Khan, Re Setting the Applicant's Minimum Term

When reviewing the minimum term of an existing prisoner under Schedule 22 of the Criminal Justice Act 2003, the court may reduce the notified term but cannot increase it. The court must assess the seriousness of the offence, apply the relevant principles in Schedule 21, and take account of relevant sentencing recommendations and custody before sentence.

Good progress in custody justifies a reduction only where it is exceptional and outstanding. Even then, the reduction will ordinarily be modest because the minimum term serves punishment and deterrence. A reduction is not justified where the required progress or genuine remorse is absent.

The applicant had been convicted of murdering his stepfather in 1998 and sentenced to life imprisonment. The trial judge recommended a minimum term of 16–18 years, while the then Lord Chief Justice recommended 12–13 years. In 2000 the Home Secretary notified a minimum term of 13 years.

As an existing prisoner, the applicant applied under Schedule 22 of the Criminal Justice Act 2003 for the early-release provisions to apply after a shorter period. The central issues were whether the original term was excessive, whether the applicant’s progress in prison justified a reduction, and how 254 days spent on remand should be treated.

1. Application refused. The court had power to reduce the applicant’s 13-year minimum term, but not to increase it. It was required to consider the seriousness of the murder, the general principles in Schedule 21 of the Criminal Justice Act 2003, the earlier sentencing recommendations and the effect of time spent in custody before sentence.
2. The murder was carefully planned, premeditated and exceptionally brutal. Applying the 2003 Act as a benchmark, the appropriate starting point could have been 30 years under paragraph 5(2)(b) of Schedule 21, or 15 years under paragraph 6. Aggravating features included significant planning and premeditation and the considerable physical suffering inflicted on the victim. No mitigating factor in paragraph 11 applied. The existing 13-year term was therefore lenient, and there was no basis for reducing it by reference to the practice in 1998.
3. Good progress in custody could justify a reduction only if it was exceptional and outstanding. The threshold was high because the minimum term was fixed for punishment and deterrence, and even qualifying progress would usually produce only a modest reduction. Applying R v Cairns and Roberts [2006] EWCA Crim 2915, the applicant did not satisfy that test. The absence of a proper and unqualified expression of remorse, together with the Parole Board’s doubts about his motivation, reinforced that conclusion.
4. The 254 days spent in custody before sentence were to count towards the 13-year minimum term. Subject to that credit, the application for reduction was refused.