R v Plumb [2025] EWCA Crim 1461: Attempted Murder Guideline may be used as a sentencing yardstick for soliciting/encouraging grave offences; no requirement to address Extended Determinate Sentences before imposing life where dangerousness and seriousness are satisfied

R v Plumb [2025] EWCA Crim 1461: Attempted Murder Guideline may be used as a sentencing yardstick for soliciting/encouraging grave offences; no requirement to address Extended Determinate Sentences before imposing life where dangerousness and seriousness are satisfied

Introduction

This commentary analyzes the Court of Appeal (Criminal Division) judgment in Plumb, R. v [2025] EWCA Crim 1461, handed down on 21 October 2025 by Lord Justice Edis. The appeal concerned the sentence imposed following the applicant’s convictions for:

  • Soliciting the murder of the television presenter Holly Willoughby (s.4 Offences against the Person Act 1861);
  • Encouraging or assisting kidnap (s.45 Serious Crime Act 2007); and
  • Encouraging or assisting rape (s.45 Serious Crime Act 2007).

After a jury trial, the Crown Court judge imposed three concurrent discretionary life sentences with a 16-year minimum term (later adjusted to 15 years and 85 days to credit remand). The central issues on appeal were:

  • Whether the sentencing judge erred by using the Sentencing Council’s Attempted Murder guideline as a benchmark for offences of soliciting murder and encouraging/assisting kidnap and rape; and
  • Whether the judge was wrong to impose life sentences without expressly considering whether an Extended Determinate Sentence (EDS) would suffice for public protection.

Although the Court of Appeal granted leave, it ultimately dismissed the appeal, upholding both the use of the Attempted Murder guideline as a “yardstick” and the imposition of discretionary life sentences without the need to spell out why an EDS would be inadequate.

Summary of the Judgment

The Court of Appeal dismissed the sentence appeal, concluding:

  • Guideline use: Franks does not preclude reference to the Attempted Murder guideline in solicitation cases. Where the conduct and intention make the case at least as serious as some attempted murders, the guideline can be a legitimate reference point. The trial judge’s placement in Category B2 (starting point 25 years, range 20–30) and notional determinate term of 24 years were sustainable, particularly given the sustained campaign to recruit accomplices for kidnap, rape, and murder, and the applicant’s relevant previous convictions.
  • Life sentences: Once the statutory “dangerousness” threshold is met and the seriousness of the offending justifies a life sentence, the court is not required to set out why an EDS would be insufficient. Moreover, an EDS carries an inevitable point at which release must occur even if the offender remains dangerous; a discretionary life sentence permits continuing detention until safe to release. The life sentence was unimpeachable.

Detailed Analysis

1) Precedents Cited and Their Influence

R v Franks [2023] EWCA Crim 319; [2023] 2 Cr App R (S) 29

Franks concerned online activity soliciting murder where no attempt was feasible or made. The Court of Appeal in Franks concluded it was wrong to sentence by reference to the Attempted Murder guideline in that specific case, substituting 6 years for the 12-year sentence. In Plumb, the appellant argued Franks made it erroneous to use the Attempted Murder guideline in any solicitation case.

The Court in Plumb rejected that reading, clarifying:

  • Franks is not a blanket prohibition. It turns on facts. Many solicitation cases inherently involve planning and premeditation (often absent in spur-of-the-moment attempted murders). Some solicitation cases may be more serious than some attempted murders.
  • The key is a granular assessment of intention, persistence, sophistication, proximity to success, inducements (including payments), and the gravity of the contemplated harm.
  • New clarification: Where solicitation conduct is at least as serious as cases of attempted murder (in the intended harm, persistence, and risk created), the Attempted Murder guideline can be used as a yardstick.

R v Hunter [2007] EWCA Crim 3424

Hunter, cited in Franks and referenced again in Plumb, emphasizes that sentencing for solicitation is highly fact-sensitive; read-across from other offences should not be mechanistic. Plumb aligns with that approach: the Attempted Murder guideline is not rigidly imposed, but can inform sentencing where facts warrant it.

R v Saqib [2022] EWCA Crim 213

Saqib (kidnap) offered contour guidance on seriousness in kidnap cases. In Plumb, the trial judge and Court of Appeal appropriately considered analogous guidance for kidnap and rape to gauge seriousness alongside the Attempted Murder guideline, recognizing the multi-offence nature of the criminality and applying the totality principle.

