Herbert, Re review of tariff

A tariff imposed on a person detained during Her Majesty’s Pleasure may be reduced where there is exceptional and unforeseen progress, serious prejudice to welfare outweighing the public interest in continued detention, or a new matter undermining the original tariff decision. Exceptional progress requires sustained evidence exceeding the progress ordinarily expected of life sentence prisoners. Completion of courses and improved conduct may be relevant but are not, without more, sufficient. An application is normally determined without an oral hearing under paragraph 11 of Schedule 22 to the Criminal Justice Act 2003. An oral hearing should be ordered only where specific oral evidence or representations would materially assist the decision.

The applicant, detained during Her Majesty’s Pleasure for murder and grievous bodily harm with intent, sought review of his minimum tariff. He was 15 when the offences were committed. The Court of Appeal had reduced the minimum term to 15 years and six months after allowing greater credit for his guilty plea, while leaving the sentencing starting point undisturbed.

The applicant relied principally on exceptional and unforeseen progress in custody. He also sought an oral hearing, relying on Osborn and Booth v Parole Board and the earlier approach in Hammond. The issues were whether the statutory grounds for tariff reduction were met and whether the application should be heard orally.

1. Tariff review. The review jurisdiction identified in R (Smith) v Secretary of State for the Home Department permits reduction of a tariff on three grounds: exceptional and unforeseen progress during sentence; serious prejudice to the prisoner’s welfare which outweighs the public interest in detention until tariff expiry; or a new matter calling into question the basis of the original tariff.
2. Exceptional progress. The relevant assessment is comparative and evidence-based. Progress must exceed that ordinarily expected of life sentence prisoners and must be sustained over a lengthy period, preferably across more than one institution. The applicant’s improved conduct, educational achievements, completed courses and support for other prisoners were to his credit. However, the reports from those best placed to assess him described his progress as steady or expected rather than exceptional. The evidence therefore did not meet the required threshold.
3. Oral hearing. Paragraph 11 of Schedule 22 to the Criminal Justice Act 2003 establishes determination by a single High Court judge without an oral hearing as the default. That provision does not exclude an oral hearing, but the applicant must identify specific oral evidence or representations which would assist beyond the written material. Hammond was applied. Although Osborn and Booth v Parole Board meant that a court may now be more ready to order an oral hearing, general assertions of fairness were insufficient.
4. The welfare and new-matter grounds did not apply. The tariff therefore remained as set by the Court of Appeal, and the application was dismissed.

• Court of Appeal: On 29 October 2008, the applicant’s sentence appeal succeeded to the limited extent that greater credit was given for his guilty plea. The minimum term was reduced to 15 years and six months. The starting point of 18 years was not considered excessive.
• High Court (Administrative Court): The tariff review application was dismissed.