be reconsidered. Detailed written representations and accompanying documents were presented to the court. Cox J rejected the application for an oral hearing.

In essence, the appellant sought to demonstrate that since he started his sentence, he had made “exceptional progress”. The material before us suggests that the appellant’s general behaviour in prison has been of a high standard throughout his sentence, and at each prison where it has been served. He has done considerable work on his education, and is now in the second year of a degree course. He has also undertaken to address what is described as “offending behaviour”, and worked hard to rehabilitate himself. He had now been released on temporary licence on a regular basis, sufficiently to obtain employment. This indicates that he is assessed at low risk of reoffending. He continues to deny that he was guilty of murder. That, however, does not preclude the finding that he has made exceptional progress. Credit should be given where it is due, and the refusal to admit guilt is not a necessary prerequisite to the conclusion that the progress of the prisoner has been exceptional. Among work done for others during his sentence, the appellant has raised money for charity at two prisons; worked with groups of the disabled at one prison; acted as a listener at four prisons; acted as a host for official visitors at one prison; and helped with events like the Lifer Day at another prison. He has worked as a volunteer for a Heritage Trust, and arranged physical education for elderly and disabled prisoners.

There are a number of reports from different prisons suggesting in the opinion of the writers that he has made exceptional progress. At one prison he was described as “one of the most focussed people” the lifer manager had met: another prison officer, who knew him at two prisons, observed that he was one of the hardest working inmates the prison officer had encountered, and yet another who worked with him at a fourth prison commented to the same effect. At his last planning review, his progress was described as excellent.

Cox J agreed, and further, considered that the exceptional progress should be taken into account on her review of the minimum term. She concluded that it would merit a reduction of two years. However, having examined the legislative regime, she concluded that notwithstanding the appellant’s exceptional progress in prison, the minimum term should be assessed at twenty two years. She set the two year reduction against the twenty two year period rather than the original minimum term. In the result, the appellant’s exceptional progress did not produce a reduction in the fourteen year period. This is the appeal from her decision.

For completeness, we must add that she subtracted the period during which the appellant was remanded in custody before conviction, in order to arrive at the term to be served by the appellant before the early release provisions would apply.

We must briefly notice that when the Murder (Abolition of Death Penalty) Act 1965 came into force the mandatory sentence to be imposed on those convicted of murder was imprisonment for life. When imposing this sentence, the court was entitled to recommend to the Secretary of State the “minimum period” which should elapse before a prisoner was released on licence. No appeal against the sentence, which was fixed, or the recommendation, which was not a “sentence”, was permitted.

In reality only a very small proportion of those sentenced to life imprisonment for murder spent the remainder of their lives in prison. The development of the structures governing their release, and the increasing judicial involvement in the process, were narrated by Lord Bingham of Cornhill in R (Anderson) v Secretary of State for Home Department [2003] 1 AC 837. Their culmination was encapsulated in the short but unequivocal language of Lord Bingham:

“…it must now be held that the Secretary of State should play no part in fixing the tariff of a convicted murderer, even if he does no more than confirm what the judges have recommended.”

The assessment and fixing of the period of imprisonment appropriate for the purpose of punishment and deterrence – conveniently described as “the tariff” – should become the exclusive responsibility of the judiciary. No input into this decision by the executive was permissible.

On the day when the opinions of the House of Lords in Anderson were given, the Secretary of State observed that he intended to introduce legislation:

“to establish a clear set of principles within which judges will fix minimum tariffs in the future…in respect of the ruling in Anderson our firm intention is that once we have the new arrangements in place a judicial authority will be able to consider afresh the tariff of any murderer at present serving a life sentence in accordance with the framework I have described…we intend that any application by a serving prisoner for their tariff to be reset would be heard under the new law.”

A letter to similar effect was sent from the Lifer Unit to governors and Lifer Managers.

One aspect of the Secretary of State’s powers, in exceptional circumstances, to review and reduce the tariff after it had been set, was not directly addressed either in Anderson or in the Secretary of State’s subsequent comments. The point was not then in issue, but it now arises for decision. The question whether, and if so how, these problems should be addressed in the context of the transitional provisions with which we are concerned will be examined later in this judgment.

