Pitchfork, R v

In a review under Criminal Justice Act 2003, Schedule 22, the court must conduct a fresh statutory assessment. It must have regard both to Schedule 21 and to historic judicial recommendations, but neither has primacy. The notified minimum term is a ceiling which prevents an increased term, rather than a factor determining the appropriate term.

A whole-life recommendation cannot be inferred from ambiguous references to a minimum term or continuing public danger. Where exceptional progress in custody is established, a discretionary reduction should normally provide a real benefit against the notified minimum term. The life sentence and its public-protection function remain unaffected.

The appellant had pleaded guilty in 1988 to two rapes and murders, conspiracy to pervert the course of justice, and two indecent assaults. He received life sentences for murder and concurrent determinate sentences for the other offences. The Secretary of State set a 30-year tariff.

On a statutory review under Schedule 22 to the Criminal Justice Act 2003, Grigson J specified a 30-year minimum term. He treated the sentencing judge’s absence of a recommendation as equivalent to a whole-life recommendation. The appellant appealed, challenging that interpretation and seeking a reduction for exceptional progress in custody. The central issues were the proper approach to the Schedule 22 review and the practical effect of established exceptional progress.

1. Appeal allowed. The minimum term was reduced from 30 years to 28 years, subject to the unchanged allowance for time on remand.
2. The reviewing judge had misread the historic judicial recommendations. Neither the trial judge nor the Lord Chief Justice had unequivocally recommended a whole-life term. Their concern that the appellant might remain dangerous did not convert the expressions “not less than” and “minimum” into such a recommendation.
3. Under Schedule 22 to the Criminal Justice Act 2003, the court conducts a fresh review. It must have regard to the general principles in Schedule 21 and to the recommendations of the trial judge and Lord Chief Justice. Neither source has unspecified primacy. The notified minimum term is relevant only as a ceiling: the reviewing court cannot increase the prisoner’s period of incarceration beyond it. That safeguard avoids retrospective penal increase contrary to article 7 of the European Convention.
4. Following R v Caines, R v Roberts [2006] EWCA Crim 295, the review is neither an appeal from the historic recommendations nor a resentencing exercise. Transitional cases are governed by the current statutory structure despite changes in earlier sentencing guidance.
5. The offences were exceptionally serious. A modern Schedule 21 starting point would have been a whole-life term, but the court’s independent review, taking account of the historic recommendations and the statutory ceiling, produced 30 years before any custodial-progress allowance.
6. The appellant’s exceptional progress was properly established. It included sustained rehabilitation, education and highly valuable work transcribing music into Braille. Such progress should normally yield a real reduction from the fixed notified minimum term. A two-year reduction was therefore appropriate.
7. The reduction did not affect the life sentence. Release remains conditional upon the safety of the public.

The court also observed, obiter, that a guilty plea could ordinarily attract a sentencing discount before the principle was enacted, but not where guilt was overwhelmingly apparent.

• Court of Appeal (Criminal Division): allowed the appeal and reduced the minimum term to 28 years: [2009] EWCA Crim 963.
• High Court: Grigson J, conducting the Schedule 22 review, specified a 30-year minimum term.
• Crown Court at Leicester: Otton J sentenced the appellant in 1988 to life imprisonment for each murder, with concurrent sentences for the associated offences.