Introduction

This commentary examines the Court of Appeal’s decision in Smith, R. v, an unduly lenient sentence reference brought by His Majesty’s Solicitor General. The reference challenged the minimum term imposed for a prison murder committed by the 19-year-old respondent, Mr Ashirie Smith, and the way in which a serious earlier aggravated burglary was folded into that minimum term.

The core issue was whether the sentencing judge should have used the 25-year “weapon taken to the scene” starting point under paragraph 4 of Schedule 21 to the Sentencing Act 2020, on the footing that Mr Smith deliberately wore “sturdy” lace-up trainers as a weapon to inflict fatal stamping blows. The Court also examined whether, even if the 15-year starting point was correct, the uplift for aggravating features was too low, and whether the substantial reductions applied to the aggravated burglary element were excessive.

Against a detailed factual background that included a terrifying aggravated burglary (committed when Mr Smith was 17), two robberies with a meat cleaver, and possession of a loaded firearm, the murder occurred inside HMP Fosse Way amid revenge-motivated violence towards a vulnerable prisoner. The sentencing judge imposed life imprisonment with a 17 years 6 months minimum term, incorporating an adjusted component for the aggravated burglary and a small addition for the unexpired portion of a firearms sentence.

The Court of Appeal granted leave because the starting point issue under Schedule 21 warranted clarification. Ultimately, however, it refused the reference.

• Key question 1: Can footwear constitute an “other weapon” under Schedule 21 paragraph 4?
• Key question 2: If yes, when is it fair to apply the 25-year starting point?
• Key question 3: Were the judge’s uplifts and reductions within a reasonable range for an unduly lenient reference?

Summary of the Judgment

The Court of Appeal accepted, in principle, that sturdy footwear deliberately chosen for use in an attack can be an “other weapon” within paragraph 4 of Schedule 21, aligning with the broader approach in R v Deeprose & Ors [2024] EWCA Crim 1431; [2025] 1 WLR 1190. However, it refused to reclassify this case as a paragraph 4 murder because:

• The case was not prosecuted, defended, or sentenced on that basis at trial.
• There was insufficient forensic exploration and explicit fact-finding about the footwear to justify moving from the 15-year to the 25-year starting point post hoc.
• Fairness required that the issue be clearly put and determined at trial/sentence, given the dramatic 10-year difference in starting points.

The Court further held:

• The trial judge’s uplift from 15 to 18 years for aggravating factors, before reducing back to 15 for age and lack of intent to kill, was within the permissible range; other judges might have gone higher, but the sentence was not unduly lenient.
• As to the aggravated burglary, the judge’s stepwise reductions (youth, plea, adjustment for folding into a minimum term, and personal mitigation) were “very generous” but not a gross error and remained within the ambit of reasonable sentencing judgment in the unduly lenient jurisdiction.

Accordingly, the Court refused the reference. The minimum term of 17 years 6 months stands.

Background and Key Facts

The chronology is important to the sentencing context:

• Aggravated Burglary (1 March 2023): At 17 years and 3 months, Mr Smith and others broke into a student’s home, threatened him with a machete and knife, menaced him with the prospect of scalding, forced access to his devices, ransacked the property, and assaulted him (including stamping), leaving significant injuries and humiliation.
• Robberies with a meat cleaver (March 2023): Two shop robberies involving a meat cleaver (one with an accomplice armed with a gun) followed; Mr Smith later pleaded guilty.
• Firearm possession (7 November 2023): A viable 9mm self-loading pistol with live rounds was found in his bedroom; Mr Smith pleaded guilty to firearm and ammunition offences and received 3 years’ detention.
• Murder in prison (20 August 2024): While on the same wing as the victim, Mr Mahir, Mr Smith and co-defendant Mr Robinson attacked after a dispute involving boiling water. They changed into “sturdy” lace-up footwear beforehand. Mr Smith stamped with severe force on the back of the victim’s neck, causing fatal injuries; Mr Robinson punched the victim. Mr Smith was convicted of murder; Mr Robinson was acquitted of murder but convicted of manslaughter and sentenced to 11 years.

The Sentencing Decision Under Review

For the murder, the judge applied the Schedule 21 framework:

• Took the paragraph 5 starting point of 15 years (adult offender; not falling within paragraph 4).
• Identified aggravation: relevant previous convictions; planning; prison-cell location; prior abuse of the victim.
• Uplifted to a notional 18 years for those features.
• Reduced to 15 years to reflect Mr Smith’s young age and lack of intent to kill (he intended really serious harm).