The power to order the release of life prisoners in exceptional circumstances on compassionate grounds found in section 36 of the Criminal Justice Act 1991, and reproduced in section 30 of the Crime (Sentencing) Act 1997 remains in force. However the immediate release of a prisoner on compassionate grounds after consultation with the Parole Board is distinct from a reduction of the minimum term originally imposed for the purposes of deterrence and punishment on the grounds of exceptional progress.

The legislative structure implementing the new arrangements is found in Chapter 7 of Part 12 of the Criminal Justice Act 2003, and in particular section 269 and section 276, together with schedules 21 and 22.

Section 269 provides :

“(1)

This section applies where after the commencement of this section a court passes a life sentence in circumstances where the sentence is fixed by law.

(2)

This court must, unless it makes an order under subsection (4), order that the provisions of section 28(5) to (8) of the Crime (sentences) Act 1997 (referred to in this Chapter as “the early release provisions”) are to apply to the offender as soon as he has served the part of his sentence which is specified in the order.

(3)

The part of his sentence is to be such as the court considers appropriate taking into account –

(a)

the seriousness of the offence, or of the combination of the offence and any one or more offences association with it, and

(b)

the effect of any direction which it would have given under section 240 (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment.

(4)

If the offender was 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2), the court must order that the early release provisions are not to apply to the offender.

(5)

In considering under subsection (3) and (4) the seriousness of an offence (or of 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…….”

We need not recite the detailed provisions of schedule 21. They govern the determination of the minimum term in relation to mandatory life sentences. A series of different “starting points” are identified in paragraphs 4,5,6 and 7, and thereafter, the appropriate starting point having been chosen, a number of aggravating and mitigating factors are expressly identified. The relevance of earlier provisions in the Act relating to previous convictions, bail, and the effect of a guilty plea, is confirmed. No reference is made to release on compassionate grounds. Section 248 of the Act is limited to “fixed term” prisoners. Equally, no specific reference is made to release on licence for exceptional conduct while the prisoner is serving his sentence. Neither of these features are expressly identified in schedule 22.

Section 276, which governs mandatory life sentences in transitional cases, provides:

“Schedule 22 (which relates to the effect in transitional cases of mandatory life sentences) shall have effect. ”

Schedule 22, where relevant, provides:

“Existing prisoners notified by Secretary of State.

(2)

Paragraph 3 applies in relation to any existing prisoner who, in respect of any mandatory life sentence, has before the commencement date been notified in writing by the Secretary of State…either

(a)

of a minimum period which in the view of the Secretary of State should be served before the prisoner’s release on licence, or

(b)

that the Secretary of State does not intend that the prisoner should ever be released on licence ”

(3)(i) On the application of the existing prisoner, the High Court must, in relation to the mandatory life sentence, either

(a)

order that the early release provisions are to apply to him as soon as he has served the part of the sentence which is specified in the order, which in a case falling within paragraph 2(a) must not be greater that the notified minimum term, or

(b)

in a case falling within paragraph 2(b), order that the early release provisions are not to apply to the offender.

(ii)

In a case falling within paragraph 2(a) no application may be made under this paragraph after the end of the notified minimum term.

(iii)

Where no application under this paragraph is made in a case falling within paragraph 2(a), the early release provisions apply to the prisoner in respect of the sentence as soon as he has served the notified minimum term….

(iv)

In this paragraph “the notified minimum term” means the minimum period notified as mentioned in paragraph 2(a), or where the prisoner has been so notified on more that one occasion, the period most recently so notified.”

(4)(i) 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…as being reduced by a particular period, the effect which that sentence would have had if he had been sentenced to a term of imprisonment,

(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.

(ii)

In considering under sub-paragraph (i) 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….”

Subject to one possible consideration, the legislative schemes in schedule 21 and 22 are loyal to the decision of the House of Lords in Anderson. They provide statutory guidance for judges responsible for determining the appropriate minimum term in relation to a mandatory life sentence (R v Sullivan and others [2005] 1CAR 23) and also for those considering applications under the transitional provisions. Free from any risk of an increase in the notified minimum term, if they choose, prisoners may have their minimum terms reconsidered in a process in which the Secretary of State has no direct involvement. Nevertheless, the question remains whether some indirect, vestigial input remains.

