Davies, R v

A fact which raises the minimum-term starting point for murder from 15 to 30 years under Schedule 21 to the Criminal Justice Act 2003 must be proved to the criminal standard. The sentencing court must be sure that the relevant aggravating feature existed.

Evidence that merely raises the possibility of sexual conduct cannot establish the 30-year category. On resentencing from the 15-year starting point, the court must balance aggravating and mitigating features. Concealment of the body may be serious aggravation, particularly where it causes distress and obstructs proof of the circumstances of the killing.

The appellant was convicted at the Central Criminal Court of murder and of an act intended to pervert the course of justice by concealing the victim’s body. He received the mandatory life sentence for murder with a 23-year minimum term, based on the sentencing judge’s finding that the murder involved sexual conduct. A concurrent six-year sentence was imposed for the second count.

He appealed the minimum term with leave. The central issue was whether the evidence permitted the court to be sure that sexual conduct was involved, so as to justify the 30-year starting point under Schedule 21 to the Criminal Justice Act 2003.

1. Appeal allowed to the extent of reducing the minimum term from 23 to 18 years. A minimum term had to be fixed under section 296 of the Criminal Justice Act 2003, applying the principles in Schedule 21.

2. The court held that the criminal standard of proof applied when deciding whether an aggravating feature moved the starting point from 15 to 30 years. The distinction was of no less consequence than that between alternative criminal offences considered by a jury. The court therefore had to be sure that the murder involved sexual conduct before using the 30-year starting point.

3. That standard was not met. The victim’s naked body raised a possibility of sexual conduct, but it did not prove it. The appellant’s removal of clothing was capable of other explanations, including concealing evidence, assisting concealment of the body, or inhibiting identification. The sex aids found in his possession carried no DNA from the victim, and neither his history nor the psychiatric evidence supported an inference of sexual offending. The judge’s finding of sexual conduct was therefore set aside, and the appropriate starting point was 15 years.

4. The court then balanced the agreed mitigation, including youth, immaturity, absence of proved intention to kill and lack of likely premeditation, against the aggravation of concealing the body. Concealment caused added anxiety and distress to the victim’s relatives and prevented reliable conclusions about the circumstances of the murder. It outweighed the mitigation. The court quashed the original minimum term and substituted 18 years, with credit for time on remand.

The court observed, without deciding the point, that where an offender denies responsibility and concealment prevents forensic conclusions, it may be arguable that sentencing should begin with a presumption that he intended the consequence of his acts.

• Court of Appeal (Criminal Division) Allowed the appeal against sentence to the extent of quashing the 23-year minimum term and substituting an 18-year minimum term.
• Central Criminal Court Convicted the appellant of murder and an act intended to pervert the course of justice. It imposed life imprisonment with a 23-year minimum term for murder and a concurrent six-year sentence for the second offence.