Crime — Sentence — Life imprisonment— Determination of minimum term — Transitional provisions — Defendants applying for minimum term to be reviewed — Whether exceptional progress in prison to be taken into account for purposes of resetting minimum term — Criminal Justice Act 2003, ss 269, 276, Sch 21, 22

R v Caines; R v Roberts [2006] EWCA Crim 2915

CA: Sir Igor Judge P, Holland and Goldring JJ: 23 November 2006

{In carrying out a review under Sch 22 of the Criminal Justice Act 2003 of the minimum period to be served by an offender sentenced to a mandatory life term, the judge was entitled to take into account the offender’s exceptional progress in prison for the purpose of resetting the minimum term.

The Court of Appeal (Criminal Division) so held when allowing an appeal by Timothy Carlton Caines and refusing an application for leave to appeal by David Wynne Roberts against their unsuccessful applications for review in the High Court before Cox J and Gibbs J respectively of the minimum period to be served before release on licence from the terms of life imprisonment imposed on each of them on conviction for murder.

SIR IGOR JUDGE P said, giving the judgment of the court, that Roberts was convicted of murder in 1986 and Caines was convicted of murder in 1995. Each was sentenced to life imprisonment. They were each notified by the Secretary of State of the minimum period they should serve before release on licence. After the provisions of the Criminal Justice Act 2003 came into force they applied unsuccessfully to the High Court under para 3 of Sch 22 to that Act for orders which would have reduced their length. They applied for leave to appeal against those decisions. Two issues arose: (1) whether, in analysing for the purposes of Sch 22 the seriousness of the offence in the context of the general principles in Sch 21, the “starting points” were included in those general principles. In their Lordships’ judgment the structure of the statute as a whole would be undermined if the words in para 4(2) of Sch 22 did not have the same effect as they did in s 269. They therefore agreed with Stanley Burnton J in Re Cadman [[2006] 3 All ER 1255 that, for the purposes of Sch 22, the general principles extended to and included the “starting points” themselves. (2) The effect to be given to evidence of exceptional progress made by the prisoner after sentence and before his Sch 22 application. In their Lordship’s judgment Sch 22 did not expressly prohibit consideration of exceptional post-sentence matters which were favourable to the prisoner. There were inevitable difficulties and indeed some illogicality in re-examining the tariff fixed for the purpose of punishment and deterrence by reference to exceptional behaviour post sentence, particularly in view of the absence of any direct or express indication to this effect in the carefully structured statutory guidance, but the decision consequent on an application under Sch 22 was a sentencing decision to which normal sentencing principles applied. Accordingly, exceptional progress in prison could be taken into account for the purposes of resetting the minimum term. Re Waters [2006] 3 All ER 1251 was therefore wrongly decided.

Appearances: Hugh Southey (Stephenson, Wigan) for Caines; Patrick Thomas QC (Crown Prosecution Service, Birmingham) for the Crown; Steven Kovats (Treasury Solicitor) for the Secretary of State for the Home Department; Peter Weatherby (Bhatt Murphy) for Roberts; Jonathan C Clarke (Crown Prosecution Service, Kendall) for the Crown.

Reported by: Clare Barsby, Barrister.