Douglas, Re

This is a reference by the Home Secretary under Section 273 of the Criminal Justice Act 2003 (“the 2003 Act”) of the case of Osbourne Douglas, a transferred life prisoner within the meaning of that term in the 2003 Act, for the making of an order determining the minimum term following which the early release provisions referred to in Section 269(2) of the 2003 Act are to apply to him.

For the purpose of this decision I have read and considered the following material:

Osbourne Douglas was convicted on 26 May 2016 of murder and possession of an unlicensed firearm. The offences were committed on 1 July 2015. On the evening of that day Douglas and a man named Justin Ramoon travelled together in a Honda car to an area close to a shop called the Alpha Outlet Store in George Town, Grand Cayman. Ramoon was driving the car. On arrival Douglas got out of the car and went to the Globe Bar which was close by. The eventual victim, Jason Powery, was in the Globe Bar. Douglas spent a minute or two encouraging young people in the bar who were close to Powery to move away. As he was doing that, Ramoon moved the Honda car closer to the Globe Bar. Ramoon then left the car and went to the Globe Bar. He there met Douglas who gave him a handgun which up to that point had been in Douglas’s waistband. Douglas then left the Globe Bar and got into the Honda car. As Douglas was moving the car a short distance, Ramoon went up to Powery and shot him once in the head at close range. Having done that, he aimed the gun at a witness who was standing close by but the gun did not fire. He then went to where the Honda now was parked. He got into the car. Douglas drove the car away with Ramoon as a passenger. The two men had been in and around the Globe Bar for no more than 10 minutes. The sentencing judge concluded that the two men had not visited the area for social or innocent reasons. Rather, they had gone to the Globe Bar to carry out a pre-arranged plan.

As in England and Wales, the mandatory sentence for the offence of murder in the Cayman Islands is imprisonment for life. The sentencing judge in the Grand Court of the Cayman Islands was required to apply the Conditional Release Law 2014 and the Conditional Release of Prisoners Regulations 2016 made pursuant to Section 21 of that Act. Section 14(1) of the Act is in these terms:

Regulation 14 of the Regulations taken together with the matters set out in Schedule 12 of the Regulations deals with extenuating and aggravating circumstances. Regulation 14 reads as follows:

The relevant part of Schedule 12 is in these terms:

Thus, the minimum term for the offence of murder in the Cayman Islands is 30 years imprisonment subject to mitigating and extenuating circumstances. This single minimum term as provided for in the Regulations is to be contrasted with the different minimum terms in England and Wales for which provision is made in Schedule 21 of the Criminal Justice Act 2003.

Before the sentencing judge it was conceded on behalf of Douglas that there were no extenuating circumstances sufficient to reduce the minimum term below 30 years. The sentencing judge found that there were aggravating circumstances of an exceptional nature: pre-possession of an illegal firearm; the separate roles of the defendants before, at the time of and after the shooting; significant planning and premeditation; potential use of the gun to shoot at a witness. In Douglas’s case he set the minimum term at 34 years. The minimum term in the case of Ramoon was 35

The Cayman Islands Court of Appeal upheld the minimum terms imposed by the sentencing judge. The principal ground of appeal argued by Ramoon and Douglas was that the sentencing judge was in error when he concluded that the aggravating circumstances were exceptional in nature as required by the Conditional Release Law 2014. In particular, the judge should not have relied on the possession and use of an illegal firearm as constituting exceptional circumstances. It was said that the possession and use of firearms in cases of murder was commonplace in the Cayman Islands. Thus, this feature could not be considered to be exceptional. The Court of Appeal rejected this argument. The term “exceptional in nature” was intended to be a qualitative rather than a quantitative judgment. It was not a question of how often particular circumstances occurred. Rather, the issue was how serious the circumstances were.

Douglas has been removed from Grand Cayman and is now serving his sentence within the prison establishment in England and Wales. He was transferred under Section 2 of the Colonial Prisoners Removal Act 1884. The validity of Douglas’s removal currently is under challenge in judicial review proceedings in the Grand Court (Civil Division) of the Cayman Islands. This is of no relevance to my decision. I must proceed on the basis that Douglas now will serve his sentence in this jurisdiction.

Section 273 of the 2003 Act (insofar as is relevant) is in these terms:

Section 269 of the 2003 Act (insofar as is relevant) is in these terms:

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.

In considering under subsection (3) or (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—

There is little by way of authority to indicate the proper approach to the exercise of the jurisdiction provided by Section 273 of the 2003 Act. In Abdur Rashid Khan the court considered the impact of the Council of Europe Convention in cases of transferred prisoners. Article 10.1 of the Convention states:

Article 11 of the Convention reads as follows:

The sentence in the Cayman Islands was the subject of a detailed judgment by the sentencing judge. Further, the sentence was considered in detail by the Cayman Islands Court of Appeal. Irrespective of the Convention I would regard myself as bound by the findings of fact apparent from the judgments delivered in the Cayman Islands. I have no proper basis upon which to depart from those findings which were made by the judge who presided over the trial and heard the evidence. In fact paragraph (a) of Article 11 deals explicitly with the position and provides for the same outcome.