The judge then addressed totality and the additional serious offending:

• Aggravated burglary: Guideline starting point 12 years (agreed). Reduced to 8 years for youth. Reduced by 25% for plea to 6 years. Adjusted to 4 years to reflect that, when folded into a minimum term, there is no licence release (i.e., it is served in full). Further reduced by 2 years for personal mitigation, yielding 2 years to add to the minimum term.
• Unexpired portion of firearm sentence: 6 months added.

Overall, the judge arrived at life imprisonment with a 17 years 6 months minimum term (15 + 2 + 0.5).

Precedents Cited and Statutory Framework

Schedule 21 of the Sentencing Act 2020

• Paragraph 4: 25-year starting point where the murder involved a “knife or other weapon” taken to the scene to commit an offence or to have it available as a weapon.
• Paragraph 5: 15-year starting point for adult offenders where paragraph 4 does not apply (subject to aggravating/mitigating features).

R v Deeprose & Ors [2024] EWCA Crim 1431; [2025] 1 WLR 1190

The Court in Deeprose construed “other weapon” broadly, confirming it can encompass items beyond conventional weapons, including a car, and referenced cases concerning sticks, bottles, hammers, and rolling pins. Smith builds on that approach by recognising that a “shod foot”—specifically, footwear deliberately selected to inflict harm—can be an “other weapon”.

Sentencing Council: Aggravated Burglary Guideline

The sentencing judge followed the applicable guideline, starting at 12 years, then adjusting for youth and plea. Smith confirms that when folding a determinative term into a murder minimum term, the judge may appropriately adjust for the absence of licence release.

The Court’s Legal Reasoning

1) Footwear as an “Other Weapon”: Principle and Fairness

The Court expressly accepted the legal proposition that footwear can qualify as an “other weapon” under paragraph 4 of Schedule 21. The reasoning aligns with the purposive approach taken in Deeprose: the phrase “other weapon” is not limited to purpose-built weapons; it extends to objects intentionally used as weapons. The “shod foot” has long been treated as capable of causing grievous harm; there is nothing doctrinally incoherent about treating a deliberately chosen shoe as a weapon for the paragraph 4 starting point.

But the Court refused to apply the 25-year starting point in this case. Why? Fairness and fact-finding. The record showed that neither the prosecution nor the defence ran the case on a paragraph 4 footing, and the judge did not sentence on that basis. Although the judge made a strong observation about “sturdy” lace-up shoes being deliberately worn—“meaning that you both meant to use your feet if the need arose”—the issue was not litigated or forensically explored with sufficient specificity to found a paragraph 4 conclusion. The Court emphasised:

• Where the step from paragraph 5 (15 years) to paragraph 4 (25 years) turns on whether a weapon was “taken to the scene,” the factual basis must be clearly put to the defendant and fairly explored at trial/sentence.
• A Court of Appeal adjudicating an unduly lenient reference will be slow to recast the factual basis of sentencing to introduce a materially more severe starting point not previously articulated, especially given the 10-year differential.

This is a significant due process safeguard: even if an item could legally be a “weapon,” the label must rest on robust, trial-tested facts. The Court acknowledged it is not strictly bound by how the case was put below, but fairness to the defendant remained paramount.

2) Aggravation and Mitigation within the 15-year Framework

The trial judge uplifted the notional minimum term from 15 to 18 years for significant aggravation, including:

• Relevant previous convictions (robberies and a firearm).
• Planning and group dynamics in a prison setting.
• Prior abuse of the victim and the vulnerable context (in-cell attack).

He then reduced back to 15 years to reflect age (young adult) and lack of intent to kill. The Court of Appeal held that while some judges might have uplifted more, the approach fell within a reasonable range. In the unduly lenient jurisdiction, the question is not whether the appellate court would have sentenced more severely, but whether the original sentence fell outside the spectrum of reasonable responses. It did not.

3) Incorporating the Aggravated Burglary into the Minimum Term

The Court endorsed the logical steps taken to fold a serious aggravated burglary into the minimum term:

• Start at 12 years (guideline), reduce for youth (to 8), and then for plea (25% to 6).
• Adjust because the time will be served “in full” within the minimum term, unlike a determinate sentence with licence release—hence the reduction to an equivalent of 4 years.
• Apply personal mitigation (a further 2-year reduction) to reach 2 years to add to the minimum term.
• Add 6 months for the unexpired portion of the firearms term.

The Court candidly described the 2-year mitigation reduction as “very generous” but reaffirmed three core principles for unduly lenient references:

• The trial judge is best placed to weigh competing factors.
• A sentence is unduly lenient only if it falls outside the range a reasonable judge could impose.
• The reference is reserved for “gross error.”

On that standard, intervention was not justified.

