Attorney General's Reference No 29 Of 2014

For manslaughter by loss of control, the 2005 sentencing guideline remains relevant but must be applied with allowance for later developments. These include the greater focus on knife crime, the sentencing framework for murder, the replacement of provocation by loss of control, and the greater weight to be given to the fact that death resulted.

A defendant’s intellectual disability and vulnerability to loss of self-control may mitigate sentence. They must nevertheless be weighed against a sustained intention to engage in violence, a deliberate confrontation, a brutal knife attack and post-offence conduct. A sentence which gives insufficient weight to those aggravating features may be unduly lenient.

The Attorney General referred an extended sentence under section 36 of the Criminal Justice Act 1988 on the ground that its custodial element was unduly lenient.

Following a trial at the Central Criminal Court, the offender was acquitted of murder after pleading guilty to manslaughter. He had repeatedly stabbed a man with whom his partner had begun a relationship. The sentencing judge imposed an extended sentence with a five-year extension period. The custodial term was initially seven years and six months, but was reduced under the slip rule to six years.

The central issue was whether that six-year custodial term properly reflected the aggravating features, the provocation, the offender’s intellectual disability and the applicable sentencing guidance.

1. The reference was allowed. The court granted leave and substituted an eight-year custodial term for the six-year term. The five-year extension period remained unchanged.

2. The November 2005 guideline for manslaughter by provocation remained a proper starting point. Following R v Thornley [2011] 2 Cr App R (S) 62, it had to be read in light of subsequent developments: increased concern about knife crime, the effect of Schedule 21 to the Criminal Justice Act 2003, the specific treatment of knives in murder sentencing, and the replacement of provocation by loss of control. The court also applied Attorney General's Reference (No 60 of 2009) (R v Appleby), which required greater weight than formerly to the death caused by the unlawful act. Those developments tended to increase sentence levels within the guideline.

3. The trial judge had properly recognised mitigation, including the offender’s lack of violent convictions, plea, remorse, low intelligence and vulnerability to provocation. However, he had given excessive weight to the disability and insufficient weight to the offender’s pre-existing desire for a violent confrontation. The offender had put himself in the setting in which he was most likely to lose control. The repeated knife attack on a defenceless man, the acquisition of a second knife and the failure to assist the victim were serious aggravating features.

4. Applying the adjusted guideline, the appropriate sentence before credit was at least 11 years. Giving the same 25 per cent credit for the guilty plea produced a custodial term of eight years. The six-year term was therefore unduly lenient.

5. The court also noted that manslaughter was a Schedule 15B offence. Release at the two-thirds point was not automatic and depended on the Parole Board’s assessment of safety.

• Court of Appeal (Criminal Division): On the Attorney General’s reference, the court held the six-year custodial term to be unduly lenient and substituted eight years: [2014] EWCA Crim 1314.

• Central Criminal Court: The offender was acquitted of murder after pleading guilty to manslaughter. An extended sentence with a five-year extension period was imposed on 14 March 2014. Under the slip rule, the custodial term was reduced from seven years and six months to six years on 4 April 2014.