Jackson, Re Setting of Minimum Term an Application Under Criminal Justice Act 2003

In September 1985 the body of Avril Dunn was discovered in Spinney Wood, Luton. She had suffered multiple blunt injuries to her head, neck and chest. A few days later some items of her clothing were discovered and found to be stained with semen. It was only several years later that these yielded a DNA profile which was found to match the Applicant’s. He was arrested in 1998 and, in due course, tried at Reading Crown Court before Garland J. and a jury. He was convicted on 27^th January 2000 by a majority (10:2). He received the mandatory sentence of life imprisonment. A renewed application for permission to appeal against conviction was refused by the Full Court on 12^th January 2001.

The trial judge did not make a recommendation under s.1(2) of the Murder (Abolition of Death Penalty) Act 1965. In his report of 31^st January 2000 he said,

“Although it was a particularly brutal murder, the circumstances were not so exceptional as to warrant a recommendation.”

In commenting on the appropriate tariff, he said,

“The Crown were unable to suggest any motive for the killing. There was minor injury to the victim’s anus suggesting that there might have been an attempt at buggery. The injuries were very severe and some were post mortem. The defendant did not have any previous convictions for violence, although, according to his wife, he had used violence towards her. I am not inclined to depart from the median tariff of 15 years.”

On 3^rd February 2000, Lord Bingham, Chief Justice said,

“I do not think the lapse of time between the offence and the conviction has very much bearing on the appropriate punitive term, which should in my view be 14-15 years.”

On 19^th December 2001 the Applicant was notified on behalf of the Home Secretary that his tariff had been set at 15 years.

However, consequent on the Criminal Justice Act 2003 Schedule 22 paragraph 3, the Applicant has the right to apply to the High Court to set his minimum term which cannot be greater than that which has previously been notified to him (ibid paragraph 3(1)(a)). It is this application which I have been asked to determine.

Submissions on the Applicant’s behalf were made by Mr Bryan on 20^th February 2009 and 3^rd April 2009. The CPS made submissions on 3^rd June 2010 and the Applicant replied on 28^th June 2010.

After I had been asked to consider the Application, I indicated that I would be assisted by an oral hearing. Paragraph 11 of Schedule 22 provides that the application is to be decided without an oral hearing but in Hammond [2004] EWHC Admin 2753, the Divisional Court concluded that it did not exclude an oral hearing where the High Court Judge thought it necessary. I asked the parties to consider three questions:

I received written submissions from the Applicant on 15^th February 2011, from the Secretary of State for Justice on17th February 2011 and from the Crown on 20^th February 2011.

I then asked the parties for their comments on R (Uttley) v Secretary of State for the Home Department [2004] 1 WLR 2478 to which none of them had referred but which seemed to me to be of potential relevance. I said that in the light of anything further which they had to say I would decide whether an oral hearing was necessary. The Crown responded on 3^rd March 2011, the Applicant on 6^th March 2011 and the Secretary of State for Justice on 7^th March 2011. I am very grateful for their assistance and I have taken into account all of their comments. In the light of them I do not consider that an oral hearing is necessary. I sought up-to-date reports on the Applicant and a report on how his progress compared with other life prisoners. I received the Notes of the Sentencing Planning and Review Meeting held on 6^th January 2011, a report dated 7^th March 2011 from C. Vincent, the Applicant’s Offender Supervisor, a report dated 19^th April 2011 from Elaine Moriarty, a Probation Officer and a report from K.J. Lane, the Manager of the Offender Management Unit at HMP Shepton Mallet dated 2nd June 2011. The parties had the opportunity to comment on all of these reports. Where comments were made I have also taken them into account.

Ms Dunn was 26 at the time of her death. She was small: her weight was only 5 ½ stone and her height was 4’10”. The multiple blunt injuries to her head and chest were consistent with stamping by a shod foot. Injuries to her mouth and liver were consistent with blows inflicted after her death. There were also signs of an asphyxial element caused by compression of the neck. Although this was not fatal it may have made her unconscious.

