Neutral Citation Number: [2007] EWHC 368 (QB)
Case No: 2004/56/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 2 3 2007

Before :

MR JUSTICE BURTON
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Between :

	Regina 		
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	DAVID JAMES COPELAND		

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Judgment
MR JUSTICE BURTON : 
1.	David James Copeland was unanimously convicted on 30 June 2000 at the Central Criminal Court before the Recorder of London HH Judge Hyam and a jury, of 3 counts of murder and 3 counts of causing explosions in order to endanger life, being at Brixton on 17 April 1999, Brick Lane on 24 April 1999 and at Old Compton Street, Soho, on 30 April 1999, on which last occasion the 3 murders occurred. He was then 22 and is now 30. He was sentenced to life imprisonment on each of the murders and, concurrently, to life imprisonment on each of the counts of causing explosions to endanger life.
2.	It is difficult to describe the horrific nature of the offences more clearly than in the words of the Learned Recorder who presided over the trial, and who said, when sentencing:
“Anyone who has heard the facts of this case will be appalled and horrified at the atrocity of your crimes.
The evidence shows that you were motivated to do as you did by virulent hatred and pitiless contempt for other people.
On your own admission, you set out to kill, to maim and to cause terror in the community and that is what you did.
As a result of your wicked intentions, you have left three families bereaved and many people who were so severely injured by the explosions you caused, that they are reminded every day and, perhaps, many times every day that you, alone, are accountable for ruining their lives.
Nothing can excuse or justify the evil you have done and, certainly, not the abhorrent views which you have embraced.
It is only too apparent from what you have said that you have no feelings for those who lives you have afflicted.”
3.	A defence was put forward by the Defendant of diminished responsibility, which the jury rejected, but it was in any event clear that the Defendant suffered from a serious mental condition. A consultant psychiatrist from Broadmoor Hospital concluded that he suffered from “a serous mental illness, the nature of which is psychotic and the diagnosis schizophrenia”.
4.	The Recorder concluded that:
“The public must be protected from you and must be assured that, if you are released, it will not be for a very long time.”
5.	An impact statement from the parents of one of the victims wrote that:
“This heartless murder has caused our family to be irreparably damaged, this can never be restored; we will carry the pain for the rest of our lives.”
6.	In making his trial report to the Home Secretary, the Recorder wrote as follows: 
“The Defendant made and planted three explosive devices in parts of London. Brixton on 17 April, Brick Lane on 24 April and Soho on 30 April 1999. His avowed aim in respect of the first two was to kill, maim and terrorise people in the Black and Asian community. The third bomb was targeted at the homosexual community and was placed in a public house which it was well known was frequented by homosexuals. It was there that the three victims were killed. He told the police that in causing the first two explosions he was politically motivated. He wanted to cause a race war and thought that his actions would eventually result in a Nationalist Socialist government coming to power. He said the third device was planted for personal reasons and was borne of his hatred of homosexuals.
Each of the devices was made by the Defendant from instructions on bomb making which he down loaded from the internet. The devices were packed with nails of different sizes so that the longer nails would fly further and penetrate more deeply and the shorter nails would scatter more widely. In the interview with the police the Defendant said in effect that he was not sorry for what he had done and if released would do it again. Apart from the three people who died from their injuries caused in the Soho explosion, many people were very seriously injured, losing eyes and limbs. At all times it is plain that the Defendant acted alone.”
7.	He concluded that there were no mitigating factors and that so far as aggravating factors are concerned:
“1. His avowed aim [was] to kill, maim and terrorise. His motivation was hatred of communities he attacked.
2. The making and laying of the explosive device was long planned and carried out without compunction.”
8.	His recommendation of a period to be served in custody of 30 years was approved by the Lord Chief Justice on 8 August 2000, and this was thus the recommendation made to the Secretary of State, although in the event, in the light of the change of legislation, the Secretary of State never considered this case, as in the case of some 700 others. This period of 30 years has thus remained the “tariff”, which now falls to be reconsidered by reference to the setting of a minimum term pursuant to paragraph 3 of Schedule 22 of the Criminal Justice Act 2003. The Defendant was originally represented by solicitors, who subsequently withdrew from the case. Notification has been given to him of this procedure, asking him to notify the name of his new solicitors or whether he was going to submit representations himself. He did not reply and has not requested an oral hearing.
9.	I must now set the minimum term, taking account of the general principles set out in Schedule 21 of the Criminal Justice Act 2003 and of the guidance contained in the Lord Chief Justice’s letter of 10 February 1997, now set out in paragraph IV.49.18-21 of the Practice Direction issued on 29 July 2004. 
