B, R v

When fixing the punitive minimum term for a discretionary life sentence, including whether to exclude early release altogether, the court must assess the seriousness of the offending. It must exclude the offender’s future dangerousness and the likely time before safe release, as those matters fall for later consideration under the early-release regime.

Seriousness requires assessment of both harm and culpability. Manslaughter by diminished responsibility entails reduced culpability. The more severe the mental illness and its contribution to the offending, the greater its mitigating effect. A sentencer must not treat symptoms of that illness solely as aggravating features without giving proper effect to the resulting reduction in culpability.

The appellant had previously been convicted of manslaughter by reason of diminished responsibility and made subject to a hospital order. After conditional release, he committed two further killings while suffering from severe schizophrenia. He pleaded guilty to two counts of manslaughter on the basis of diminished responsibility.

At the Central Criminal Court, the judge imposed mandatory life sentences under section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. Finding no exceptional circumstances, he directed that the early-release provisions should not apply, with the result that the appellant would serve a whole-life term.

The appeal concerned whether the gravity of the offences justified that direction despite the substantial reduction in culpability caused by the appellant’s mental illness.

1. Appeal allowed. The whole-life direction was set aside and replaced by a minimum term of 15 years. The mandatory life sentences under section 109 remained in place.
2. Section 82A required the court to identify the punitive period appropriate to the seriousness of the offences. A whole-life direction was justified only if punishment required lifelong detention. The assessment must disregard how long the offender was likely to remain dangerous or before release could safely occur. Those matters fell to the Parole Board after expiry of the punitive term. The court followed R v Wheaton [2005] 1 Cr App R(S) 425 and R v Adams [2000] 2 Cr App R(S) 274 on that distinction.
3. Seriousness depended on both harm and culpability. Death was the gravest harm, and the earlier manslaughter was a relevant aggravating feature. However, diminished responsibility reduced both the appellant’s legal responsibility and his culpability. The extent of mitigation depended on the severity of the mental disorder and the extent to which it contributed to the conduct.
4. The psychiatric evidence established severe schizophrenia which had a dominant causal effect on both killings. The sentencing judge had insufficiently reflected that mitigation. In particular, he treated the bizarre sexual and sadistic features as aggravating gravity without recognising that they were symptoms of the illness which reduced culpability.
5. The appropriate notional determinate sentences were 15 years for each offence, consecutively. Applying the required minimum-term calculation produced a 15-year minimum term. No remand credit was allowed, since the earlier hospital order was appropriately treated as equivalent to being on licence when the later offending occurred. The appellant would not automatically be released at the end of that term; continued detention would depend on risk to the public.

• Court of Appeal (Criminal Division) Allowed the sentence appeal and substituted a 15-year minimum term for the whole-life direction: [2006] EWCA Crim 379.
• Central Criminal Court On 15 March 2005, imposed concurrent mandatory life sentences for two manslaughters and directed that the early-release provisions should not apply.