Neutral Citation Number: [2008] EWHC 160 (Admin)
Case No: 2006/34/MTR
IN THE HIGH COURT OF JUSTICE
ADMIN

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/02/2008

Before :

MR JUSTICE SILBER
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	IN THE MATTER OF LARRY JOHNSON		

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Judgment
Mr Justice Silber : 
1. On 7 May 1997 Larry Johnson (“the defendant”) was convicted at the Central Criminal Court of murdering Stephen  Poutney (“the deceased”). He was sentenced to life imprisonment. 

2. The trial Judge (His Honour Judge Richard Hawkins QC) considered that the length of detention necessary to meet the requirements of retribution and general deterrence was 17 years. On 4 June 1997 Lord Bingham CJ recommended a term of 16 to 17 years. On 19 November 1997, the Secretary of State for the Home Department (“the Secretary of State”) notified the defendant that he had fixed a term of 16 years as being the length of detention necessary to meet the requirements of retribution and general deterrence . 

3. The defendant has applied for a review of the minimum term pursuant to schedule 22 paragraph 3 of the Criminal Justice Act 2003 (“the 2003 Act”). 

4. I have received written submissions on behalf of the defendant, a statement by the sister of the deceased and a further statement on behalf of the defendant and I will take all these represenations into consideration

5. The defendant has requested an oral hearing on the basis that the circumstances of this case are such that it would be unfair to the defendant to have his minimum term reset without oral representations in the light of the division of judicial opinion. In my view,  there is very little division of judicial opinion in this case and I cannot accept this submission or any other of these submissions suggesting that this was an exceptional case. It is no different from the very many other applications which I and other High Court Judges have had to deal with when fixing  minimum terms under the 2003 Act. In any event, I do not know what further submissions could be made at an oral hearing over and above those which have been made in writing on behalf of the defendant. In those circumstances, I have  decided  to deal with this matter on the basis of the written submissions and without an oral hearing.

6. The defendant, who was born on 31 December 1973, was involved in a relationship with a  girl which at the time of the murder was breaking up. The defendant went to a public house searching for her suspecting that she was going out with a doorman there. The defendant took with him a large knife placing it on the fence outside the public house. A time came when the defendant spoke with his girlfriend making a threat to kill the doorman. Later two doormen arrived and they spoke to the defendant and a friend of his. The defendant thereupon returned and stabbed one of the doorman to death and it is thought by the trial Judge that the defendant believed that the doorman was going out with his girlfriend. At the trial, the issues raised by the defendant ay trial  were self-defence and  defence of a friend, provocation and lack of intention. All of these defences were rejected by the jury.

7. I am required when considering the seriousness of the offence and the period to be fixed to have regard to the matters set out  in Schedule 21 of the 2003 Act. I am not permitted by statute to set a minimum term greater than the term that the Secretary of State would probably have notified under the practice followed by him before December 2002. Therefore I have to consider what period would have been notified under that practice and then proceed to consider what period would have been arrived at by applying the approach set out in the 2003 Act before imposing the lower of the two periods. 

8. The practice which would have been followed by the Secretary of State would have been the practice contained in the letter sent to Judges by Lord Bingham CJ on 10 February 1997 by which a period of 14 years would have been the period actually to have been served for the average, normal and unexceptional murder.

9. In the submissions made by the defendant by his present solicitors, it is pointed out that the only aggravating factor would be the use of a dangerous weapon while the mitigating factors were (a) an intention by the defendant to cause serious bodily harm rather than to kill, (b)a  lack of premeditation on the defendant's part and (c ) the deep and genuine remorse of the defendant.

10. In my view, the aggravating features were (a) the defendant's decision to take the knife to the scene which showed a degree of preparation; (b) an attack by the defendant on a victim who in the trial Judge’s view was totally unarmed when he was killed; and (c ) the defendant's  previous convictions for violence. There was mitigating factors in the sense that (a) there was an intention to cause serious bodily harm rather than to kill and (b) the remorse of the defendant. I do not accept that there was a lack of premeditation as the defendant took a knife to the scene when he was not under any threat himself.

11. In my view, the aggravating factors are more potent than the mitigating factors with the result that under the system which would have been in force at the time when the offence was committed, the Secretary of State is likely to have recommended a period of 16 years to meet the requirements of retribution and general deterrence. 

12. I must now consider if a lower figure could be reached under the provisions in the 2003 Act. The starting point would be 15 years. The same aggravating and mitigating factors as are set out in paragraph 10 would apply. The aggravating factors were  more potent that the mitigating factors with the result that the likely period to be arrived at would be 17 years which is longer than the period of 16 years which I reached by adopting the practice of which would have been applied by the Secretary of State at the time of the offence. 

13. Thus I fix the minimum term at 16 years as from the 17 May 1997 but this should be less 11 months and 9 days spent in custody on remand. This means that as from 7 May 1997 the defendant has to serve 15 years and 21 days before he can be considered for parole.