The Applicant knew Ms Dunn well. He sought to explain the presence of his semen on her clothes by saying that they had had a sexual encounter a few days before her death when she had masturbated him to ejaculation. The Crown suggested that the circumstances of her death (partial asphyxiation, stamping before and after death) may have suggested an outburst of anger possibly following a sexual taunt or refusal to comply with his sexual demands. The defendant relied on an alibi defence.

The Applicant was 23 at the time of the murder. He had convictions for theft and burglary, but none for violence.

The Criminal Justice Act 2003 Schedule 22 paragraph 4(1)(a) requires me to have regard to the seriousness of the offence and the notified minimum term. Paragraph 4(2) says that in considering the seriousness of the offence, I must have regard to the general principles in Schedule 21 and any recommendation to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served before release.

Schedule 21 sets out the principles to be applied by a court in fixing the minimum term (or a whole life tariff) where conviction and murder both take place after the relevant commencement date. The “general principles in Schedule 21” to which I must have regard include the starting points in that Schedule – see R v Caines (Setting of Minimum Term) [2007] 1 WLR 1109 CA at paragraph 32.

The Crown’s original submissions commented that, because this appeared to be a murder involving sexual conduct, it could be regarded as a case for which, under the principles of Schedule 21, the appropriate starting point would be 30 years – see Schedule 21 paragraph 5(2)(e). While there may have been a sexual element in this murder, I could not be sure to the criminal standard that this was so. In any event, as the Crown also accepted, the effect of paragraph 3(1)(a) is that the minimum term in the Applicant’s case cannot exceed the notified minimum term of 15 years. For this reason as well it would be a barren exercise to consider whether the aggravating circumstances of this offence would have led (had it been committed after the commencement date) to a minimum term in greater than15 years.

The Applicant advanced two arguments as to why the term which I specify should be less than 15 years. First, that if he had been convicted and sentenced shortly after the murder in 1985, the minimum term which would have been likely would have been that which then prevailed for “ordinary” murders – namely 12 years with, perhaps, some small additional uplift. Secondly, the applicant, it is argued has made exceptional progress since his conviction and this should be recognised by lowering the minimum term.

The Applicant observes that on 10^th February 1997 Lord Bingham, then Chief Justice, wrote, “My current practice is to take 14 years as the period actually to be served…This is longer than the period (12 years) which Lord Lane took as his norm 10 years ago.” Ten years before Lord Bingham’s letter would have been 1987. Had this murder been tried shortly after it was committed in 1985, the prevailing standard for the judicial recommendation would have been Lord Lane’s. In the present case both Garland J. and Lord Bingham exceeded the 14 year norm by 1 year. Therefore, the Applicant argues, if his case had been tried contemporaneously with the crime, he could have expected a judicial recommendation of something like 13 years.

The Applicant advances two arguments as to why I should adopt this as my benchmark. First, he relies on Article 7(1) of the European Convention on Human Rights. Secondly, he submits this is the approach that I should take in order to achieve consistency with what would be required by the 2003 Act in cases that are comparable although dealt with by different parts of Schedule 22.

Article 7(1) of the ECHR says,

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

It is the second sentence which is relied on by the Applicant in this case, but, for simplicity I shall refer to this as the “Article 7(1)” argument.

Schedule 22 covers three types of transitional cases. The first is where the murder and conviction preceded the commencement date (18^th December 2003) and, before that date, the Home Secretary had notified the prisoner of the minimum period which would need to pass before he was considered for release on licence or parole i.e. his tariff period. (It is not necessary to consider the situation where the Home Secretary said that the prisoner’s crime was so heinous that he should never be considered for release.) As I have explained above, a person in this situation can apply to the High Court to have the minimum period judicially reassessed. The existing tariff period represents a ceiling above which the Court cannot go. These applications are made under paragraph 3 of Schedule 22 and the present case is an example of such an application.

The second type of transitional case is where the murder and conviction preceded the commencement date, but prior to commencement the Home Secretary had not notified the prisoner of his tariff period. In such cases the Home Secretary is obliged to refer the matter to the High Court for a minimum period to be assessed – see 2003 Act Schedule 22 paragraph 6. The Court must then make an order under s.269 of the 2003 Act specifying the minimum period to be served before the person concerned can be released on licence (again, I ignore for these purposes the alternative of a ‘whole life order’). Paragraph 8 provides that in dealing with a reference under paragraph 6, “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...”

