Copeland, R v

When fixing a minimum term for a life sentence imposed before the Criminal Justice Act 2003, the court must apply the statutory framework while observing the transitional ceiling in Schedule 22. The term must not exceed the period the Secretary of State would probably have notified under the pre-December 2002 practice. In determining that likely period, the court should consider the relevant Practice Direction, judicial recommendations and evidence of the Secretary of State’s practice. For offences of exceptional gravity, Schedule 21 may justify a whole-life starting point, but the transitional limitation remains controlling. The offender’s age may justify a reduction from that starting point.

The defendant had been convicted of three murders and three offences of causing explosions to endanger life. The offences involved planned bomb attacks motivated by racialist and homophobic beliefs. He had received concurrent life sentences, and the trial judge’s recommendation of a 30-year tariff had been approved by the Lord Chief Justice.

Following the change in legislation, the High Court was required to set a minimum term under the transitional provisions of the Criminal Justice Act 2003. The central issue was whether the seriousness of the offences justified a whole-life order or whether the transitional ceiling prevented that result.

The court fixed a minimum term of 50 years, less 13 months and 26 days spent on remand, leaving 48 years, 10 months and 4 days to serve before the possibility of parole.

1. The offences were of exceptional gravity. They involved multiple murders, substantial premeditation and planning, sadistic conduct, and the advancement of a racialist and homophobic ideological cause. The case therefore fell within paragraph 4(1)(a) of Schedule 21 to the Criminal Justice Act 2003, making a whole-life order the proper starting point.
2. Because the sentence had been imposed before the 2003 Act, paragraph 10 of Schedule 22 imposed a ceiling. The court could not specify a term greater than that which the Secretary of State would probably have notified under the practice followed before December 2002, and could not make a whole-life order unless that practice would probably have produced one.
3. Following Sullivan, Gibbs, Elener and Elener [2005] 1 CAR(S) 67(308), the Practice Directions and the Lord Chief Justice’s guidance were the best guide to the former practice. They did not, however, exclude evidence that the Secretary of State had increased recommendations in the most serious cases.
4. Consistently with Mackay [2007] EWCA Crim 187, the court treated the pre-December 2002 practice as imposing a ceiling on the statutory exercise. The available statistics showed that the Secretary of State had sometimes increased judicial recommendations, including to whole-life terms.
5. The defendant’s age, 22 at the time of the offences, was the sole mitigating factor. A 50-year minimum term was therefore selected as appropriate and was satisfied not to exceed the transitional ceiling.