Faulds, R v

This is the review of a minimum term imposed on a person convicted of murder who was under 18 at the time of the offence and who was sentenced to detention during Her Majesty’s pleasure. The House of Lords in R (Smith) v Secretary of State for the Home Department [2005] UKHL 51; [2006] 1 AC 159 [16], held that the tariff for a person sentenced to detention during her Majesty’s Pleasure may be reduced on reconsideration if there is clear evidence of exceptional and unforeseen progress.

The applicant in this case is Lewis Samuel Faulds, who was convicted of the murder of Bradley Whitfield in the Crown Court at Nottingham in November 2008. On 28 November 2008, Mrs Justice Dobbs ordered that he be detained at Her Majesty's pleasure. She specified nine years, less 31 days spent on remand as the minimum term to be spent in custody. At the time of his conviction Lewis Faulds was 16 years old, having been born on 6 January 1992. His three co-defendants were also convicted. His step father, Darren Carr, was convicted of murder and sentenced to life imprisonment with a minimum term of 16 years, less the 329 days spent on remand. Lewis Faulds's mother, Nicola Faulds, was convicted of manslaughter, and a sentence of 8 years, less the 329 days spent on remand, was imposed. Lewis Faulds's girlfriend, Chelsea Faxon, was also convicted of manslaughter and was sentenced to 5 years imprisonment, less the 31 days spent on remand.

The background to these convictions was set out in the sentencing remarks of Dobbs J.

“In the early hours of New Year’s Day 2008 sixteen year old Bradley Whitfield and his friends were wending their way home when they came across the four defendants in this case. Minutes later, Bradley Whitfield was dead from a wound to his neck caused by a broken bottle wielded by Darren Carr. Whether the incident was sparked by comments by Bradley Whitfield’s group or the defendants’ group, what is clear is that it was the defendants who, although not necessarily all at the same time, went towards Bradley Whitfield’s group and launched an attack which led to the death of this young man. That there was a sustained, albeit short attack, on Bradley Whitfield is apparent from injuries suffered, namely abrasions and bruises to the face, shoulders and parts of the legs, bruising to the back, cuts to the neck and upper chest, cuts to the face and neck, including the fatal wound to the left mid-neck which severed the carotid artery and internal jugular vein, a wound which was 6 centimetres deep and which reached to the back of the throat and from which a piece of glass was recovered. The left cheek bone suffered a serious fracture, an injury consistent with severe force. No defence injuries were found or injuries to suggest that Bradley Whitfield had thrown a punch himself or wielded a bottle. These injuries were, in the expert’s uncontradicted opinion, consistent with multiple blows.

The only eyewitness, Jordan Tighe, described the assault as started by a female with a pole, Nicola Faulds, with the others joining in hitting Bradley Whitfield, followed by the younger male grabbing hold and dragging Bradley Whitfield whilst the older man hit him with a bottle on the head and, when Bradley Whitfield was on the ground, clearly in a bad way, the older man kicked him in the head as if he were kicking a football.

Following that assault you all then ran off, hid from the police and, as is shown by the jury’s verdict, concocted a story about self-defence which was roundly rejected by the jury.”

Dobbs J then dealt with each of the defendants. About Nicola Faulds she said that she had clearly condoned the heavy intake of alcohol, if not drugs, by her son and his girlfriend, and it was not surprising that concerns were raised about her parenting. As to Chelsea Faxon, she would appear to have been the first person to go over to the group, which included Bradley Whitfield. Had she not done so, the incident may not have happened. She now has facial scars from what happened for the rest of her life. Dobbs then set out the particular role that Lewis Faulds played in Bradley Whitfield's death:

“I sentence you… on the basis that you did not actually wield a bottle but, nevertheless, there is evidence from the prosecution witness, as I have already set out, namely that the younger male was grabbing hold of Bradley and dragging him in the road when the older man was using a bottle on him. That and the other evidence justifies the jury’s verdict in your case. If there was any doubt as to your state of mind one only has to look at the evidence of Karen Ingram who described the angry youth with a cap hitting the stick against the fence. Although the evidence was that you were not wearing a cap, the evidence clearly connected the young man to the group of females who ran away. Also, there was the evidence David Birkett at the hospital, which indicated that you told him that you had got one of the group and you held two fists up as you told him. David Bannister, also at the hospital, was told by you that you had left one of the group in a bad way. There was also evidence from the police officers at the hospital of your agitated and angry state, no doubt much of it due to the injury to your girlfriend, but also indicative of your generally aggressive state of mind.

