Butterworth, Re Review of Minimum Term

On a review of a notified minimum term, the court must assess the seriousness and culpability of the offence by applying the statutory criteria, including the principles in Schedule 21. It must consider the notified term, the trial judge’s and Lord Chief Justice’s recommendations, and relevant aggravating and mitigating factors. The review is not an assessment of the prisoner’s dangerousness; that is for the Parole Board. The court cannot set a term exceeding the period notified by the Secretary of State. Where the Schedule 21 assessment produces a higher figure, the statutory cap remains decisive. Credit must be given for qualifying time spent on remand. Good behaviour and rehabilitation in custody justify a reduction only where sufficiently exceptional.

Robert Andrew Butterworth applied under section 276 and paragraph 3 of Schedule 22 to the Criminal Justice Act 2003 for review of a 14-year minimum term notified by the Home Secretary following his conviction for murder. The trial judge and the Lord Chief Justice had each recommended 14 years.

The court considered the seriousness and culpability of the murder, including violence, intoxication, lack of premeditation, alleged provocation, remorse, previous character and progress in custody. The central issues were whether the minimum term should be reduced below 14 years and how 10 months and 20 days spent on remand should be credited.

1. Statutory task. The application was governed by section 276 and Schedule 22 of the Criminal Justice Act 2003. The court had to determine the specified minimum term, having regard to the seriousness of the offence, time in custody before sentence and the period notified by the Home Secretary. It also had to have regard to the general principles in Schedule 21 and the recommendations of the trial judge and Lord Chief Justice.
2. Scope of review. The minimum term reflected seriousness and culpability for retribution and deterrence. It was not an assessment of dangerousness. Whether the applicant should subsequently be released on licence was for the Parole Board, and release was not automatic.
3. Starting point and factors. Applying Schedule 21, the appropriate starting point was 15 years under paragraph 6. The sustained, vicious and gratuitous violence, including repeated kicks and stamps to the head and neck and a further assault after the applicant had initially walked away, was a significant aggravating factor. Lack of planning, the probable intention to cause really serious harm rather than kill, and the applicant’s previous character provided mitigation, but did not justify reducing the term below 14 years. The alleged provocation and claimed fuller recollection were rejected. Alcohol and ecstasy were no excuse, although the court accepted that the applicant would probably not have acted as he did without them.
4. Cap and credit. Schedule 22 prevented the court from setting a term greater than the notified 14 years. The court therefore adopted 14 years in principle. Good behaviour, offending-behaviour courses, becoming drug-free and charity work were not sufficiently exceptional to justify further reduction. The term was then reduced by 10 months and 20 days spent on remand.
5. The minimum term was specified as 14 years less 10 months and 20 days. The early-release provisions under section 28(5) to (8) of the Crime (Sentences) Act 1997 were ordered to apply when that specified term had been served.

The judgment records the applicant’s conviction and the earlier recommendations and notification of a 14-year minimum term. The present proceedings were a statutory review application in the High Court.