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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Sullivan, R v [2004] EWCA Crim 1762(Summary) (08 July 2004) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2004/1762(Summary).html Cite as: [2004] EWCA Crim 1762(Summary)

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th July 2004

 Please note that this Summary has been prepared to assist the Press in interpreting the judgment ( [2004] EWCA Crim 1762 ) but should not be relied upon without reference to the full judgment.

Introduction

1. The judgment which is being handed down today provides what is intended to be general assistance as to the approach that the courts should adopt when applying the provisions relating to offenders sentenced to life imprisonment for murder in the Criminal Justice Act 2003 ("the Act"). The judgment does this in the context of four appeals, which were heard together. All four appeals were against the minimum periods (that is without any remission) that the appellants had been ordered to serve before they could be considered for release on licence by the Parole Board under the early release provisions contained in Chapter 7 of the Act. No question of release arises when the minimum period has been completed if the offender continues to represent a danger to the public.

Background

2. Following a number of decisions in the European Court of Human Rights, the House of Lords decided in the case of R (Anderson) v Secretary of State in November 2002 that the involvement of the Secretary of State in determining the minimum period for those sentenced to a mandatory life sentence was unacceptable and a contravention of Article 6 (the right to a fair trial) of the European Convention on Human Rights ("the ECHR"). Determining a minimum term was considered to be indistinguishable from determining a sentence. Both tasks were to be performed by the judge. After that decision the Secretary of State ceased to determine minimum terms.
3. The decision in Anderson was the catalyst for the provision of early release provisions in the Act, which transferred the role of the Secretary of State in determining the minimum term to the trial judge. The Act came into force on 18 December 2003 ("the commencement date"). There was, for the first time in statutory form, general guidance for judges when making sentencing recommendations, in the form of Schedule 21. In the past, guidance had been given by the present and previous Lord Chief Justices.

The Transitional Provisions

4. The general guidance for sentencing in the Act applies to determinations made after the commencement date, even if the offence was committed before that date. However, in Schedule 22 of the Act, "transitional provisions" are provided which are intended to ensure that an offender is not made subject to a determination which would contravene Articles 5 and 7.1 of the ECHR. Pursuant to Article 5 everyone has the right to liberty and security of person; Article 7.1 prohibits the imposition of a heavier penalty than the one that would have been applicable at the time the criminal offence was committed.
5. The key provision in this regard is Paragraph 10 of Schedule 22, which provides that no sentence may be passed 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". The procedure under the Act is therefore as follows. Firstly, even for an offence committed before the commencement date, the judge must first assess what the appropriate period would be for a minimum term according to the general provisions in Schedule 21. Secondly, to avoid any breach of Articles 5 and 7.1, the judge will then, if required, reduce the term to satisfy the requirements of paragraph 10 of Schedule 22.

The difficulty presented by the Transitional Provisions

6. The transitional provisions present a problem, namely ascertaining what the practice of the Secretary of State prior to the commencement date actually was. To assist this Court, the Secretary of State provided both the Court and the parties with considerable information relating to the Secretary of State's former practice. It was clear from this that the best guide to what would have been the practice of the Secretary of State were the practice directions issued, respectively, by the current Lord Chief Justice and his predecessor, Lord Bingham of Cornhill. In the majority of cases, the Secretary of State followed the Lord Chief Justice's recommendation. It was only, generally, in the most serious cases that he tended to select a higher figure than the judiciary.

The Relevant Practice Directions

7. On 10 February 1997 Lord Bingham CJ sent a letter to judges who had to make recommendations as to minimum terms ("the 1997 Directions"). In the 1997 Directions Lord Bingham identified two periods: a higher period of 30 years for very serious murders and 14 years for an "average" or "normal" murder.
8. On 31 May 2002 a further practice direction was handed down by Lord Woolf CJ ("the 2002 Practice Statement"). This provided a number of starting points for calculation of a minimum term. The normal starting point was 12 years, but there were a range of other starting points, including 20 years, 30 years, or even "whole life" where these were warranted for certain categories of increasingly grave cases.

Comparing the 1997 Directions and the 2002 Practice Direction

9. This Court concluded that a judge, irrespective of whether he or she was following the 1997 Directions or the 2002 Practice Statement, could have come to the same figure for a given offence. The difference between the "normal starting point", i.e. 14 years in the 1997 Directions and 12 years in the 2002 Practice Statement, is essentially a result of the more specific nature of the later guidance. The 12 years starting point dealt with an offence less serious than that for which the 1997 Directions envisaged 14 years. Under either direction, the judge in question would have an ample discretion in making a sentencing recommendation. Whilst the 2002 Practice Statement may have helped judges to be more consistent, its overall effect was no different to that of the 1997 Directions.

