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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Barker, R v [2008] EWCA Crim 2395 (24 October 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/2395.html Cite as: [2008] EWCA Crim 2395

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/10/2008

Lord Justice Latham :

1. This is an appeal against an order of Mitting J made on the 3^rd April 2007 determining a minimum term pursuant to s. 279 paragraph 6 of schedule 22 to the Criminal Justice Act 2003. Leave was granted on 28^th January 2008 by the full court, presided over by the Lord Chief Justice. In identifying the issue which justified a full appeal, the court said:

"21… in these circumstances the following questions arose in relation to the effect of exceptional progress on the exercise of fixing a tariff under the schedule 22:

should the judge make a reduction when determining the tariff in order to reflect exceptional progress? If yes:

at what stage of the process of fixing the tariff should the judge make a reduction? and:

should the judge, when making a reduction, apply the previous practice of the Secretary of State in relation to the size of the reduction, namely, usually 1 year's reduction and a maximum of 2 years reduction from the tariff, or should the judge make his or her own decision as to what reduction was appropriate?

22 The first two questions were authoritatively answered by this court in the judgment delivered by the President of the Queens Bench Division in Caines, [2006] EWCA Crim 2915, a decision that helpfully sets out in detail the approach to be followed in fixing a tariff under schedule 22. The court decided (i) that it was "at the very least permissible" to make a reduction to the tariff to reflect exceptional behaviour and (ii) that the reduction should be made at the end of the process so as to ensure that it resulted in "real benefit" to the prisoner.

23 The court did not in Caines specifically address the third question. Thus it was that Sir Michael Wright expressed the view that it was not appropriate to follow the practice of the Secretary of State but that the judge should make whatever reduction he considered appropriate. He intimated that, were we not of the same view, the appropriate course would be to dismiss the application. It does not seem to us that such an approach would be desirable. In so far as the decision in Caines leaves room for doubt as to the correct answer to the third question, that doubt should be resolved by the decision of this court in an appeal."

2. The matter came back before the court on the 28^th February 2008, when the court, presided over by the President of the Queens Bench Division stated that the court required assistance from the Treasury Solicitor and the Secretary of State about a number of issues involving the running of prisons, quite apart from the Secretary of State's previous policy. These were formulated in the following questions:

(i) Was the former policy of the Secretary of State as to exceptional circumstances relating to the review of lifer tariffs that stated in Cole [2003] EWHC 1789 Admin paragraph 5.5?

(ii) Did those "exceptional circumstances" encompass actions by prisoners in (a) reporting actual intended criminal behaviour and (b) giving evidence in Court pursuant to (a)?

(iii) If no, was any and if so what practice followed by the Secretary of State in the circumstances set out at (ii) above?

(iv) If the court, under schedule 21 and 22 of the Criminal Justice Act 2003 were to consider reflecting conduct as in (ii) above by a reduction in the recommended tariff greater than that traditionally allowed by the Secretary of State, are there any considerations of policy or prison management, including the interests of victims, that should be taken into account when considering (a) the length of such reduction and/or (b) the stage of the sentence which ought to be decided on unannounced to the prisoner?

