Bell v R.

When imposing a discretionary life sentence for a historic manslaughter, the court should fix the minimum term by reference to current sentencing standards and policy. Article 7.1 does not require the court to replicate the minimum term likely to have been imposed when the offence was committed, provided that the sentence imposed was then legally available.

The statutory transitional protection for historic murders under the Criminal Justice Act 2003 concerns the mandatory-life regime. It does not govern discretionary life sentences. There is also no requirement that a minimum term for manslaughter be shorter than a hypothetical term for murder, since the comparison depends on the available mitigation and aggravation.

The appellant pleaded guilty at Leeds Crown Court to the 2000 manslaughter of Gemma Simpson, on the basis of diminished responsibility. In December 2014, the Recorder imposed life imprisonment and fixed a minimum term of 12 years, less time spent on remand, under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000.

The appellant did not challenge the life sentence. He appealed only the minimum term. He contended that article 7.1 of the European Convention on Human Rights required the court to use the sentencing practice applicable in 2000 and that the term was excessive when compared with a hypothetical murder sentence.

The central issue was whether article 7.1 prevented a court sentencing historic manslaughter by a discretionary life sentence from imposing a longer minimum term than would probably have been imposed at the date of the offence.

1. Appeal dismissed. The Recorder was entitled to impose a 12-year minimum term. It was neither wrong in principle nor manifestly excessive.

2. Article 7.1 prohibits a penalty heavier than that legally applicable when the offence was committed. Applying R (on the application of Uttley) v Secretary of State for the Home Department, the relevant question was what penalty the law authorised at that time, rather than what sentence was likely to have been imposed. Life imprisonment was available for the manslaughter in 2000.

3. R v Sullivan [2005] 1 Cr. App. R 3 was distinguishable. The transitional provisions in the Criminal Justice Act 2003 addressed the new statutory structure for minimum terms in mandatory-life murder cases. That structure, including its prescribed starting points and guidance, did not apply to a discretionary life sentence for manslaughter.

4. The minimum term in a discretionary life sentence remains a judicial assessment. It should reflect current sentencing standards and policy, while respecting the maximum penalty available when the offence was committed. The Court therefore followed R v H [2011] EWCA Crim 2753. The same approach was consistent with R v Masefield [2012] EWCA Crim 1873 concerning historic offending.

5. The proposed comparison with an historic murder sentence did not assist the appellant. A murder conviction would have substantially reduced the mitigation founded on diminished responsibility. The prolonged concealment of the killing, together with the violence and disposal of the body, were material aggravating features. The Court accepted that the appropriate historic murder tariff would have exceeded the 12-year term imposed.

• Court of Appeal (Criminal Division): Dismissed the appeal against the 12-year minimum term: [2015] EWCA Crim 1426.
• Leeds Crown Court: The appellant pleaded guilty to manslaughter by reason of diminished responsibility and was sentenced to life imprisonment with a 12-year minimum term, less 160 days on remand.