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Date produced: January 2012
Title: Homicide
Offence: Murder
Legislation: See below
Commencement Date:
Mode of Trial: Indictable only
Statutory Limitations & Maximum Penalty: Offender aged over 21 - mandatory life imprisonment, Murder (Abolition of Death Penalty) Act 1965 section 1. Committed aged over 18, convicted before age 21 - custody for life, Powers of Criminal Courts (Sentencing) Act 2000 section 93. Committed aged under 18 at date of offence irrespective of age when convicted - detention during Her Majestys pleasure, Powers of Criminal Courts (Sentencing) Act 2000 section 90.

Aggravating & Mitigating Factors:

See main text, and in particular the Criminal Justice Act 2003 Schedule 21 Paragraphs 4(2), 5(2), 10 and 11 (see Archbold at 5-245 et seq).

It is there to assist judges and the sentencing judge must have regard to it but each case will depend on its facts. Where a course is followed that does not reflect the guidance it should explain its reasons. R v Jones 2006 2 Cr. App. R. (S) 19.

Sentencing Legislation and Guidelines:

The current sentencing framework is contained in the Criminal Justice Act 2003, and requires the sentencing judge to fix a minimum term that has to be served before the Parole Board may consider whether it is safe to release on licence. If an offender is released, recall to prison is possible at any time during the rest of the offender's life.

Murder committed before 18 December 2003 - for transitional provisions see section 276 and Schedule 22 of the Criminal Justice Act 2003 and the Consolidated Practice Direction IV.49.14-23 (in CSP at B0-13C01).

Murder committed on or after 18th December 2003 - see section 269 and Schedule 21 of the Criminal Justice Act 2003 and the Consolidated Practice Direction IV.49.1 et seq. (in CSP at B0-13C01).

Schedule 21 (see Archbold at 5-245 et seq) prescribes five starting points:

  • Para 4 - whole life order (exceptionally high seriousness)
  • Para 5 - minimum term of 30 years (particularly high seriousness)
  • Para 5A - minimum term of 25 years, if aged 18 or over, and bring knife or other weapon (not including firearm or explosive) to the scene intending to commit any offence or have it as a weapon and use that weapon to commit murder (does not apply to a sentence for a murder committed before 2 March 2010).
  • Para 6 - otherwise, if aged 18 or over at date of offence, minimum term of 15 years
  • Para 7 - if under 18 years at date of offence, minimum term of 12 years

Paragraph 4 - whole life order.  Paragraph 4(2) lists these factors:

  • two or more victims involving specified aggravating features 
  • murder of child involving abduction, sexual or sadistic motivation 
  • murder for political, religious or ideological cause
  • previous conviction for murder.

Paragraph 5 - minimum term of 30 years.  Paragraph 5(2) lists these factors:

  • murder of a police or prison officer in the course of duty
  • involving use of a firearm or explosive
  • for gain, such as robbery, burglary or for payment 
  • intended to obstruct or interfere with the course of justice
  • involving sexual or sadistic conduct
  • murder of two or more persons
  • racially or religiously aggravated or aggravated by sexual orientation
  • murder falling within paragraph 4(2) by an offender aged under 21

Paragraph 10 lists some additional aggravating factors:

  • significant planning or premeditation
  • victim particularly vulnerable due to age or disability
  • mental or physical suffering inflicted on victim before death
  • abuse of a position of trust
  • duress or threats against another to facilitate commission of offence
  • victim providing a public service or performing a public duty
  • concealment, destruction or dismemberment of the body

Paragraph 11 - lists some mitigating factors:

  • intention to cause serious bodily harm only
  • lack of premeditation
  • offender suffering from mental disorder or disability 
  • provocation not amounting to a defence of provocation
  • offender acting to any extent in self-defence
  • belief by the offender that the murder was an act of mercy
  • offender's age

If the defendant is aged under 18 then the minimum term whether it falls within Paragraph 4 or 5 or not is 12 years.

SGC Definitive Guideline Reductions in Sentence for a Guilty Plea issued in July 2007.

The approach to be adopted is as follows:

  1. Where a Court determines that there should be a whole life minimum term, there will be no reduction for a guilty plea.
  2. In other circumstances,
    • the Court will weigh carefully the overall length of the minimum term taking into account other reductions for which the offender may be eligible so as to avoid a combination leading to an inappropriately short sentence;
    • where it is appropriate to reduce the minimum term having regard to a plea of guilty, the reduction will not exceed one sixth and will never exceed 5 years;
    • the sliding scale will apply so that, where it is appropriate to reduce the minimum term on account of a guilty plea, the recommended reduction (one sixth or five years whichever is the less) is only available where there has been an indication of willingness to plead guilty at the first reasonable opportunity, with a recommended 5% for a late guilty plea;
  • the Court should then review the sentence to ensure that the minimum term accurately reflects the seriousness of the offence taking account of the statutory starting point, all aggravating and mitigating factors and any guilty plea entered.

The guideline cases are R v Jones and R v Davies (see below).

Practice Statement of 2002 (at CSP B0-13C02).

The above authorities and case law enunciate these rules:

  • the first step is to choose the starting point
  • the second step is to take account of any aggravating or mitigating points
  • the third step is to consider the effect of matters set out in the Consolidated Practice Direction at 49.12 (see CSP at B0-13C01). 
  • each case depends critically on its facts  
  • court must have regard to guideline
  • if guideline not followed, court to explain reasons
  • there are huge gaps between the three starting points
  • if aggravating or mitigating factor led court to adopt higher or lower of two potential starting points, it must not apply factor again by adjusting the starting point
  • detailed consideration of the factors may result in a minimum term of any length or a whole life order
  • maximum credit for a guilty plea in a minimum term case will be one sixth 
  • it remains the task of the Parole Board to ensure that the offender is not released unless this presents no danger to the public.

Relevant Sentencing Case Law:

Banks on sentence at Chapter 300 [Volume 2 Page 771] contains a large selection of relevant authorities which covers all types of murders. In light of the numbers of authorities contained therein and the fact specific nature of sentencing in this area regard should be had to its contents.

R v Peters, Palmer and Campbell [2005] 2 Cr. App. R.(S.) 64 involved offenders aged under 20 when offence committed with intent to cause grievous bodily harm only. [5-239h] The protection of the public is achieved by the mandatory life sentence itself. The minimum term reflects the elements of punishment and deterrence.

R v Last, Holbrook and others [2005] 2 Cr. App. R.(S.) 101 involved offenders who had pleaded guilty.

R v Jones [2006] 2 Cr. App. R.(S.) 19 held that although a sentencer must have regard to the guidance in Schedule 21, each case depends on its particular facts.  Protection of the public is not a relevant factor in fixing the minimum term. Detailed guidance given on a number of topics which included a minimum term of 30 years being upheld for a murder committed by deliberate arson.

R v Thomas [2010] 1 Cr. App. R.(S.) 14 considered the extent to which violence by defendant prior to murder can be taken into account by judge when assessing minimum term.

R v Davies [2009] 1 Cr. App. R.(S.) 15 held in the context of a factual dispute that the criminal standard of proof applies when determining the starting point for the minimum term under the Criminal Justice Act 2003 Schedule 21.

See also CSP. Minimum term cases at B0-1.4 and whole life order cases at B0-1.5.

Ancillary Orders

  • Usually still applicable despite mandatory sentence.
  • A defendant aged 18 or over will automatically be barred from engaging in regulated activity with vulnerable adults and children. Safeguarding Vulnerable Groups Act 2006 section 2, Schedule 3 para 25.

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