X, R v

In determining a minimum term for an existing mandatory life prisoner, the High Court must apply the statutory framework in Schedule 22 to the Criminal Justice Act 2003. The court must have regard to the seriousness of the offence, the general principles in Schedule 21, the notified term, and any relevant judicial recommendation. The statutory starting points in Schedule 21 are not themselves the general principles to which Schedule 22 refers. A previous judicial recommendation cannot simply be adopted. Assistance previously given to law-enforcement authorities is not mitigation reducing the minimum term where the offence was unconnected with that assistance, although it may be relevant to the Parole Board’s later decision on release.

The applicant was convicted of murder in 1998 and sentenced to life imprisonment. The trial judge recommended 18 years, the Lord Chief Justice considered 17 to 18 years appropriate, and the Secretary of State fixed a tariff of 17 years. Following the commencement of the Criminal Justice Act 2003, the applicant applied under paragraph 3 of Schedule 22 for determination of the minimum term after which the early-release provisions would apply.

The central issues were whether the court was required to reduce the notified term, how the statutory starting points and aggravating or mitigating factors should be applied, and whether the applicant’s substantial assistance to the police before conviction justified a reduction.

The minimum period was fixed at 16 years less 4 days, after deducting 12 months and 4 days spent on remand from the notified term of 17 years.

1. Under paragraph 4 of Schedule 22 to the Criminal Justice Act 2003, the court had to consider the seriousness of the offence, the general principles in Schedule 21, the notified minimum term and the relevant judicial recommendations. The court was not permitted simply to adopt the earlier judicial recommendations. The decision in Riaz [2004] EWHC 74 (QB) was followed on that point.
2. The general principles in Schedule 21 did not include its specified starting points. Those starting points were nevertheless relevant to the statutory assessment of seriousness and aggravation. The use of a firearm, and to a lesser extent the involvement of the applicant’s children in the violent episode, aggravated the offence. The absence of a guilty plea also weighed against reduction.
3. The tariff-fixing exercise was a sentencing exercise concerned with culpability and the punishment required for retribution and deterrence, consistently with R (Anderson) v SSHD [2002] UKHL 46. The applicant’s prior assistance to the police was unrelated to the murder, apart from explaining why he possessed the firearm. It therefore did not justify a lesser minimum term. The assistance could be considered by the Parole Board when deciding whether release was no longer necessary for public protection.
4. The court considered the procedural issue of an oral hearing in Hammond [2004] EWHC Admin 2753, which had held that paragraph 11 did not exclude an oral hearing where the judge considered one appropriate. No hearing was necessary here, and the applicant had waived it.