Case Numbers:  MTS/292/2004
MTS/293/2004
Neutral Citation Number:  [2005] EWHC 2036 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 29 September 2005

Before :

MR JUSTICE KEITH

Between :

The Queen

- and -

Stephen John McFaull
and
Anthony Cleaver
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Judgment

Introduction

1.   On 21 June 2002 at Luton Crown Court, Stephen McFaull and Anthony Cleaver were sentenced for the murder of Colin Ward.   McFaull was sentenced to imprisonment for life, and since Cleaver was not yet 21 years old, he was sentenced to custody for life.   Cleaver had pleaded not guilty to the murder, but was convicted by the jury.   McFaull had pleaded guilty to the murder.   I presided over their trial, and I subsequently recommended that McFaull should serve at least 15 years in custody, and Cleaver at least 13 years, before they could be released on licence.   The Lord Chief Justice, Lord Woolf, agreed with the recommendation for Cleaver, but he recommended that McFaull should also serve 13 years in custody before he could be released on licence.   He thought that greater credit should be given to McFaull for his plea of guilty.   

2.   Schedule 22 to the Criminal Justice Act 2003 (“the Act”) came into force on 18 December 2003. By then, the Home Secretary had not notified McFaull or Cleaver either of the minimum period which he thought they should serve before their release on licence or that he did not intend that they should ever be released on licence.   Accordingly, the Home Secretary referred their case to the High Court under para. 6 of Schedule 22 to the Act for the making of an order under sections 269(2) or 269(4) of the Act – in effect, an order that they should never be released on licence, or an order that their release on licence can be considered by the Parole Board after they have served a specified term in custody (“the minimum term”).   Section 270(1) of the Act requires me to give the reasons for such order as I make in ordinary language.   

The facts

3.   Colin Ward was a 29 year old blind man who lived on his own in Luton.   On Friday 26 October 2001, he went to his local public house to celebrate his birthday.   He did not take his usual cab home.   It was not possible to trace his movements after he left the public house, but an hour or so after leaving it he was attacked in a car park a short distance from his home.   It was about 2.30 am. The men who attacked him were McFaull and Cleaver.   McFaull was 22 years old, and Cleaver was almost 20.   

4.   At the time of the attack, McFaull and Cleaver were with two other youths (who were younger than them).   It was when the four of them were together that they came across Mr Ward.   The reason for the attack was that someone said that Mr Ward was a known sex offender.   It is not possible to say who said that.   It was untrue, but McFaull and Cleaver were not to know that.   Both of them claimed that they did not know that Mr Ward was blind.   That may be true, but the evidence was that he was stumbling around when they came across him.   Whether that was because he was disorientated (the taxi having failed to drop him off at the usual place) or because he had had too much to drink (as might have appeared to McFaull and Cleaver), anyone coming across him would have realised how vulnerable he was.   

5.   The form which the attack took was that Mr Ward was pushed to the ground.   While there he was kicked in the head a number of times, his head was stamped on and two bricks were thrown at his head.   He was in a coma for two months before contracting the bronchopneumonia from which he died.   The weight of the evidence suggested that McFaull was the more violent of the two, though it has to be said that that evidence came from one of the two youths and from what Cleaver told the police, and they would have had reason for wanting to minimise their own roles.   

6.   By his plea of guilty to murder, McFaull admitted his part in the attack on Mr Ward, but he claimed that the four of them had joined in the attack, and that Cleaver had been as violent as he had been.  A psychiatric report on him suggested that the dysfunctional environment in which he had been brought up, the history of sexual abuse to which he claimed to have been subjected when he was young, and his claim that his mother had been raped, had made him unusually hostile towards persons whom he believed were sex offenders, and particularly susceptible to being provoked into violent behaviour towards them.   

