Minimum terms
High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003
Neutral Citation Number: [2008] EWHC 144 (QB)
Case No: 2006/68/MTR
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 28/02/2008
Before :
MR JUSTICE FIELD
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Between :
Regina
- and -
Barry Roy Andrews
JUDGMENT ON APPLICATION TO REVIEW MINIMUM TERM
Mr Justice Field :
1. This is an application by Barry Roy Andrews under s. 276 of the Criminal Justice Act 2003 (“the Act”) and paragraph 3 (1) of Schedule 22 to that Act to have reviewed the minimum term of 12 years he was ordered to serve before he could be released on parole pursuant to a recommendation of the Parole Board.
2. The applicant has not applied for an oral hearing and I propose to determine his application without receiving oral representations since I am entirely satisfied that such a hearing is not required to secure to the applicant his rights under the Human Rights Act 1998.
3. In making this determination I have considered all the papers before me including the sentencing judge's report, the applicant's previous convictions, the written representations made on the applicant's behalf and documents evidencing the progress made by the applicant in prison. The latter documents show that the applicant has completed five courses concerned with offending behaviour and four educational courses and has used his athletic prowess to raise money for charity. At HMP Coldingley he has been Resettlement Orderly giving advice and practical help to fellow prisoners about employment, housing and other problems that can arise on release. He has also taught local disabled children who visit the prison on a regular basis for a number of years.
4. Following a trial before Mr Justice David Steel and a jury at Exeter Crown Court the applicant was unanimously convicted on 16 December 1999 of the murder of Ross Woolaway and was sentenced to life imprisonment. The learned trial judge recommended that he serve a minimum of 12 years, which recommendation was endorsed by the then Lord Chief Justice, Lord Bingham. On 6 October 2000 he was notified that the Home Secretary had determined that his tariff (minimum term) should be 12 years.
5. The facts relating to the murder of Ross Woolaway are these. On 30 January 1999, the applicant and three friends (two males and a female) returned to the applicant's flat at about 1.40 am. They were drunk. The applicant put on his hi-fi at a very high volume, as he was wont to do. Mr Woolaway occupied a flat in the same building at a higher level. Objecting to the noise, he knocked on the window of the applicant's flat and when the door was opened, charged into the porch and began to fight the applicant. Mr Woolawy was also drunk. The two male friends of the applicant intervened and separated the fighting men. They pushed Mr Woolaway out of the door with the applicant behind. However, the applicant managed to get round his friends and stabbed Mr Woolaway in the chest through the heart. Mr Woolaway collapsed but the applicant continued with the attack, stabbing him in the back and arm and stamping on his head with considerable force.
6. Mr Woolaway had previously warned the applicant that if he continued to play his hi-fi too loud at night he would smash it up. It appears that it was against such a possibility that the applicant kept a knife at hand.
7. Pursuant to paragraph 4 of Schedule 22 to the 2003 Act, when fixing the minimum term the court must have regard to the seriousness of the offence and in doing so must have regard, inter alia, to: (i) the length of the notified minimum term; (ii) the general principles set out in Schedule 21; and (iii) any recommendations made to the Secretary of State by the trial judge and the Lord Chief Justice as to the length of the minimum term to be served by the offender before release on licence. Further, the court cannot fix a minimum term of a greater duration than the notified minimum term (see para 3 of Sched 22).
8. Pursuant to paragraph 6 of Schedule 21, the starting point for the minimum term in this case would 15 years. The next step would be to consider what increase (if any) there should be for any aggravating factors, including any relevant previous convictions. The court would also have regard to the mitigating factors..
9. The fact that a knife was used which had been kept at hand to deal with a disturbance and that the stabbing took place after the fight had initially been broken up would be already reflected in the 15 year starting point. If the starting point were 12 years, this would be an aggravating factor that increased the minimum term.
10. There are three mitigating factors: the applicant's relatively young age of 26 years at the time of the offence, the provocation he faced by being attacked by Mr Woolaway, and the excellent progress he has made whilst in prison.
11. There is evidence that at the time of the offence he was suffering from epilepsy but there is no basis for thinking that this contributed in any material way to his actions in killing Mr Woolaway. In my opinion, his epilepsy is therefore not a mitigating factor.
12. In reviewing the notified term very considerable weight must be given to the tariff recommendations of the trial judge and I the Lord Chief Justice and the length of the term notified by the Home Secretary. I have already said, the court has no power to increase the notified term.
13. In my opinion, progress in prison should be taken into account as a mitigating factor if that progress is truly exceptional but the weight given to this factor must reflect the fact that the principal focus of the principles laid down in Schedule 21 is the seriousness of the offence.
14. In my judgment, taking account of the all the circumstances of the index offence and the mitigating factors I have identified, including the exceptionally good progress the applicant has made in prison, the minimum term in his case should be 11 ½ years, less the time he was on remand, namely, 10 months and 15 days.
15. I make it clear that this determination does not mean that the applicant will be released after the term I have set. It means that the Parole Board can then release him if they think that it is safe to do so. If he is released, he will remain on licence.