STARTING POINTS In Cases of Murder – Sentencing Act 2020, Schedule 21
In most sentencing exercises in cases of murder selecting the correct statutory starting point ought to be relatively straightforward, before the sentencer settles upon the minimum term having regard to the various aggravating and mitigating factors which may apply. However, as two recent cases in my experience demonstrate that is not always so in the case of secondary parties.
As all readers will know the sentence for murder is mandatory and the Court is required either to determine the “minimum term” to be served before the “early release provisions” apply, or to provide that the order is a whole life order.
The appropriate framework is that set out in the Sentencing Act 2020 and the starting points for determining the minimum term are set out in schedule 21 as follows.
(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and
(b) the offender was aged 21 or over when the offence was committed,
the appropriate starting point is a whole life order.
(2) Cases that would normally fall within sub-paragraph (1)(a) include—
(a) the murder of two or more persons, where each murder involves any of the following—
(i) a substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,
(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(c) the murder of a police officer or prison officer in the course of his or her duty, where the offence was committed on or after 13 April 2015,
(d) a murder done for the purpose of advancing a political, religious, racial or ideological cause, or
(e) a murder by an offender previously convicted of murder.
(a) the case does not fall within paragraph 2(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and
(b) the offender was aged 18 or over when the offence was committed,
the appropriate starting point, in determining the minimum term, is 30 years.
(2) Cases that (if not falling within paragraph 2(1)) would normally fall within sub-paragraph (1)(a) include—
(a) in the case of an offence committed before 13 April 2015, the murder of a police officer or prison officer in the course of his or her duty,
(b) a murder involving the use of a firearm or explosive,
(c) a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),
(d) a murder intended to obstruct or interfere with the course of justice,
(e) a murder involving sexual or sadistic conduct,
(f) the murder of two or more persons,
(g) a murder that is aggravated by racial or religious hostility or by hostility related to sexual orientation,
(h) a murder that is aggravated by hostility related to disability or transgender identity, where the offence was committed on or after 3 December 2012 (or over a period, or at some time during a period, ending on or after that date),
(i) a murder falling within paragraph 2(2) committed by an offender who was aged under 21 when the offence was committed.
(3) An offence is aggravated in any of the ways mentioned in sub-paragraph (2)(g) or (h) if section 66 requires the court to treat the fact that it is so aggravated as an aggravating factor.
(a) the case does not fall within paragraph 2(1) or 3(1),
(b) the offence falls within sub-paragraph (2), and
(c) the offender was aged 18 or over when the offence was committed,
(d) the offence was committed on or after 2 March 2010,
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,
and used that knife or other weapon in committing the murder.
5 If the offender was aged 18 or over when the offence was committed and the case does not fall within paragraph 2(1), 3(1) or 4(1), the appropriate starting point, in determining the minimum term, is 15 years.
6 If the offender was aged under 18 when the offence was committed, the appropriate starting point, in determining the minimum term, is 12 years.
In the case of Fearon  EWCA Crim 1706, [F], F was convicted of murder as a secondary party in a case where the principal [R] had taken a knife to the scene and stabbed the deceased. It was common ground that F could only have known that R was in possession of the knife for a matter of seconds before R used it with murderous intent. Indeed, the jury was directed that unless it was sure that F knew that R was in possession of the knife before R used it, F could not be convicted of murder. Having been so convicted, the prosecution submitted (and the sentencing court agreed) that the correct starting point in F’s case was 25 years, as of course it was for R.
On appeal it was argued, and the Court accepted, that the starting point should have been one of 15 years, stating at paragraph 21 as follows:
“Each case has to be considered on its own facts and requires an assessment of the culpability of the offender. In this case, the appellant only became aware of Rochester having the saw/blade moments before the attack. Without seeking to lay down any criteria for drawing distinctions in the wide range of factual situations that arise in cases such as this, we do not consider that because he knew just before it was used that Rochester had a knife it follows that he must be fixed with the statutory culpability of the principal. As was made plain in Kelly v R  EWCA Crim 1462, no scheme or statutory framework can be fully comprehensive, and the judge must achieve a just result.”
Taking into account the significant aggravating factors in the case a sentence of 21 years’ imprisonment was imposed.
In the case of Ozbahadir [O], O was convicted of murder as a secondary party in a case where the principal [W] had shot the deceased. W was convicted of both murder and possession of a firearm with intent to endanger life; O, however, was acquitted of the firearms count. At the sentencing hearing the prosecution submitted that in O’s case, notwithstanding her acquittal on the firearms count the correct staring point was 30 years because this was “a murder involving the use of a firearm”. The prosecution distinguished this phrase in 3(2)(b) of schedule 21 from the corresponding language re the bringing of a knife to the scene in 4(2), namely:
“(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,
and used that knife or other weapon in committing the murder.”
The sentencing judge agreed and took 30 years as the starting point for O and eventually imposing a minimum term of 23 years to reflect the mitigation available to her including the fact that she had been acquitted of the firearms count. It remains to be seen whether this sentence will be the subject of an appeal.
The key points to take away from these cases may be as follows:
- It is essential that the court has regard to the statutory language in determining the correct starting point.
- Whatever the starting point, the key to passing the ‘correct’ minimum term and a ‘just’ sentence is by the correct application of the aggravating and mitigating factors.
- A separate weapons’ count may in certain cases be an unnecessary, complicating factor.
 Paragraph 6 will be amended by s.127 of the Police, Crime Sentencing and Courts Act 2022 with effect from a date to be determined and any offender, aged under 18 at the date of the offence, who is convicted of murder on or after that commencement date will be subject to the new starting points.