Neutral Citation Number: [2010] EWHC 1777 (QB)
Case No: 2006/94/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15th July 2010

Before :

THE HON. MR. JUSTICE KING
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Philip Steele

Application by Philip Steele   for the review of the minimum term pursuant to Schedule 22 paragraph 3 of the Criminal Justice Act 2003

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Judgment

The Hon. Mr. Justice King: 

Decision
1.	On the 4th December 1998 at the Crown Court at Liverpool before Mr Justice Douglas Brown the Applicant was convicted after trial of murder committed on the 3rd January 1998 in the course of a burglary of the victim’s house.  Also convicted of murder was his co-accused John Crawley. The victim was a 69 year old man who lived alone.  On the same day as his conviction the Applicant was sentenced to life imprisonment which is the sentence fixed by law. He was also sentenced to 4 years imprisonment concurrent for the offence of burglary with intent.
2.	On the 11th December 1998 the trial Judge made a recommendation that the Applicant should under the life sentence serve a minimum term of 15 years before consideration for early release on licence.  On the 16th December 1998 the Lord Chief Justice, Lord Bingham, made a recommendation to the Home Secretary that the minimum term should be 14–15 years.
3.	On the 7th October 1999 the Home Secretary notified a minimum term of 15 years.
4.	This is now an application under section 276 and paragraph 3 of Schedule 22 of the Criminal Justice Act 2003 (“the Act”) for a review of this minimum term.  In terms it is an application for an order that the material statutory early release provisions of the Crime (Sentences) Act 1997 are to apply to the Applicant as soon as he has served the part specified in the order.  Since this is a case in which an existing prisoner serving a mandatory life sentence passed before the commencement of the Act, has been notified by the Secretary of State of a minimum period which in the view of the Secretary of State should be served before the prisoner’s release on licence, I am obliged to make such an order (see paragraph 3(1)(a) of Schedule 22).  My task is to determine what the specified part should be.  This specified part is otherwise known as the “the minimum term”.  It is the term which the Applicant must serve in full before becoming eligible for consideration by the Parole Board for early release on licence.
5.	The Applicant is now some 40 years of age, his date of birth is the 16th February 1970.  At the date of the murder he was nearly 28 years of age.  He had numerous previous convictions but of relevance there were three previous convictions for burglary or attempted burglary:  21/05/85: attempt in relation to a dwelling; 7/08/86: burglary of a non dwelling; 11/06/03: burglary and theft of a dwelling.  There were previous convictions for offences against the person, namely a conviction on the 9th  February 1990 for an offence of assault occasioning actual bodily harm and four convictions on the 7th December 1994 for three offences of wounding with intent and one offence of assault occasioning actual bodily harm. I observe that in the written representations on the Applicant’s behalf it is said that these offences all arose out of the one incident in which the Applicant had been in a fight with a group of men.
6.	I have not been asked to hold an oral hearing and do not consider it necessary to hold one.  For the purposes of this application, the court has received written representations on the Applicant’s behalf from his current solicitors, and from the Crown Prosecution Service and a further response from the Applicant’s solicitors.  I have also seen the original representations made before the term was notified, made by the Applicant personally and also by his then solicitors.  I have also seen a short but nonetheless moving victim impact statement made by one of the victim’s children which understandably rehearses the devastating impact the father’s death has had on the lives of the family.
7.	I am bound to proceed on the basis that the Applicant is guilty of the offence of murder of which he was convicted. This is not an appeal against conviction.  The Applicant did not give evidence at his trial.  I have of course taken note from the Applicant’s various applications that he still maintains his innocence and that he never entered the house, being only the lookout for the burglary on the outside, but these are matters which cannot affect my judgment when determining the present application. I must take the same approach in relation to suggested explanations for the Applicant choosing not to give evidence and whether there had been any change in tack in the way his defence was run. These are irrelevant to the task I am currently being asked to perform.
The principles to be applied 
