||All England Reporter
|| All ER (D) 262 (Oct)
|| EWHC 2591 (QB)
||Queen's Bench Division
Andrew Smith J
||20 October 2006
Sentence - Murder - Minimum term - Application for review - Aggravating and mitigating features - Meaning of 'murder for gain' - Remarks of trial judge as to nature of offence - Whether court entitled to go behind remarks - Whether court should consider minimum term likely to have been imposed by Secretary of State on any alternative factual basis adopted - , Sch 21, para 5(2)(c), Sch 22, para 3.
Notwithstanding that the trial judge might have considered material that was no longer available, and that it was the more difficult to examine his conclusions so long after the events because it was no longer possible to ascertain what evidence was before him in 1990, it would be inconsistent with the and its purpose of ensuring compliance with art6 of the European Convention on Human Rights to simply adopt the trial judge's conclusions on questions of premeditation and financial motivation when setting the minimum term of an existing prisoner under Sch22 to that Act. Furthermore, given that heavier retrospective penalties were prohibited by the Convention, the court had to ask itself what minimum term the Secretary of State would have set on any different factual basis adopted by the court and limit the minimum term it set accordingly, even though there were no transitional provisions to that effect. On its true construction, the phrase 'murder for gain' in para5(2)(c) of Sch21 to the 2003 Act was directed to the purpose or motive for the murder, or at least of or for the activity that led to the victim's death. It was not restricted to those who made a living out of killing, but also applied to domestic murders committed in order to solve debt problems.
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