The third type of transitional case is where the murder was committed before commencement, but conviction does not take place until after commencement. In those cases, the trial judge will also be required to make an order under s.269 specifying the minimum period to be served before release on licence. Here, too, paragraph 10 of Schedule 22 provides an identical limitation to that in paragraph 8 so that once again the Court “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...”

In R v Sullivan (Melvin Terrence) [2005] 1 Cr. App.R 3 the Court of Appeal consisting of 5 judges, including the then Lord Chief Justice (Lord Woolf) and the present Lord Chief Justice (then Judge LJ) considered 4 appeals, all of which concerned transitional cases of the third type. Lord Woolf gave the judgment of the Court. He said,

“23.

Paragraph 10 only applies to the third category of offender with which these appeals deal. Its purpose is plain. It is to avoid the offender having a minimum term determined that offends the requirements of Arts 5 and 7.1 of the Convention to which we referred at the beginning of this judgment. It prohibits a heavier penalty being imposed than could be imposed at the time the offence was committed. As the jurisprudence of the European Court of Human Rights makes clear, a minimum term is a “penalty” for this purpose. So the minimum term calculated in accordance with the guidance contained in Sch.21 must not exceed that which would have been capable of being imposed at the time the offence was committed.

24 It is also clear that the approach a judge is intended to adopt in determining the minimum term for this category of offender under the 2003 Act falls into two stages. The judge has to initially assess what would be the appropriate period applying Sch.21 . Having ascertained that period he then reduces the period so far as is necessary in order to comply with the requirements of para.10 of Sch.22 . This is intended to avoid any question of a breach of Arts 5 and 7.1.”

It was this passage which led all three counsel in their initial responses to my questions to submit that paragraph 10 of Schedule 22 reflected the obligation in Article 7(1) ECHR and, hence, Article 7(1) prevented the Court from fixing a minimum term which was greater than that which was likely to have been notified by the Secretary of State at the time the offence was committed.

However, the nature of the obligation in Article 7(1) has since been examined more closely by the Judicial Committee of the Privy Council in a devolution appeal from Scotland (Flynn (Patrick Anthony) v HM Advocate (No.1) [2004] UKPC D 1, 2004 S.C. (P.C.) 1), in Strasbourg (Coeme v Belgium App No. 32492/96); ECHR and King v UK App. No 6234/06 (2007) 45 EHRR SE5) and by the House of Lords (R (Uttley) v Secretary of State for the Home Department [2004] 1 WLR 2278).

In Flynn the Judicial Committee had to consider the cases of a number of prisoners who had been convicted of murder in Scotland and sentenced to life imprisonment. Before 2001 the executive decided when their cases should be referred to the Parole Board for consideration as to whether and when they should be released on licence. In consequence of Stafford v UK (2002) 35 EHRR 32 it was appreciated that this violated Article 6 of the ECHR. Since the fixing of the minimum term to be served by a mandatory life prisoner was, in effect, a sentencing exercise, it had to be carried out by a Judge. Accordingly an Act of the Scottish Parliament, the Convention Rights (Compliance) (Scotland) Act 2001, required the cases of existing mandatory life prisoners to be referred to the High Court of Justiciary. The appellants in Flynn were then notified of minimum terms which had the effect that their cases would be considered by the Parole Board after the dates on which they had previously notified by the executive that they would be considered or after the dates on which they could reasonably have expected their cases to be considered. The Judicial Committee concluded that it was open to the High Court of Justiciary to take account of post-conviction matters such as these notifications or reasonable expectations of notification, but the reasoning of the members differed. Lord Hope and Lady Hale and probably Lord Bingham considered that this conclusion was required in order that the 2001 Act would be compatible with Article 7(1) of the ECHR. Lord Rodger and Lord Carswell took a different view of the applicability of Article 7(1).