The structure of the statutory guidance in schedule 22 is clear enough. The first feature which the court must address is the seriousness of the offence analysed in the context of the general principles in schedule 21. We heard argument about the application of these principles for the purposes of schedule 22, in particular, that the “starting points” were not included in the general principles. In our judgment the structure of the statute as a whole would be undermined if the words in paragraph 4(ii) of schedule 22 did not have the same effect as they do in section 269. We therefore agree with Stanley Burnton J in Re Cadman [2006] 3 All ER 1255 that, for the purposes of schedule 22, the general principles extend to and include the “starting points” themselves.

The remaining statutory guidance directs the judge hearing the application to have regard to the recommendations of the trial judge and the Lord Chief Justice before the original tariff was fixed by the Secretary of State. The recommendations themselves were, of course, uninfluenced by schedule 21, and reflected judicial views current when they were made. It is not necessary to lengthen this judgment by reciting their development over the years. They are conveniently summarised in Sullivan. However, the transitional provisions in schedule 22 apply irrespective of the guidance in force when the original minimum period was fixed, all cases to which the transitional arrangements apply are now to be dealt with identically, whatever the arrangements when the tariff period was fixed.

The guidance further requires the judge to reflect on the length of the notified term fixed by the Secretary of State, again uninfluenced by schedule 21, which may, but would not necessarily, have followed the recommendations of the trial judge and the Lord Chief Justice. Thus, in Caines, both judicial recommendations and the subsequent fixed minimum term were identical, in Roberts, they were not. In short, the express terms of schedule 22 rule out the possibility of an application being decided by reference only to the general principles in schedule 21 and the original judicial recommendations, ignoring the decision of the Secretary of State.

Counsel discussed whether the requirement that the court should “have regard to” the minimum term fixed by the Secretary of State had the single purpose of ensuring that it should not be increased, or whether the period fixed by the Secretary of State was to be given the same or similar weight to that given to the judicial recommendations. The terms of schedule 22 itself provide no conclusive guidance. Support for the second alternative may be found in paragraph 12 (2) which obliges the court to state its reasons for departing from the notified minimum term As this term cannot be increased, the only departure in contemplation would have been reduction below that term. Moreover, paragraph 4(1)(c) is directed both to a notified minimum term, and to those cases where the Secretary of State had decided that the prisoner should never be released. Plainly, there can be no possibility of an increase in such a case. On the other hand, the reference in paragraph 4(1)(c) to the length of the notified minimum term is not expressly linked to the assessment of seriousness of the offence, whereas the judicial recommendations are so linked. In short, the schedule itself does not point unequivocally to the answer.

When considering the seriousness of the offence for the purpose of deciding the application, the court is obliged to focus attention on the guidance provided by schedule 21. On any realistic basis the overall effect of this guidance has been and will continue to be an increase in the minimum term in all save exceptional cases. More significant for present purposes, schedule 21 is intended fully to reflect the views of Parliament about the factors relevant to the determination of the minimum term. That does away with the need for the Secretary of State to participate in the process in order to reflect public concerns and what is sometimes loosely described as the broad public interest. In the end, the compelling feature which leads us to conclude that the reference to the length of the notified minimum term in paragraph 4(1)(c) was to safeguard the prisoner from an increase in the minimum term, is that the purpose of the legislation was to give effect to the decision in Anderson that the Secretary of State “should play no part in fixing the tariff”. In our judgment, for the purposes of schedule 22, the views of the Secretary of State as reflected in the notified minimum period are relevant first, to ensure that the eventual order made by the judge does not produce a longer minimum period than before, and second, in the context of exceptional progress by the prisoner, which we shall examine later in the judgment. They should not otherwise influence the outcome of the review.

We need not reflect on the arrangements to deduct time spent on remand before sentence. That provision adds nothing to the issues currently under consideration.

