No: 200406291/A5 
Neutral Citation Number: [2005] EWCA Crim 1358
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 12th May 2005
 
B E F O R E:

THE VICE PRESIDENT  
(LORD JUSTICE ROSE)

MR JUSTICE GIBBS 
 
MR JUSTICE STANLEY BURNTON 

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R E G I N A 

-v- 

KEVIN FORD
 
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MR B TETLOW appeared on behalf of the APPELLANT
MR A JAFFERJEE appeared on behalf of the ATTORNEY GENERAL
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J U D G M E N T 

1.	MR JUSTICE GIBBS:  This is an application for leave to appeal against sentence referred to the Full Court by the Registrar.  We give leave to appeal.
2.	The appellant, Kevin Anthony Ford, is 25 years old.  On 12th October 2004, in the Crown Court at Sheffield, in a trial presided over by His Honour Judge Goldsack QC, the appellant was convicted, after trial, of two counts of attempted murder.  On 13th October 2004 he was sentenced to 30 years' imprisonment on each count concurrent.
3.	The date of the offence was 26th June 2004, a date which, for various reasons, is of significance to this appeal.  At about 3.10 in the morning of that date a silver Ford Escort parked outside a club known as the Donkeymans Afro-Caribbean club in the centre of Sheffield. The appellant and his girlfriend, Yvonne Blake, got out of the car.  She went into the club but the appellant returned to the car and then drove off.  About 20 minutes later two men, Alton Chambers and Christopher Gordon, were sitting in a Rover car which was parked near the club.  As the jury found, the appellant drove past them, turned round and pulled alongside them. He leaned across the passenger seat of his car, aimed a handgun at the two men, saying: "I don't like you, you're an informer" and discharged the weapon.  The bullet hit Chambers and the other man then struggled to get himself and Chambers out of the car.  The appellant then aimed the gun at the other man, Gordon, but at the moment of firing Gordon threw a beer bottle at the appellant.  The second shot missed both men.  The appellant then fired a third time, again failing to hit either man. The appellant then drove off.
4.	Gordon drove his colleague to the nearest hospital.  He had been hit in the chest and his liver and stomach were damaged. He had to have a portion of liver removed. The surgeon who operated said that he was extremely lucky to be alive.
5.	The appellant was identified by the two victims or potential victims and was arrested on 29th June in London.  He denied any involvement in the shooting.  No express motive was ascertained for the shooting but the judge noted that the area was notorious for drug dealing, the inference being that it was a deliberate attempt to kill connected with some dispute arising from drugs.
6.	The appellant, who was born on 20th January 1979, had previous convictions in 2003 and 2004.  These included having a bladed article, which was a knife, in public, and in February 2004, he was sentenced to 12 months' imprisonment for indecent assault on a female under 14.  Subject to that there were no convictions connected with violence.
7.	In sentencing the appellant the judge noted that he had discharged a firearm three times at two men in cold blood.  The only reason that the injured man had survived was because he was rushed to a nearby hospital.  There was no doubt that an intention existed to kill both men.  The judge said that it was vital that sentences passed for offences involving guns were long enough to act as a deterrent. If the appellant had managed to kill both victims, given the sweeping changes in sentencing for murder brought about by the Criminal Justice Act 2003, he would have to serve a minimum of about 30 years. The judge noted that no provision was made for a corresponding increase for attempted murder. The question therefore was:  how long should the determinate sentence be in the case, in the light of the changes of the 2003 Act?
8.	The judge took the view that before the new provisions came in, the sentence would have been in the order of 22 years.  He went on to note that the appellant would have served between half and two-thirds of that sentence and that would have reflected as a proportionate distinction between the time which would have been served for the full offences and the time to be served for the attempts.
9.	The sentence that the judge proposed to pass was intended to maintain that proportion on the basis of the new legislation.  It was noted that the sentencing exercise was further complicated by the fact that the appellant's sentence would be affected by section 244 of the 2003 Act, which stated that offenders serving a fixed term would be entitled to be released on licence after serving half the sentence.  The judge went on to say that since, in his view, that provision applied, the effect of a sentence of 22 years would be that the appellant would serve only a third of the appropriate custodial term for murder; and that would be unduly lenient.  Therefore, to ensure that he served half the period he would have had to serve, if the attempt had been successful, he was sentenced to 30 years' imprisonment.
10.	A number of grounds of appeal were advanced in the first instance.  But these have now been refined in effect to two grounds.  It is conceded by Mr Tetlow that, given the statutory framework for minimum tariffs set out in section 269 of schedule 21 of the Criminal Justice Act 2003, the judge's conclusion that, had the appellant killed his victims he would have been serving a minimum period of about 30 years, is unarguable.  He conceded that it is difficult here to see any mitigation which could, in the event of complete offences, have reduced this appellant's sentence below the 30 year starting point.