Lord Rodger explained why he did not think that Article 7(1) was applicable. He said at paragraph 85,

“I am not persuaded that Art 7(1) is engaged in the circumstances of these appeals. In terms of Art 7(1) the critical matter is the penalty that was applicable at the time the criminal offence was committed. Under the old system there was no constraint on the length of the period that the Preliminary Review Committee could fix, for the purposes of retribution and deterrence, before the first review. It is therefore not possible to say, in terms of Art 7(1) , that any particular punishment part is ‘a heavier penalty “than was” applicable at the time the [murder] was committed.’ Under para 13 the appellants are liable to be required to serve a longer period than would have been likely, but not a longer period than would have been competent, before the first review under the previous system. That is not incompatible with Art 7(1) . Indeed, in reality, the appellants do not base their complaints on the penalty that they could reasonably have contemplated at the date of the murders. They argue, rather, that under the previous system a prisoner, for whom a hearing date had been fixed, had an expectation that the parole board would consider his case at or about that date. Their complaint — and it is wholly understandable — is that this expectation has been dashed and they will have to wait considerably longer for their next review.”

Lord Carswell, likewise did not think that Article 7(1) was engaged. He said,

“109.

I should be prepared to accept that the process of reference to the parole board could be regarded as fixing the punishment period. I should not be willing, however, to accept the first premise of the appellants' argument, dependent on their construction of the material sentence of Art 7(1) . I agree with the other members of the board that it is not realistic to treat a life sentence as a sentence of imprisonment for the whole of the defendant's life. Virtually all such prisoners are released within a period of years and both the European and English case law have now made it clear that the fixing of the punishment period or tariff is to be regarded as a sentencing process in itself. I am unable, however, to accept the construction of Art 7(1) propounded by the appellants. It seems to me difficult to escape the conclusion that the meaning of the provision is that the penalty which was ‘applicable’ at the time the criminal offence was committed is that which a sentencer could have imposed at that time, ie the maximum sentence then prescribed by law for the particular offence. I may observe in passing that resort to the French text of Art 7 is of little avail, since the word used is ‘applicable’, which does not throw any further light on the draftsman's intention. The object of the provision appears to have been to prevent a sentence being imposed which could not have been imposed at the time of the offence, because the maximum was then lower. One may see the operation of this principle clearly in the case of indecent assault on a woman, the maximum sentence for which was increased from two years to 10 years by the Sexual Offences Act 1985 (cap 44). Persons convicted after that Act came into operation of indecent assaults committed before that date could not be sentenced to the longer period of imprisonment. It seems to me that other interpretations fail to give due effect to the reference in Art 7(1) to the time when the offence was committed, not when sentence was passed.

110.

At the time when the offence in each of the cases before us was committed the only sentence which it was open to the court to impose, as judges constantly said when sentencing for murder, was imprisonment for life. If that was the penalty ‘applicable’ at that time, then no disposition since then has brought about any increase in it. I do not derive any assistance from an approach which divides a life sentence into a punishment period and a risk period. If the sentencing court had been empowered to fix a punishment period at the time of passing sentence, it would have been open to it to fix any term of years which appeared appropriate. Similarly, if one takes the time when the Secretary of State or Scottish Ministers referred the case to the parole board for review, that could have been done at whatever time was considered appropriate, taking into account the considerations of retribution and deterrence. On such an approach that would have determined the applicable penalty, and in fixing a punishment period under the 2001 Act the High Court of Justiciary had a similarly large discretion, so that the term fixed by it was not a ‘heavier penalty’. It is hardly necessary to point out that to approach the matter in this way one has to attribute to the sentencing court a power which it did not then have and to disregard the significance of the reference in Art 7(1) to the time the criminal offence was committed.

111.

For the reasons which Lord Rodger of Earlsferry has set out in his opinion, I consider that it would be extremely difficult to apply a test based on the approach proposed by the appellants. Moreover, if it were generally applied, it could lead to considerable problems in many areas of sentencing.

112.

For the reasons which I have set out I should be unwilling to hold that para 13 of the schedule to the 2001 Act is incompatible with the rights secured by Art 7(1) of the Convention. In any event, I do not think that it is necessary so to hold, in the light of the construction of para 13 which all the members of the Board have adopted. The application of the Act is a matter for the High Court of Justiciary, which must be free to adopt its own approach, but it would in my own view be open to it on an appeal against sentence to take into account matters which post-date the passing of the original life sentence in any case. How much, if any, weight it would attribute to the prisoner's expectations founded on his having been given a date for the parole board review would be a matter for the High Court of Justiciary in any given case, as Lord Rodger of Earlsferry has set out.”