3. In a letter dated the 17^th April 2008, Lynda Morley of the National Offender Management Service confirmed that the policy of the Secretary of State in respect of reductions in tariff was that described in the witness statement of Timothy Morris dated the 30^th June 2003 which was before the court in Cole. She stated that the vast majority of reductions in tariff were on the grounds of exceptional progress. However, in four cases the Secretary of State reduced the tariff for reasons other than for exceptional progress, of which three involved assistance to the police. She stated that there were no considerations of policy or prison management which the Secretary of State considered relevant to the question as to whether or not to reduce the tariff for this reason. On behalf of the Secretary of State, she declined the court's invitation to be represented at the hearing of the appeal.
4. The appeal then came back before the court on the 30^th June 2008. We concluded that it would be inappropriate to deal with the matter without assistance, at least from counsel instructed on behalf of the Crown Prosecution Service, who had so far not been represented. The Director of Public Prosecutions then instructed Sarah Whitehouse as advocate to the court. She has provided us with an extremely helpful written submission based on the authorities to date, and what she has been able to discover as to the practice and attitude of the relevant Secretaries of State.
5. That is the procedural background to this appeal. The factual background is as follows. The appellant was convicted on the 12^th December 2001 at the Crown Court at Manchester of murder and perverting the course of justice. She was sentenced to life imprisonment for murder and 5 years imprisonment concurrent for perverting the course of justice. The trial judge reported to the Home Secretary that in his view the minimum term to be served before the appellant should be eligible to apply for release should be set at 15 years. The Lord Chief Justice concurred with this recommendation. No term was set by the Home Secretary before the transitional provisions of the Criminal Justice Act 2003 came into force. The appellant's case was accordingly referred to the High Court for the minimum term to be set pursuant to the provisions of schedule 22 to the 2003 Act. On the 3^rd April 2007, Mitting J specified that the minimum term should be 14 years 6 months less the period spent on remand. In calculating the minimum term, the judge took into account what he was prepared to accept was exceptional progress and other meritorious behaviour and reduced the minimum term by 6 months from what otherwise would have been the appropriate figure. The appellant submits that that reduction was inadequate.
6. The facts of the offence can be relatively shortly stated as they are not of direct relevance to the issues raised in the appeal. On the evening of the 8^th January 2001 the appellant and her husband, James Crawford had been drinking heavily. They joined up with the deceased, Ryan Hetherington, and another man Robert Burke and eventually ended up in James Crawford's flat. Whilst they were there, for reasons which were wholly unclear at the time of the trial, as the appellant and James Crawford essentially blamed each other, the deceased was brutally murdered. His body was then dismembered and put into sacks and laundry bags. On the 10^th January 2001, when seeking to dispose of the body parts and the weapons involved in the killing, the car in which they were travelling crashed, with the result that all those items were discovered.
7. Mitting J had before him the trial papers, and forty five pages of written representations made by the appellant's solicitors dated the 30^th September 2004, a letter from the defendant dated the 13^th March 2004, and a letter from the defendant's solicitors dated the 10^th May 2005. As far as the representations were concerned, the major part was devoted to a detailed explanation of the appellant's background and the circumstances in which the murder occurred, which was completely at variance with that which she had presented at trial. But in addition, there was a submission based on exceptional progress made whilst in prison, which was supported by documentation from the prison. This was set down under three headings, exemplary work and disciplinary record in prison, genuine remorse, and successful engagement in work (including offence related courses), which had resulted in substantial reduction in the risk of re-offending. In the letter of the 10^th May 2005, the solicitors stated that the appellant had recently agreed to be a prosecution witness in a prosecution where it was alleged that one of her fellow inmates was intending to harm the witnesses and victims in her case. The inmate was subsequently charged with soliciting to murder. Amongst other material made available to Mitting J, was a letter from the CPS saying that the inmate had ultimately been acquitted.
8. In his judgment, Mitting J stated that it would in his view be wrong in principle to set the minimum term on a factual basis which was deliberately suppressed at trial and which contradicted the case then advanced by the defendant. We agree. As to the submissions relating to exceptional progress, he said this:

"13 The defendant has made commendable progress whilst in prison: as at the date when her solicitors submitted representations on her behalf (30^th September 2004) she had been an exemplary prisoner, to the extent that she had become a listener and in that capacity assisted other prisoners. She did this in two prisons. She also provided information to the police about a threat made by another inmate to the intended victim of the crime for which that inmate was serving her sentence. The note from the CPS does not expressly state that the defendant gave evidence at the trial of the inmate, which resulted in her acquittal on 22^nd July 2005; but it implies that she did. The giving of information and evidence by a serving prisoner against a fellow inmate requires some courage. Accordingly, despite the outcome of the prosecution, it should stand to her credit.

14 It was the Home Secretary's practice to discount the tariff set by him by one or, exceptionally, two, years for exceptional conduct over substantially the whole period of the tariff. In a case such as this, where less than half the minimum term has been served, a full discount would be inappropriate. Even if a defendant were to maintain her commendable conduct for substantially the whole of her tariff, she would not have received a discount greater than one year. In the light of Caines The Times 7^th December 2006, I accept that exceptional conduct in prison should attract a reduction in the minimum term, but limited for the reasons stated to six months."

9. On behalf of the appellant, Mr Nolan QC submits that Mitting J was too cautious in his approach to the reduction in tariff that could properly be allowed in circumstances such as these. This court in Cole [2003] EWHC 1789 Admin, Tucker [2006] EWCA Crim 1885 and Caines [2007] 1 WLR 1109 has recognised that in transitional cases such as the present the judge is entitled to take into account exceptional progress when setting the tariff. But, he submits, the court has not yet given full effect to the decision of the House of Lords in R (Anderson) v Home Secretary [2003] 1 AC 837 which was the catalyst for the change from executive control of the fixing of tariffs to judicial control. There is no reason, he submits, why the judiciary should be constrained in its approach by the practice of previous Secretaries of State. In particular, that practice failed to give effect to the credit given by the courts in cases where defendants have given substantial assistance to the police. He has referred us to cases in which such assistance has resulted in reductions of up to two thirds in the ultimate sentence imposed. That, he submits, accords with the contemporary policy in this respect, as exemplified in the Serious Organised Crime and Police Act 2005 which provides for a structure within which the courts can reflect the benefit to the criminal justice system of assistance given by defendants: see R v P and Blackburn [2008] 2 Cr App R (s 5).
10. In order to evaluate these submissions, it is necessary to stand back and look at the reality of the situation. Prior to 2002, the reductions which the Secretary of State was prepared to make to tariffs were based on reviews made of prisoners subject to life sentences towards the end of their tariff period. By that time a proper evaluation could be made of their progress during their period in custody. The Secretary of State was in a position to make sensible comparative assessments of the progress of any individual prisoner against the progress of others in the same position. That practice was well known to those serving life sentences. This is acknowledged in the judgment in Caines in paragraph 45, when this court said:

