R v H (Reference by the Attorney General)

For a murderer aged under 18, paragraph 7 of Schedule 21 to the Criminal Justice Act 2003 fixes a 12-year starting point, not a presumptive or maximum minimum term. The sentencer must assess every aggravating and mitigating feature. This includes relevant features identified elsewhere in the Schedule, even though they are not repeated in paragraph 7.

Youth commonly reduces culpability, but its effect cannot be calculated mechanically. The court must make a balanced assessment of the individual offender and the crime. A minimum term only postpones eligibility for release; detention during Her Majesty’s pleasure continues unless release is safe.

Following a guilty plea at Manchester Crown Court, H, who was under 15 when he murdered an 11-year-old boy, was sentenced by McCombe J to detention during Her Majesty’s pleasure. The judge set a 12-year minimum term, less 229 days spent in custody.

The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The murder involved deliberate selection of a vulnerable child, planning to lure him to the offender’s home, sustained violence using more than one weapon, and attempts to conceal the body. Mitigation included H’s extreme youth, emotional deprivation, adjustment disorder, lack of previous violence, early guilty plea and remorse.

The issue was the proper minimum term under Schedule 21 to the Criminal Justice Act 2003.

1. The Attorney General’s reference succeeded. The 12-year minimum term was unduly lenient. It was replaced with a 15-year minimum term, with credit for pre-sentence custody preserved.

2. Under Schedule 21 to the Criminal Justice Act 2003, paragraph 7 supplies a 12-year starting point where a murderer was under 18. It does not confine the final minimum term to that figure or any fixed range. The final term may be substantially below or above the starting point after a fact-specific assessment of all aggravating and mitigating features.

3. In particular, the absence from paragraph 7 of the circumstances listed in paragraphs 4 and 5 did not prevent their being treated as aggravating features in the case of a young offender. The court must also consider the non-exhaustive factors in paragraphs 10 and 11. Youth normally, but not inevitably, reduces responsibility and culpability. Its significance cannot be determined by a mathematical formula and requires a balanced assessment of the offender’s development and experiences.

4. A minimum term in a sentence of detention during Her Majesty’s pleasure does not identify the date on which custody ends. It merely prevents release from being considered before its expiry. Release still depends on safety, and the offender remains subject to the sentence for life and liable to recall.

5. Here, the offender’s youth and mental disorder materially mitigated culpability. They did not neutralise the deliberate targeting of a vulnerable victim, the planning, the sustained and murderous violence with more than one weapon, and the calm efforts at concealment. Those aggravating features justified an 18-year minimum term before full credit for the early guilty plea. The resulting minimum term was 15 years.

• Court of Appeal (Criminal Division) In [2007] EWCA Crim 53, the court allowed the Attorney General’s reference and substituted a 15-year minimum term.
• Manchester Crown Court McCombe J sentenced H to detention during Her Majesty’s pleasure and set a 12-year minimum term, less 229 days in custody.