![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Criminal Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Long & Ors v R. [2020] EWCA Crim 1729 (16 December 2020) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2020/1729.html Cite as: [2021] 1 Cr App R 19, [2020] EWCA Crim 1729, [2021] 4 WLR 5 |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Help]
![]() ![]() ![]() ![]() ![]() ![]() ![]() | ||
![]() ![]() |
CRIMINAL
DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL
COURT
MR JUSTICE EDIS
T20197317
REFERENCE BY HER MAJESTY'S ATTORNEY GENERAL pursuant to section 36 of Criminal
Justice Act 1988 HENRY LONG, ALBERT BOWERS and JESSIE COLE
Strand, London, WC2A 2LL |
||
![]() |
B e f o r e :
LORD JUSTICE HOLROYDE
and
MR JUSTICE WILLIAM DAVIS
____________________
HENRY LONG, ALBERT BOWERS and JESSIE COLE |
Applicants |
|
- and - |
||
THE QUEEN |
Respondent |
____________________
Mr. T Raggatt QC & Mr. R Moss (instructed by Andrew Storch Solicitors) for Albert BOWERS
Mr. P Upward QC (instructed by Andrew Storch Solicitors) for Jessie COLE
Mr. J Laidlaw QC & Mr. J Polnay (instructed by Crown Prosecution Service) for the Respondent
The Attorney General in person (Mrs. S Braverman QC MP) & Mr. T Little QC on behalf of the Attorney General
Hearing date : 30 November 2020
____________________
Crown Copyright ©
Dame Victoria Sharp P:
Introduction
Long
Manslaughter: an extended determinate sentence pursuant to Section 226A of the Criminal
Justice Act 2003 comprising a period of detention of 16 years and an extended licence period of 3 years.
Conspiracy to steal: 32 months' detention in a Young Offender Institution to be served concurrently.
Bowers and Cole
Manslaughter: 13 years' detention in a Young Offender Institution.
Conspiracy to steal: 38 months' in a Young Offender Institution to be served concurrently.
The facts
Conviction: Bowers and Cole
"Are we sure that
1. D participated in the unlawful act, by agreeing that dangerous driving would occur if necessary in order to escape; If No, Not Guilty. If Yes, go to question 2.
2. D was aware of the circumstances in which the unlawful act would be committed, that is fast driving along a narrow country road, when the brake lights of the SEAT were disabled and at a time, before midnight, when other vehicles and perhaps pedestrians might be using the road; If No, Not Guilty. If Yes, go to question 3.
3. A reasonable person sharing D's knowledge of the circumstances would have realized that the unlawful act might cause a risk of some physical harm to any person on the road at that time, that is to say the unlawful act was a dangerous one which carried an obvious risk of injury. If No, Not Guilty. If Yes, go to question 4.
4. The unlawful act caused the death of PC Harper. If No, Not Guilty; if Yes Guilty of Manslaughter."
" an unlawful act causing the death of another cannot simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm."
" if he participates by encouragement or assistance in any other unlawful act which all sober and reasonable people would realise carried the risk of some harm (not necessarily serious) to another, and death in fact results: R v Church [1965] 1 QB 59, approved in Director of Public Prosecutions v Newbury [1977] AC 500 and very recently re-affirmed in R v F (J) & E (N)[2015]EWCA
![]()
Crim
351; [2015] 2 Cr App R 5."
"My Lords, of allcrimes
manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions. From the early days when any homicide involved penalty the law has gradually evolved "through successive differentiations and integrations" until it recognise murder on the one hand, based mainly though not exclusively on an intention to kill, and manslaughter on the other hand, based mainly though not exclusively, on the absence of intention to kill but with the presence of an element of " unlawfulness " which is the elusive factor. In the present case it is only necessary to consider manslaughter from the point of view of an unintentional killing caused by negligence, i.e., the omission of a duty to take care ..
The principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough: for purposes of thecriminal
law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied " reckless " most nearly covers the case. It is difficult to visualise a case of death caused by " reckless " driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter: but it is probably not all embracing for " reckless " suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction. If the principle of Bateman's case is observed it will appear that the law of man-slaughter has not changed by the introduction of motor vehicles on the road. Death caused by their negligent driving, though un-happily much more frequent, is to be treated in law as death caused by any other form of negligence: and juries should be directed accordingly."
"I have left unlawful act manslaughter in the cases of Bowers and Cole in the way mandated by R. v JF, [2015] 2 Cr. App. R. 5.