I first must consider what the outcome would have been had Douglas been sentenced in this jurisdiction. The judge would have considered Schedule 21 of the 2003 Act in order to determine (a) whether Section 269(4) applied and, if it did not, (b) the appropriate minimum term to be served before the early release provisions were to apply. I am satisfied that Section 269(4) would not have applied in this case. This was not an offence the seriousness of which was exceptionally high. Thus, this is not a case in which a whole life term would have been appropriate. However, I am equally satisfied that it was an offence the seriousness of which was particularly high. It was a murder involving the use of a firearm. Thus, the appropriate starting point would have been a minimum term of 30 years. Applying the findings of fact made in the courts of the transferring state, this was a case involving a significant degree of planning and premeditation. Douglas and his co-accused went to the Globe Bar for but a few minutes. In that time Douglas cleared the area in which the shooting was to take place and then handed the gun to his co-accused before moving the car in which the two men were to make their getaway to a point more easily accessible to the coaccused. The shooting was a public execution. The Court of Appeal noted Douglas and his co-accused wore no disguise and had a gun in open view despite the fact that there were not unknown to many of those in the Globe Bar. The conclusion was that they did not believe that anyone would give evidence against them. As was said in the judgment on appeal “that says much about these appellants”.

Taking all of those matters into account, had I been sentencing Douglas after a trial in this jurisdiction I would have set a minimum term significantly in excess of 30 years. There were no mitigating factors. Although Douglas (unlike his co-accused) had no previous convictions involving guns or violence, he had been convicted of serious offences of dishonesty in 2006 which had resulted in a sentence of five years’ imprisonment. Mr Miskin in his written submissions argues that the planning was not particularly sophisticated, and that Douglas could not be implicated directly in the aiming of the gun at a witness after Powery had been shot. These propositions amount to an absence of further aggravating factors rather than mitigation. I acknowledge that it is difficult to engage in the process required under Section 269 when one has not heard the trial. It is also necessary to guard against applying the test applicable when considering an appeal against the length of a minimum term. My task is to engage afresh in the exercise of setting the minimum term. It is not a question of assessing the term set in the transferring state, determining whether it was manifestly excessive and, if it was not, setting the same term in this jurisdiction. Taking all of that into account, had I been sentencing in this jurisdiction someone who had committed the offences committed by Douglas, I would have imposed a minimum term of 34 years. This is the appropriate term taking into account the aggravating factors. I am confident in that conclusion based on similar cases with which I have dealt in the last ten years sitting in the Crown Court.

However, that is not the end of the matter. Douglas was not sentenced in this jurisdiction. He committed the offences in the Cayman Islands which is where he lived at that time. He has been transferred to this jurisdiction because there apparently is no suitable prison in the Cayman Islands in which he could be housed. He now is thousands of miles from his home with little prospect of visits – other than on a very occasional basis – from family and friends. The effect on Douglas of his transfer was discussed by the Cayman Islands Court of Appeal. Having referred to the fact that the length of the minimum term would be determined by this court, Sir John Goldring said this:

“….the Court will, we anticipate, take into account, among other things, why the decision was taken to remove them from the Cayman Islands to England, the fact, as Mr Perry put it, that the Cayman Islands is a small island community with its particular issues as far as serious crime is concerned, as well as the undoubted additional hardship of serving lengthy prison sentences a very long way from home.”

It was not Douglas’s choice to be transferred to this jurisdiction. He has no connection to this country. Serving a very long sentence in an English prison will be a hardship additional to the mere fact of the length of the sentence. This must be of significance in determining the appropriate minimum term and the order pursuant to Section 273 of the 2003 Act. The minimum term is intended to reflect punishment and retribution. The punitive effect of serving a prison sentence, particularly one of the length involved in this case, is all the greater if it is to be served in a country far from the offender’s home. I am satisfied that the length of the minimum term should be reduced to take account of that fact. The reduction will not be substantial. The seriousness of the crime committed by Douglas is the same wherever he may serve his sentence with the retributive element remaining the same. But the nature of the punishment is significantly greater given the circumstances in which he now finds himself. For those reasons I determine the minimum term to be served by Douglas as 31 years.

The whole of the period thus far spent in custody must be taken into account in setting the minimum term. That period commenced on 15 July 2015. Therefore, the minimum term will be 31 years less 1,582 days (assuming that this judgment takes effect from 15 November 2019).