Robinson, Re (Review of Tariff)

A reduction of a juvenile offender’s minimum term requires more than good progress in custody. Exceptional and unforeseen progress is a high threshold, assessed against the conduct expected of prisoners generally and what could reasonably have been expected when the minimum term was set. Relevant indicators include conduct, discipline, remorse, responsibility, relationships and engagement with rehabilitative work, but none is conclusive. A reduction may also be justified where continued imprisonment would seriously prejudice the offender’s welfare and that welfare interest outweighs the public interest in further imprisonment. Unsupported concerns may be put aside, but reliable evidence of sustained exceptional progress remains necessary.

The applicant, aged 17 when he committed murder, was sentenced to detention for life with a minimum term of 14 years. He applied for a review and reduction of that term under the procedure arising from R v Secretary of State for the Home Department ex parte Smith [2005] UKHL 51. He relied on exceptional progress in custody and the risk that continued imprisonment would prejudice his development.

The court considered his custodial conduct, rehabilitation, remorse, responsibility, relationships, work record and the evidence from prison and probation staff. The central questions were whether his progress was exceptional and unforeseen, and whether continued imprisonment created the serious welfare prejudice required for a reduction.

1. The court declined to recommend a reduction of the tariff. The evidence did not establish either serious prejudice to the applicant’s continued development or exceptional and unforeseen progress.

2. The welfare-based review of a juvenile tariff requires the offender’s welfare to be considered in light of development during custody, consistently with the rationale described in R v Secretary of State for the Home Department ex parte Smith [2005] UKHL 51. The absence of further risk-reduction programmes did not show that continued imprisonment on the PIPE Unit, or elsewhere, would seriously prejudice the applicant’s welfare. The relevant threshold was therefore not met.

3. Exceptional progress is assessed against the standard of conduct expected of prisoners generally and what might have been expected of the particular offender when the minimum term was imposed. The guidance indicators are relevant but are not individually or collectively conclusive. Sustained good behaviour, remorse, acceptance of responsibility, constructive relationships and rehabilitative engagement may demonstrate progress, but the overall evidence must justify the description exceptional and unforeseen.

4. The applicant had made very good progress. He had no adjudications since 2013, had completed relevant programmes, expressed remorse and responsibility, and was reported to have good relationships and to help other prisoners. Nevertheless, his earlier custodial history was troubled, his work record was not exemplary, and the material did not establish that his progress was unforeseen.

5. Limited knowledge and a material misunderstanding of the applicant’s history reduced the weight of the probation officer’s favourable assessment. The omission by the officer with the longest experience of an express conclusion that the progress was exceptional was significant. The application was therefore not sufficiently supported for a tariff reduction.

First instance decision. The court made a recommendation to the Secretary of State for Justice under the tariff-review procedure.