In Coeme v Belgium App No. 32492/96 Reports of Judgments and Decisions 2000-VII p.75 at para 145, the European Court of Human Rights said this of Article 7(1),

“The court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that punishable, and that the punishment imposed did not exceed the limits fixed by that provision.” (emphasis added)

In (R (Uttley) v Secretary of State for the Home Department [2004] 1 WLR 2278 the House of Lords was asked to consider whether legislative changes to the regime for the release of prisoners part way through their sentence offended Article 7(1) if they were applied to prisoners who had committed their offences and been convicted before the legislative changes had taken effect. The House of Lords unanimously ruled that they did not. Lord Rodger and Lord Carswell repeated the views that they had expressed in Flynn and Lord Phillips considered that these views (especially in light of Coeme) were an accurate analysis of Article 7(1). He said (at paragraph 21),

“It follows that article 7(1) will only be infringed if a sentence is imposed on a defendant which constitutes a heavier penalty than that which could have been imposed on the defendant under the law in force at the time that his offence was committed” (Lord Phillips’ emphasis).

Lord Steyn agreed with Lord Phillips, Lord Rodger and Lord Carswell.

Lord Rodger, as I have said, reiterated the views he expressed in Flynn, now fortified by Coeme (which had not been cited in Flynn). He said at paragraph 42,

“As Lord Carswell shows, there are obvious difficulties in any attempt to interpret “applicable” as referring to the penalty that the court could in practice have been expected to impose for an offence at the time it was committed. The decision of the European Court demonstrates, however, that article 7(1) does not envisage such speculative excursions into the realm of the counter-factual. Its purpose is not to ensure that the offender is punished in exactly the same way as he would have been punished at the time of the offence, but to ensure that he is not punished more heavily than the relevant law passed by the legislature would have permitted at that time. So long as the court keeps within the range laid down by the legislature at the time of the offence, it can choose the sentence which it considers most appropriate. The principle of legality is respected.”

Lord Carswell looked at the history of Article 7(1) and said at paragraph 58,

“The wording of article 7(1) of the Convention has its origins in the early constitutional documents of the human rights movement. It was purposely framed so as to follow closely the terms of article 11(2) of the Universal Declaration of Human Rights , approved by the General Assembly of the United Nations in 1948, save that in the English version of the Convention the phrase ‘penal offence’ became ‘criminal offence’. In the International Covenant on Civil and Political Rights (1966) the first two sentences of article 15(1) are identical in wording to article 7(1) of the Convention. A third sentence, however, was added which is of significance for present purposes: ‘If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.’ This sentence gives support to the interpretation propounded on behalf of the appellant, that in the previous sentence in article 15(1) of the International Covenant on Civil and Political Rights , like the second sentence of article 7(1) of the Convention, the word ‘applicable’ was intended to refer to the maximum sentence which could be imposed by law. That interpretation is also borne out by the references in the travaux préparatoires to a penalty ‘authorised by the law’ and the maximum penalty under the law in force at the time’.”

It is right to note, as Applicant and Secretary of State for Justice observed in their written comments on Uttley, that the House of Lords did not criticise the comments of Lord Woolf in Sullivan (although Sullivan was cited to them). Uttley did not concern the minimum terms of mandatory life prisoners. Lord Phillips, Lord Rodger and Lady Hale made express reference to this fact. Lord Phillips at the end of paragraph 21 (which I have quoted above) added,

“I observe, in passing, that if statutory changes are made to the release regime of those serving mandatory life sentences those changes may affect the severity of the sentence that the law requires. That is not this case.”

Lord Rodger said at paragraph 34, after referring to the legislative provisions at issue in that case,

“None of these provisions prescribes a minimum sentence and the case therefore raises no issue of the kind considered by the Court of Appeal in R v Sullivan [2004] EWCA Crim 1762.”

And Lady Hale said at paragraph 48, that the legislative provisions they were considering,

“can be distinguished from a mandatory life sentence, which is the only penalty available, where the consequences prescribed by law might become heavier than those which previously obtained.”

