Middleton & Ors, R v

On reviewing a mandatory life sentence minimum term, the court must assess the seriousness of the offence and associated offences, apply the relevant principles in Criminal Justice Act 2003 Schedules 21 and 22, and consider the trial judge’s and Lord Chief Justice’s recommendations. The post-2003 tariff framework may provide a reference point, subject to non-retroactivity. Racial aggravation requires a proper evidential basis. Youth, lack of intention or premeditation to kill, provocation and absence of weapons may mitigate sentence. Exceptional progress in custody may also be relevant. Each 12-year term was reduced to 10 years, less time spent on remand.

Three convicted murderers applied under paragraph 3 of Schedule 22 to the Criminal Justice Act 2003 for review of minimum terms notified by the Home Secretary. Each had received a mandatory life sentence following convictions arising from a group attack in which Delroy Nedrick died. The trial judge recommended a term in the region of 10 to 12 years, and the Lord Chief Justice considered that 10 years would probably be sufficient. The Home Secretary notified a 12-year term in each case. The central issues concerned the statutory approach to review, later sentencing principles, individual culpability, mitigation and progress in custody.

1. Statutory approach. On reviewing a notified minimum term, the court had to consider the seriousness of the murder and associated violent disorder under paragraph 4(1) of Schedule 22, have regard to Schedule 21, and take account of the trial judge’s and Lord Chief Justice’s recommendations.
2. Sentencing framework. The 15-year starting point in paragraph 6 of Schedule 21 was relevant as a reference point for this type of offence, subject to non-retroactivity. The murders were not racially aggravated under paragraph 5(2)(g), since the trial judge had said only that the extent of any racist element was difficult to assess.
3. Mitigation. The court considered lack of intention or premeditation to kill, youth, absence of weapons and, for Middleton, provocation. It also considered genuine remorse and exceptional progress in custody. R (Cole & Others) v Secretary of State for the Home Department [2003] EWHC 1789 (Admin) supported that approach.
4. Individual culpability. The differences between the applicants’ participation did not justify different terms. Bauer’s previous similar conviction and participation in the joint enterprise justified no reduction relative to the others, although the court rejected the trial judge’s inference that he was likely to have taken part in the physical violence merely from the jury’s verdict.
5. Each 12-year notified term was reduced to 10 years, less the applicable period spent on remand.

The judgment records that the convictions arose from a 1998 Crown Court trial. Appeals against conviction by Middleton and Bauer were dismissed, and Coulson’s application for leave to appeal was dismissed. Those appeals formed part of the same litigation and were not appeals from the present minimum-term review.