The aggravating features, as I have already set out before, are that this was a group attack on one unarmed man, weapons were used and although you did not strike the fatal blow and use the bottle, you were holding down the victim at the time when he was being struck with the fatal weapon.

In terms of mitigation you too have no credit for a plea of guilty. You apologised in the witness box for the death of Bradley Whitfield but it’s clear from the pre-sentence report that you accept no responsibility for the offence. You were drunk and under the influence of drugs but I treat that as neutral although it is concerning to read in the pre-sentence report of your binge drinking and use of drugs since an early age. I take into account that the offence was not premeditated and that there was no intent to kill. You are to be treated as a youth of good character and I also take into account your youth at the time of the offence.”

On 16 April 2010 the Court of Appeal, Criminal Division, refused Lewis Faulds's appeal against conviction and sentence, although it reduced Chelsea Faxon's sentence by one year [2010] EWCA Crim 871.

Lewis Faulds's case is that his tariff should be reduced on the basis of his behaviour in prison and the exceptional progress he has made while there. Indicative of exceptional progress is if a person demonstrates an exemplary work and disciplinary record in prison; displays genuine remorse and accepts an appropriate level of responsibility for the part played in the offence; shows the ability to build and maintain successful relationships with fellow prisoners and prison staff; and successfully engages in work (including offending behaviour/offence-related courses) with a resulting substantial reduction in areas of risk. All of these should, ideally, have been sustained over a lengthy period and in more than one prison. The presence of one or all of these factors is not conclusive of exceptional progress having been made in any individual case. To reach the threshold of exceptional progress there needs to be some extra element to show that the detainee has assumed responsibility in showing himself to be trustworthy when given such responsibility. Such characteristics may well be demonstrated by the detainee having done good work for the benefit of others. Again, ideally, there would need to be evidence of sustained involvement in at least two prisons over a lengthy period.

As the judge said in the second passage quoted earlier in the judgment, she had received a pre-sentence report. It was a thorough report and had been prepared by a probation officer, dated 19 November 2008. The report described that Lewis Faulds's only involvement with the criminal justice system prior to the murder was a reprimand in 2005 for criminal damage. In the months between January and the trial, Lewis Faulds had been on bail, and the report noted that his involvement with the Youth Offender Service and foster carers during this time had been excellent. No issues or concerns were raised about his behaviour or attitude. Prior to the offending, however, he had been in trouble at school. He had been binge drinking from the age of 14 and was also smoking cannabis. The report comments:

"…Lewis was exposed to inconsistent parenting and supervision from [his mother] when this offence was committed. I am of the opinion that his somewhat lenient approach to parenting styles has ultimately impacted on Lewis’s thinking and behaviour in the year or so leading up to this offence."

In a post-sentence report dated 21 January 2009, the same probation officer reiterated the concerns he had expressed in the pre-sentence report about Lewis Faulds's parenting, adding that "being introduced to positive role models certainly appears to have enabled him to make positive changes to his life, which he appears to have sustained." The report contained important passages on the victim's family.

The Sentencing, Planning and Review notes for Lewis Faulds, from mid-2013, record that he remained on enhanced regime in prison because of his sustained good conduct and engagement, and all areas reported highly of his attitude and conduct. His only adjudication, in June 2009, was for the possession of tobacco when he was in the juvenile estate. He had recently been re-categorised to category C due to his exemplary engagement and behaviour. He had just completed the CARATS course (a drug treatment course), having previously completed alcohol and drug awareness courses. He had recently begun a GCSE in business studies. In addition, he had won a Koestler award with a Braille story for children (the Koestler Trust is a prison arts charity). The Braille instructor had spoken very highly of his commitment to the Storytime project, which enabled fathers in custody to record stories for their children. He had been a “listener” for 2 years for other prisoners. The notes include his risk factors as the excessive consumption of drink and drugs and peer group influence, counterbalanced by the support of his father. His OASys score showed a low risk of reoffending, but a risk to the public.

