Brooks, Review of the Tariff In the Case of

A tariff review for a young offender may result in reduction on three grounds: exceptional progress, a risk to continued development which custody cannot sufficiently mitigate, or a new matter undermining the original tariff decision. Exceptional progress requires more than ordinary improvement. The court must make its own assessment, considering the whole period of custody, the durability of behavioural change, engagement with rehabilitative work, responsibility taken for the offence, relationships with others and evidence of responsible conduct benefiting others. The threshold is high. Recent improvement, particularly following adverse disciplinary history, may be insufficient to establish exceptional progress.

The applicant was sentenced at the Central Criminal Court to detention during Her Majesty’s Pleasure, with a minimum term of 12 years, for murder committed when he was aged 16. He sought review and reduction of the tariff. The application relied principally on improvements in his prison behaviour, participation in offending-behaviour work, mature conduct and efforts to undertake roles assisting other prisoners.

The court considered whether those developments amounted to exceptional progress, and whether the available evidence showed a sufficiently sustained alteration in maturity and attitude to justify reducing the tariff.

1. The application for a tariff reduction was refused. The court could not recommend any reduction in the tariff period.

2. The review jurisdiction arose under R (Smith) v Secretary of State for the Home Department [2005] UKHL 51. The welfare of a young offender must remain under review because it may change during custody. The judgment also adopted the rationale expressed in the Court of Appeal decision in the same case, [2004] EWCA Civ 99, that release before the provisional tariff may be justified where development in custody materially changes the welfare assessment.

3. The possible grounds for reduction were: exceptional progress producing a significant alteration in maturity and attitude; a risk to continued development which could not be significantly mitigated in custody; or a new matter calling into question the basis of the original tariff.

4. In assessing exceptional progress, the court had to make its own assessment of all the material. Relevant considerations included exemplary work and discipline, genuine remorse and an appropriate acceptance of responsibility, successful relationships with prisoners and staff, engagement with work or offending-related courses, sustained improvement over a lengthy period and, ideally, in more than one prison. An additional element of responsible and trustworthy conduct for the benefit of others was also relevant. None of these matters was conclusive individually or collectively without considering the circumstances of the particular case.

5. The applicant had made clear progress, including improved conduct, positive staff reports and constructive engagement with rehabilitation. However, his best behaviour had been demonstrated for only a relatively short period after adverse adjudications, including matters in 2018. The court also wished to see his performance on the Thinking Skills Programme and whether he could undertake beneficial responsibilities at HMP Earlstoke. The high threshold of exceptional progress was therefore not met.

The judgment records that the applicant had previously been sentenced at the Central Criminal Court. No appeal history is stated.