8.	In determining the minimum term I am obliged under paragraph 4(1) of Schedule 22 to have regard to the “seriousness of the offence, or the combination of the offence and one or more offences associated with it “ (para 4(1)(a)),  the length of any period in custody prior to sentence and the effect of any direction that would have been given with regard to crediting time on remand in custody if the court had sentenced the Applicant to a term of imprisonment (the effect of para 4(1)(b)), and the length of the minimum term notified by the Home Secretary.
9.	In considering the seriousness of the offence or combination of the offence and one or more offences associated with it, I must under paragraph 4(2) of the Schedule have regard to (a) the general principles set out in Schedule 21 and (b) the recommendations of the trial judge and the Lord Chief Justice as to the minimum term.  I have already set out those recommendations.  In effect the Home Secretary followed the recommendation of the trial Judge but fixed a term which was within the narrow (14-15 years) bracket recommended by the Lord Chief Justice.
10.	However by virtue of paragraph 3(1) (b) of Schedule 22 I cannot set a minimum term which is greater than the term notified by the Home Secretary, in this case 15 years.
11.	In the light of the observations made in the victim impact statement and indeed in some of the Applicant’s representations, I should make clear that the minimum term is not concerned with any assessment of the dangerousness of the Applicant. That will be a matter for the Parole Board to consider when determining whether or not to release the Applicant on licence once the minimum term has been served.  Subject to the matters to which I am obliged to have regard as set out above, in fixing the minimum term the court is concerned with the proper assessment of the level of seriousness of the offence and the degree of culpability. The minimum term which has to be served in full is meant to reflect these matters for the purposes of retribution and deterrence.
12.	As indicated I have to have regard to the general principles in Schedule 21 although this Schedule’s primary application is in relation to the fixing of minimum terms under section 269 of the Act applicable to life sentences fixed by law passed after 18th December 2003. Under those principles I have first to choose a starting point having regard to the factors identified in the Schedule.  The Schedule provides for three starting points:  a whole life order (para 4); 30years (para 5) and 15 years (para 6).  The court has then to decide whether to depart from that starting point having regard to any aggravating or mitigating factors to the extent that they have not already been allowed for in the choice of starting point.  Paragraphs 10 and 11 respectively of the Schedule identify a non exhaustive list of potential aggravating and mitigating factors. The court is not to apply these principles in any mechanistic fashion.  It ultimately has to form its own judgment as to the seriousness of any offence or combination of offences and where the minimum term should fall.
The circumstances of the murder 
13.	I take the circumstances of this murder primarily from the trial Judge’s report to the Home Secretary, although I have had access to the Judge’s summing up and I have noted the observations on the facts made both by the Crown Prosecution Service and the Applicant’s solicitors. In short form this was a brutal murder of an elderly (69 year old) vulnerable house holder who lived alone, committed in the course of a burglary in order to silence him.  In his trial report the judge described the circumstances in which the offence was committed and the relative culpability of the co-defendant in the following terms:
“Together with John Crawley, he entered the house of a man of 69 living alone, after midnight on 3rd January 1998.   They ransacked the house and were disturbed by the man who knew Crawley well as a near neighbour and probably knew Steele. While one held his legs the other suffocated him by stuffing a sock into his throat and tying it tight with a necktie after which he was forcefully suffocated by something pressed onto his face .They then left with no proof that anything had arisen.  It is not known who actually suffocated the man and there is nothing to distinguish between them”.
14.	In the light of those observations made by the Judge, who presided over the trial and had the opportunity to hear the evidence, there can be no proper basis for me to take a different view as to the relative culpability of the appellant and his co-accused as suggested by the Applicant’s original solicitors and adopted in the current representations.  This suggestion is based upon alleged differences between the demeanour and conduct of the accused during the course of the trial to which the trial Judge made no reference.  This Applicant however gave no evidence at his trial and the issue for the jury was whether he was involved in the murder at all.   I am in no position to differ from the trial Judge’s assessment on relative culpability and I do not propose to do so.