2) The Court’s Legal Reasoning

a) Seriousness assessment grounded in intention and persistent incitement

The Court underscored that, in offences of solicitation/encouragement under the Serious Crime Act 2007 and s.4 OAPA 1861, sentencing must consider not only actual harm (here none was inflicted), but the intended harm—which was the gravest possible (kidnap, multiple rapes, and murder). The sustained effort to recruit multiple accomplices, the detailed planning and research (address, security, routines), acquisition of a restraint kit and perceived incapacitating agents, and prior convictions demonstrating analogous conduct made this case exceptionally serious.

b) Use of the Attempted Murder guideline (Category B2) as a yardstick

Despite no “attempt” in law, the Court accepted the trial judge’s use of the Attempted Murder guideline (Category B2: starting point 25 years; range 20–30) as a benchmark to calibrate seriousness. Importantly:

  • The offending covered a long period and multiple intended offences (kidnap and rape, not just murder), with repeated efforts to recruit accomplices—factors that could support moving up from the starting point.
  • Countervailing considerations of “viability” or “feasibility” were relevant mitigation. The judge accounted for them by fixing the notional determinate sentence at 24 years (just below the 25-year starting point).
  • On the facts, this balanced approach was not manifestly excessive.

c) Dangerousness and life sentence under the Sentencing Code (Sentencing Act 2020)

The statutory steps applied by the judge (and approved on appeal) were:

  • Determine whether the offender is “dangerous” (significant risk to members of the public of serious harm from further specified offences). No challenge was made to that conclusion.
  • Assess whether the seriousness of the offending justifies a life sentence (s.274(1),(3) Sentencing Code). Given the planned kidnap, rape, and murder with persistent recruitment attempts and relevant antecedents, the seriousness threshold was met.
  • Once dangerousness and seriousness justify a life sentence, the court is required to impose life and need not provide an additional, explicit explanation for rejecting an EDS.

A substantive rationale was also given: unlike life sentences, EDS necessarily culminates in a point at which release must occur, even if the offender remains dangerous. That risk was not acceptable given the indefinite nature of the risk here.

d) Fixing the minimum term

Consistent with practice, the judge identified a notional determinate term (24 years), then reduced it by one-third to reflect what the release regime would have been for a determinate sentence, resulting in a minimum term of 16 years (later adjusted for time on remand pursuant to s.232 Sentencing Act 2020).

3) Impact and Prospective Significance

  • Guideline cross-referencing clarified: Plumb confirms that sentencing courts can draw on the Attempted Murder guideline to inform sentencing for solicitation/encouragement offences where the intended harm and persistent, sophisticated planning make the case as serious as attempted murder. Franks remains good law on its facts but is not a general prohibition.
  • Robust approach to online/incitement conspiracies: Persistent recruitment of accomplices for extreme violence will be treated as gravely as comparable completed or attempted offences, especially where the intended harm is at the highest level.
  • Dangerousness and sentence selection: The decision streamlines sentencing reasoning: when dangerousness is established and seriousness justifies life, a court need not separately elaborate why EDS will not suffice. This will likely reduce satellite litigation on “failure to consider EDS” grounds where the facts cross the life sentence threshold.
  • Public protection priority: Plumb emphasizes that where future risk is indeterminate or enduring, discretionary life sentences may be necessary because EDS cannot lawfully detain an offender past the custodial term even if risk persists.
  • Totality and multi-offence calibration: For cases combining solicitation to murder with encouraging/assisting kidnap and rape, courts may legitimately consider multiple guidelines and then locate an overall position anchored by the most serious comparable benchmark, subject to adjustments for feasibility and other mitigating factors.

