Ref Number: MTR/5/2009
Neutral Citation Number: [2010] EWHC 1879 (QB)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Queen Elizabeth II Law Courts
Derby Square
Liverpool 
L2 1XA

Date: 28th July 2010      

Before:
MR JUSTICE COULSON
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Mark Crookshank 
In The Matter of Setting the Applicant’s Minimum Term
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JUDGMENT
A. Introduction 

1. This is an application under Schedule 22 of the Criminal Justice Act 2003 to set the minimum term of to be served by the applicant. I have read and considered a variety of documents, including the representations made on behalf of the applicant by Mr Jeremy Pinson of Olliers Solicitors, dated 6th June 2009; the letter from the CPS dated 29th October 2009; and the statement made on behalf of the family of the deceased dated 19th March 2010.
 
2.  The applicant is an “existing prisoner” within the meaning of Schedule 22.  On 9th March 2001, he was convicted of the murder of his girlfriend, Jill Hardy. The trial judge at the Central Criminal Court, HHJ Stephens QC, imposed a life sentence with a recommended minimum term of 13 years.  The then Lord Chief Justice, Lord Woolf, also recommended a term of 13 years. On 7th August 2002, the Home Secretary notified the applicant that the minimum period which should be served before his release on licence was 13 years. 

3. I have to decide whether I should order that the early release provisions under the 2003 Act should apply to the applicant after a shorter period than 13 years. It is not open to me to order that they should apply after a longer period. In considering the application, I must have regard to the seriousness of the offence, together with the general principles set out in Schedule 21 of the Act. I must also have regard to the recommendations made by the trial judge and the Lord Chief Justice to the Home Secretary, all as set out above. 

4. I must also have regard to the effect that section 67 of the Criminal Justice Act 1967 would have had if the applicant had been sentenced to a fixed term of imprisonment, provided I am satisfied that, if he had been so sentenced, the length of his sentence would have been treated as reduced by a particular period under that section. In this way, the court takes account of any period that a person has spent in custody in connection with proceedings relating to the murder. I am satisfied that here I should have regard to a period spent by the applicant in custody on remand of 10 months and 16 days. 

B. The Applicant’s Offence
 
5. The applicant was born on 5th August 1964. At his trial for the murder of his girlfriend, Jill Hardy, his ex-wife gave evidence about his poor response to rejection and an attempt that he made to strangle her during an argument. There was also evidence that on 7th April 1999 he assaulted Jill Hardy, who subsequently withdrew her complaint only because she believed that she had ended their relationship. 

6. On Sunday 18th April, he made an unannounced visit to Jill Hardy’s home in Frimley when she made it clear to him that their relationship was over. He went into the kitchen, picked up knives and a screwdriver, and attacked her. The applicant’s attack on Jill Hardy was savage, prolonged and merciless. She suffered 92 stab or cut wounds, and her face was mutilated with a number of screwdriver indentations. She was attacked with such force that some of the weapons were damaged. It appears that, after her murder, the applicant washed his hands and drank champagne.
 
7. The applicant pleaded guilty to manslaughter, but denied murder, alleging provocation and/or diminished responsibility. At trial, both these defences failed. The highest that the provocation defence could be put was that, prior to the attack, Jill Hardy had made an unflattering comparison between the applicant and a previous boyfriend.  The diminished responsibility defence sought to establish that, not only was the applicant drunk, but that he had been unhappy for several days and was suffering from a major depressive episode. Although that was the view of one consultant psychiatrist, three other consultant psychiatrists disagreed. 

C. The Criminal Justice Act 2003

8. The first issue for me to determine is the appropriate starting point under Schedule 21 of the 2003 Act. In view of the recent change in the law, which now equates murder with a knife and murder with a gun, the starting point could have been 30 years, in accordance with paragraph 5(2)(b). On any view, the starting point would have been 15 years under paragraph 6. 

9. I then turn to the aggravating factors noted in paragraph 10 of the Schedule.  It seems to me that the principal aggravating factor was, as the trial judge himself noted, “the ferocity and extent of the attack”. The physical suffering inflicted on Jill Hardy by the applicant was therefore of the worst possible kind. 

10. The only mitigating factor identified in paragraph 11 of the Schedule that may be relevant is the possible provocation; again, as the trial judge noted, although the defence of provocation failed, “I think it would be fair to proceed on the basis that he was mightily aggrieved at the deceased’s rejection of him.” I also agree with the trial judge that there were no other particular mitigating features. In particular, it is not possible to say that there was a lack of premeditation, given the fact that the applicant armed himself with knifes and a screwdriver from Jill Hardy’s own kitchen before launching his murderous assault. 

11. Accordingly, if the applicant was being sentenced today, a minimum term of more than 15 years would have been warranted. On any view, the circumstances in this case could not begin to justify a minimum term that was lower than the 13 years already notified. On that basis therefore, there is no reason whatsoever to interfere with the recommended term being served by this applicant. 

D. The Practice in 1998

12. The murder was committed in 2000 and the applicant was sentenced in 2001 when the practice adopted by the Home Secretary was stated in Lord Bingham’s letter to trial judges dated 10th February 1997. That practice fixed a starting point for the “average, normal or unexceptional” murder as 14 years. The letter identified various aggravating features that would just justify a more severe sentence, including gratuitous violence. 

13. In my view, the gratuitous violence here was an aggravating feature and therefore would have justified a sentence over or at the 14 year starting point. Thus, to the extent that this current application requires a review of the correct approach under the regime laid down in Lord Bingham’s letter, it can be seen that, again, the 13 year minimum term was on the low side. 

E. Other Matters 

14.  One of the points raised in the written submissions made on behalf of the applicant is in relation to his progress in prison. The relevant authority on this topic is R v Cairns and Roberts [2006] EWCA Crim 2915. In that case it was held that good behaviour was not enough to constitute exceptional progress and that, in order to obtain a reduction in the minimum term on this basis alone:

“…. The standards should be very high; the progress must be exceptional, outstanding and bearing in mind that it provides the basis for a reduction in a period fixed for the purposes of punishment and deterrence, so it should be. Even where the necessary high standard is reached, the impact on the total tariff is likely to be very modest.”

15. I acknowledge that the applicant’s conduct in prison has been of a high standard. That is to his credit. However, I do not consider that, in the round, it can be described as exceptional or outstanding. I do not consider that, on the basis of the material before me, there should be any reduction in the 13 year minimum term simply on the basis of the applicant’s alleged progress. 

16. As I have indicated, the applicant spent 10 months and 16 days in custody prior to sentence. I consider that this should be regarded as time served by him as part of the sentence. Thus the 10 months and 16 days that he had already served by the time that the minimum term was imposed should count towards that term. Subject to that, there is no justification for reducing the 13 year minimum term imposed upon the applicant.