Khaleel v R.

Under Schedule 21 to the Criminal Justice Act 2003, the specified categories of murder are examples, not closed classes. The sentencing court must assess the relative seriousness of the offence and identify the appropriate starting point. A murder outside the listed examples may nevertheless be of particularly high seriousness.

A relevant previous conviction must be treated as aggravating under section 143(2). A previous manslaughter conviction may justify treating a later murder as particularly high in seriousness where its nature, relevance and timing warrant that conclusion. It does not do so automatically. On appeal, the ultimate question is whether the minimum term is manifestly excessive or wrong in principle, including through double counting.

The appellant was convicted at the Central Criminal Court of murder and sentenced to life imprisonment. The trial judge specified a 33-year minimum term under section 269(2) of the Criminal Justice Act 2003.

The appellant had committed a previous deliberate homicide in strikingly similar circumstances. He had been convicted of manslaughter on the ground of provocation and was on licence when he committed the present murder. The judge treated that conviction as an aggravating feature and concluded that the present murder was of particularly high seriousness, giving a 30-year starting point under Schedule 21.

The appeal challenged whether a previous manslaughter conviction could move the present murder into that category, and whether the resulting minimum term was excessive.

1. The appeal was allowed to a limited extent. The life sentence and ancillary orders remained in force, but the 33-year minimum term was replaced by a minimum term of 28 years.

2. Schedule 21 to the Criminal Justice Act 2003 requires the court first to assess the relative seriousness of the murder and then to select the appropriate starting point. The examples in paragraphs 4(2) and 5(2) do not create closed or impenetrable categories. A case outside those examples may be exceptionally or particularly serious, while a case apparently within them may, on examination, be less serious.

3. Section 143(2) required the earlier manslaughter conviction to be considered as a potentially aggravating factor, having regard to its nature, relevance and age. The absence of an express reference in Schedule 21 to previous manslaughter did not prevent the court from treating a later murder as particularly high in seriousness. A murder committed while the offender was on licence after a manslaughter conviction for a virtually identical killing could properly fall within that category. That conclusion is fact-sensitive and does not establish that every later murder by an offender previously convicted of manslaughter attracts a 30-year starting point.

4. The judge was therefore entitled to adopt the 30-year starting point. However, he had found insufficient evidence of planning or premeditation, which required some reduction. Taking that mitigating feature against the remaining aggravating features, a 33-year minimum term was too long. The proper term was 28 years.

• Court of Appeal (Criminal Division). The appeal against the minimum term was allowed to the extent that it was reduced from 33 years to 28 years: [2012] EWCA Crim 2035.
• Central Criminal Court. On 19 December 2011, the appellant was convicted of murder before His Honour Judge Thornton QC and sentenced to life imprisonment with a 33-year minimum term.