Jackson, Re Setting of Minimum Term an Application Under Criminal Justice Act 2003

In a transitional mandatory-life case, Article 7(1) of the European Convention on Human Rights prevents a minimum term exceeding the penalty that could lawfully have been imposed when the offence was committed. It does not require the court to reproduce the tariff that would probably have been imposed in practice at that time.

Under Criminal Justice Act 2003 Schedule 22, the notified tariff is a ceiling in an application under paragraph 3. A reduction for exceptional progress is possible, though the threshold is very high and requires a satisfactory risk assessment. Very good prison conduct and progress are insufficient.

The applicant was convicted of murder in 2000 and received a mandatory life sentence. The Secretary of State notified him in 2001 that his tariff was 15 years. Following Criminal Justice Act 2003 Schedule 22 paragraph 3, he applied to the High Court for the minimum term to be fixed judicially.

He argued that Article 7(1) required a term no higher than the tariff likely to have been recommended in 1985, when the murder was committed. He also relied on disparity with other transitional categories and on exceptional progress in custody. The central issues were the proper interpretation of Article 7(1), the statutory ceiling, and whether his prison progress justified a reduction.

1. Application and ceiling. Schedule 22 paragraph 3(1)(a) prevented the minimum term from exceeding the notified tariff of 15 years. The court had to consider the seriousness of the offence, Schedule 21 principles and starting points, and the recommendations of the trial judge and Lord Chief Justice.
2. Article 7(1). The court followed R (Uttley) v Secretary of State for the Home Department, Flynn v HM Advocate and Coeme v Belgium. Article 7 protects against a penalty heavier than that permitted by law when the offence was committed. It does not require a speculative assessment of the sentence probably imposed in practice. Since life imprisonment was legally available in 1985, fixing 15 years did not infringe Article 7. The approach in R v Sullivan could not be applied insofar as it treated Article 7 as requiring the likely historical tariff.
3. Exceptional progress. A reduction was possible in principle, but the standard was exceptionally high. Good or very good conduct was insufficient. The applicant’s progress was very good, but his risk assessments were not satisfactory and did not establish exceptional progress.
4. Order. The minimum term remained 15 years, with 88 days spent on remand counted against it.