11.	However, Mr Tetlow submits, and it is conceded on behalf of the respondent, and the Attorney-General, that the judge was in error in proceeding on the basis that section 244 applied.  It was pointed out that that section is applicable only to sentences for offences committed after 4th April 2005.  The regime applying to releases on licence for offences committed prior to that date are well-known.  There is an automatic release on licence after a prisoner has served two-thirds of a sentence, but he is eligible for discretionary release after serving half the sentence.  Mr Tetlow submits that the judge was led into error by the labyrinthine complexities of the 2003 Act.
12.	The second ground of appeal which is contentious, having regard to the submissions of the Attorney-General, is that it was wrong for the sentencing judge to intervene to cure what might appear to be an apparent disparity between the sentence for attempted murder and the sentence for murder.  Mr Tetlow points out that there is a new statutory framework contained within sections 224 to 229 of the 2003 Act, which has not yet come into effect, relating to "dangerous offenders." He points out that it is very likely that offences such as those being considered in this appeal would fall within that framework.  This would lead the Court to impose, in relation to such offences, a mandatory life sentence or "a sentence of imprisonment for public protection", for an indeterminate period.  He submits that an increase in the tariff for attempted murder, judicially introduced pending the coming into effect of those provisions, would amount to a retrospective increase in penalty, in the absence of express statutory language which justified such an approach.  He submits that is contrary to the spirit, if not the letter of Article 7 of the European Convention on Human Rights.
13.	After careful consideration of those submissions, it seems to us that the judge was right that a starting point of a 30 year minimum term would have been appropriate had the appellant been successful in either of his attempts to commit murder.  As we have said, this is now conceded by Mr Tetlow.  The reason is that the completed offences would have come within the category of "particularly high" seriousness under paragraph 5(1) of schedule 21 to the 2003 Act.  The provisions of the 2003 Act came into force in relation to life sentences passed on or after 18th December 2003, ie before the commission of the offence we are considering in this appeal.
14.	The question therefore arises:  should the sentences for attempted murder be subject to upward adjustment to reflect the new starting point for murders of a particularly high degree of seriousness and, if so, to what extent?
15.	The judge proceeded on the basis that the appellant would be entitled to be released after serving half of his sentence. He was, as we have said, of that view because of section 244, the new regime governing release on licence.  On that basis, he assumed that the time spent in custody before the earliest release date following his sentence would be fifteen years' imprisonment.  Unfortunately, his attention was not drawn to the fact that this section did not apply to the appellant.  It appears that nobody appreciated that in the court below.
16.	But by virtue of the Criminal Justice Act 2003, (Commencement No 8 and Transitional and Savings Provisions) Order 2005, SI 2044, No 950, Chapter 42, the section in question came into force on 4th April 2005.  The particular applicable provision is Schedule 2, paragraph 19: 
"The coming into force of (a) sections 244... is of no effect in relation to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4th April 2005." 
Thus, since the offence was committed on 26th June 2004, the regime which prevailed at the time did, contrary to the judge's assumption, provide for automatic release, for a prisoner serving a sentence of this length, after two-thirds of the sentence and for discretionary relief after half the sentence.
17.	It was against that background that the judge took the view that a sentence of around 20 years, previously thought to be the upper end of the bracket for offences of attempted murder involving gangland shooting or other serious professional crime involving firearms, would now be disproportionately low, in the light of the 30 year starting point in schedule 21.  It seems to us that he was in principle justified in that view whether section 244 was in force or not.  Any right-thinking member of the public would consider there was an objectionable disparity between the the new levels of sentence for murder and the existing levels of sentence for attempted murder. In each case the length of sentence has to reflect, not only an intent to kill but also the relevant serious aggravating features.  The extent of the disparity would, of course, depend on whether section 244 was in force or not.  To that we shall return.
18.	We have considered Mr Tetlow's submission based on the timing of the new sentencing provisions under the Act, relating to dangerous offenders seen in the light of section 3 of the Human Rights Act 1998 and Article 7(1) of the European Convention on Human Rights. The argument is that an increase in the level of sentencing by the courts would be wrong in principle since it anticipates the new sentencing provisions in the 2003 Act.  It is submitted that the increased level of sentencing would be contrary to the provisions which we have cited.
19.	We cannot accept the validity of that submission. In appropriate cases, a discretionary life sentence for attempted murder may be called for.  The courts have at all material times been empowered to pass a life sentence for attempted murder. A review by the Court of the appropriate statutory maximum in the light of changed circumstances is not wrong in principle; it is appropriate.
20.	The statutory provisions relating to the 30 year starting point for murder were in force at the time of this offence.  It seems to us that the then prospective provisions in the 2003 Act relating to dangerous offenders are an entirely separate matter.  They had no relevance to the sentencing exercise required of the judge in the present case.
