Shaikh & Anor, R. (Rev 2)

When fixing the minimum term for a discretionary life sentence under Powers of Criminal Courts (Sentencing) Act 2000, section 82A(3)(c) requires comparison with the release regime in section 244(1) of the Criminal Justice Act 2003. It does not incorporate a separate regime merely because prisoners subject to that regime are excluded from section 244(1).

The normal minimum term remains one half of the notional determinate sentence. A higher proportion is permissible only in exceptional, case-specific circumstances. A general change to two thirds for all terrorist life sentences would be a new rule requiring direct Parliamentary provision, not an exercise of sentencing discretion.

The Solicitor General referred as unduly lenient the life sentences imposed on two unconnected terrorist offenders at the Central Criminal Court. Safiyya Shaikh received a minimum term of 14 years after a notional determinate sentence of 28 years. Fatah Abdullah received a minimum term of 9 years after a notional determinate sentence of 18 years.

The sentencing judge used one half of each notional determinate sentence. The Solicitor General contended that the Terrorist Offenders (Restrictions of Early Release) Act 2020 required, or should ordinarily lead to, minimum terms of two thirds because it introduced a two-thirds release point for specified terrorist offenders serving non-life sentences. The common issue was whether that enactment altered the established approach to calculating minimum terms for discretionary life sentences.

Decision

1. The court granted the Solicitor General leave to challenge the sentences but dismissed both applications. The minimum terms of 14 years and 9 years were not shown to be unduly lenient.

2. Section 82A(3)(c) of the Powers of Criminal Courts (Sentencing) Act 2000 required the judge to take account of the early-release provisions by comparison with section 244(1) of the Criminal Justice Act 2003. That reference naturally concerned the requisite custodial period provided by section 244(1) and defined by section 244(3). It did not extend to the separate two-thirds regime in section 247A merely because prisoners subject to section 247A had been excluded from section 244(1).

3. The court followed the reasoning in R v Burinskas [2014] EWCA Crim 334, as approved in Attorney General’s References (McCann and Sinaga) [2020] EWCA Crim 1676. The statutory carve-out did not amount to the direct Parliamentary sanction necessary for a general increase in life-sentence minimum terms from one half to two thirds. Although the resulting scheme created anomalies when life sentences were compared with determinate sentences, those anomalies could not justify a strained construction of section 82A.

4. The established norm, confirmed in R v Szczerba [2002] EWCA Crim 440, is to take one half of the notional determinate sentence. A sentencing judge may select a higher proportion only exceptionally, for example to accommodate an existing sentence or particular features of the offender’s history. The Solicitor General advanced no case-specific exceptional feature. Requiring two thirds in every case affected by the 2020 Act would replace the norm with a new rule, which was a matter for Parliament.

• Court of Appeal (Criminal Division) — granted leave on the Solicitor General’s references but dismissed the challenges to the sentences: [2021] EWCA Crim 45.
• Crown Court at the Central Criminal Court — Mr Justice Sweeney imposed life sentences with minimum terms of 14 years on Shaikh and 9 years on Abdullah. He declined, under the slip-rule applications, to increase the minimum terms to two thirds of the notional determinate sentences.