15.	In commenting on the case generally and  “in particular on the degree of dangerousness presented by  the prisoner(s)”, the  trial Judge wrote as follows: 
 “The facts speak for themselves. On the evidence both men were experienced burglars who worked as a team.  The house owner died almost certainly because he recognised one or both men and had to be silenced. On the facts of 	this case Steele is capable of being ruthless and must be considered as dangerous.  He has convictions for violence as follows:

9.2.90 assault occasioning actual bodily harm -6 months detention;  

20.4.94 wounding with intent (four counts) – 4 years imprisonment 	concurrent”.
16.	Within the written representations from both the Applicant and the Crown Prosecution Service (CPS) there is a dispute whether there was evidence capable of supporting the Judge’s assessment that, (a) the Applicant was an experienced burglar and (b) he worked with the co-accused as a team.  The Applicant through his present solicitors refers to the lack of any large scale record of  burglary whereas the CPS refer to what the Applicant allegedly admitted in interview and other evidence of the Applicant “grafting” with his co-accused on previous occasions.  Again I am in no position to resolve this particular dispute but in the context of the task I have to perform, which as indicated is not concerned with any assessment of the dangerousness of the Applicant, I do not consider this particular issue can have any meaningful affect upon my assessment of the seriousness of this offence of murder. Whether or not the Applicant was an experienced burglar, who in the past had worked with the co-accused as a team, can make little difference to the seriousness of his committing this particular murder in the course of this particular burglary, for the purposes of determining the minimum term.  I make similar observations in relation to the complaint that the Judge miss-described the number of convictions for wounding with intent – there were three not four. 
17.	I turn to my conclusions on this application.
18.	On the applications of the principles under Schedule 21, I consider the appropriate starting point for the minimum term in this case would be 15 years, being a case falling within paragraph 6 of the Schedule. I am prepared to accept that the circumstances of this murder do not bring it within those cases identified in the Schedule as normally falling within those prior paragraphs indicating a higher starting point. In particular since it appears nothing was taken in the course of this particular burglary I am prepared to proceed on this basis this is not a case of a murder committed for gain which would normally mean a 30 year starting point.  However the fact this offence was committed in the course of a burglary of any kind and committed against the householder who was a particularly vulnerable victim by reason of age (see paragraph 10(b) of the Schedule) in order to silence him, gives rise to additional aggravating factors of some significance in my judgment.  This moreover was a particularly cruel murder given the circumstances in which it was carried out.  Apart from the lack of premeditation there is little which can be identified by way of any mitigating factors.  In all these circumstances on Schedule 21 principles alone the appropriate minimum term would in my judgment be one significantly in excess of the starting point of 15 years and would be much closer to 20 years.
19.	However as paragraph 3(1)(a) of Schedule 22 provides that I shall not determine a minimum term greater than that notified by the Secretary of State which in this case was 15 years, the question for me for practical purposes is whether the determination of a minimum term having regard to Schedule 21 principles arrives at a figure below the notified period of 15 years.  For the reasons I have given I do not consider that it does.  This period was also the recommendation of the trial Judge and within the narrow 14-15 years bracket recommended by the Lord Chief Justice.
20.	In all these circumstances I can see no justification for reducing the minimum term below that of 15 years which is the figure which in principle I shall adopt.
21.	I should add I have had regard to the Applicant’s behaviour and progress whilst in custody referred to in his representations but none of this is of such exceptionality which enables me to alter what is otherwise the appropriate minimum term.
22.	I do however have to have regard to the effect of any direction that would have been given with regard to crediting time on remand in custody if the court had sentenced the Applicant to a term of imprisonment.  I am satisfied that the Applicant was held on remand for 10 months and 23 days and that the minimum term should be reduced by that period.
23.	For these reasons the minimum term in this case is to be specified as 15 years less the period of 10 months and 23 days.  I order that the early release provisions under section 28(5) to (8) of the Crime (Sentences) Act 1997 are to apply to the Applicant when he has served this specified term.