I have included the agreement to escape if necessary by dangerous driving as an element of the unlawful act. I do not believe that Andrews, which concerns the degree of negligence required to establish manslaughter by gross negligence in a driving case, is relevant to unlawful act manslaughter. The law in relation to the two forms of involuntary manslaughter and in relation to fatal driving offences has changed materially since Andrews and I consider that it is a case about gross negligence manslaughter not unlawful act manslaughter. An agreement to behave in a dangerous way in furtherance of acrime
of theft is a dangerous and unlawful act for the purposes of unlawful act manslaughter."
"Whilst burglary of itself is not a dangerouscrime,
a particular burglary may be dangerous because of the circumstances surrounding its commission. We consider that the features identified by the Crown .[as summarised above] ..were capable of making this burglary dangerous when coupled with foresight of the risk of intervention to prevent escape."
"33. We have considered whether it would be open to us to substitute a verdict of manslaughter by an unlawful and dangerous act. A case could be made against the appellant that the escape, being part of the theft, was an unlawful act, intentionally performed, in circumstances rendering it dangerous in the sense that a reasonable and sober person would have been aware of the circumstances which made the escape dangerous. It is arguable that a verdict of manslaughter on that basis would be almost inevitable.
34. But we are not entitled to substitute a verdict of manslaughter on that basis unless the jury could, on the indictment, have found him guilty of that offence and:
"On the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which prove him guilty of the other offence." (See s.3(1)Criminal
Appeal Act 1968 .)
35. We are unable to say that on its verdict of murder the jury must have been satisfied of "unlawful act" manslaughter, particularly in light of difficulties and controversy in identifying the ingredients of that offence."
"To steal is an unlawful act. If a person escapes or attempts to escape from stealing that is also an unlawful act. If a person, in attempting to escape, embarks upon an unlawful and dangerous act, which is likely to injure, if only slightly, another person, and that causes the death of that other person, then he would be guilty of manslaughter.
To be guilty of manslaughter Tommy Willett must have agreed that they should escape, and he must also have been aware that Albert Willett would drive dangerously and agreed that his brother should do so to make their escape. If Albert Willett did then do just that, and as result Mr Matharu was killed, then Tommy Willett would be guilty of manslaughter, provided you are sure of it ."
Sentence
"Nothing which I can do, or could have done if there had been a conviction for murder, can restore Andrew Harper to his loving wife and family, or to the public he served so well. His devastating loss, in these terrible circumstances, will follow his family forever and they have the profound sympathy of the court and the whole nation in their loss. The victim personal statements are deeply moving and I have read them with care and listened intently to what was said in this courtroom. I heard the trial, and the facts I set out below are those of which I am sure, having heard the evidence. The jury were not sure that Henry Long knew that, as he was driving from Admoor Lane to Ufton Lane, the car he was driving was dragging a human body. That is what the prosecution had to prove before anyone could be convicted of murder, and they did not succeed in doing so. These young men therefore fall to be sentenced for manslaughter. Cases of manslaughter range greatly in seriousness. Sometimes death may be caused by an act of gross carelessness. Sometimes a case of manslaughter may be very close to a case of murder in its seriousness. That is so here. This is a very serious case of manslaughter."
"I will not take any previous convictions, of those who have them, into account as an aggravating feature, but the evidence given by Long, Bowers and Cole about their way of life is plainly very important. The mitigation is the ages of the offenders; the pleas entered by all defendants, to conspiracy to steal and by Long, to manslaughter; the learning difficulties of Bowers and Cole. I am sure they were able to understand what they were doing that night. I do not think that their learning difficulties made them more likely than other people to commitcrimes
involving serious risk of death. These problems do cause sympathy and also limit their abilities to pursue an honest career. However, they were not linked to the offence and did not in any way reduce their ability to understand that driving of the kind they took part in is likely to cause death."
"You decided that your freedom to commitcrime
was more important than his life. This was not a spur of the moment decision: when confronted by him, you carried out a pre-agreed plan. That is a very wicked calculation. It is not as wicked as deliberately intending to cause really serious injury or death, but it represents a highly culpable state of mind. Although the guideline is structured in a different way from the rules which apply when a minimum term is to be fixed in a murder case, it is important to have regard to the sentence for murder in order to ensure that the gap between the sentence for murder and manslaughter is wide enough to mark the very significant difference between the two offences, but not wholly disproportionate."
"Parliament places the murder of police officers on duty in a particular category for sentencing purposes, and I see no reason why the manslaughter of police officers on duty, at least in cases where the unlawful act intentionally and deliberately created a risk to the police, should not also be in a particular category of seriousness. These factors require a significant upward adjustment of the starting point ."
