R v Adebolajo & Anor

The ancient requirement that a murder victim be under the Queen’s peace concerns jurisdiction and, insofar as it remains an element of murder, may concern the victim’s status. It does not concern the killer’s status. An offender’s honest but mistaken belief that he is at war with the Crown therefore cannot justify the deliberate killing of a serving soldier.

Where a murder is committed to advance a political, religious, racial or ideological cause, a whole life order may be the just penalty in the rare case of exceptionally high seriousness. Mental illness which did not affect culpability may nevertheless remain mitigating when fixing a minimum term.

At the Central Criminal Court, before Sweeney J and a jury, Michael Adebolajo and Michael Adebowale were convicted on 19 December 2013 of the murder of Fusilier Lee Rigby. The murder was planned and committed in public to advance the offenders’ extremist political and ideological cause. On 26 February 2014, Adebolajo received life imprisonment with a whole life order. Adebowale received life imprisonment with a minimum term of 45 years.

Adebolajo renewed applications for leave to appeal against conviction and sentence after refusal by the single judge. His conviction challenge relied principally on his asserted belief that he was at war with the Crown. Adebowale appealed the length of his minimum term, relying particularly on his mental condition, youth and lesser role.

1. Adebolajo’s renewed applications were refused and Adebowale’s sentence appeal was dismissed.

2. The proposed defence based on the Queen’s peace was wholly unarguable. The common-law definition of murder includes the ancient expression that the victim must be under the Queen’s peace. The expression is essentially concerned with jurisdiction. It does not make the killer’s belief that he is at war with the Crown relevant. Any surviving issue concerning the Queen’s peace can concern only the status of the victim.

3. R v Sawyer (1815) 168 ER 810 concerned the form of an indictment and jurisdiction to try a British subject for a murder abroad. R v Page [1954] 1 QB 170 likewise provided no support for the proposed defence. Neither authority established that a killer’s supposed wartime status excludes murder.

4. Under Regulation 14(2)(B)(1) of the Criminal Defence (General) (No 2) Regulations 2000, once a judge has determined that representation by Queen’s Counsel alone, or by Queen’s Counsel and a junior, is appropriate, two juniors cannot be substituted without a material and significant change of circumstances affecting the representation required. No such change occurred. In any event, the point could not affect the safety of the conviction.

5. Paragraph 4 of Schedule 21 to the Criminal Justice Act 2003 made a whole life order the appropriate starting point for murder committed to advance a political, religious, racial or ideological cause. Adebolajo’s deliberate, planned and public killing, followed by conduct intended to publicise and advance that cause, was a rare case of exceptionally high seriousness. Just punishment and retribution made a whole life order just.

6. Adebowale’s mental illness did not affect his culpability for the murder. The sentencing judge nevertheless properly treated his mental condition, lesser role and youth as mitigating. The 45-year minimum term was within the appropriate range for the offence.

• Court of Appeal (Criminal Division): By a single judgment, the court refused Adebolajo’s renewed applications for leave to appeal against conviction and sentence and dismissed Adebowale’s appeal against his minimum term: [2014] EWCA Crim 2779.
• Central Criminal Court: Before Sweeney J and a jury, both defendants were convicted of murder on 19 December 2013. On 26 February 2014, Adebolajo received a whole life order and Adebowale received a 45-year minimum term.