21.	In considering the relationship between the sentence for the full offence and an attempt, as the judge rightly recognised, the time to be served for the full offence needs still to be substantially higher than for an attempt.  It is necessary to mark the fact that a life has been lost by increased level of sentence. But if a sentence of 20 years were passed for attempted murder of particularly high seriousness, it would represent, under the new regime, a discount of two-thirds from the minimum term to be served for the full offence.  It seems to us that the judge was justified in his view that this would be too greater a reduction. In our view, there would also be an excessive discount in pre-section 244 cases, though not as great.
22.	The level of sentence for attempted murders of this particularly serious kind should now be generally higher whilst retaining a proportionate discount from the term appropriate to be served for the full offence. The judge in the present addressed himself to what the minimum term for murder would have been under the pre-2003 Act guidelines.  With that in mind, he concluded that under the previous sentencing levels the discount for attempted murder, as opposed to the full offence, was in practice about one-half.
23.	Some support is derived for this conclusion from the statistical evidence and advice given by the former Sentencing Advisory Panel's Advice to the Court of Appeal in 2002, on minimum terms in murder cases at paragraph 26.
24.	On behalf of the Attorney-General, we are invited to consider, though not in the context of the particular facts of this case, whether the discount of one-half which appears to apply in practice, should now be regarded as too great. Since the matter does not arise on the particular facts of the present case, we decline to embark upon considering that point.
25.	In the present case, the judge sought to achieve a proportionate discount by taking one-half of the appropriate starting point for murder under schedule 21, thus arriving at his sentence of 30 years. In our view, his approach would have been entirely correct in principle had the release provisions of section 244 applied to this appellant. Thus some adjustment will have to be made for the fact that it did not.
26.	At this point, it is important to note that many, perhaps most categories of attempted murder are unlikely to call for increased level of sentences. As was recognised by a five judge constitution of this Court in R v Sullivan, Gibbs, Elenor and Elenor [2005] 1 Cr App R(S) 308, at page 329, paragraph 35, the increases in the minimum term for murder under the new regime are introduced for cases: 
"At the top of the range for the most serious crimes." 
It follows that it is only in the correspondingly graver cases of attempted murder that increased level of sentencing is likely to be required. For murders lacking in the more serious aggravating factors the court anticipated no general increase in sentencing levels. It follows that in attempted murders lacking such factors no general increase in sentences is likely to be required. The Court in Sullivan emphasised the wide range of culpability in murder cases; see paragraph 7. 
27.	Attempted murder, unlike murder, always requires an intent to kill. Thus it is always a very serious offence. The range of culpability for the offence is nevertheless wide. Sentencing judges in cases of attempted murder also have to bear in mind that the partial defences of provocation and diminished responsibility are not available. There is a proportion of cases in which a defendant is convicted of attempted murder and in which, had the victim died, he would have been convicted of manslaughter rather than murder. Thus in such cases the basis for comparison in terms of proportionality when sentencing for attempted murder would be the sentence appropriate not for murder but manslaughter.  
28.	Offences under section 18 of the Offences Against the Person Act involve an intent to cause really serious injury, not death. There is no reason why the 30 year starting point under paragraph 5(1), should in itself lead to increased levels of sentencing for such offences.  At the same time the presence of serious aggravating features, those listed under section 5(2), by no means disregarded by sentencing judges before the 2003 Act, may still lead in appropriate cases to very long sentences for offences under section 18.  In the present case as we have said the judge was justified in concluding that, in principle, a higher level of sentence was called for than might hitherto have been considered appropriate. It was in order to address precisely this category of offending that Parliament fixed the 30 year starting point for the offence of murder. There is every reason to think that a minimum term of 30 years would be appropriate after a trial in the present case if one of the victims had died.
29.	How then should that be reflected in the sentence, having regard to the fact that the former regime governing release on licence applies to this appellant?  In our judgment, the correct approach would be to calculate a length of sentence which would most probably have resulted in his release after 15 years.  We accept counsel's submissions that with offences of this kind it would be more likely, though not certain, that the appellant will serve a sentence of approaching two-thirds rather than one-half.  In our judgment, having regard to the probabilities of the matter, a sentence of 24 years would adequately reflect the effect of the regime which applies to this appellant, in relation to release on licence.  It reflects the probability, though not the certainty that the appellant will be released closer to two-thirds of the way through his sentence than half the sentence.  It also reflects the correct principle applied by the trial judge in seeking to achieve proportionality.  Under those circumstances, this appeal succeeds to this extent:  that we quash the sentence of 30 years and substitute a sentence of 24 years concurrent on each count.