Esposito, R. v

Paragraph 14(1) of Schedule 22 to the Criminal Justice Act 2003 gives the Court of Appeal an unusual and limited review jurisdiction for certain transitional life-sentence prisoners. Where exceptional progress was not previously considered when the minimum term was set, the court may review the term without first finding that it was originally excessive or wrong in principle.

Exceptional progress does not require a reduction as of right. Good or excellent prison conduct is insufficient. The progress must be truly outstanding, assessed with a favourable risk assessment and reliable comparative evidence. Any reduction is discretionary and likely to be modest.

The appellant was convicted at Liverpool Crown Court in December 2002 of two murders committed with a co-accused during a prolonged and exceptionally violent attack. He received the mandatory sentence of life imprisonment.

In October 2007, following a referral under Schedule 22 to the Criminal Justice Act 2003, the High Court set a minimum term of 19 years, less time spent on remand. The appellant appealed under paragraph 14 of that Schedule.

He relied on his remorse, educational achievements, exemplary conduct, work for prisoners and charities, and reduced risk. The central issues were whether the court had jurisdiction to review the minimum term for later exceptional progress, and whether his progress met the required exceptional standard.

1. Appeal dismissed. The court had jurisdiction to consider the appellant's later progress. Under paragraph 14(1) of Schedule 22 to the Criminal Justice Act 2003, an unusual review jurisdiction applies to the small class of transitional cases in which a minimum term was set without prior consideration of exceptional progress.

2. This conclusion was consistent with R v Caines [2006] EWCA Crim 2915 and R v Gill [2011] EWCA Crim 2794. Where a High Court judge has already considered exceptional progress, the ordinary appellate test applies. Where it has not been considered, the Court of Appeal may conduct the necessary review long after sentence. The statutory construction was justified because exceptional progress can realistically be assessed only towards the end of a lengthy minimum term.

3. The court rejected the submission that proof of exceptional progress required a reduction. Gill required due account to be taken of such progress, not a mandatory adjustment. Any allowance remained discretionary and modest.

4. The applicable threshold was very high. As explained in Caines, good behaviour alone is not exceptional progress. The prisoner must show exceptional and outstanding progress, supported by a favourable risk assessment and, where possible, comparative evidence from recent custodial settings.

5. The appellant's record was very good and in several respects excellent. His degree, prison initiatives, mentoring and charitable work were substantial achievements. However, the recent evidence from HMP Leyhill showed a prisoner progressing appropriately towards release rather than conduct of the required exceptional quality. The remaining medium assessment of risk to the public and unresolved issues concerning his account of the offending were relevant. The evidence did not justify reducing the 19-year minimum term.

• Court of Appeal (Criminal Division): Dismissed the appeal against the minimum term after conducting the limited Schedule 22 review.
• High Court: On 18 October 2007, set a minimum term of 19 years, less five months and 25 days spent on remand, following a referral under Schedule 22 to the Criminal Justice Act 2003.
• Liverpool Crown Court: On 20 December 2002, convicted the appellant of two murders and imposed the mandatory sentence of life imprisonment.