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An unsuccessful AG reference demonstrates that departing from sentencing guidelines should be rare

R v L (H) and others [2020] EWCA Crim 1729

In the above case, the Court of Appeal refused to refer sentences as unduly lenient of 3 child defendants convicted of manslaughter of a police officer. The Court of Appeal found no basis for arguing that the sentencing judge had erred in failing to depart from the sentencing guidelines. The Court also refused applications for leave to appeal against sentence by the defendants.

Details

HL, AB and JC were charged with the murder of a police officer. HL pleaded guilty to manslaughter at a plea and trial preparation hearing. The Crown pursued the charge of murder in respect of all 3 child defendants. On the 24th July 2020 all three were acquitted of murder – AB and JC were convicted of manslaughter.

The facts are as follows:

  1. In August 2019 HL was aged 18. AB and JC were both aged 17. The defendants had been friends. They would often go out ‘thieving’ – stealing items such as quad bikes and tools from sheds or compounds.

 

  1. On the 14th August 2019 the defendants went out in a vehicle intending to steal any property they could. They stole various tools from a builder’s van alongside a long strap which they thought might be used as rope to attach a quad bike to the vehicle.

 

  1. On the 15th August 2019, the child defendants went out in the same vehicle. Shortly after 11pm, they attended a property where they knew the occupant owned a quad bike. They got out of the car and approached the quad bike – masked. The occupant of the property called 999. The defendants attached the quad bike to their car by using the strap obtained the previous day. JC sat on the quad bike as the car drove off.

 

  1. At this time PC Harper and PC Shaw responded to the 999 call made by the occupant of the property. They approached the defendants’ vehicle from the opposite direction as the defendants drove off. The two cars came close together and stopped on a narrow lane.

 

  1. AB shouted at JC to abandon the quad bike and get into the car so that they can drive away as quickly as possible.

 

  1. JC freed the strap and HL began to drive the car slowly past the police vehicle. The road the vehicles were on (facing each other) was narrow. The defendants’ vehicle was partly on the verge as they drove past the police vehicle. PC Harper had at this point alighted from the police vehicle and was running after JC, who managed to launch himself into the defendants’ car as it drove away.

 

  1. HL then drove away accelerating fast. The strap which attached the quad bike to the vehicle was still attached to their car. As the vehicle accelerated, PC Harper’s feet were caught in the loop. The officer fell back onto the road and was dragged along by the vehicle.

 

  1. The defendants’ drove down the narrow lane at approximately 45mph. They realised that something was caught in the loop, albeit they did not appreciate it was a person. Henry drove side to side along the lane in an attempt to try and detach whatever it was that was caught in the strap.

 

  1. PC Harper suffered catastrophic injuries from which he died within minutes.

 

  1. All three defendants were arrested the same evening from their caravan site.

In his sentencing remarks, the Learned Judge took account of guilty pleas entered by the defendants, their ages at the time of this offending and the fact that AB and JC suffered with learning disabilities although he commented that in his view, the learning disabilities did not stop AB and JC from fully understanding what they were doing on the night in question.

The Learned Judge found that the case fell within the highest category in the sentencing guidelines. HL was found to be a ‘dangerous’ offender and as such his sentence after trial would have been one of 24 years in custody. Giving credit for early guilty plea and his age, the Learned Judge imposed a sentence which comprised of 16 years detention and extended license of further 3 years. Both AB and JC were sentenced to 13 years detention (the learned Judge took a starting point of 20 years).

The sentences were referred to the Court of Appeal by the Attorney General (in person) as unduly lenient. The Attorney General argued that the Learned Judge should have departed from the sentencing guidelines.

The Court of Appeal rejected this submission and found it to be ‘unusual’, stating that no sufficient explanation was given by the Attorney General as to why she contended that the Judge was not merely entitled to depart from the sentencing guidelines but positively required to do so.

The Court of Appeal refused the Attorney General’s applications for leave to refer the sentences as unduly lenient.

The Court of appeal also refused the applications on behalf of the Defendants.

Commentary

This case has been highly commented on in the media by various legal professionals. Some argue that the Attorney General’s decision to appear in person shows how politically motivated this appeal was.

Nevertheless, the case emphasises the role of the Sentencing Council and the sentencing judge. The Sentencing Council was established by Parliament to promote greater transparency and consistency in sentencing.  This is particularly crucial where children and young people are concerned as many Judges will be less familiar with dealing with them.  It is therefore important that the sentencing guidelines are followed unless there is a particular reason to depart from them. In this case, as explained above, the Attorney General asserted that the Judge was positively required to depart from the sentencing guidelines – this is simply not the case.

Written by Kate Riekstina, St Johns Building