Attorney General's Reference No. 8 of 2011

In sentencing manslaughter by provocation, the court should treat the seriousness of the loss of life and the modern relevance of Criminal Justice Act 2003 Schedule 21 as important considerations. Schedule 21 does not equate manslaughter with murder, because reduced culpability remains critical. The use of a knife is an aggravating feature in every offence of violence. Its weight depends on why and how the weapon was acquired and used. A sentencing judge must also give appropriate, rather than excessive, credit for an offer to plead guilty which was not formally entered at the first reasonable opportunity.

The respondent was acquitted of murder but convicted of the manslaughter of his partner by reason of provocation. The killing followed a prolonged period of demeaning and critical behaviour by the deceased. The respondent picked up a kitchen knife, followed her into another room and inflicted a ferocious attack.

Nicol J, in the Crown Court at Chelmsford, sentenced him to five years’ imprisonment after treating the provocation as low-level but prolonged and allowing substantial credit for an offer to plead guilty to manslaughter. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether the judge had sufficiently reflected knife use, the gravity of a death, and the proper allowance for the proposed plea.

1. The reference succeeded. The five-year sentence was clearly unduly lenient. The court substituted a sentence of seven and a half years’ imprisonment.

2. The guideline for manslaughter by provocation pre-dated developments which require greater recognition of the death of the victim. The sentencing framework in Schedule 21 to the Criminal Justice Act 2003 is relevant by analogy, but it does not make manslaughter sentencing equivalent to murder sentencing. Reduced culpability arising from provocation remains critical. The court drew support from R v Wood [2009] EWCA Crim 651 and Attorney General’s Reference No 60 of 2009 (R v Appleby and others) [2009] EWCA Crim 2693.

3. Following R v Thornley [2011] EWCA Crim 153, knife use in provocation manslaughter has greater aggravating significance than when the guideline was issued. The assessment remains fact-sensitive. It must address why and how the knife was picked up and used. Here, although the respondent had not brought the knife to the scene, he deliberately picked it up, followed the deceased into the study, and attacked her. The attack was spontaneous but not instantaneous. The knife was therefore an aggravating feature.

4. The judge also allowed excessive credit for an offer to plead guilty to manslaughter which was never formally entered at the first reasonable opportunity. Allowing for remorse, health, good character, the offer, and the prolonged low-level provocation, a sentence after trial could not have been below ten years. On the reference, the least appropriate substituted sentence was seven and a half years.

5. The court additionally observed, without deciding the point for this pre-reform offence, that sections 54 and 55 of the Coroners and Justice Act 2009 create a different and apparently higher threshold for loss of control. Their effect on culpability, alongside the increased focus on death in manslaughter sentencing, would require future consideration.

• Court of Appeal (Criminal Division)—On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, held the sentence unduly lenient and substituted seven and a half years’ imprisonment: [2011] EWCA Crim 1461.
• Crown Court at Chelmsford—Nicol J sentenced the respondent to five years’ imprisonment for manslaughter by reason of provocation after his acquittal for murder.