Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2006] EWHC 3120 (QB)
Case No: 2004/618/MTS
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 14/12/2006
Before :
THE HONOURABLE MR JUSTICE COOKE
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R
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TONY JOHN ALLEN
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Neither party was represented
Hearing dates: 16-27 September 2002
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
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THE HONOURABLE MR JUSTICE COOKE
Mr Justice Cooke :
1. As there has been no notification in writing by the Secretary of State of the minimum period which, in the view of the Secretary of State, should be served before the applicant is to be released on licence, under the provisions of Schedule 22 paragraph 6 of the Criminal Justice Act 2003, the issue is referred to me to make an order under section 269 (2) or (4) of that Act. The applicant was aged 27 at the date of the offence, 21 April 2001, and had been on bail prior to trial in September 2002.
2. This is not a case which falls within s 269(4) of the Act as being so serious that the early release provisions of Section 28 (5)-(8) of the Crime Sentences Act 1997 should not apply and I order that they will apply when the applicant has served the part of the sentence which is specified in this order.
3. In dealing with this application, I have had regard to the matters specified in s 269 (5) and Schedule 21 to the Act and to the recommendation of the trial judge as to the minimum term to be served by the applicant before release on licence. The trial judge recommended 8 years.
4. I not only must have regard to the seriousness of the offence and the factors set out in Schedule 21, but also to the terms of paragraph 8 of Schedule 22 which provides that I may not make an order specifying a part of the sentence which is, in the opinion of the Court, greater than that which, under the practice followed by the Secretary of State for the Home Office before December 2002, would have been likely to be notified by him. This means that I must bear in mind the guidance set out in the letter of 10 February 1997 from Lord Bingham CJ to HM Judges.
5. In his report to the Home Secretary and in the judgment of the Court of Appeal upholding the conviction, the essential facts of the offence are spelt out.
6. The victim, the defendant's son was seven weeks old when he died on 21 April 2001. From birth, he was described as a whingeing baby who cried a lot but, in general terms he was thriving and well looked after by his parents. The defendant was a man of good character who adored his son. There is no suggestion that there was in this case any prolonged cruelty ending in the death of the child.
7. On 13 April, at about 8 o'clock, the defendant's wife took a telephone call from her sister at a time when the baby was particularly irritable and during that call which last for about 20 minutes, his crying grew both in volume and intensity. At the conclusion of the call, the baby suddenly went stiff and then floppy and his colour turned from bright red to white. He had breathing problems and a form of fitting. Medical assistance was sought immediately and he was taken to hospital but by about 11 pm his condition had improved to the point where he took food. Progress was maintained and he was discharged home on 16 April.
8. Non accidental injury was not suspected at the time.
9. On 18 April a health visitor examined the baby and saw that he was quite active and alert. He seemed normal and was fed at the surgery.
10. During the early hours of 21 April, the baby was unsettled and cried at lot at a time when the defendant's father and girlfriend were visiting and staying in the house. At about 6.30 am, the defendant summoned an ambulance whose crew found that the baby was not breathing and had no pulse. In the hospital, the defendant was keen to show the medical staff a two inch bruise at the back of the child's head which could not have been caused later than the 19 April.
11. Microscopic examination of the brain tissue and the eyes, together with the post-mortem findings of extensive bleeding in both cerebral spaces/membranes show that there had been two incidents of shaking or trauma consistent with the dates of 13 and 21 April. The judge considered that vigorous flexing of the head on under-developed muscles was the likely cause, and the bruise to the back of the head the product, of at least one impact with a hard object. One shake of sufficient force might have been sufficient to cause the injuries particularly if there was also in impact to the head.
12. The Crown's case was that the defendant deliberately used violence to the baby on both the 13 and 21 April and possibly on a day in between, which would account for the bruise. On the 13 April, whether out of impatience, tiredness or momentary anger, the baby was shaken by him, causing a non-fatal injury. On the 21 April knowing the consequences of shaking the baby, he did so again, whether or not coupled with any impact, intending to cause some really serious harm.
13. As the Court of Appeal put it, there was no other explanation for the injuries but trauma, shaking or impact, or both. Death on the 21 April was most unlikely to have been the result of what happened on the 13 April alone. The trauma on the 21 April must have been more severe than that on the 13 April. The injuries were not consistent with the normal handling of a tiny baby. They were more consistent with dropping from a height of several feet or violent shaking, although shaking alone would not have caused the bruises to the back of the baby's head.
14. In his report to the Home Secretary, the trial judge remarked that the evidence of the injuries and their likely cause was overwhelming but that nonetheless many might be surprised at a conviction for murder rather than manslaughter.
15. It is clear to me that the starting point under Schedule 21 would be 15 years but that there are mitigating features which would reduce the period to be specified as the minimum term. There are a number of factors set out in paragraph 11 of Schedule 21 which apply, together with others which are not mentioned there.
16. There was no intention to kill but the jury must have found that there was an intention to cause really serious harm on the 21 April, following the earlier incident on the 13 April. The judge concluded that there had been a sudden loss of control, a moment of temper which the defendant regretted immediately afterwards. The defendant undoubtedly adored his son but lost his temper with a baby who was crying a lot and whom, it appeared on the evidence, his father was previously trying to comfort. There was no pre-meditation and the defendant was provoked in a way not amounting to a defence of provocation by the baby's screaming. Any parent who has had a screaming baby will have sympathy for the defendant in these circumstances but the setting of the minimum term must have regard for the jury's verdict of murder which must be distinguished from manslaughter and the range of sentences imposed where that offence has led to the death of a baby in somewhat similar circumstances. The range of sentences there is two to five years on a plea although seven years has been imposed for cases where there is evidence of persistent cruelty. On a conviction, those figures represent the period of custody which might well be served.
17. In my judgment, with a starting point of 15 years under Schedule 21, the appropriate minimum term to be served could not have been less than eight years and would more probably have been more. Under the letter of guidance sent to judges by Lord Bingham, the starting point would be 14 years and the period notified by the Secretary of State would have been eight years.
18. I therefore order that the early release provisions will apply to the defendant as soon as he has served eight years in prison from the date of his conviction.