Green, Re Setting the Applicant's Minimum Term

When reviewing a minimum term under Schedule 22 of the Criminal Justice Act 2003, the court must consider the seriousness of the murder, the principles in Schedule 21, the earlier judicial recommendations and the relevant period spent on remand. The statutory starting point applies prospectively to the review and cannot justify increasing the minimum term already notified. A reduction based on progress in custody requires progress of an exceptional and outstanding standard. Even then, the reduction is likely to be modest. Good progress alone is insufficient, particularly where the prisoner continues to minimise his role and has not expressed proper remorse.

The applicant had been convicted of murder in 1996 and sentenced to life imprisonment. The trial judge recommended a minimum term of 25 years, the Lord Chief Justice recommended 22 years, and the Home Secretary notified a minimum period of 20 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 issues included the appropriate statutory starting point, the relevance of the pre-2003 sentencing practice, the applicant’s progress in custody, and credit for 16 months and 10 days spent on remand.

1. The application for a reduction of the 20-year minimum term was refused. The court could not order a period longer than the 20 years notified by the Home Secretary.

2. Under Schedule 22 of the Criminal Justice Act 2003, the court had to consider the seriousness of the offence, the general principles in Schedule 21, the recommendations of the trial judge and Lord Chief Justice, and the effect of section 67 of the Criminal Justice Act 1967. The applicant was entitled to credit for 16 months and 10 days spent in custody on remand.

3. The Schedule 21 starting point was 30 years because the murder involved a firearm. Planning and premeditation were aggravating features. The applicant’s claimed intention to cause serious bodily harm, rather than to kill, was mitigating, and some reduction could be appropriate because it was not proved which defendant fired the gun. Even allowing for those matters, the statutory minimum term would have substantially exceeded 20 years and provided no basis for reduction.

4. The earlier practice reflected in Lord Bingham’s letter also supported the 20-year term. The killing was carefully planned, involved a firearm and may have been intended to defeat the ends of justice because the victim was suspected of being a police informer.

5. The test for a reduction based on progress in custody was exceptionally demanding. Applying R v Cairns and Roberts [2006] EWCA Crimn 2915, progress had to be exceptional and outstanding, because the reduction affected a term imposed for punishment and deterrence. The applicant’s good progress did not meet that standard. His continuing minimisation of his role and the absence of a proper, unqualified expression of remorse reinforced that conclusion.

6. Subject to credit for the remand period, there was no justification for reducing the 20-year minimum term.