Caines, R v

On a review under Criminal Justice Act 2003, Schedule 22, the court must apply the Schedule 21 general principles, including its starting points. The Secretary of State’s notified minimum term is a ceiling. Apart from preventing an increase, and providing the term against which credit for exceptional prison progress is given, it should not influence the review.

Exceptional and sustained post-sentence progress may justify a modest reduction in a mandatory life prisoner’s minimum term. The progress must be outstanding, not merely good, and must be accompanied by a favourable risk assessment. Any reduction must produce a real benefit by being made from the notified minimum term, rather than from a higher notional tariff.

Roberts and Caines were each serving mandatory life sentences for murder. Before the commencement of Criminal Justice Act 2003, Schedule 22, the Secretary of State had notified minimum terms of 22 years for Roberts and 14 years for Caines.

Gibbs J rejected Roberts’s application for reconsideration of his minimum term. Cox J accepted that Caines had made exceptional progress in custody which would merit a two-year reduction, but assessed a higher notional tariff under Schedule 21. The reduction therefore gave him no reduction from his notified 14-year term.

The Court of Appeal considered the proper construction of the Schedule 22 transitional review, whether exceptional progress could be considered, and the basis on which any resulting reduction had to be calculated.

1. Caines’s appeal was allowed; Roberts’s renewed application was refused. The Schedule 22 review required the court to assess offence seriousness by reference to the Schedule 21 general principles. Those principles include the statutory starting points. The contrary conclusion in Re Waters was wrong, while the construction adopted in Re Cadman, [2006] 3 All ER 1255, was accepted.

2. The notified minimum term is not to be treated as a factor carrying weight equivalent to the recommendations of the trial judge and Lord Chief Justice. It protects the prisoner against an increased minimum term. Consistently with R (Anderson) v Secretary of State for the Home Department, [2003] 1 AC 837, the Secretary of State should otherwise play no part in fixing the tariff. A Schedule 22 review is neither an appeal from the former recommendations nor a formal judicial review, but is properly treated as a sentencing decision.

3. Exceptional prison progress may be considered in resetting the minimum term. Schedule 22 does not make its listed considerations exhaustive. The transitional review replaced a former executive process under which exceptional progress could reduce a tariff, and normal sentencing principles permit post-sentence information to reduce a sentence. The court approved the influential, though obiter, observation in R (Cole, Rowland, Hawkes) v Secretary of State for the Home Department, [2003] EWHC 1789 (Admin).

4. The progress must be genuinely exceptional and outstanding. Good prison behaviour alone is insufficient. A favourable risk assessment is a prerequisite, and any reduction will ordinarily be modest. Courts should obtain comparative information from the governors of the last two prisons and a satisfactory risk assessment.

5. Caines’s two-year reduction had to be taken from his notified 14-year minimum term. Applying it instead to the higher notional tariff deprived the finding of exceptional progress of real effect and was wrong in principle. The court did not disturb Cox J’s finding that a two-year reduction was justified. Roberts’s 22-year term remained amply justified by the exceptionally serious aggravating features of his offending.

• Court of Appeal (Criminal Division): In [2006] EWCA Crim 2915, Caines’s appeal was allowed to give effect to the two-year reduction from his notified minimum term. Roberts’s renewed application for leave to appeal was refused.
• High Court: Cox J rejected Caines’s application to reduce his notified minimum term, notwithstanding a finding of exceptional progress.
• High Court: Gibbs J rejected Roberts’s application to reconsider his notified 22-year minimum term.