Boyer, Review of the Tariff In the Case of

A tariff review for a young person detained during Her Majesty’s Pleasure may result in reduction where there has been exceptional progress, where continued detention creates an unmitigable risk to development, or where a new matter undermines the original tariff decision. Exceptional progress is a demanding, fact-sensitive assessment. Prison conduct, remorse, responsibility, relationships and offending-behaviour work are relevant, but none is conclusive. The court must make its own assessment, considering whether progress has been sustained over time and, ideally, across more than one prison. An additional indication is the assumption of responsibility and demonstration of trustworthiness. Significant disciplinary misconduct may undermine otherwise substantial progress. Good progress alone does not meet the threshold of exceptional progress.

The applicant was sentenced at the Central Criminal Court in 2011 to detention during Her Majesty’s Pleasure for murder, with a minimum term of 16 years less time spent on remand. He sought review and reduction of the tariff pursuant to R (Smith) v Secretary of State for the Home Department [2005] UKHL 51.

The application relied principally on progress in custody, including completion of therapeutic and cognitive-behavioural programmes, remorse, improved relationships, education and employment. The evidence also disclosed disciplinary adjudications and incomplete acceptance of responsibility. The central issue was whether the progress was exceptional so as to justify reduction of the tariff.

1. Application refused. The court could not recommend a reduction in the tariff.
2. Tariff reviews may be justified on three grounds: exceptional progress producing a significant change in maturity and attitude; a risk to continued development which cannot be significantly mitigated in custody; or a new matter calling into question the basis of the original tariff decision.
3. The assessment of exceptional progress is for the court itself. The guidance identifies relevant indicators, including an exemplary disciplinary record, genuine remorse and appropriate responsibility, successful relationships with prisoners and staff, and engagement with work and offending-related courses. These factors are not conclusive and must be assessed in the circumstances of the individual case.
4. The progress should ideally be sustained over a lengthy period and demonstrated in more than one prison. There should also be an additional element showing that the detainee has assumed responsibility and can be trusted when given responsibility. Beneficial work for others may provide evidence of that additional element.
5. The applicant had made substantial progress. He had completed the Therapeutic Community, Resolve and Sycamore Tree programmes, expressed remorse, engaged well with others, and developed educational and employment skills. His work in the Therapeutic Community was capable of demonstrating responsibility and trustworthiness.
6. However, the applicant’s disciplinary record, particularly the eight adjudications in 2018 after completion of both principal programmes, undermined the claimed progress. His partial acceptance of responsibility and continuing concerns about grievance-thinking and responsibility-taking also remained material. The good progress was commendable but did not presently satisfy the high threshold of exceptional progress.