Callum, Decision On Review of the Tariff

A reduction of a tariff for detention during Her Majesty’s pleasure requires clear evidence of exceptional and unforeseen progress which reasonably requires reconsideration. Very good or excellent progress is insufficient by itself. Relevant indicators include conduct, responsibility and remorse, relationships, and engagement with offending-behaviour work, but no single factor is conclusive. The assessment is holistic. The evidence should ideally show sustained progress over time and in more than one prison, together with an additional element demonstrating trustworthiness when responsibility is given. The absence of a positive assessment by a probation officer or offender supervisor is not conclusive, but remains relevant. A high threshold must be maintained to secure consistency in tariff reviews.

The applicant was detained at Her Majesty’s pleasure after conviction for murder committed when he was 17. The sentencing judge set a minimum term of 19 years, less time served on remand. The Lord Chancellor and Secretary of State for Justice requested a review following the decision in R (Smith) v Secretary of State for the Home Department [2005] UKHL 51. The applicant relied principally on his later acceptance of responsibility, remorse, good prison conduct, educational achievements and completion of offending-behaviour programmes.

The central issue was whether the material established exceptional and unforeseen progress requiring a reduction in the minimum term.

1. Application refused. The court could not recommend any reduction in the applicant’s tariff.
2. The governing test, derived from R (Smith) v Secretary of State for the Home Department [2005] UKHL 51, was whether there was clear evidence of exceptional and unforeseen progress which, reasonably judged, required reconsideration. This was a high threshold. Very good or excellent progress did not necessarily satisfy it.
3. The relevant guidance identified progress in maturity and outlook, conduct and discipline, genuine remorse and responsibility, relationships with prisoners and staff, and successful engagement with work and offending-behaviour programmes. These were indicators rather than conclusive requirements. They should ideally be sustained over a lengthy period and in more than one prison.
4. The guidance also required an additional element showing that the detainee had assumed responsibility and proved trustworthy when given responsibility. Examples included sustained good works for the benefit of others. The court found no sufficient evidence of this element.
5. The applicant had made substantial and encouraging progress, including eventual acceptance of responsibility, remorse, educational achievement and successful programme participation. However, his relatively recent acceptance of guilt, earlier disciplinary adjudications, limited evidence from prison staff, and the absence of positive assessments expressly identifying exceptional progress meant that the threshold was not met. The absence of such an assessment was relevant but not conclusive.
6. A future application might succeed if the applicant maintained his progress, preserved his category C status, kept a clean disciplinary record and demonstrated trust and responsibility over time.

Not an appeal. The judgment records that the applicant’s conviction appeal was dismissed by the Court of Appeal on 16 June 2010: [2010] EWCA Crim 1325.