Ford, R v

Where attempted murder has aggravating features corresponding to murder of particularly high seriousness, sentencing levels may properly be increased to reflect the statutory minimum-term framework for murder. The completed offence must nevertheless retain a substantial additional penalty because a life has been lost.

The increase is confined to the gravest attempted murders. It does not justify a general increase for less aggravated attempts or for offences under section 18. A court may review sentencing levels in changed circumstances without offending Article 7, where the existing statutory maximum permits the sentence. The applicable release regime must be identified accurately when fixing a determinate term.

The appellant was convicted after trial in the Crown Court at Sheffield of two counts of attempted murder. He had fired three shots at two men, seriously injuring one of them. The trial judge imposed concurrent sentences of 30 years’ imprisonment.

The judge reasoned that, if either victim had died, the murder would have attracted a 30-year minimum-term starting point under the Criminal Justice Act 2003. He sought to preserve a proportionate distinction for the attempts, but mistakenly proceeded on the basis that section 244 governed the appellant’s release on licence.

The appeal concerned whether the higher murder starting point could justify an increase in sentences for attempted murder, whether that approach was incompatible with Article 7 of the European Convention, and the effect of the release regime applicable to an offence committed on 26 June 2004.

1. Appeal allowed as to sentence. The court quashed the concurrent 30-year sentences and substituted concurrent sentences of 24 years’ imprisonment.

2. The attempted murders were of a kind which, had either victim died, would have fallen within the category of particularly high seriousness under paragraph 5(1) of Schedule 21 to the Criminal Justice Act 2003. A 30-year minimum-term starting point for murder was therefore appropriate. The court held that it was permissible in principle to increase sentencing levels for correspondingly grave attempted murders, while retaining a proportionate discount from the custodial period appropriate for completed murder.

3. The prospective dangerous-offender provisions in sections 224 to 229 were irrelevant to that exercise. A court’s review of the appropriate sentence in changed circumstances was lawful because a discretionary life sentence had always been available for attempted murder. The approach neither retrospectively increased the statutory maximum nor contravened Article 7(1) of the European Convention on Human Rights.

4. The increase was confined to the most serious attempts. As R v Sullivan, Gibbs, Elenor and Elenor [2005] 1 Cr App R(S) 308 indicated, higher murder minimum terms concerned offences at the top of the range. Attempted murder always requires intent to kill, but culpability varies widely. Where a defendant would have been guilty only of manslaughter had death occurred, the appropriate comparator is manslaughter. The Schedule 21 starting point did not itself require higher sentences for section 18 offences.

5. Section 244 did not apply because the offence predated 4 April 2005. Under the applicable regime, release was automatic after two-thirds of the term, with discretionary release after one-half. A 24-year term was likely to produce custody approaching two-thirds of the sentence and adequately reflected the intended proportionality.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted concurrent sentences of 24 years’ imprisonment: [2005] EWCA Crim 1358.

• Crown Court at Sheffield: Following trial before His Honour Judge Goldsack QC, convicted the appellant of two counts of attempted murder on 12 October 2004 and imposed concurrent sentences of 30 years’ imprisonment on 13 October 2004.