Likely Impact and Practical Guidance

A. Substantive Clarification: Footwear Can Trigger the 25-Year Starting Point

Smith confirms that footwear may qualify as an “other weapon” under paragraph 4. This builds the post-Deeprose corpus in a concrete and frequently encountered setting: the “shod foot.” Going forward:

• Prosecutors should explicitly plead and prove that the footwear was deliberately taken to the scene to commit the offence or be used as a weapon, with focused evidence (timelines of footwear changes, CCTV, witness accounts, footwear type and sturdiness, statements evidencing purpose).
• Defence should challenge the inference of “weaponisation” of footwear and press for precise findings: why that footwear, whether there was a change, who had access, and whether the use was opportunistic rather than planned.
• Judges should identify early whether paragraph 4 is in play, direct fact-finding accordingly, and record clear findings if a 25-year starting point is contemplated.

B. Procedural Fairness as a Gatekeeper in Unduly Lenient References

Smith places a fairness “lock” on post-sentence reframing. Even when the law supports an uplift (here, the 25-year starting point), the Court will resist recharacterising the factual basis unless the point was live below and the judge made findings capable of supporting the more severe starting point. Expect heightened attention to how “weapon taken to the scene” is put at trial.

C. Methodology for Folding Serious Determinate Offending into a Minimum Term

Smith endorses an intelligible, structured approach when incorporating separate serious offending (like aggravated burglary) into a life minimum term:

• Apply the guideline and youth/plea reductions as you would for a determinate sentence.
• Adjust for the absence of licence release in a minimum term—if you simply “add” the determinate figure, you risk double-counting the custody element, so convert it to a full-time equivalent.
• Then consider mitigation and totality before finalising the additional period.

This helps avoid disproportionate aggregation and aligns with totality principles.

D. Youth, Exploitation, and Insight

The Court accepted mitigation indices including youth, a positive NRM decision for modern slavery, and emerging insight/remorse. While not decisive, these factors show that youth-related and vulnerability-related mitigation remains relevant even where the index offence is murder and the offender is just over 18 at the time. The judge’s modest but real reduction back to 15 years recognised these personal factors and the lack of intent to kill.

Complex Concepts Simplified

• Life sentence with a minimum term: For murder, the court must impose life imprisonment. The minimum term is the period to be served before parole can even consider release. It is not an automatic release point; the offender remains on life licence if released.
• Schedule 21 starting points: These are benchmarks for the minimum term. Paragraph 4 sets a 25-year start where a “knife or other weapon” was taken to the scene for use; paragraph 5 sets a 15-year start for other adult murders.
• “Weapon taken to the scene”: The prosecution must prove the item was brought intending it to be used as a weapon or to be available as such—not merely found or used opportunistically at the scene. Smith clarifies footwear can qualify, but only on a properly established factual basis.
• Unduly lenient sentence reference: The Solicitor General can ask the Court of Appeal to increase a sentence that is too low. The Court will intervene only if the sentence falls outside the range of reasonable sentences—reserved for clear or “gross” error, not merely arguable leniency.
• Plea credit: Defendants who plead guilty receive a reduction in sentence (often up to one third at the earliest stage; 25% here at a later stage). It reflects saved time and resources and some acknowledgment of responsibility.
• Adjusting determinate terms inside a minimum term: Determinate sentences usually involve release on licence at the halfway point. If a judge adds time to a minimum term, that time is served “day for day,” so a judge may reduce the nominal determinate figure to avoid over-punishment.
• Totality: Ensures the overall sentence for multiple offences is just and proportionate, avoiding simple mechanical addition that would lead to an excessive total.

Conclusion

Smith, R v delivers two important messages. First, it firmly confirms that footwear can be an “other weapon” for the purposes of paragraph 4 of Schedule 21, potentially triggering a 25-year starting point for murder. Second—and more decisively in this case—it establishes a fairness prerequisite: where the higher starting point turns on a factual characterisation that was not clearly put and decided below, the Court of Appeal will not reframe the basis post hoc in an unduly lenient reference. The dramatic 10-year difference in starting points makes clarity and fairness at trial indispensable.

On the broader sentencing exercise, the Court’s refusal to interfere underscores the deferential nature of the unduly lenient jurisdiction: generous does not mean unduly lenient, and the trial judge’s structured, transparent approach—particularly in folding the aggravated burglary into the minimum term—was within the reasonable range. For practitioners, Smith is a practical guide: if you wish to invoke paragraph 4 on the basis of footwear (or any unconventional “weapon”), say so early, prove it carefully, and ensure the judge makes explicit findings. Only then will the 25-year starting point be safely engaged.