"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, hesitation reinforced by the absence of direct or express indication to this effect in the carefully structured guidance. Nevertheless for the reasons we have identified, our hesitation is alleviated. We emphasise first, that every prisoner serving a mandatory life sentence since1997 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 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 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. According in our judgment, exceptional progress in prison may be taken in to account for the purpose of re-setting the minimum term."

11. This is the critical paragraph in the judgment. It establishes that the judge, as Mitting J accepted, was entitled to take exceptional progress into account, and that one of the central reasons for so doing was the legitimate expectation of those serving life sentences that good behaviour would have that consequence.
12. The court did not, however, expand upon what it meant by the phrase that the re-setting of the tariff "is a sentencing decision to which normal sentencing principles apply". Clearly, in relation to the determination of the basic tariff, the principles are clear and indeed essentially set out in the Schedule. But the environment in which the tariff is set in transitional cases is different from that in which life, or other indeterminate sentences, are imposed. Unlike the latter, the sentencing exercise is carried out substantially after conviction. In the ordinary case, the court will have regard to reports which may affect the sentencing decision by reference to behaviour on remand (and, on occasions, between sentence and appeal). But that material is obviously relatively limited. And the circumstances in which a substantial reduction in sentence for assistance given to the police are also in a confined ambit (subject to the future operation of the Serious Organised Crime and Police Act 2005): see R v A and B [1999] 1Cr App R (S) 52 and R v A [2007] 1 Cr App R (S) 60.
13. It seems to us that it is against that background that the court has to approach the question of the extent to which there should be any allowance for exceptional progress or assistance to the authorities. The appellant is in a privileged group. Those sentenced to life imprisonment since the new regime under the 2003 Act came into effect do not have the benefit of any structured process resetting their tariffs; and looking wider, no prisoner serving a determinate sentence, nor any indeterminate sentence under the 2003 Act has the opportunity for a formal, judicial, reconsideration of their minimum term or tariff other than on appeal. Whilst it is right, for the reasons indicated by the court in Caines, but in particular what might be called the legitimate expectation argument, to reflect matters such as good progress and assistance to the authorities when setting the tariff in transitional cases, that should not produce a result which is unjust to other prisoners. In our view, a proper balance is struck by approaching the matter in the way this court did in Caines in paragraphs 51 and 52, in particular in paragraph 52 where the court said:

"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 purpose 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, 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 the end. Finally it is a prerequisite to any reduction that the risk assessment should be favourable."

14. Whilst this does not deal with the question of assistance to the authorities, it seems to us that a similar approach should be adopted. Again, the maximum period so far has not exceeded two years. That seems to us, save in the most exceptional cases, to be appropriate. In the present case, there is no doubt that the appellant was prepared to provide a statement and to give evidence in circumstances which must have given rise to real stress. But there is no evidence that the consequences of her giving evidence were that she was placed in any real danger. There is dispute about the extent of the support that she gave to the prosecution. We have approached the matter on the basis that her account is the one to be accepted. The assistance that she gave was supportive of the prosecution case, and is to be commended. But there was nothing to suggest that it fell into a category which required Mitting J to give any greater allowance than he did.
15. This case highlights the real difficulty which has arisen now in relation to any review of the tariff to be served by those sentenced to life imprisonment. Until the decision in Anderson, it is clear that the Secretary of State would conduct a review towards the end of the tariff period and in the case of those for whom a whole life tariff had been recommended, after 25 years. The mechanism exists for such a review pursuant to the provisions of s. 30 of the Crime (Sentences) Act 1997 which by sub-section (1) provides:

"The Secretary of State may at anytime release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoners release on compassionate grounds."

This has recently been considered by this court in R v Bieber [2008] EWCA Crim 1601. The court there considered that this provided the mechanism which would ensure that whole life sentences did not, in any particular case, result in an infringement of the prisoner's Article 3 rights. This serves to highlight the fact where a tariff has been set, in accordance with Schedule 21 and 22, that will not now be subject to review any more than will the period before early release in the case of determinate sentences. The only exception will be those sentenced to detention at Her Majesty's pleasure.

16. For the reasons we have given, this appeal is accordingly dismissed.