McNee & Ors, R. v

A discretionary life sentence may be imposed for an exceptionally grave offence where the offender presents a continuing danger for an indeterminate period. A mental disorder, irrationality or instability is not an indispensable precondition. The sentencing court may infer continuing danger from the offence and the offender’s demonstrated conduct, including where the offender has acted rationally.

For a conspiracy to murder that achieves its objective, the offenders must be sentenced for their participation in that conspiracy, not for murder as such. Nevertheless, where their culpability is extremely high, the court may have regard to the sentencing principles in Schedule 21 to the Criminal Justice Act 2003, although those principles do not bind sentencing for a discretionary life sentence.

At Birmingham Crown Court, Treacy J convicted Colin Gunn, John Paul Russell and Michael McNee of conspiracy to murder. The conspiracy culminated in the shooting deaths of two innocent people. Gunn organised and financed the plot; Russell and McNee performed reconnaissance and acted as essential participants close to the scene.

Each offender received life imprisonment. The minimum terms were 35 years for Gunn, 30 years for Russell and 25 years for McNee, subject to credit for time on remand. McNee and Russell appealed with leave. Gunn was granted leave to appeal.

The appeals challenged the discretionary life sentences, the judge’s use of Schedule 21 to the Criminal Justice Act 2003, and the length of the minimum terms.

1. The appeals were dismissed. The appellants were convicted of conspiracy to murder, rather than murder. They therefore had to be sentenced for their knowing and continuing participation in that conspiracy. Its successful completion, and their very high culpability for the resulting deaths, were central to the assessment of seriousness.

2. The discretionary life sentences were proper. R v Wilkinson (1983) 5 Cr App R(S) 105 and R v Basra (1989) 11 Cr App R(S) 527 stated a general approach to discretionary life sentences, but that approach admitted exceptional cases. The gravity of this offence could itself have justified life imprisonment. In addition, the judge was entitled to infer from the trial evidence that each appellant posed a continuing and unquantifiable danger to the public.

3. Medical evidence of mental disorder, irrationality or instability was unnecessary. A wholly rational offender may present the requisite continuing danger. The court applied the reasoning illustrated by Attorney-General’s Reference No 32 of 1996, Steven Alan Whittaker [1997] 1 Cr App R(S) 261 and R v Smith & Smith [2007] 1 Cr App R(S) 1.

4. The dangerous-offender provisions in sections 224 to 229 of the Criminal Justice Act 2003 did not apply because of the date of the offence. The court was not statutorily obliged to apply Schedule 21 when passing discretionary life sentences. However, it was logical and proper to have regard to its principles. Those principles were relevant because this was a completed conspiracy to murder, murder resulted, and the appellants’ respective roles and responsibility were exceptionally serious.

5. The judge had made proper distinctions between the three appellants. He had considered the youth and relative maturity of Russell and McNee, and their susceptibility to Gunn’s influence. The minimum terms were not excessive.

• Court of Appeal (Criminal Division). The court dismissed the sentencing appeals in [2007] EWCA Crim 1529.
• Crown Court at Birmingham. Treacy J convicted all three defendants of conspiracy to murder on 29 June 2006 and imposed discretionary life sentences on 30 June 2006, with minimum terms of 35, 30 and 25 years respectively.