Delker, R v

When fixing a minimum term under the transitional provisions of the Criminal Justice Act 2003, the court must apply the statutory starting points and general principles, while respecting any applicable statutory ceiling. A trial judge’s tariff recommendation remains relevant, particularly where the judge observed the offender during trial, but the reviewing court must make its own statutory assessment. The mitigating circumstances listed in Schedule 21 are not exhaustive. Previous good character and demonstrated rehabilitation may be considered, although their weight may be limited. Time spent on remand must be deducted.

The defendant was convicted of murder and sentenced to life imprisonment. The trial judge recommended a tariff of 14 years, treating the defendant and his co-defendant as equally responsible despite considering the defendant to have been the prime mover. The recommendation was not considered by the Lord Chief Justice or the Secretary of State. The High Court therefore reviewed the minimum term under paragraphs 3 and 6 of Schedule 22 to the Criminal Justice Act 2003. The central issues were the applicable starting point, the effect of the earlier recommendation, aggravating and mitigating factors, and deduction of remand custody.

1. Statutory framework. The court applied the general principles in Schedule 21 to the Criminal Justice Act 2003. The case did not fall within paragraph 4(1) or paragraph 5(1) of Schedule 21, so the starting point was 15 years.
2. Effect of the earlier recommendation. The court considered that the trial judge’s 14-year recommendation would not have been increased by the Secretary of State, relying on Sullivan, Gibbs, Elener & Elener [2005] 1 CAR(S) 67(308). Under paragraph 10a of Schedule 22, the recommendation was therefore the ceiling on the order available on review.
3. Assessment. The trial judge had observed the defendant in the witness box and throughout the trial. The evidence showed substantial premeditation and that, during the continuing assault, an intention to kill must have arisen. The statutory mitigating factors were not exhaustive. The court gave very limited weight to the defendant’s previous good character and determination to rebuild his life.
4. Order. The appropriate minimum term was 13½ years. After deducting 7 months and 24 days spent on remand, the minimum term was fixed at 12 years, 10 months and 6 days. Release after that term remained a matter for the Parole Board and any release would be on licence for life.

First-instance minimum-term review under paragraphs 3 and 6 of Schedule 22 to the Criminal Justice Act 2003. The judgment records that an application for leave to appeal against conviction was dismissed on paper and again on renewal before the full court on 27 July 2003; no citation is stated.