In my judgment, however, the principles discussed in Uttley cannot be distinguished simply on the basis that it was addressing the legality of determinate sentences of imprisonment. On the contrary, the House was grappling with the origin and more general meaning of Article 7(1) and the views of the House are binding on me as to those matters. They were critical to its conclusions in that case. Of course, it is right that with a mandatory life sentence, consideration has to be given both to that sentence itself and to the minimum term which has to be served before release on licence is possible. The reservations of Lord Phillips, Lord Rodger and Lady Hale which I have quoted in the previous paragraph go to that point. But in deciding whether the minimum term in a specific case offends Article 7(1), I see no alternative but to apply the same interpretation of that provision as the House laid down in Uttley. After all, specific endorsement was given to the views of Lord Rodger and Lord Carswell in Flynn and that was a case which concerned the effect of Article 7(1) on the minimum term which mandatory lifer prisoners would have to serve before being eligible for release on licence.

This view is also supported by the decision of the European Court of Human Rights in King v UK (2007) 45 E.H.R.R. SE5.Like Flynn this concerned a convicted murderer whose minimum term fixed by the High Court of Justiciary resulted in him having to wait longer for a Parole Board hearing than he would have been likely to have to do if the previous executive arrangements had continued. His application to the European Court relied on, amongst other provisions, Article 7(1). The Court dismissed this argument by saying,

“In so far as the applicant complains under Art.7 that the courts imposed a longer punishment part than the executive did, the Court notes that at the time at which the applicant's offence was committed the maximum sentence of life was applicable: it cannot, therefore, be said, that the High Court retrospectively increased this sentence.”

It follows in my view, therefore, that Article 7 would not be violated in this case simply because I fixed a longer minimum term than would have been likely if the Applicant had been convicted and sentenced shortly after the offence was committed. His rights under that provision would only be infringed if I fixed a term which was longer than the tariff which could have beenset in 1985.

There was no statutory regulation of minimum terms in 1985. Even if I were to assume in the Applicant’s favour, that the minimum term could not lawfully have been set outside a reasonable range of decisions, I would find that 15 years fell within that range.

Accordingly, I conclude that Article 7(1) does not assist the Applicant in arguing that his minimum term should be less than 15 years.

As I have mentioned above, Mr Bryan argued as well that it was unfair for the Applicant to be treated differently than a prisoner who fell within either of the other transitional cases. I do not find this argument convincing. In their cases, Parliament has required the Court to set as a ceiling the tariff which the Secretary of State would have been likely to fix. For those prisoners in the class to which the Applicant belongs, the ceiling is different: it is the tariff which has actually been set by the Secretary of State. There is a rational explanation for the difference, but in any case, my obligation is to follow not subvert the Parliamentary scheme.

Paragraph 4 of Schedule 22 requires me to take into account the recommendations of the trial Judge and the Lord Chief Justice. As I have said, in this case, the former proposed 15 years and the later 14-15 years. Mr Bryan argues that when these recommendations were made, the Applicant had not right of appeal against them. He could not therefore have objected at the time that they were given that they represented an increase in the norm for an “ordinary” murder over that which had prevailed when he committed his offence.

I remind myself of the guidance which was given by the Court of Appeal in Caines at paragraph 38. My task now is a sentencing decision. I must take account of the earlier recommendations and the Secretary of State’s notification, but I am not conducting an appeal against any of those matters. In my view, Mr Bryan’s submissions on this point are really a reprise of his Article 7(1) argument. I have already considered and rejected that argument. In my judgment it carries no more weight in this present form. Furthermore, it is notable that Lord Bingham in his recommendation did specifically allude to the lapse of time between the offence and conviction but thought that this had little bearing on the appropriate punitive term. Consequently, neither the recommendations by the trial judge or the Lord Chief Justice nor Mr Ryan’s comments on them lead me to conclude that a minimum term less than 15 years would be appropriate.

I accept that, in principle, the minimum term which is set by the Court pursuant to an application under Schedule 22 paragraph 3 can be reduced if the prisoner has made exceptional progress: R v Caines (above). If such a reduction is appropriate it should serve to reduce the tariff notified by the Home Secretary (unless, which is not this case, the Court would anyway have concluded that the new minimum term should be less than that tariff) – ibid at paragraphs 48-50.

