Johnson, Re

When reviewing a minimum term under Schedule 22 to the Criminal Justice Act 2003, the court must calculate the period likely to have been notified under the pre-December 2002 practice and the period produced by applying the 2003 Act. The minimum term must not exceed the lower of those two periods.

The assessment requires the court to weigh aggravating and mitigating features. Preparation shown by taking a weapon to the scene, an unarmed victim and relevant previous convictions may outweigh mitigation such as an intention to cause serious bodily harm rather than kill and genuine remorse.

The defendant was convicted of murder at the Central Criminal Court on 7 May 1997 and sentenced to life imprisonment. The trial judge considered that 17 years was required for retribution and general deterrence. Lord Bingham CJ recommended 16 to 17 years, and the Secretary of State fixed a term of 16 years.

The defendant applied for review under Schedule 22 paragraph 3 of the Criminal Justice Act 2003. He sought an oral hearing, arguing that the case was exceptional because of a supposed division of judicial opinion. The central issues were whether an oral hearing was required and what minimum term should be fixed.

1. The application was determined on the written submissions without an oral hearing. The case was not exceptional, and the court could identify no useful further submissions that could be made orally.

2. Under Schedule 22 to the Criminal Justice Act 2003, the court had to consider both the period likely to have been notified under the practice followed by the Secretary of State before December 2002 and the period resulting from the approach in the 2003 Act. The lower period had to be imposed.

3. Under the former practice, the ordinary starting point for an average, normal and unexceptional murder was 14 years. The aggravating features were the defendant’s decision to take a knife to the scene, the attack on a victim regarded by the trial judge as totally unarmed, and previous convictions for violence. The mitigating features were an intention to cause serious bodily harm rather than kill and genuine remorse. The aggravating features predominated, producing a period of 16 years.

4. Applying the 2003 Act, the starting point was 15 years. The same factors applied, and the aggravating features again predominated, producing a period of 17 years.

5. The lower figure was therefore 16 years. The minimum term was fixed at 16 years from 17 May 1997, less 11 months and 9 days spent on remand. The defendant accordingly had to serve 15 years and 21 days from 7 May 1997 before becoming eligible for consideration for parole.