Ryan Herbert (Review of Tariff), Re

On a review of a minimum tariff, the court may reduce the tariff where the prisoner has demonstrated exceptional and unforeseen progress since sentence. The assessment is fact-sensitive and may take account of sustained behavioural change, educational achievement, constructive work with other prisoners and professional assessments. A reduction in the tariff does not itself secure release. It merely permits the Parole Board to assess suitability for release at an earlier date.

The claimant had been sentenced in 2008, aged 16, to detention during Her Majesty’s pleasure with a minimum term of 16 years and three months for murder, together with a concurrent sentence for causing grievous bodily harm with intent. The Court of Appeal later reduced the minimum term to 15 years and six months to reflect his guilty pleas: [2009] 2 Cr.App.R. (S) 9. A previous tariff review in 2016 found significant improvement but no exceptional and unforeseen progress.

On the present review, the issue was whether subsequent evidence demonstrated the exceptional and unforeseen progress required to justify a further reduction.

1. The review was conducted on the principles articulated in R v Secretary of State for the Home Department ex parte Smith [2005] UKHL 51. The relevant question was whether the claimant had made exceptional and unforeseen progress since sentence.
2. The claimant’s progress was assessed cumulatively. Relevant evidence included sustained freedom from violent behaviour, positive professional assessments, educational qualifications, constructive work with other prisoners and substantial participation in the Learning Together programme at the University of Cambridge.
3. The claimant’s progress went significantly beyond the ordinary progress expected of a prisoner. It was exceptional because of the extent and quality of his development, and unforeseen because it could not reasonably have been anticipated when sentence was imposed.
4. The tariff was therefore reduced by one year, from 15 years and six months to 14 years and six months, less 259 days spent on remand.
5. The reduction did not entitle the claimant to release. Release remained conditional upon a favourable assessment by the Parole Board; the practical effect was only that such an assessment could take place earlier.

• Court of Appeal (Criminal Division) — Herbert’s appeal against sentence was allowed on 29 October 2008 because insufficient credit had been given for his guilty plea. The minimum term was reduced to 15 years and six months. The decision is reported at [2009] 2 Cr.App.R. (S) 9.
• High Court (Administrative Court) — On the present tariff review, the minimum term was reduced by a further year.