R v BGI and CMB
On 10 June 2024, two 12-year-old defendants, BGI and CMB, were convicted of murder by a jury. They were subsequently detained during His Majesty’s pleasure with a minimum term of 8 years and 6 months. The Solicitor General applied for leave to refer the sentences as unduly lenient in respect of the minimum terms of each child.
The Court of Appeal considered the correct approach for determining the minimum term for children convicted of murder, and whether or not the sentences were in fact unduly lenient.
Details
The victim, who also sustained a serious head wound, was stabbed in the back with a machete in a park shortly after 8.15pm. Each child blamed the other for inflicting the fatal wound at trial. They were convicted on a joint enterprise basis.
In relation to BGI, there was a pre-sentence report and a clinical psychologist’s report, supporting the conclusion that he operated at a lower level than his chronological age and was both vulnerable and immature. He had had a disjointed childhood with Children’s Services involvement from a young age; latterly, an NRM referral had resulted in a conclusive grounds decision. A pre-sentence report in respect of CMB contained similar comments on adverse childhood experiences.
In coming to the minimum terms, the judge did this on an individual basis, with reference to the Sentencing Council guidelines Sentencing Children and Young People. She arrived at a term of 8 years and 6 months for each child.
The Solicitor General appealed the sentence as unduly lenient, arguing that:
- the judge had erred by departing from the minimum terms identified in Schedule 21 of the Sentencing Code, where paragraph 5A lists the starting point as 13 years for a child under 14 whose offence would fall within paragraph 4(1) of the Schedule if they were an adult;
- there should have been an uplift from the starting point for aggravating features prior to any reduction for mitigation.
The court referred to the case of Jones [2005] EWCA Crim 3115, where it was held that “The judge must have regard to the guidance [in Schedule 21], but each case will depend critically on its particular facts…the starting points must not be used mechanistically” and the later case of Kamarra-Jarra [2024] EWCA Crim 198 which cited Jones with approval.
This position was upheld. Namely, that the court is entitled to reduce the minimum term from that listed in Schedule 21 based on the child’s age and other factors. The court found that a mechanistic approach would “create serious problems” (para 23) and that it is “contrary to good sense and experience of how children change between the ages of 10 and 14 to apply a starting point of 13 years to every child from the age of criminal responsibility [to those nearing 15]” (para 25). As such, an individualistic approach is warranted, as per the Children guideline.
Nonetheless, the court did find the sentences unduly lenient and increased the minimum term of each child to one of 9 years and 50 days (10 years taking account of time on remand).
Commentary
This case is a reminder that children are not mini-adults and should not be treated as such within the sentencing exercise, particularly they are being sentenced in adult courts for very serious offences.
There are obvious and critical differences between children of different ages, even within the brackets determined by Schedule 21. There are differences also in maturity within the same age bracket. The judge had correctly identified bases on which she should depart from the prescribed minimum terms, looking at each child and his circumstances and mitigation individually. That was the correct approach. Paragraph 5A of Schedule 21 provides a sliding scale of starting points (replacing the pre-2022 single starting point of 12 years for a child or young person under 18 convicted of murder) but these are not to be applied as written in every case. They must be adjusted according to the particular circumstances.
It is worth noting that this case also attracted attention because the Crown Court Judge refused the media’s application to lift the reporting restrictions in place to protect the identity of these young defendants. Please see our legal update on this aspect of the case here.
Written by
Violet Smart, Doughty Street Chambers