We must draw some disparate threads together. The transitional provisions create an unusual responsibility for a judge. He has to decide the application by assessing the seriousness of the offence in the context of the statutory guidance in schedule 21, whilst simultaneously looking back to judicial recommendations made when a variety of different sentencing regimes existed, without addressing precisely what they were. Certainly he is not confined to and would be misdirecting himself if he simply replaced the original minimum term fixed by the Secretary of State with the original judicial recommendation. In any event the trial judge and Lord Chief Justice may have recommended different tariff periods. He is not conducting an appeal from the judicial recommendations, or the decision of the Secretary of State, nor passing sentence as such. Nevertheless although he did not preside over the original trial, his decision will impact directly on the date when the prisoner may be released on licence. Plainly the process is properly identified as a review, but it is not a judicial review in the formal sense. Schedule 22 (14) (1) describes the process as a decision and creates a process for appeal to the Court of Appeal Criminal Division, or indeed Reference by the Attorney General. In view of its characteristics, and the nature of the process, the decision should be treated as a sentencing decision.

Given the structure of schedule 22, it would be inappropriate for the judge to approach the review as if he were required to assess and then apply whatever he thought would have been the judicial tariff at the time when the original sentence was imposed. To the extent that Gibbs J approached his decision in Roberts in this way, we would disagree with him. However, even if he did, the result would have been more rather than less favourable to Roberts. In our judgment schedule 22 is not so confined. It expressly requires the judge to address the guidance in schedule 21. Sentencing practice or standards current at the time of sentence are properly reflected in the views expressed by the trial judge, and in particular, the Lord Chief Justice, who would have made his recommendation in each individual case in the context of his overall responsibility for making a recommendation in every such case. Between them, these provide sufficient material for the reviewing judge to take account of contemporary standards when the original recommendation was made.

This is the context in which we must address the problem of where, if anywhere, by whom, if anyone, and how, if at all, effect may be given to evidence of exceptional progress made by the prisoner after sentence, and before his schedule 22 application. Administrative arrangements for the purpose of acknowledging exceptional behaviour by the prisoner do not normally impinge on the sentence. For obvious reasons, the general principles in schedule 21 do not expressly refer to post sentence behaviour by the prisoner. Equally, schedule 22 makes no such reference to exceptional progress or similar matters as possible features for consideration. The purpose of the legislation is to enable the minimum period, previously fixed by the Secretary of State, now to be fixed judicially. And, plainly, because it would nullify the prohibition against the imposition of a greater term than the one already notified, exceptionally bad and disruptive behaviour by the prisoner cannot produce an increase in the minimum period. Such features would be taken into account when the level of risk attendant on release on licence is considered. All that said, the judge’s decision is made in the context of transitional provisions where the tariff may already have been reduced by the Secretary of State (as here, in Roberts), and the prisoner so notified. And although the process of release on exceptional compassionate grounds continues to be vested in the Secretary of State, schedule 22 does not expressly prohibit consideration of exceptional post sentence matters which are favourable to the prisoner. In short, the guidance in paragraph 4 is not definitive nor exclusive.

Our attention was drawn to the recent decision R (Smith) v Secretary of State for the Home Department [2006] 1AC 159. The sentencing regime under consideration was detention during Her Majesty’s pleasure. The House of Lords concluded that a system for continuous review of the minimum term to be served by those who were subject to this sentence was required. Addressing one of the arguments advanced on behalf of the Secretary of State, Lord Bingham of Cornhill observed:

“I sympathise entirely with the desire of the Secretary of State to have nothing to do with the setting of the minimum term, whether in connection with the initial imposition of the sentence of HMP detention or subsequently….While it would obviously be wrong for that term to be subsequently increased by executive decision, it does not follow that the same considerations necessarily apply to reduction, even if pursuant to a review mandated by domestic law. A reduction in the sentence imposed by a court is a well recognised exercise of executive clemency. If the Secretary of State should prefer the decisions on whether to reduce the minimum sentence to be taken by the judiciary, it is open to him to adopt the same informal procedure for seeking the advice of the Lord Chief Justice as he has done for the purpose of reconsidering the original minimum term….Such a procedure for reconsideration is not provided for in the informal ad hoc scheme established by the Secretary of State, but nor is it excluded ”

These observations fortify our view that a scheme under which a judge should review exceptional progress made in custody to produce, in an appropriate case, a reduction in the tariff period, is, at the very least, permissible.

