R v Kelly and Others
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice of England and Wales |
| Judgment Date | 16 June 2011 |
| Neutral Citation | [2011] EWCA Crim 1462 |
| Docket Number | Case No: 2011/01099/A1 (1); 2011/00924/A6 (2); 2011/01232/A8 (5); 2011/01661/A8 (6); 2011/01463/A8 (7); 2011/01060/A8 (8). |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 June 2011 |
[2011] EWCA Crim 1462
The Lord Chief Justice of England and Wales
Lord Justice Leveson
and
Mr Justice Bean
Case No: 2011/01099/A1 (1); 2011/00924/A6 (2);
2011/00034/A6 (3); 2011/00894/A8 (4);
2011/01232/A8 (5); 2011/01661/A8 (6);
2011/01463/A8 (7); 2011/01060/A8 (8).
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM:
THE CROWN COURT AT GUILDFORD (H.H. Judge Critchlow) T20107117
THE CROWN COURT AT NORWICH (H.H. Judge Jacobs) T20107144
THE CENTRAL CRIMINAL COURT (The Recorder of London) T20107142
THE CROWN COURT AT MOLD (Griffith-Williams J) T20107163
Royal Courts of Justice
Strand, London, WC2A 2LL
S Wass QC for Kelly
M Clare for Bowers
J Cole for Singh
S Mintz for Harding
D Travers for Roberts
D J Bould for Ashleigh Robinson
E M Evans QC for Hollie Robinson
S Medland QC for Barr
A Edis QC and C Harris for the Crown
Hearing date: 12 th May 2011
The appeal of Balraj Singh, brought with leave of a single judge and the remaining cases, all applications referred to the Court of Appeal by the Registrar of Criminal Appeals, were linked and were listed for hearing on the same occasion. Each of them raised questions about the determination of the minimum term to be served following conviction for murder committed with a knife. In short, therefore, the court was required to examine the ambit and impact of the Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) (Order) 2010 ("the Order"). At the conclusion of the hearing, the appeal was dismissed and the applications were refused. Each member of the court has contributed to the preparation of this judgment.
The Approach to the Legislation
The Order amended Schedule 21 of the Criminal Justice Act 2003 (the 2003 Act). After paragraph 5 a new paragraph was inserted. This provides:
"5A – (1) If –
(a) the case does not fall within paragraph 4( 1) or 5(1),
(b) the offence falls within sub-paragraph (2), and
(c) the offender was aged 18 or over when the offender who committed the offence,
(d) the offence is normally to be regarded as sufficiently serious for the appropriate starting point, in determining the minimum term, to be 25 years.
(2) The offence falls within this sub-paragraph if the offender took a knife or other weapon to the scene intending to –
(a) commit any offence, or
(b) have it available to use as a weapon,
(c) and used that knife or other weapon when committing the murder."
Before examining the terms of the Order we must briefly remind ourselves of its context, and the authorities in this court which have interpreted Schedule 21.
Section 269(5) of the 2003 Act requires the court determining the minimum term in relation to the mandatory life sentence for murder to have regard to:
"…(a) the general principles set out in schedule 21, and
(b) any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of schedule 21."
In short, therefore, paragraph 5A now represents another "general principle" to which the court must have regard when making the determination. The structure of Schedule 21 of the Act (identified in a series of judgments of the Court of Appeal Criminal Division) requires the starting point for the assessment of the minimum terms for adults convicted of murder to be identified by reference to murders of exceptional seriousness (full life); of particularly high seriousness (30 years); and murders where the seriousness is neither exceptional nor particularly high (15 years). Cases which would normally fall within the exceptional and particularly high levels of seriousness are listed and exemplified in paragraphs 4 and 5 respectively. Nevertheless these lists do not create impenetrable compartments and every case will be subject to its own specific and individual features of mitigation and aggravation. Therefore cases which are not expressly described in paragraphs 4 and 5 may be treated as cases of exceptional or particularly high seriousness, and cases which on their face appear to fall within one or other of the paragraphs may, on examination, be assessed at a lower level of seriousness than at first appeared. Precisely the same considerations apply to murders committed by offenders aged under 18 years for whom the starting point would normally be 12 years. These principles are clear from authorities such as R v. Last [2005] 2 Cr App R (S) 381, R v Peters [2005] 2 Cr App R (S) 627, R v Jones [2006] 2 Cr App R (S) 12, R v Height and Anderson [2009] 1 Cr App R (S) 656, R v M, AM and Kika [2010] 2 Cr App R (S) 117 and R v Inglis [2010] EWCA Crim 2637.
