Jenkin, Attorney-General's Reference No 34 of 2014

In sentencing for manslaughter by diminished responsibility where a discretionary life sentence is appropriate, the court may use Criminal Justice Act 2003, Schedule 21 as a guide. It must do so with proper allowance for the reduction in culpability inherent in the offence. The extent of the offender’s residual responsibility remains material. As residual responsibility increases, grave aggravating features, including multiple intended killings, should have greater effect on the minimum term.

A court working directly in minimum terms must not halve that term again for early release. A minimum term already reflects the early-release regime. A notional determinate term and a minimum term are different sentencing currencies and must not be conflated.

The offender pleaded guilty at Preston Crown Court to the manslaughter by diminished responsibility of his mother and sister. He had killed both with an axe after voluntarily taking drugs which triggered a vulnerability to psychosis. The sentencing judge found him dangerous, imposed discretionary life sentences, made hospital and restriction orders, and initially fixed a 12-year minimum term.

When the case was relisted under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, the judge reduced the minimum term to six years by treating 12 years as a notional determinate sentence and halving it for early release. The Attorney General referred the sentence as unduly lenient. The central issues were the proper relevance of Schedule 21 and the distinction between a notional determinate sentence and a life-sentence minimum term.

1. The reference was allowed. The six-year minimum term was unduly lenient. It was replaced by a minimum term of 13 years and four months, less time spent on remand.

2. For diminished-responsibility manslaughter, diminished culpability is inherent in the offence. The degree of responsibility which remains may nevertheless range from very low to very high. The court followed the guidance in Wood [2010] 1 Cr App R (S) 2: Schedule 21 may assist in identifying aggravating and mitigating features, but it must be applied with sensitivity to the established partial defence.

3. The judge’s finding of significant residual responsibility meant that the offender’s culpability was greater than in Dighton [2012] 1 Cr App R (S) 30, but lower than in Wood. The two intended killings, one involving premeditation and a chosen lethal weapon, therefore had substantial weight. Had the offences been murder, the proper starting point would have been 30 years. A 20-year minimum term was appropriate before credit for the guilty pleas.

4. The court applied Ahmed [2012] EWCA Crim 708 and gave full one-third credit for the pleas, reducing the term to 13 years and four months.

5. A minimum term is already expressed in real time to be served before parole can be considered. It must not be halved again by reference to the early-release rules applicable to a determinate sentence. The contrary calculation in Martin [2014] EWCA Crim 795 was per incuriam and should not be followed. Nothing affected the discretionary life sentences or the hospital and restriction orders under the Mental Health Act 1983.

• Court of Appeal (Criminal Division): Allowed the Attorney General’s reference and substituted a minimum term of 13 years and four months for six years.
• Preston Crown Court: The offender pleaded guilty to two counts of manslaughter by diminished responsibility. The court imposed discretionary life sentences, initially with a 12-year minimum term. On relisting under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, it reduced that term to six years. It also made hospital and restriction orders under the Mental Health Act 1983.