Factual and Procedural Background
This opinion concerns two prisoners, referred to as Plaintiff A and Plaintiff B, both convicted of murder and sentenced to life imprisonment before the enactment of section 269 of the Criminal Justice Act 2003 (the Act). Each was notified by the Secretary of State of a minimum period to serve before release on licence. Both applied unsuccessfully for orders to reduce their minimum terms. The cases raise important questions about the interpretation of the transitional provisions in schedule 22 to the Act, which had not been fully considered by the court and on which judicial views differed.
Plaintiff A was convicted in 1986 for a second murder involving a brutal attack on an elderly woman. Initially, a "whole life" tariff was set by the Secretary of State, later reconsidered to 22 years. Plaintiff A applied under schedule 22(3) for reconsideration of this term but was refused.
Plaintiff B was convicted in 1995 of murdering a solicitor. The minimum term was set at 14 years. Plaintiff B applied under schedule 22(3) for reconsideration based on exceptional progress made in custody. The High Court judge acknowledged exceptional progress but did not reduce the 14-year term, applying the reduction against a notional 22-year tariff instead. This appeal challenges that decision.
Legal Issues Presented
- How should the transitional provisions in schedule 22 of the Criminal Justice Act 2003 be interpreted regarding prisoners sentenced before the Act's commencement?
- Whether and how exceptional progress made by a prisoner after sentencing can be taken into account in reconsidering the minimum term under schedule 22.
- How any reduction for exceptional progress should be applied in relation to the notified minimum term and the judicially assessed tariff.
- What weight is to be given to the minimum term fixed by the Secretary of State when the court reviews the term under schedule 22.
Arguments of the Parties
Plaintiff A's Arguments
- The appropriate starting point for reconsideration should be the judicial recommendations at the time of sentencing (17/18 years), not the retrospective application of schedule 21 guidelines.
- The judicial views at the time should be applied without retrospective application of current sentencing standards.
- There were no new facts or mitigating features warranting a reduction of the minimum term.
Plaintiff B's Arguments
- Exceptional progress made in prison, including educational achievements, rehabilitation efforts, and charitable work, justifies a reduction in the minimum term.
- The refusal to apply the two-year reduction against the fixed minimum term was unjust, effectively denying the benefit of exceptional progress.
- The reduction should be applied directly to the fixed minimum term to produce a real benefit.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Anderson) v Secretary of State for Home Department [2003] 1 AC 837 |
Secretary of State must have no role in fixing minimum tariff for life sentences; tariff fixing is a judicial function. |
Underpins the legislative scheme removing executive involvement in tariff setting; guides interpretation of schedule 22. |
| Re Waters [2006] 3 All ER 1251 |
Interpretation of schedule 22 transitional provisions and the role of exceptional progress. |
Held to be wrongly decided; court rejected its reasoning on exceptional progress. |
| Re Cadman [2006] 3 All ER 1255 |
Inclusion of starting points within general principles in schedule 21 for schedule 22 reviews. |
Followed to confirm that starting points are part of general principles for tariff assessment. |
| R v Sullivan and others [2005] 1 CAR 23 |
Statutory guidance for judges determining minimum terms for mandatory life sentences. |
Summarized judicial recommendations and principles relevant to tariff setting. |
| R (Smith) v Secretary of State for the Home Department [2006] 1 AC 159 |
Continuous review of minimum terms for detention at Her Majesty's pleasure; openness to reduction by executive clemency or judicial review. |
Supports permissibility of judicial review of exceptional progress leading to tariff reduction. |
| R v Secretary of State ex parte Venables [1998] AC 407 |
Secretary of State's duty to keep tariffs under review; relevance of exceptional progress. |
Historical context of tariff review policy; shows changes in approach to exceptional progress. |
| R (Cole, Rowland, Hawkes) v Secretary of State [2003] EWHC 1789 (Admin) |
Judicial review of refusal to review tariffs; expectation that exceptional progress would be considered judicially. |
Obiter remarks indicating exceptional progress should be taken into account post-legislation. |
| R v Tucker [2006] EWCA Crim 1885 |
Recognition that exceptional progress post sentence may reduce minimum term. |
Allowed appeal confirming principle that exceptional progress should be considered. |
| R v Alexander [1997] 2 CAR (S) 174; R v Wenman [2005] 2 CAR (S) |
Sentencing judges may consider past creditworthy acts when passing sentence. |
Supports principle that mitigating features may influence minimum term under schedule 21. |
| R v Bernard [1997] 1 CAR (S) 135 |
Consideration of future events (e.g. medical conditions) at sentencing. |
Supports consideration of mitigating circumstances at sentencing. |
| R v Sampson (unreported, 24 October 2006) |
Post sentence evidence bearing on mitigation and sentence reduction. |
Example of post sentence progress leading to sentence reduction on appeal. |
Court's Reasoning and Analysis
The court analysed the statutory framework established by the Criminal Justice Act 2003, particularly sections 269 and 276 and schedules 21 and 22, which govern minimum terms for life sentences and transitional cases respectively. It concluded that schedule 22 requires the court to assess the seriousness of the offence using the general principles in schedule 21, including the "starting points," and to have regard to the judicial recommendations and the minimum term previously fixed by the Secretary of State.
The court emphasised that the purpose of schedule 22 and the Act was to remove the Secretary of State's role in fixing tariffs, consistent with the House of Lords decision in Anderson. The Secretary of State's notified minimum term serves as a cap to prevent any increase, but should not otherwise influence the judicial reassessment.
The court acknowledged the unusual nature of the review under schedule 22, describing it as a sentencing decision rather than an appeal or a formal judicial review. It rejected the approach of retrospectively applying sentencing standards current at the time of sentence, favouring instead the application of the current statutory guidance while considering historical judicial recommendations as reflecting contemporary standards at sentencing.
Regarding exceptional progress made by prisoners after sentencing, the court found that although schedule 21 and 22 do not expressly address it, such progress may be taken into account in resetting the minimum term. This conclusion was supported by prior authorities, including R (Cole, Rowland, Hawkes), R v Tucker, and R (Smith), which endorse judicial consideration of exceptional progress as a basis for reduction.
The court identified that any reduction for exceptional progress should produce a real benefit to the prisoner and should be applied against the fixed minimum term notified by the Secretary of State, not against a notional or newly assessed tariff, to avoid inconsistency with the prohibition against increasing the tariff.
Finally, the court outlined the high standard required to establish exceptional progress—progress must be outstanding and sustained, involving exemplary behaviour and contributions benefiting others. The reduction in the tariff period is likely to be modest, typically one or two years, and requires a favourable risk assessment.
Holding and Implications
The court made the following rulings:
- For Plaintiff A: The application to reduce the minimum term was refused. The court upheld the 22-year minimum term as justified by the seriousness of the offence, prior convictions, and aggravating features. The retrospective application of schedule 21 guidelines was appropriate, and the original judicial recommendations did not limit the court's assessment.
- For Plaintiff B: The court allowed the appeal to the extent that the two-year reduction for exceptional progress should be applied against the fixed 14-year minimum term notified by the Secretary of State, not against a higher notional tariff. This effectively reduces Plaintiff B's minimum term to 12 years.
The decision clarifies the interpretation of schedule 22 and confirms that exceptional progress post sentence can be taken into account in judicial reviews of minimum terms for life sentences under the transitional provisions. It establishes that reductions for exceptional progress must produce tangible benefits to prisoners and should be applied against the notified minimum term, preserving the prohibition on tariff increases. No new precedent beyond the immediate effect on the parties was established.