Thus in Height and Anderson the court observed (at para. 29):
"We have lost count of the number of times when this court has emphasised that these provisions not intended to be applied inflexibly. Indeed, in our judgment, an inflexible approach would be inconsistent with the terms of the statutory framework. No scheme or guidance or statutory framework can be fully comprehensive, and any system of purported compartmentalisation or prescription has the potential to produce injustice. Even when the approach to the sentencing decision is laid down in an apparently detailed, and on the face of it, intentionally comprehensive scheme, the sentencing judge must achieve a just result."
In Inglis, a case of murder committed as a "mercy killing" where the offender was the victim's mother and in a position of trust, and carefully planned the killing of her particularly vulnerable son (all features of aggravation) the court was satisfied that, notwithstanding that these facts would normally aggravate the offence of murder, they should not:
"… be taken to aggravate a murder committed by an individual who genuinely believes that her actions in bringing about the death constitute as act of mercy" (paragraph 53).
In the context of murder committed with a knife before the coming into force of paragraph 5A of schedule 21, in M, AM and Kika the court had already emphasised (at para 7):
"… [I]t is always an aggravating feature of any case involving injury – and of course death – that the injury or death has resulted from the use of a knife or any other weapon. … The question for the sentencing judge in the end is not for compartmentalisation of the specific offence within this or that paragraph of the Schedule but the proper judicial assessment of the appropriate sentence to reflect the facts of the individual case and its seriousness and such mitigating features as there may be. Justice simply cannot be done by a mechanistic filling in of "tick boxes" and unconsidered assignment of cases into compartments. … Deaths in circumstances like these outrage and horrify the collective conscience of the community as a whole. We repeat…anyone who goes into a public place armed with a knife or any other weapon and uses it to kill… and who is brought to justice, must anticipate condign punishment."
These observations illustrate the way in which this court addressed what, at first sight, appeared to be an overly prescriptive, unnecessarily complex, and, on occasions, wholly artificial, apparently all embracing, statutory framework within which sentencing judges were required to assess the appropriate minimum term following conviction for murder. We say "at first sight" because, as we have said, careful study of the statutory language makes clear that paragraphs 4(1) and 5(1) identify not the ultimate decision but "the appropriate starting point", and paragraphs 4(2) and 5(2) specify the cases of murder which would "normally" but not inevitably trigger a finding of exceptional or particularly high seriousness. In short, on close analysis, Schedule 21 did not create a stepped sentencing regime with fixed dividing lines between the specified categories.
This is the background against which we turn to consider paragraph 5A and its inclusion within schedule 21. It does not provide that the seriousness of an offence of murder committed with the use of a knife or other weapon falls within the "exceptionally high" or "particularly high" level of seriousness. Indeed it is striking that unlike paragraphs 4 and 5 this new starting point does not describe the level of seriousness of the offence at all, perhaps because of the difficulty of finding an appropriate adjective to describe the seriousness of an offence which is not, at any rate on first consideration, to be treated as "particularly high" but which simultaneously must be approached as more grave than an offence of ordinary seriousness. As a matter of semantics therefore the seriousness of an offence falling within paragraph 5A is "normally" marginally lower than "particularly high". And this very brief semantic discussion reveals that paragraph 5A requires the flexibility of approach already adopted by the decisions of this court in the context of paragraphs 4 and 5 of Schedule 21.
It is also plain from the structure of paragraph 5A, particularly by reference to paragraph 5(2)(b) ("a murder involving the use of a firearm or explosive"), that it is not the legislative intention that every murder involving the use of a knife or other weapon to inflict fatal injury should normally fall within the 25 year starting point. Had that been the intention, it would have been a simple matter to follow the language of paragraph 5(2)(b) and substitute "a murder involving the use of a knife or other weapon". Therefore paragraph 5A does not...
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