We have been helpfully supplied with information about the practice of the Secretary of State in the context of exceptional progress by prisoners. There has been no uniform regime. The first announcement by the Secretary of State of his policy in respect of tariffs was made in 1983, when it was announced that exceptional progress in prison could provide a reason for altering the tariff. However, it was subsequently decided that such progress was irrelevant, and the policy changed. (See R v Secretary of State ex parte Venables [1998] AC 407, and in particular at 495.) The House of Lords was not directly concerned with the tariffs of adult life prisoners, and different views were expressed about the possible relevance of the progress to tariff periods. Venables decided that the Secretary of State was required to keep the tariff for those detained at Her Majesty’s pleasure under review. In 1997 the regime changed again. After that date, out of a total of 117 applications to reduce tariff length on the basis of exceptional progress, there were 23 cases in which, without further reference to the trial judge or the Lord Chief Justice, the tariff was reduced on these grounds. The reductions were for periods of either one (17 cases) or two years (6 cases). By February 2002, as Anderson was progressing through the courts, consideration of requests for reductions in existing tariffs was postponed. There have been no such decisions since 2002, not because there have been no meritorious applications, nor because of a declared change of policy, but because the process was put on hold pending the final outcome of Anderson, and the consequent introduction of the legislative schemes. It follows that whatever the regime in force at the time when Roberts and Caines were sentenced, both have spent some years in custody at a time when exceptional progress in prison could favourably have affected their tariff periods.

We must return to first principles. It is, of course, well understood that a judge passing sentence is entitled, when reflecting on all the facts which bear on the decision, to take account of past events which reflect credit on the offender (for example, a courageous act which saved the life of an individual who was at risk of serious harm at the hands of another (R v Alexander [1997] 2 CAR (S) 174: R v Wenman [2005] 2 CAR (S)) or future events, for example, the inevitable impact of some medical condition on the defendant’s health or indeed life expectation. (See, for example, R v Bernard [1997] 1 CAR (S) 135). In exceptional cases, considerations like these may constitute mitigating features in an individual case, relevant even to the determination under schedule 21 of the minimum term following conviction for murder. On the other hand, by definition, creditworthy conduct in prison, or release from custody on compassionate grounds arise for consideration after sentence. They could not have impinged on the original sentencing decision.

This leads us directly to reflect on the process in relation to appeals against sentence to this court. From time to time, the court will be provided with updated information about the offender. This sometimes takes the form of prison reports, sometimes confidential information from the police. The sources vary. The information may serve to show, for example, that the prisoner has provided considerable assistance to the police; sometimes aspects of the mitigation are significantly underlined in a way which may not have been as clear or emphatic in the Crown Court; sometimes the information may indicate that the offender has made significant progress since the sentence began, a feature particularly relevant in cases involving young offenders. The formal procedures for the admission of fresh evidence are not followed. This court simply considers the evidence before it. So, for example, if a young offender has responded positively to his custodial sentence, and his progress is such that it may be counter productive for him to serve the sentence actually imposed, it may be reduced on appeal, or changed to a non-custodial disposal, without any implied criticism of the decision of the Crown Court. In short, post sentence information may impact on and produce a reduction in sentence (for a recent example of post sentence evidence bearing on and explaining aspects of mitigation, with a consequent reduction in the minimum term following conviction for murder, see R v Sampson, unreported, 24 October 2006).

We acknowledge the inevitable difficulties, and indeed some illogicality, in re-examining the tariff fixed for the purpose of punishment and deterrence by reference to exceptional behaviour post sentence, a hesitation reinforced by the absence of any direct or express indication to this effect in the carefully structured statutory guidance. Nevertheless, for the reasons we have identified, our hesitation is alleviated. We emphasise first, that every prisoner serving a mandatory life sentence since 1997 has spent a significant part of the sentencing period under a regime in which exceptional progress provided a recognised basis for a reduction in the minimum term, second, that the review required by schedule 22 is unusual and specific for transitional purposes, and that the exclusion of the Secretary of State (who would otherwise have continued to allow for exceptional progress against the minimum term) is deliberate, and third, that the decision consequent on an application under schedule 22 is a sentencing decision to which normal sentencing principles apply. Accordingly in our judgment, exceptional progress in prison may be taken into account for the purposes of resetting the minimum term.

