Coonan (Formerly Sutcliffe), R v

When fixing a minimum term for a mandatory life sentence under the transitional provisions of the Criminal Justice Act 2003, the reviewing judge must conduct a fresh assessment. The judge must consider the seriousness of the offences by reference to Schedule 21 and have regard to recommendations made by the trial judge and Lord Chief Justice. No recommendation has automatic primacy.

A whole life term may be appropriate for exceptionally serious multiple murders even where the listed statutory examples do not precisely apply. A jury’s rejection of diminished responsibility cannot be revisited by treating the same alleged mental abnormality as a mitigating factor under Schedule 21. Exceptional progress in detention does not justify reducing an otherwise appropriate whole life term where no rational determinate term can be fixed.

The Secretary of State referred the respondent’s case under paragraph 6 of Schedule 22 to the Criminal Justice Act 2003. The reference concerned the minimum terms attached to thirteen mandatory life sentences imposed by Boreham J in 1981 for murder, together with convictions for attempted murder.

No tariff had been fixed by the Home Secretary. The trial judge had recommended thirty years, while Lord Bingham CJ later recommended thirty-five years. The central issues were the appropriate starting point under Schedule 21, the relevance of alleged mental disorder after the jury had rejected diminished responsibility, the effect of progress in detention, and whether the pre-December 2002 Home Secretary practice made a whole life term likely.

1. Whole life term. The court directed under s269(4) of the Criminal Justice Act 2003 that the early-release provisions in s28(5)–(8) of the Crime (Sentences) Act 1997 should not apply. The appropriate minimum term was a whole life term.

2. Fresh assessment. Applying Pitchfork [2009] EWCA Crim 963, the reviewing judge had to assess the case afresh. The judge had to consider the seriousness of the offences by reference to Schedule 21 and have regard to, but not give automatic priority to, the recommendations of the trial judge and Lord Chief Justice.

3. Seriousness and starting point. The statutory examples of exceptionally high seriousness were not exhaustive. The scale of the campaign, involving thirteen murders and further intended victims, together with its brutality and terrorising effect, placed the case outside the ordinary multiple-murder example and justified a whole life starting point. Planning, sexual or sadistic conduct and mutilation were additional aggravating features.

4. Mental disorder. The jury had rejected the respondent’s diminished-responsibility case on the balance of probabilities. The sentencing judge could not go behind that verdict by finding that the same condition nevertheless lowered culpability under paragraph 11(c) of Schedule 21. That provision presupposed a lesser reduction in culpability which did not amount to diminished responsibility; it could not be used where the proposed diagnosis was the same proposition rejected by the jury.

5. Progress in detention. The respondent’s good behaviour, treatment and remission did not justify a reduction. Applying the high threshold explained in Caines [2006] EWCA Crim 2915, exceptional progress did not warrant relief. A reduction from a whole life term could not rationally be expressed as “whole life less” a period, and fixing a determinate term would require an unsupported assessment of life expectancy.

6. Pre-2002 practice. The available sample of Home Secretary decisions was small, but gave a clear impression that a whole life tariff was more likely than not in this case. The statutory condition in paragraph 8(b) of Schedule 22 was therefore satisfied.

Not an appeal. The judgment concerned a reference by the Secretary of State under paragraph 6 of Schedule 22 to the Criminal Justice Act 2003 for determination of the applicable minimum term.