Tariff assessment reports for Lewis Faulds were prepared in mid-2014. The offender manager he had had from April 2010 noted that he presented as a mature young person. He had tried for some time to gain access to accredited programmes, but due to his limited prior offending, was deemed to be ineligible. However, he had demonstrated his motivation by undertaking a 6 week distance learning programme. He had engaged with all sentence plan objectives and interventions available to him. His report following the RESOLVE programme (a moderate intensity cognitive-behavioural intervention) was very positive and he was described as fully engaged in it. He had been a wing representative and diversity representative when at his previous prison (HMP Moorlands) and had maintained these positions at HMP Lindholme. There were no adjudications since the one in 2009, and reports from wing and prison staff were positive.

Lewis Faulds's offender supervisor reiterated what his offender manager said: that Lewis Faulds had maintained a mature outlook throughout his sentence, that he had engaged in all sentence plan objectives and that his behaviour remained exemplary. The offender supervisor's report added that he had "maintained victim empathy throughout his sentence and to this day regrets his actions and the hurt that has been caused to both families". There was no problem with Lewis Faulds's continued detention. As to progress in custody beyond what is expected of all life sentence prisoners, the report said this:

“Lewis has shown outstanding progress throughout his time in custody.”

The report added this under the heading "other information".

“Lewis's case notes are exemplary. I have spoken to Lewis's wing staff and he is highly regarded on the wing. He has a good rapport with all staff and prisoners on the wing and is always one of the first to volunteer his services should a prisoner require any assistance.”

Bradley Whitfield’s mother and sister describe the impact of his death on their lives and are strongly opposed to a reduction in tariff. His mother makes the point that the family will never have an early release from her son's death and adds that the family will never forget. His sister, who is still a young teenager, describes the impact of losing her best friend and not having him around anymore. She asks, rhetorically, why Lewis Faulds should be able to move on or forget.

In submissions on Lewis Faulds's behalf, Cale Solicitors contend that he has made the notable, significant and exceptional progress necessary for a reduction in tariff. He accepts his part in the offending and has shown remorse. He has also acknowledged the impact on the victim's family and the local community, given that both he and the victim were known in the local community. He had been assessed as not needing to undertake the Thinking Skills and PASRO programmes (PASRO is a substance abuse programme). In addition to the RESOLVE and CARAT programmes, he had completed a Victim Awareness programme and online course on criminal behaviour. No further courses needed to be undertaken. There were also a number of education courses to his credit. There was the Koestler award, of which he was extremely proud. His behaviour in custody had been of an excellent standard. He had gained various trusted positions, including being a gym instructor, diversity representative and a “listener”. He had received numerous references from prison staff through his role as a mentor. There were no reports of any abuse of these trusted positions. There was no OASys assessment from 2014, but Cale Solicitors understood that he posed a medium risk to members of the public. Given the index offence, they comment that this would not change much with time. His progress had been sustained and met the criteria for a reduction of tariff.

I agree with these submissions. As his offender supervisor has stated in the passage quoted earlier in the judgment, Lewis Faulds has shown outstanding progress throughout his time in custody. His case notes are exemplary, and apart from an early adjudication his disciplinary record in prison has been excellent. He accepts responsibility for his part in the victim's death and is aware of the impact that this has had. He has shown the ability to build and maintain successful relationships with prison staff and fellow prisoners. He has successfully engaged in a variety of offending and educational courses. All of this has been sustained over the 6 year period he has been incarcerated and in more than one young offender institution and/or prison. As I have explained, the presence of all of these factors as in his case is not necessarily conclusive of exceptional progress having been made. In this case, however, an extra element demonstrating that he has reached the threshold of exceptional progress is the Koestler award I mentioned earlier in this judgment. There are, as well, the various positions of trust he has held, without difficulty, which mean that he has shown himself to be trustworthy in then manner required.

On the basis of Lewis Faulds's behaviour in prison and the exceptional progress he has made I would reduce the minimum term Dobbs J set for his life sentence by 1 year.