Comparing the non-statutory and the statutory guidance

10. It should be noted that, in general, the determination under Schedule 21 should not differ greatly from that which the Secretary of State used to reach. In comparing the non-statutory guidance that had been given previously and the provisions of the 2002 Act, this Court concluded that the differences between them were not as great as had been supposed. Any differences in figures are largely explained by the different structures of the statutory and non-statutory guidance. The differences are generally at the top of the range for the most serious crimes, upon which the statutory guidance focuses. In such cases, the discretion of the judge will play an important role in ensuring a higher figure is not arrived at simply because the statutory guidance provides a higher starting point (15 years) than the non-statutory guidance. The latter provided a range of starting points for the wide range of offences to which the 15 year period now applies.

Letter from Lord Woolf CJ dated 16 December 2003

11. The final non-statutory guidance given to the judiciary in relation to minimum terms was in the form of a letter from Lord Woolf CJ on 16 December 2003, just before the commencement date of the Act. The letter dealt with the transitional arrangements and explained that, although the most recent guidance available was the 2002 Practice Statement, no judicial recommendations made in accordance with those directions had at that point been acted upon by the Secretary of State.
12. Lord Woolf CJ advised that, this being the position, judges dealing with such transitional cases should not use the 2002 Practice Statement as a guide to the Secretary of State's practice, but should refer to the 1997 Directions and Lord Woolf CJ's Practice Direction of 27 July 2000 which primarily related to minimum terms relating to juveniles. Since the Secretary of State set minimum terms in line with one or both of the judicial recommendations, these two documents provided the best available evidence of the practice followed by the Secretary of State before December 2002.
13. The appellants criticised the 16 December letter for its suggestion that judges should not use the 2002 Practice Statement. However, the material provided to this Court confirms that the Secretary of State has not dealt with any cases on which the judiciary would have based their recommendations on those directions. As a matter of fact, the 2002 Practice Statement was rightly disregarded.
14. Nevertheless, this Court concluded that the combined effect of Articles 5 and 7 of the ECHR is that the criminal law should be sufficiently accessible and certain as to enable an individual to know in advance whether his conduct is criminal and what are the consequences of such action. Accordingly, for offences committed after May 2002, the 16 December letter should be disregarded and the 2002 Practice Statement applied. This will avoid any danger of the judge coming to a conclusion adverse to the offender because of the adoption of a higher starting point (14 years) than that which would have been determined if a lower starting point (12 years) had been adopted.

The Court's decisions in the individual cases

15. In R v Sullivan, the appellant had stabbed his neighbour with a bayonet following an altercation in the early hours of the morning on 7 June 2003 when the neighbour noisily returned home after a night out. The stab wound was fatal and, on 9 March 2004, the appellant was convicted of murder and sentenced to life imprisonment with a minimum term of 13 years and 88 days pursuant to section 269 of the Act.
16. The appellant appealed on the ground that the judge erred in his approach to tariff setting in his reliance on the contents of the 16 December 2003 letter in place of the 2002 Practice Statement, which indicated a starting point of 12 years. This Court decided that this appeal provides support for saying that the outcome should be the same irrespective of which practice direction is used by the judge. The appropriate minimum term would be 14 years whichever guidelines were used. The appeal was dismissed.
17. In R v Gibbs, the appellant had stabbed a fellow passenger on a bus to death following an argument that began when the fellow passenger told off the appellant for throwing a plastic bottle out of the bus window. The appellant was convicted on 22 December 2003 of murder following a re-trial and was sentenced to life imprisonment with a minimum term of 17 years pursuant to section 269 of the Act.
18. One of the grounds of appeal was again that the 2002 Practice Statement and the lower starting point of 12 years should have been used. This Court concluded that if 17 years is the appropriate period then that figure could have been determined regardless of which starting point was used. However, the 17 year sentence did not pay sufficient attention to the appellant's mental disability and thus this Court allowed the appeal and substituted a minimum term of 14 years.
19. Both R v Derek Elener and R v Barry Elener are based on the same facts. The offences involved 12 armed attacks on security guards undertaking high value cash collections and deliveries in the Bradford area. The father, Derek Elener, was involved in all the offences; his son, Barry Elener, was involved on the last two occasions. On 27 January 2003, following a raid on a security van, Barry Elener shot and killed a witness who had given chase and challenged the appellants. Both were convicted on a number of counts, including murder. On 12 March 2004 both were sentenced. Barry Elener was given a total sentence of life imprisonment with a recommendation he serve 27 years imprisonment. Derek Elener was given a total sentence of life imprisonment with a recommendation that he serve 25 years imprisonment.
20. Both Derek Elener and Barry Elener appealed on the ground that their sentences were manifestly excessive in all the circumstances of the case. This Court regards these crimes as very serious indeed and certainly justifying starting points of thirty years. This would be the figure under Schedule 21 and under both the 1997 Directions and the 2002 Practice Statement. The sentences fully took into account what mitigation there was in both cases. The appeals were dismissed.