McIver, Re minimum term

When determining a minimum term under Criminal Justice Act 2003 Schedule 22, the court must apply the Schedule 21 starting points and relevant aggravating and mitigating factors. It must also respect the statutory limit preventing an order exceeding the term that the Secretary of State would probably have notified under the pre-December 2002 practice. A guilty plea may justify a reduction, but exceptionally serious sadistic or sexually aggravated conduct can warrant a substantial increase over the historic starting point. The resulting term is reduced by relevant time spent on remand.

The defendant pleaded guilty to murder and robbery and received a life sentence for murder. The Secretary of State referred the case to the High Court under Criminal Justice Act 2003 Schedule 22 for determination of the minimum term before the early-release provisions could apply. The court had previously recommended a 20-year tariff under the former practice. The central issue was whether that recommendation should be altered under the statutory regime, subject to the restriction in Schedule 22 paragraph 8.

1. Statutory framework. The reference was governed by Criminal Justice Act 2003 Schedule 22. The court had to determine the minimum term by applying the seriousness provisions in section 269 and the general principles in Schedule 21. The Parole Board could consider release only after that period, and only if continued detention was no longer necessary for public protection.
2. Starting point and adjustment. The murder involved sexual or sadistic conduct and therefore fell within Schedule 21 paragraph 5, making 30 years the appropriate current starting point. The guilty plea justified a reduction of approximately one sixth, subject to the applicable limit, as explained in Regina v Last [2005] EWCA Crim 106.
3. Historic statutory limit. Schedule 22 paragraph 8 prohibited an order greater than the term the Secretary of State would probably have notified under the practice followed before December 2002. That required assessment by reference to the former Practice Statement, under which sadism, gratuitous violence and sexual maltreatment attracted a 15- or 16-year starting point. The exceptionally serious aggravating features justified a substantial increase, while the guilty plea remained material.
4. Meaning of seriousness. The assessment included retribution, expiation, public moral condemnation, confidence in the administration of justice, deterrence, victims’ interests and rehabilitation, reflecting Regina v Secretary of State for the Home Department, ex parte Anderson [2002] UKHL 46.
5. Disposition. The court maintained the 20-year minimum period. After deducting 5 months and 20 days spent on remand, the minimum period was determined as 19 years, 6 months and 10 days.

The defendant was sentenced to life imprisonment by the Crown Court at Preston on 18 July 2003. The Secretary of State subsequently referred the case to the High Court under Schedule 22 of the Criminal Justice Act 2003. This was the High Court’s determination of the minimum term.