McFaull & Anor, R v

When fixing a minimum term under Schedule 22 to the Criminal Justice Act 2003, the court must assess the seriousness of the murder by selecting the appropriate statutory starting point and then weighing aggravating and mitigating factors. The term cannot exceed the period which the Home Secretary would have set under the practice applicable at the time of the offence. Time spent on remand must be deducted. The statutory starting points are not displaced merely because the offence involved gratuitous violence or a particularly vulnerable victim, unless the case falls within the statutory examples warranting a higher starting point.

Following convictions for the murder of a vulnerable man, Stephen McFaull and Anthony Cleaver were sentenced at Luton Crown Court in June 2002. The trial judge recommended minimum terms of 15 years for McFaull and 13 years for Cleaver; the Lord Chief Justice recommended 13 years for each. The Home Secretary had not fixed their minimum terms before Schedule 22 to the Criminal Justice Act 2003 came into force.

The Home Secretary therefore referred the cases to the High Court under paragraph 6 of Schedule 22 for orders under sections 269(2) or 269(4). The central issues were the appropriate statutory starting point, the aggravating and mitigating features, the maximum term permitted by the former Home Secretary practice, and the deduction for remand custody.

1. The court assessed the seriousness of the murder by selecting the appropriate starting point and then taking account of aggravating and mitigating factors not already reflected in that starting point. Although the victim was particularly vulnerable and the attack involved gratuitous and extreme violence, the case did not fall within the examples in Schedule 21 to the Criminal Justice Act 2003 warranting a whole-life order or a 30-year starting point. The appropriate starting point was therefore 15 years.
2. The aggravating factors included the victim’s vulnerability, the absence of a real motive, the brutality and mindlessness of the attack, the defendants’ apparent lack of awareness that they were doing wrong, and McFaull’s recent conviction for violence. Mitigating factors included the absence of an intention to kill, the spontaneous and unplanned nature of the attack, Cleaver’s youth and apparent regret, and McFaull’s guilty plea.
3. Although a contemporary assessment would place the minimum term at about 14 to 15 years, paragraph 6 of Schedule 22 imposed a ceiling. The term could not exceed that which the Home Secretary would have set under the practice followed at the time. Relying on the account of that practice in Sullivan [2004] EWHC Crim 1762, the court concluded that the Home Secretary would have followed the recommendations in this case and set 13 years for each defendant.
4. After deducting the periods spent on remand, the court ordered that the early-release provisions in sections 28(5)–(8) of the Crime (Sentences) Act 1997 apply after McFaull had served 12 years 4 months and 20 days, and after Cleaver had served 12 years 4 months and 12 days.

First-instance determination on a reference by the Home Secretary under paragraph 6 of Schedule 22 to the Criminal Justice Act 2003. The judgment itself does not state an appellate route.