"As things stand, if you were to be free, I am confident that you would carry on as before, going out thieving all the time, using cars to escape by any means required. It is only a matter of time before someone else dies if you do that. I heard you give evidence over a long period of time and I do not believe that I require the assistance of a pre-sentence report to decide this question.
I have decided that although this is an extremely serious offence I can deal with it by means of an extended determinate sentence of detention because of your age. A man only a few years older than you would have received a life sentence. It does mean that you are entitled to release at the end of the custodial term. At your age it seems to me to be an important benefit. That is the principal way in which I address the fact of your age, and the discount in relation to the custodial term will be modest. The custodial term will be based on a starting point of 24 years, discounted for your age, and then for your plea, to 16 years. You will serve 10 years and 8 months of that before you can be considered for release. You will be entitled to release after 16 years. The extended licence period will be 3 years."
"The starting point in your cases is 20 years. This is reduced on account of your ages and immaturity to a term of 13 years in each case. You will serve two-thirds of that in custody and the balance on licence."
"That is a seriously aggravating feature of this conspiracy, for all the reasons I have given above. This kind of theft, using a car in this way, is not simply an offence against property. It involves a potentially very serious risk to public safety."
"It is a means of ensuring by judicious selection of cases, that issues of principle in relation to sentencing can be resolved, and sentences corrected, in cases where public confidence in sentencing could otherwise be undermined."
"The procedure for referring cases under section 36 of theCriminal
Justice Act 1988 is designed to deal with cases where judges have fallen into gross error, where errors of principle have been made and unduly lenient sentences have been imposed as a result."
"125 Sentencing guidelines: duty of court
(1) Every court
(a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and
(b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,
unless the court is satisfied that it would be contrary to the interests of justice to do so."
"Life Sentence for Serious Offence
(1) This section applies where
(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and
(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.
(2) If
(a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and
(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life,
the court must impose a sentence of imprisonment for life. "
"Extended sentence: persons 18 or over
(1) This section applies where
(a) a person aged 18 or over is convicted of a specified offence ,
(b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences,
(c) the court is not required by section 225(2) to impose a sentence of imprisonment for life, and
(d) condition B is met.
(3) Condition B is that, if the court were to impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term would be at least 4 years.
(4) The court may impose an extended sentence of imprisonment on the offender.
(5) An extended sentence of imprisonment is a sentence of imprisonment the term of which is equal to the aggregate of -
(a) the appropriate custodial term, and
(b) a further period ("the extension period") for which the offender is to be subject to a licence. "
"(i) The seriousness of the offence itself, on its own or with other offences associated with it in accordance with the provisions of section 143(1).
(ii) The defendant's previous convictions (in accordance with section 143(2)).
(iii) The level of danger to the public posed by the defendant and whether there is a reliable estimate of the length of time he will remain a danger.
(iv) The available alternative sentences."
It is therefore clear that in considering the seriousness of an offence for the purposes of section 225, the sentencer cannot simply ask whether, compared to other examples of its kind, the particular offence is a very serious one.
"Experience of life reflected in scientific research is that young people continue to mature, albeit at different rates, for some time beyond their 18th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed his or her 18th birthday."
The availability of an extended determinate sentence, and the judge's decision as to the appropriate custodial term, meant that Long would in any event be in custody for over a decade and would thereafter be subject to licence conditions for the remainder of the 16 year custodial term and for a further 3 years after that. The judge was, unarguably, entitled to conclude that an extended sentence of such length would provide sufficient protection for the public.
" the court is satisfied that there were particular circumstances which significantly reduced the defendant's ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done."
i) We refuse the Attorney General's applications for leave to refer. The sentences for manslaughter passed on Long, Bowers and Cole remain in place.
ii) We grant Bowers and Cole leave to appeal against sentence and allow their appeals only to the following very limited extents:
a) We quash the sentences of 38 months detention in a Young Offender Institution imposed for the offence of conspiracy to steal, and substitute for them a Detention and Training Order for 18 months in each case. Those sentences will run concurrently with the sentences of detention imposed for the offence of manslaughter, and so do not alter the overall sentence imposed by the judge.
b) We quash the orders for disqualification and substitute in each case an order that he be disqualified from driving for 8 years 6 months (comprising a discretionary period of 2 years and an extension period of 6 years 6 months) and until he takes and passes an extended driving test.
iii) Long's application for leave to appeal against sentence is refused.
iv) The applications for leave to appeal against conviction, which are made by Bowers and Cole only, are refused.