In assessing whether the Applicant has made exceptional progress, I am assisted by the further comments in Caines

“ 51. Finally we must consider the ambit of exceptional progress in prison. The policy adopted by the Secretary of State was described in R (Cole) v Secretary of State for the Home Department [2003] EWHC 1789 at [11]:

‘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 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.’

‘10. The Secretary of State 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 in prison 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 be 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 to 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.’

52.

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.

53.

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.”

In this case I have a number of OASys reports. The first was completed in 2007 when the Applicant was detained at HMP Kingston. The second in April 2009 when he was at HMP Shepton Mallet. A third assessment was made in July 2010. A fourth assessment has been carried out by the Probation Officer in April 2011.

Mr Bryan notes the following in particular:

I note from the OASys reports that an assessment of the Applicant is more difficult because he continues to deny responsibility for the murder of Ms Dunn and this appears to have been a significant contributor to the assessment of a medium risk of re-offending. Nonetheless after a very full report, the assessment was made that in both custody and in the community he would pose only a low risk of harm. There are no concerns about his risk of escape, control issues or breach of trust. I have seen no record of any adjudications against him during his time in custody. In addition, the report notes pertinently that, while he did have previous convictions for minor offences of dishonesty, he had no record of violence either before the murder of Ms Dunn or in the 13 years between that event and his arrest. In the 3 voluntary drug tests he has taken at HMP Shepton Mallet he has always been drug free. He is described as very motivated to address his offending and to complete any work set from him. His custodial behaviour is described as “excellent”.

The 2011 reports continue to speak highly of the Applicant’s behaviour in prison. The report of the January Sentence Planning and Review Meeting described his behaviour as excellent and said he conformed to all wing and prison rules and routines. He had not received any warning under the Incentives and Earned Privileges Scheme. His denial of responsibility for the offence remained an obstacle, but he was recommended for a pre-tariff oral hearing. The report of 7^th March 2011 repeated these themes. The Probation Officer who reported in April 2011 said that she had completed an E-OASys which placed Mr Jackson at a medium risk of serious harm to others and on the basis of tools used by the National Probation Service, he posed a medium risk of re-offending.

None of these reports specifically addressed the question which the Court of Appeal in Caines said must be posed, namely how did the Applicant’s progress compare with that of other similar prisoners. The report from K.J. Lane of 2^nd June 2011 did do so. He again acknowledged that Mr Jackson’s custodial behaviour had been very good and he had an excellent work ethic. His progress was such that an oral hearing for the pre-tariff sift review would be support for him to move to open conditions. Mr Lane adds, however,

“When comparing Mr Jackson’s progress to that of other life sentenced prisoners at this stage of their sentence, one can assume that his progress has been very good. However, it is no more than what one would expect from a life sentenced prisoner at this stage of his sentence. It should be noted, however, not all lifers are as motivated to progress as Mr Jackson. Mr Jackson as shown to be compliant with his Sentence Plan and willing to undertake whatever work is necessary in order to progress; this is also something that cannot be said of all Lifers at the same stage. In conclusion, Mr Jackson has shown throughout his sentence a willingness to engage in the Life Sentence Process and has progressed to the stage expected of him. This should not be seen as exceptional progress, however, in comparison with other Lifers it should be seen as very good.”

My conclusion is that, when measured against the test set out in Caines, Mr Jackson’s progress can indeed be described as very good, but not exceptional. Furthermore, Caines emphasises that the risk report must be satisfactory. In this case, the risk assessments which I have seen all say that there is a medium risk of re-offending. Furthermore, although the earlier reports said the risk of causing serious harm was low, Ms Moriarty also placed him at a medium risk of causing such harm. Taken overall, it is difficult to characterise these risk reports as satisfactory.

For all of these reasons, I conclude that Mr Jackson’s tariff should not be reduced on account of his progress while in prison.

Mr Donnellan’s original submissions noted that the Applicant was arrested on 14^th September 1998. He remained in custody until 11^th December 1998 when he was granted bail. He was therefore on remand for a total of 88 days.

That period will count against the minimum term which I fix of 15 years.