Complex Concepts Simplified

  • Soliciting murder (s.4 OAPA 1861): Asking, encouraging, or attempting to persuade another person to commit murder. The offence is complete once the solicitation occurs, regardless of whether the murder is attempted or carried out.
  • Encouraging or assisting (s.45 Serious Crime Act 2007): Doing an act capable of encouraging or assisting an offence, believing it will be committed and that the act will encourage or assist its commission. Again, the underlying offence need not be attempted or completed.
  • Attempted Murder Guideline as a “yardstick”: Sentencing guidelines are offence-specific, but courts may consult another guideline by analogy. In Plumb, the court held that where the facts make the solicitation/encouragement as serious as an attempted murder, the Attempted Murder guideline can help set the level, subject to fact-sensitive adjustment.
  • “Viability/feasibility” as mitigation: Even when the intended harm is extreme, practical barriers to execution (e.g., offender’s incapacity, lack of means) are relevant to mitigating the starting point, but do not eclipse the gravity of the planned harm.
  • Dangerousness (Sentencing Code): A statutory finding that an offender poses a significant risk to members of the public of serious harm by committing further specified offences. It triggers special sentencing powers (EDS or life).
  • Discretionary life vs EDS:
    • Life sentence: The court sets a minimum term. Release thereafter is not automatic; it is only if the Parole Board is satisfied that risk can be managed in the community. Licence is for life and recall remains available indefinitely.
    • Extended Determinate Sentence (EDS): The court sets a custodial term plus an extended licence (up to 8 years for these offences). Release before the end of the custodial term is by Parole Board direction, but release must occur at the end of the custodial term even if risk persists; supervision then happens on licence for the extension period.
  • Minimum term for discretionary life: Commonly derived by identifying the notional determinate term, adjusting for aggravation/mitigation, and then reducing (usually by one-third) to reflect the determinate early-release regime—yielding the minimum term that must be served before Parole Board consideration.
  • Totality: When sentencing for multiple offences, courts ensure the overall sentence reflects the entire criminality without being crushing or disproportionate. Here, concurrent life sentences were used to reflect the combined seriousness across counts.

Application of Principles to the Facts

The Court considered several salient features:

  • Intent: The jury were directed that the applicant must have intended murder for the s.4 offence and intended the commission of kidnap and rape for the s.45 offences; the sentencing proceeded on the basis that he did.
  • Persistent planning and recruitment: Over years, the applicant researched the victim’s life, gathered a “restraint kit,” and repeatedly sought accomplices (“Marc,” “Ryan,” and “David Nelson,” the latter an undercover US law enforcement officer). The persistence and scope of the solicitation were especially aggravating.
  • Comparable past conduct: Earlier convictions (attempted kidnaps, false imprisonment of co-workers using bindings and blades) heightened concern about the reality of the risk and informed the dangerousness finding.
  • Feasibility limits acknowledged: The applicant’s physical and practical constraints, and the absence of an actual accomplice, rendered the plan less viable. The judge reflected this by setting the notional determinate sentence at 24 years rather than above the 25-year starting point suggested by Category B2.
  • Victim impact: The court accepted that disclosure of the plot had profound and enduring effects on the victim’s personal and professional life, which is a legitimate consideration at sentence.

Practice Points for Judges and Practitioners

  • Do not read Franks as categorically barring the Attempted Murder guideline for solicitation/encouragement; ask whether the facts make the case as serious as attempted murder.
  • When multiple grave offences are solicited or encouraged (kidnap, rape, murder), consider analogous guidelines (kidnap, rape) and the Attempted Murder guideline within a totality assessment.
  • Account expressly for “viability/feasibility” as mitigation without discounting the gravity of intended harm.
  • On dangerousness plus seriousness justifying life, a court may impose life without separately explaining why EDS would not suffice; however, articulating why EDS risks an eventual release despite persisting danger can strengthen the reasoning (as Plumb itself illustrates).
  • In discretionary life cases, transparently show the route from a notional determinate term to the minimum term, including credit for time on remand (s.232).

Conclusion

R v Plumb establishes two important clarifications in sentencing law:

  • Guideline cross-use: The Attempted Murder guideline can legitimately be used as a yardstick in sentencing for soliciting murder and for encouraging/assisting comparably grave offences where the intended harm and sustained planning elevate seriousness to the level of attempted murder. Franks is not a universal bar; it remains a fact-specific caution against unthinking read-across.
  • Life sentence selection: Where dangerousness is proven and the seriousness justifies life under the Sentencing Code, courts are not obliged to articulate an EDS rejection. Plumb emphasizes public protection where risk is indefinite and underscores the limitations of EDS in that scenario.

The case will guide judges in serious solicitation/encouragement prosecutions—particularly those involving online recruitment and detailed preparations for extreme violence—by reaffirming a fact-sensitive, intention-focused approach that can anchor sentences in the Attempted Murder guideline where appropriate; and by simplifying the pathway to life sentences where dangerousness and seriousness converge.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Criminal Division)

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