Factual and Procedural Background
On 13 November 2023, two 12-year-old offenders, referred to as the first offender and the second offender, jointly committed a murder in a park in the Wolverhampton area. They stabbed a 19-year-old male victim, who was visiting from abroad for education and medical treatment, resulting in his death shortly after the attack. The first offender had brought a large machete to the scene, which he had purchased and concealed at home. Both offenders were arrested shortly after the incident, initially answered no comment during police interviews, and were subsequently tried in the Crown Court.
At trial, both offenders blamed each other for the fatal wound, but the jury convicted both of murder, and the second offender was also convicted of possession of a bladed article. The first offender had pleaded guilty to possession of the bladed article earlier. On 27 September 2024, both offenders were detained during His Majesty's pleasure, with a minimum term of 8 years and 6 months less time spent on remand. No separate penalty was imposed for possession of the bladed article.
The Solicitor General applied to the court for leave to refer the sentences as unduly lenient pursuant to section 36 of the Criminal Justice Act 1988, specifically challenging the minimum terms imposed.
Legal Issues Presented
- Whether the minimum terms of detention during His Majesty's pleasure imposed on the two 12-year-old offenders for murder were unduly lenient.
- How the statutory starting points for minimum terms under Schedule 21 of the Sentencing Code, particularly paragraph 5A for offenders aged 14 and under, should be applied in cases involving very young offenders.
- Whether the sentencing judge erred in adjusting the starting point for the minimum term by reference to the offenders' age, maturity, and role in the offence.
- Whether the minimum terms for the two offenders, who were jointly responsible but had differing levels of maturity and culpability, should be the same or different.
Arguments of the Parties
Solicitor General's Arguments
- The starting point for minimum terms in murder cases involving offenders under 18 is dictated by Schedule 21 of the Sentencing Code, specifically paragraph 5A for those aged 14 or under, which sets a starting point of 13 years.
- The starting point should not be modified by the offender's age, maturity, or role in the offence; it is fixed by statute.
- The sentencing judge failed to consider aggravating factors adequately, such as the murder occurring in the presence of others and the first offender's attempt to cover up the crime by cleaning the weapon.
- The judge's reliance on lack of premeditation as a mitigating factor was misplaced because the offenders created the circumstances for the attack by bringing the weapon.
- For the first offender, the minimum term should have been uplifted from 13 years before any mitigation; the downward adjustment made was excessive and amounted to double counting.
- The second offender's minimum term should have been greater than the first offender's, given his lack of immaturity and developmental trauma.
First Offender's Arguments
- The sentencing judge properly fixed the minimum term after hearing all evidence and considering relevant reports.
- The judge correctly applied an individualised approach, considering the first offender's immaturity and developmental issues.
- The judge fulfilled the duty to impose the shortest possible minimum term.
- The sentence is consistent with prior cases involving young offenders, such as the minimum term imposed in the murder case of two boys convicted in 1993.
Second Offender's Arguments
- The second offender's counsel agreed with the trial judge's overall approach.
- There was no proper basis to distinguish between the offenders regarding the minimum term, given the first offender's responsibility for procuring and cleaning the weapon.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Attorney General's Reference No 4 of 1989 [1990] 1 WLR 41 |
Sentencing discretion and the reasonableness of minimum terms in murder cases. |
Referenced by the Solicitor General to argue that the minimum term imposed was not reasonably open to the judge and was unduly lenient. |
| Jones [2005] EWCA Crim 3115 |
Guidance on the use of statutory starting points for sentencing and the need for flexibility. |
Used to affirm that statutory starting points are guidelines, not mechanistic rules, and judges must consider aggravating and mitigating factors. |
| SK [2022] EWCA Crim 1421 |
Application of starting points for young offenders and consideration of maturity in sentencing. |
Confirmed that maturity should be reflected in sentencing adjustments even after the starting point is chosen. |
| Kamarra-Jarra [2024] EWCA Crim 198 |
Reinforcement of flexible application of starting points and individualised sentencing for young offenders. |
Supported the principle that starting points are not to be applied mechanistically but flexibly to achieve just results. |
| Hunt [2024] EWCA Crim 629 |
Addressed the divergence in minimum terms for offenders of different ages under paragraph 5A. |
Clarified that judges must look beyond chronological age and balance maturity and role in the offence for just sentencing. |
| Ratcliffe [2024] EWCA Crim 1498 |
Confirmed that starting points are fixed by age and not adjusted for culpability differences; role differences considered in aggravating/mitigating factors. |
Applied to reject the argument for different starting points for offenders of similar age and maturity but different roles. |
| Peters [2005] 2 Cr App R (S) 101 |
Foundation for approach to sentencing children and young people, including the role of maturity in adjustments. |
Quoted as foundational authority supporting flexible sentencing adjustments after fixed starting points. |
Court's Reasoning and Analysis
The court emphasised the statutory framework established by Schedule 21 of the Sentencing Code, particularly paragraph 5A, which sets minimum term starting points for offenders under 18 based on age. The court reiterated that these starting points serve as guidance rather than inflexible rules, requiring judges to consider aggravating and mitigating factors, including the offender's maturity and role in the offence.
The court rejected the Solicitor General's submission that the starting point for offenders aged 14 or under must be mechanically applied as 13 years, holding that for very young offenders, such as 12-year-olds, the starting point should be adjusted downward to reflect their age and developmental differences. In this case, the court considered a starting point of 11 years appropriate for the first offender, whose culpability was further reduced by complex developmental trauma and immaturity.
However, the court found that aggravating factors, including the first offender's procurement and concealment of the weapon and attempt to destroy evidence, justified an uplift. Balancing these factors, the court concluded that a minimum term of 10 years less time on remand would have been appropriate for both offenders.
Regarding the second offender, the court acknowledged less mitigation but accepted some reflection was warranted for his upbringing and conduct in custody. The court agreed with the judge's individualised approach but found the minimum terms imposed were too low given the statutory scheme and principles of sentencing young offenders.
The court recognised the difficulty of the sentencing exercise and the lack of comparable recent authority but held that the sentences were unduly lenient, requiring correction to properly reflect legislative intent and the offenders' circumstances.
Holding and Implications
The court QUASHED the minimum terms of 8 years and 6 months imposed on both offenders and substituted a minimum term of 9 years and 50 days each, reflecting the adjusted sentence less time spent on remand.
This decision directly affects the two offenders by increasing their minimum detention periods. The ruling underscores the necessity for sentencing courts to apply statutory starting points flexibly and to carefully balance aggravating and mitigating factors, including maturity and developmental issues, in cases involving very young offenders. No new precedent was created beyond reaffirming established principles governing the sentencing of children under Schedule 21.