This conclusion is consistent with earlier authorities. Thus, in R (Cole, Rowland, Hawkes v Secretary of State [2003] EWHC 1789 (Admin), in which a judicial review of the refusal of the Secretary of State to review the tariffs of existing mandatory life prisoners was rejected, on the basis that the Secretary of State should not set or review the tariff of such a prisoner, 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 judiciary, inevitably, had to assume this responsibility. This observation was obiter, indicating the approach of the Divisional Court to what at that stage was no more than a Bill, although subsequently enacted in identical terms. The observation, therefore, was not binding on this court. Bearing in mind its source, however, it inevitably commanded and continues to command considerable respect. It has been followed on a number of occasions by judges addressing these issues. (For example Riaz [2004] EWHC QB74 at para 27; Mazhar [2005] EWHC 197 at para 13; Wignall [2006] EWHC 934 at para 12; Hughes [2006] EWHC 268 at para 37; and Cadman.)

In R v Tucker [2006] EWCA Crim 1885, the court considered an appeal from Mitting J’s decision that in principle creditable behaviour post sentence could not produce a reduction in the minimum term, and allowed the appeal. It was in effect conceded by the Crown that exceptional progress should be taken into account. It was therefore not necessary for the court to examine the principle. In reality, the observation of Rose LJ was decisive. It is unnecessary to examine the extent to which this decision provided authority binding on us, or whether, having examined the issue with the assistance of counsel instructed on behalf of the Secretary of State, we should have been entitled, if we had formed a different view on principle, to decline to follow it. These authorities fortify the conclusion that exceptional progress in prison by a prisoner serving a mandatory life sentence may be taken into account when the notified minimum term is reconsidered under schedule 22. Accordingly, Re Waters was wrongly decided.

The next difficulty we must address is the way in which the judge should apply a reduction to allow for exceptional progress when it is established. Should the reduction be made or credit be given against the notified minimum term, or does it fall to be made after the judge has reflected on the guidance in schedule 21 and the judicial recommendations? The importance of the decision is illustrated in Caines. As we have noted, Cox J was satisfied that Caines had made exceptional progress, sufficient to justify a two year reduction. Nevertheless, it earned him nothing because she applied the reduction not to the fixed minimum term, but to the term which would have applied but for the prohibition on an increase in that term.

This is a troublesome outcome. Certainly it looks, and will undoubtedly appear to the appellant to mean, that he has gained nothing from his exceptional efforts in custody. If the reduction is to operate effectively, save perhaps in the unusual case where the new tariff may be lower than the original minimum term, it must surely do so against the fixed minimum term, not against the newly assessed, albeit notional tariff. At first blush, however, this approach does not coincide with the statutory scheme, which requires the judge to make his own assessment of the tariff by addressing the seriousness of the case against the criteria in schedule 21 (including, of course, matters of aggravation and mitigation) as well as the judicial recommendations, without reference, save as a cap, to the minimum term. Notionally, as in Caines, this exercise produces, and in reality would almost inevitably produce, an increase in tariff, an expressly prohibited outcome. If exceptional progress were set against the new notional tariff rather than the original term, in practice the eventual result would at least in part be based on a starting point higher than the original minimum term, which if not expressly prohibited in this particular context, would be inconsistent with the express prohibition against an increased tariff.

Anderson was not intended to produce any increase in sentence, nor deprive any prisoner deserving of a measure of clemency of that clemency, nor adversely to affect the tariff period. Its purpose was the removal of the involvement of the Secretary of State in the assessment of the minimum term. The provisions of the 2003 Act were intended to reflect the principles identified in Anderson, both for existing and future life prisoners. If it were not for the progress of Anderson through the courts, reductions for exceptional progress against the minimum term would have continued. In our judgment, if exceptional progress is properly to be taken into account, (and we have held that it should) it should be productive of real benefit for the prisoner.

Finally we must consider the ambit of exceptional progress in prison. The policy adopted by the Secretary of State was described in Cole.

“ 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 whose displays exceptional bravery in preventing the death or serious injury on 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….

10… The Secretary of State has never issued a definition of what constitutes progress in prison. Cases are considered on an individual bases and exceptional progress has to stand out clearly from the good progress in prison that is expected in prison of all mandatory life sentence prisoners. In broad terms the Secretary of State 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 have to be sustained over a lengthy period and in at least two 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 peopled 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.”

