Barker, R v

When resetting a mandatory life prisoner’s minimum term in a transitional case under Criminal Justice Act 2003 Schedule 22, the court may allow a reduction for exceptional post-sentence progress. The reduction reflects the prisoner’s legitimate expectation under the former regime and must give real benefit.

The standard remains very high. Progress must be exceptional and outstanding, and any reduction will normally be modest. The same restrained approach applies to assistance given to the authorities. A tariff review must not confer an unjust advantage over prisoners whose sentences cannot be judicially revisited.

The appellant had been convicted of murder and perverting the course of justice and sentenced to life imprisonment. No minimum term had been fixed before the transitional provisions of the Criminal Justice Act 2003 took effect.

Mitting J set a minimum term of 14 years and six months, after allowing six months for exceptional progress in custody and for information and evidence given against a fellow prisoner. The appellant contended that the reduction was inadequate and that judicial tariff-setting was not constrained by the former Secretary of State’s practice.

The appeal raised the proper scale of any allowance for exceptional progress or assistance to the authorities when fixing a transitional tariff.

1. Appeal dismissed. Mitting J’s allowance of six months was within the proper approach to the exercise.

2. The court followed Caines [2007] 1 WLR 1109. In a transitional Schedule 22 case, exceptional progress in prison may reduce the minimum term. That reflects the legitimate expectation created by the former tariff-review regime. The reduction is made at the end of the tariff-setting exercise so that it gives the prisoner a real benefit.

3. The exercise nevertheless differs from ordinary sentencing. It takes place substantially after conviction and is available only to a limited transitional group. The court must avoid giving that group an unjust advantage over other life or determinate prisoners whose terms cannot be revisited judicially.

4. Exceptional progress must be outstanding. Even then, the impact on the tariff will ordinarily be modest. The established pattern of one year, with a maximum of two years, remained appropriate save in the most exceptional cases. A similar restrained approach applies to assistance given to the authorities.

5. The appellant’s willingness to provide information and evidence was courageous and commendable. However, there was no evidence of real danger to her, and her assistance was supportive rather than of a character requiring a larger allowance. The court also noted that, once set under Schedules 21 and 22, a tariff is not subject to further review; section 30 of the Crime (Sentences) Act 1997 concerns compassionate release.

• Court of Appeal (Criminal Division) — dismissed the appeal against the scale of the reduction made for exceptional progress and assistance to the authorities.
• High Court — on 3 April 2007, Mitting J fixed a minimum term of 14 years and six months, less time spent on remand, under Criminal Justice Act 2003 Schedule 22.