R v Markham & Edwards [2017] EWCA Crim 739
In June 2017, the Court of Appeal allowed the appeal against sentence and reduced the dismissed a challenge to a Crown Court decision to allow unrestricted reporting on two 15 year olds who had been found guilty of murder.
Details
The defendants’ appeal against sentence was allowed, the Court of Appeal agreed both defendants should be allowed full credit for their admissions (a discount of 1/6th from the minimum term) despite the fact that Markham only entered his guilty plea on the day of trial, and Edwards had pleaded not guilty on the grounds of diminished responsibility and been convicted after trial. The defence had argued that both children had made full admissions in interview, and that they had put the Crown on notice that the only issue in both cases was the psychiatric evidence, which took some time to be obtained. They argued it would have been negligent to not pursue the defence and relied on the young ages of the defendants.
The trial judge had given both defendants a minimal discount (5%), however the Court of Appeal accepted that Markham had been entitled to rely on legal advice to wait for the psychiatric evidence to be obtained before changing his plea. This reflects the guidance given in the Sentencing Council’s updated definitive guideline on Sentencing Children and Young People that Equally Edwards should be afforded credit for her full admissions to the offence from the outset, which narrowed the issue at trial to one of whether the diminished responsibility offence was made out. She was not to be penalised for allowing her defence team to run the defence, and so her sentence was also reduced by the court.
In reducing the minimum terms for both children to 17.5 years the court was keen to point out that this was an unusual case, and it could not be relied on to show that in all cases where a defence of diminished responsibility is explored full credit would be given. Whilst it was not in force at the time of sentencing, the court did refer to the new guideline (paragraph 65). The Sentencing Council’s Definitive Guideline on Sentencing Children and Young People states at paragraph 5.16:
“Where the sentencing court is satisfied that there were particular circumstances which significantly reduced the child or young person’s ability to understand what was alleged, or otherwise made it unreasonable to expect the child or young person to indicate a guilty plea sooner than was done, a reduction of one-third should still be made.”
It should be noted that the guideline specifically allows credit to be extended where expert reports are required (paragraph 5.17 of the Sentencing Council’s Definitive Guideline on Sentencing Children and Young People).
The Court of Appeal also considered the position regarding the anonymity of both defendants. The trial judge, Haddon-Cave J, had granted reporting restrictions under section 45 YJCEA 1999 up until the point of sentencing. At that point he lifted the order, making an ‘excepting direction’ under s.45(5) of the 1999 Act but stayed the effect of his decision pending a challenge by the defendants by way of judicial review. The Court of Appeal upheld the judge’s ruling, allowing their identities to be published.
The judgment strenuously emphasised the unusual nature of the case and it therefore it must be regarded as one that turns on its own facts: “Haddon-Cave J described the crimes as having ‘few parallels in modern criminal history’”(paragraph 37). The court emphasised that cases of this nature are often fact-specific, stating “submissions in this area of the law should focus on the facts of the particular case” (paragraph 84). In this particular case the court found that “the facts of the case cannot be properly understood without identifying that the appellants murdered the mother and 13 year-old sister of Kim Edwards.” (paragraph 88).
Discussion
The court accepted that welfare was important, in that the judgment goes on to say that if such evidence had been submitted, the court said, it would have given rise to ‘weighty consideration in the balancing of competing considerations’. The court appears therefore to have dismissed the arguments as to the defendants’ welfare. Having set out the importance of considering the welfare of the defendants both in domestic and international law, the court concluded, at para 89 that “there is no evidence before us that reporting their identities would adversely affect the future rehabilitation of the appellants, and, thus, be contrary to the welfare of a child, which would give rise to a weighty consideration in the balancing of competing considerations in the assessment that we must make. The reality is that anonymity lasts only until 18 years of age and both appellants face a very considerable term of detention that will stretch long into their adult life.”
However the Court of Appeal’s analysis seems to have overlooked, firstly, that the naming of the two children once they turned 18 was not as inevitable as the court seems to have believed. Both victims and witnesses can apply to the court for lifelong anonymity. Lifelong anonymity injunctions have been awarded in the cases of Thompson and Venables, Mary Bell and her daughter and Maxine Carr, the girlfriend of Ian Huntley, and more recently in respect of two young men involved in the “Edlington case”. In the cases of Thompson, Venables and Carr, the orders were granted on the basis that their lives and physical safety were genuinely in danger.
Secondly, welfare need not be confined purely to rehabilitation considerations. There also seems to be little justification for the view that no useful rehabilitation can occur between now and the defendants’ 18th birthdays, despite the fact that time will be spent incarcerated.