10.	I conclude that this is unquestionably a case of exceptional gravity, and one that plainly falls within the provisions of paragraph 4(1)(a) of Schedule 21 to the 2003 Act. It was in particular a case in which:
i)	there was more than one murder.
ii)	there were murders each of which involved, as the Learned Judge concluded as set out in his trial report, a substantial degree of premeditation and planning.
iii)	as also described in the trial report, in respect of both those who were murdered, and those who suffered terrible injuries as a result of the explosions, there was, by virtue of the “avowed aim” and intentions to which the Recorder referred, sadistic conduct.
iv)	further, as appears from the Recorder’s report, and his sentencing remarks, and also as fully recorded in the reports of the Consultant Psychiatrist, to which I have referred, these murders were done for the purpose of advancing a religious or ideological cause, being his racialist and homophobic preoccupations.
11.	I have no doubt that, by reference to Schedule 21, this is a case in which it would be proper and inevitable for the starting point to be a whole life order pursuant to paragraph 4(1). A whole life order would result in an order under s269(4) of the 2003 Act, that the early release provisions were not to apply to the offender “because of the seriousness of the offence or of the combination of the offence and one or more offences associated with it”. I have regard to the recommendations of the trial judge and the Lord Chief Justice, but, for all the reasons I have given, conclude that this is the appropriate starting point.
12.	I must however consider, before making such an order, not least in the light of the guidance to which I have referred in paragraph 9 above, as this is a “transitional case”, relating to a sentence imposed prior to the 2003 Act, the provisions in particular of paragraph 10 of Schedule 22 to the 2003 Act, namely:
“10. The court -
(a) may not make an order under subsection (2) of section 269 specifying a part of the sentence which in the opinion of the court is greater than that which, under the practice followed by the Secretary of State before December 2002, the Secretary of State would have been likely to notify as mentioned in paragraphs 2(a), and 
(b) may not make an order under subsection (4) of s269 unless the court is of the opinion that, under the practice followed by the Secretary of State for December 2002, the Secretary of State would have been likely to give the prisoner a notification falling within paragraph 2(b).”
which latter subparagraph refers in effect to the imposition of a whole life order. 
13.	By reference to the decision of the Court of Appeal Criminal Division per Lord Woolf CJ in Sullivan, Gibbs, Elener and Elener [2005] 1 CAR(S) 67(308), it is clear that the best guide to what would have been the practice of the Secretary of State is the Practice Directions (and Lord Bingham’s letter), to which I have already referred. However, as Lord Woolf CJ states in Sullivan at paragraph 27:
“… as has been made clear by the Secretary of State, in the most serious cases he tended to select a higher figure than that indicated by the judiciary.”
14.	What lies behind paragraph 10 of Schedule 22 is the need to avoid any question of a breach of Articles 5 and 7(1) of the Human Rights Convention. The judge carrying out the exercise which I am now carrying out can, provided he has regard to the guidance, and to the recommendations by the trial judge and the Lord Chief Justice, apply Schedule 21, but there is, as has been pointed out recently by the Court of Appeal per Gage LJ in Mackay [2007] EWCA Crim 187, a ceiling upon such consideration, by reference to the requirement that any sentence imposed must not exceed that which is likely to have been imposed prior to December 2002. For that purpose I must consider what term “the Secretary of State would have been likely to give to the prisoner” in the light of, or notwithstanding, the recommendation of 30 years by the trial judge and the Lord Chief Justice. 
15.	At paragraph 41 of Sullivan Lord Woolf CJ further records that:
“… the Secretary of State contends, and there is evidence to support him, that he did on a number of occasions increase the recommendations in the case of the most grave offences.”
16.	I have considered the statistics which lay behind the judgment in Sullivan, which indeed confirm that the Secretary of State did regularly impose a tariff which was higher than the recommendations of both trial judge and the Lord Chief Justice: on one occasion, a trial judge’s recommendation of 30 years, recommended to be less than that by the Lord Chief Justice, was increased by the Secretary of State to a whole life order, and on two occasions, recommendations of both the trial judge and the Lord Chief Justice of 25 years were increased to 35 years.
17.	Taking a whole life order as the starting point, there is only one mitigating factor which I have not considered, and that is the age of the Defendant. He was 22. A whole life term could thus be one of 60 years or more. I propose to recognise and reflect that by imposing a minimum term of 50 years, less the 13 months and 26 days which he served on remand, resulting in a period of 48 years, 10 months and 4 days. I am satisfied that this is not greater than the period which the Secretary of State would have been likely to impose, in respect of this really exceptional case of deliberate, multiple murder.
18.	The minimum term is the minimum amount of time the defendant will spend in prison from the date of sentence before the Parole Board can order early release. If it remains necessary for the protection of the public, the defendant will continue to be detained after that date. When the defendant has served the minimum term, and if the Parole Board decides to direct his release, he will remain on licence for the rest of his life and may be recalled to prison at any time.