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 prerequisite to any reduction that the risk assessment should be favourable.

In future, when the court is considering whether exceptional progress has been made, it would be helpful for the information to include the observations from the governors (or the governor’s representative) of the last two prisons in which the offender was serving his sentence. The information should not merely be directed to the governor’s overall view of the progress of the individual offender, but should also provide assistance on how that progress should be assessed by comparison with other similar prisoners. Furthermore, the court should be provided with a satisfactory risk assessment. Evidence of remorse, if genuine, may tend to confirm that the level of risk posed by the prisoner has been reduced to negligible levels, but its absence is simply one factor to be taken into account in the risk assessment. At the same time those responsible for the assessment should bear in mind that an intelligent or manipulative life prisoner may appear to have made exceptional progress when, in reality, he represents a continuing danger.

Responsibility for operating the transitional provisions is vested with High Court judges. This court will continue to apply the conventional approach to appeals against these decisions. We shall not interfere unless the result is manifestly excessive or wrong in principle, or in the case of a reference, unduly lenient. Save on well established principles, there should be no interference with findings of fact, whether adverse or favourable to the prisoner.

We can now reflect these principles in the current cases.

The essential argument on behalf of Roberts is that the appropriate starting point was the 17/18 years referred to by Garland J, and absolute minimum of eighteen years by the Lord Chief Justice, which, it is argued, means that his recommendation was in fact eighteen years. We do not think that Lord Lane CJ observations should be read in this way. Eighteen years was an absolute minimum in a case where it was unlikely that the offender would ever be released. It was contended that there are no new facts or features, and the recommended eighteen years was not too short a minimum term. Gibbs J was in error when he reflected on the “starting point” in schedule 21. This was impermissible. It meant that the schedule 21 guidelines were applied retrospectively. The judicial views expressed at the date of sentence should now be applied.

We have addressed this submission in the course of the judgment, and demonstrated that it is fallacious. Schedule 22 is clear. Gibbs J could not ignore the general principles in schedule 21, and they included the starting points.

When Gibbs J addressed the issues, he concluded that the seriousness of the offence was exceptionally high since Roberts had previously been convicted of murder. The starting point in schedule 21 therefore was a whole life order (paragraphs 4(1) and 4(2)(c)). He then addressed the practice current at the time that the applicant was originally sentenced, so as to ensure that the term set would be appropriate and not excessive with what he described as the “then contemporary standards”.

We have explained our view that, save to the extent that the judge was reflecting on the judicial recommendations, we doubt whether this was a relevant consideration. In any event, however, if, as we believe, the judge was wrong, the error did not disadvantage the applicant.

Gibbs J then reflected on the aggravating features of this case. This was a second conviction for murder. The victim was elderly and vulnerable. The offence was committed for gain. The previous murder was accompanied by the same aggravating features, although the applicant was then still very young. He thought that the case fell within the exceptionally high category of seriousness. There were no mitigating features. The aggravating features were subsumed into the material justifying the starting point. The twenty two year minimum period set by Gibbs J was amply justified. The application is refused.

The essential point in the appeal has been addressed in the course of the judgment. Cox J examined the aggravating features of the murder. She treated the appropriate starting point for the purposes of schedule 21 as fifteen years. However there were significant additional features of aggravation. These included a significant degree of premeditation, the motive, to prevent the appellant’s exposure as a fraudster, and physical suffering, deliberately inflicted before the final fatal stabbing. She acknowledged the comment of the trial judge that this was a calculated and ruthless killing, motivated by self interest. She could find no mitigation whatsoever. Neither can we.

Cox J found that exceptional progress had been established. It would have qualified for a two year reduction. We must however express our reservations whether the appellant’s progress was indeed exceptional. Certainly it was very good, but left to ourselves, we doubt whether it was truly to be described as outstanding, or sufficient to reduce the minimum period by two years rather than one. Our decision not to reduce or extinguish the two year reduction reflects the principle of non interference.

In our judgment, the two year reduction should be applied to the fourteen year fixed minimum term. To that extent this appeal will be allowed.