Self-Protective Carrying as “Weapon Availability”: New Principle under Schedule 21

1. Introduction

Ogonowska v R ([2025] EWCA Crim 604) is a Court of Appeal (Criminal Division) decision handed down on 9 May 2025. The appellant, then aged 18, had been convicted at Cambridge Crown Court of murder and of possession of a bladed article. She was sentenced to life with a minimum term of 17 years (less remand) plus 18 months’ concurrent detention for the knife offence. She sought an extension of time and leave to appeal her sentence, relying on fresh psychiatric evidence and her personal mitigation (PTSD, borderline intellectual functioning, youth and trauma history). The central legal issue became whether paragraph 5A(2) of Schedule 21 to the Criminal Justice Act 2003 applies where a defendant takes a knife “for protection” rather than to attack. The Court clarified that “intending to have it available as a weapon” covers purely self-protective motives.

2. Summary of the Judgment

The Court of Appeal:

• Refused to admit the “fresh” psychiatric reports (Professor Forrester, Dr van Brandt, Dr Thorp) as they merely duplicated trial evidence or were immaterial to sentencing.
• Held that paragraph 5A(2) (25-year starting point) applies whenever a defendant takes a knife intending it “to be available to use as a weapon,” whether offensive or defensive.
• Reviewed and upheld the trial judge’s careful balancing of aggravating and mitigating factors (lack of premeditation, partial trauma, youth, mental disability falling short of diminished responsibility) which led to a downward adjustment from 25 to 17 years.
• Dismissed the appellant’s submissions that the judge mis-weighed her trauma history (the alleged 2015 rape) or her prior good character (tempered by prior knife-carrying) and ruled the minimum term was not manifestly excessive.

3. Analysis

3.1 Precedents Cited

• Schedule 21 CJA 2003, paragraph 5A(2): clarified to cover self-protective as well as offensive carrying.
• R v Canavan [1998] 1 Cr App R 79: a defendant cannot be sentenced for offences not charged or admitted—distinguished from the judge’s proper reference to trial-led propensity evidence.
• R v Oakes [2013] QB 979: confirmed sentencing judges may make factual findings (e.g. other offences or character features) if they underlie the conviction.
• Cases on “fresh evidence” for conviction appeals (s 23 Criminal Appeal Act 1968): evidence must be new, credible and likely to have affected the verdict—applied analogously to sentencing evidence.

3.2 Legal Reasoning

Interpretation of paragraph 5A(2): The appellant argued she took the knife purely for self-defence and so did not “intending to have it available to use as a weapon” within the meaning of Schedule 21. The Court held the statutory words require only that the knife be carried “in case” it is needed as a weapon—no more is needed. Thus the 25-year “starting point” applies even where the motive was protective.

Weight of Fresh Psychiatric Evidence: The appellant sought to adduce post-trial reports to show more severe PTSD, borderline intellectual disability and greater vulnerability in custody. The Court applied the familiar test: none of the material was truly “fresh,” much overlapped with trial evidence, and none would have materially altered the sentencing calculus. Dr Thorp’s observations about vulnerability in prison were noted but found non-determinative.

Assessment of Mitigation: The trial judge had identified seven main mitigating factors (lack of intent to kill, no premeditation, mental disability, provocation by assault and sexual touching, youth/immaturity, prior good character tempered by past knife-carrying). On appeal the Court of Appeal concluded these were all properly taken into account. The rejection of the appellant’s account of her 2015 trauma did not amount to a mis-weighing given conflicting evidence (Facebook messages, lack of contemporaneous report).

Manifest Excessive Sentence Test: The minimum term (17 years) represented a very substantial downward adjustment (8 years) from the 25-year starting point. While heavy, it sat comfortably within the judge’s broad discretion once he had balanced the aggravating and mitigating features.

3.3 Impact on Future Cases

• Clarity that “weapon availability” under Schedule 21 extends to self-protective carrying will guide lower courts in knife-murder cases.
• Reinforces that carrying any weapon “just in case” triggers the 25-year starting point even absent offensive intent.
• Confirms sentencing judges are entitled to discount overlapping or confirmatory expert evidence that adds nothing material.
• Demonstrates appellate restraint where a judge has made robust findings on contested personal and psychiatric history.

4. Complex Concepts Simplified

• Schedule 21 Starting Point: For adult knife murders, if the offender brought a knife intending it “to be available as a weapon” and used it, the “normal” minimum term starts at 25 years before considering adjustment.
• Diminished Responsibility: A partial defence reducing murder to manslaughter if an “abnormality of mental functioning” substantially impaired the defendant’s judgment or self-control.
• Fresh Evidence Test: To succeed in admitting new evidence on appeal, it must be new, credible, relevant, and likely to have produced a different outcome.
• Manifest Excessive Sentence: An appellate court will only interfere with a sentence that falls outside the judge’s reasonable sentencing range once relevant factors have been properly weighed.
• De bene esse: Evidence considered “provisionally” (i.e. read carefully) even if not formally admitted, so that it can be accounted for in appellate reasoning.

5. Conclusion

Ogonowska v R marks an important clarification of knife sentencing law in England and Wales: carrying a knife for self-protection is legally equivalent to carrying “to have it available as a weapon” and attracts the 25-year starting point under Schedule 21. The decision also underscores the careful weighing of psychiatric and personal mitigation in sentencing, confirms the narrow scope for fresh evidence on sentence, and illustrates appellate deference when judges properly record and balance contested facts. Going forward, defendants carrying blades for any purpose will face the same presumptive 25-year threshold, making knife deterrence more robust and consistent.