Hughes (Setting of Minimum Term)

When setting a minimum term for a prisoner repatriated after a foreign conviction, the court must apply the statutory transitional regime governing offences committed before commencement of the relevant provisions. It must assess the likely pre-commencement practice of the Secretary of State, using the applicable Practice Direction as the best guide. The assessment requires the court to weigh aggravating and mitigating features, including previous murder convictions, robbery, breach of trust, concealment or abandonment of the victim, spontaneity, intention, confession and remorse. A previous murder conviction is highly aggravating, but the facts may still justify a substantial minimum term rather than a whole life order.

Laurence Philip Hughes was convicted in Germany of murder with robbery and sentenced to life imprisonment. He was later repatriated to the United Kingdom. Under Criminal Justice Act 2003, s.273, the Secretary of State referred the case to the High Court for an order setting the minimum term before release could be considered.

The murder had been committed before the commencement of the relevant provisions. The central issue was therefore what minimum term the Secretary of State would probably have set under the pre-18 December 2003 regime, having regard to the applicable transitional provisions and the aggravating and mitigating features of the offence and offender.

1. Reference determined. The court made an order under Criminal Justice Act 2003, s.269, that the minimum term before Hughes could be considered for release on licence was 25 years, running from 1 December 2003.
2. Section 269 permits either a minimum-term order or an order disapplying the early-release provisions, commonly called a whole life tariff. Because the offence pre-dated commencement, Schedule 22 paragraph 10 applied. The court could not impose a whole life order, or a longer minimum term, unless that was what the Secretary of State would probably have ordered before December 2002.
3. The best guide to the Secretary of State’s pre-commencement practice was the relevant Practice Direction, as reproduced in the Consolidated Criminal Practice Direction. Its higher starting point of 15 or 16 years applied because the murder was committed for gain in the course of a robbery.
4. The aggravating features included Hughes’s previous conviction for murder, the robbery, the breach of trust involved in abusing the victim’s hospitality, leaving him bound and gagged in a locked room, and the fact that Hughes had absconded before completing the minimum term imposed for the earlier murder. The mitigating features included the spontaneity of the fatal assault, the distinction between an intention to kill and an intention to cause really serious harm, and Hughes’s confession and remorse.
5. If the offence had occurred after 18 December 2003, a whole life order would not have been appropriate, although a 35-year minimum term would have been imposed. Under the transitional regime, however, the appropriate historic term was 25 years. The reference was determined without an oral hearing.