7.   Cleaver’s case was that McFaull had been responsible on his own for the attack on Mr Ward.   He admitted simply to having punched Mr Ward twice in the face when he thought that Mr Ward was going to attack one of the two other youths.   However, when he had been interviewed, Cleaver had admitted having taken part in the attack on Mr Ward by kicking him while he was on the ground, although he also told the police that McFaull “did all the rest, he was mad, he was just mental, jumping on his head and everything”.   The jury’s verdict suggests that it was sure that at the very least Cleaver kicked Mr Ward in the head while Mr Ward was on the ground.

The appropriate minimum term

8.   The minimum term which McFaull and Cleaver should serve must reflect the seriousness of their offence.   That involves choosing the appropriate starting point, and then taking into account any aggravating or mitigating factors to the extent that they were not allowed for in the choice of the appropriate starting point.   

9.   Under the current law, the choice of the appropriate starting point is limited to a whole life order, 30 years or 15 years.   All murders involve the tragic loss of life, but the murder of Colin Ward did not come within any of the examples given in schedule 21 to the Act of cases for which a whole life order or a starting point of 30 years is appropriate.   That is not to say that the gratuitous violence used on a particularly defenceless man does not seriously aggravate the murder.   But it does not mean that the appropriate starting point for the minimum term in McFaull’s and Cleaver’s case should not be 15 years.   

10.   The factors which aggravated the murder of Mr Ward were (i) his vulnerability, (ii) the lack of any real motive for the attack on him, (iii) the brutality and mindlessness of the attack (especially on the part of McFaull), and (iv) McFaull’s and Cleaver’s apparent unawareness at the time that they were doing anything wrong (even though by the time of their sentence they were said to be expressing contrition).   In addition, McFaull had a previous conviction for violence, namely the unlawful wounding of his son, by shaking him severely when he would not quiet down, as a result of which the baby sustained significant brain damage, for which McFaull was sentenced to 15 months’ imprisonment, the killing of Mr Ward occurring less than two months after his release from prison.   

11.   However, there were a number of factors which mitigated their murder of Mr Ward.   First, I do not think that they intended to kill him:  they merely intended to cause him really serious bodily injury. Secondly, the attack on Mr Ward was not planned.   It was McFaull’s spontaneous reaction to hearing that Mr Ward was supposed to be a sex offender which Cleaver decided to join.   Thirdly, Cleaver was relatively young at the time, and although he was unable to express contrition at the trial in the light of the nature of his defence, I felt throughout that he deeply regretted what had happened to Mr Ward.   Fourthly, McFaull pleaded guilty to murder (something which his counsel said was a difficult thing to do), but I am unable to tell whether that was because he was genuinely contrite or whether it represented a real assessment of the strength of the evidence against him.   Balancing all these factors, the minimum term which would now be set in their cases would be in the region of 14-15 years.   

12.   But the minimum term which I must set may not be any longer than the minimum term which would have been set by the Home Secretary under the practice which the Home Secretary would have followed at the time.   Recommendations by the trial judge and the Lord Chief Justice were then based on the guidance given by the then Lord Chief Justice, Lord Bingham, in a letter he sent to judges on 10 February 1997.   But as his successor, Lord Woolf, said in Sullivan [2004] EWHC Crim 1762, the Home Secretary fixed the minimum term in accordance with the recommendation of the trial judge and the Lord Chief Justice “in the great majority of cases”.   There is nothing in this case which suggests that this would have been one of those exceptional cases in which the Home Secretary would have differed from the view expressed by Lord Woolf.   I conclude therefore that the minimum term which would have been set by the Home Secretary under the practice which he would have followed at the time would have been 13 years for both McFaull and Cleaver.   

13.   Finally, from the minimum term of 13 years which they must serve, there must be deducted the time which they spent on remand in custody prior to sentence.   That period was 7 months and 10 days in the case of McFaull and 7 months and 18 days in the case of Cleaver.   

Conclusion

14.   I therefore order that the early release provisions in sections 28(5)-(8) of the Crime (Sentences) Act 1997 apply to McFaull and Cleaver as soon as they have served 12 years 4 months and 20 days and 12 years 4 months and 12 days of their respective sentences.   That is the minimum term which I set for their cases.