Markham & Anor v R (Rev 1)

For an offender under 18 convicted of murder, Criminal Justice Act 2003, Schedule 21 provides a self-contained sentencing code. The 12-year starting point already allows for an intention to kill, but features which would increase an adult starting point may aggravate the minimum term.

Where young defendants have admitted the acts and murderous intent, the first reasonable opportunity to plead may await necessary psychiatric evidence. In exceptional circumstances, credit may reflect those timely admissions despite a trial on diminished responsibility.

Restrictions on identifying child defendants require a fact-sensitive balance between welfare and open justice. A court may revisit anonymity after trial where the overall circumstances have changed; it must not lift restrictions merely because proceedings have ended.

Two 15-year-old appellants were sentenced by Haddon-Cave J at Nottingham Crown Court to detention at Her Majesty’s pleasure for the planned murders of one appellant’s mother and 13-year-old sister. The judge fixed a 20-year minimum term, less remand time, and lifted reporting restrictions.

Both appellants appealed their minimum terms. They challenged the treatment of aggravating factors, the weight given to their childhood and psychological circumstances, and the limited credit for admissions made while psychiatric evidence was investigated. They also challenged the lifting of anonymity under Youth Justice and Criminal Evidence Act 1999, section 45.

The central issues were the proper application of Schedule 21 to child murderers, the available reduction for admissions in unusual psychiatric circumstances, and the balance between child welfare and open justice.

1. The appeals against sentence were allowed. The court substituted minimum terms of 17½ years, less time spent on remand. The challenge to the reporting direction was dismissed.

2. Schedule 21 to the Criminal Justice Act 2003 is a self-contained code for fixing a murder minimum term. For offenders under 18, the starting point is 12 years. The court then adjusts it for aggravating and mitigating factors not already allowed for by that starting point. Factors which would have placed an adult case in a higher starting-point category may therefore aggravate a child’s offence.

   The sentencing judge was wrong to treat an intention to kill as a separate aggravating factor. A lesser intention to cause serious bodily harm is expressly mitigating, so an intention to kill is built into the 12-year starting point. The error was not material: the double murder, substantial repeated planning, vulnerability of the sleeping victims, use of knives and subsequent conduct justified a pre-plea minimum term of 21 years.

3. Children convicted of murder must be sentenced differently from adults, and their welfare is a primary consideration. It is not paramount. Punishment and public protection remain proper considerations for a mandatory indeterminate sentence, while Schedule 21 supplies the statutory means of reflecting youth and mitigation.

4. Although the normal plea guideline permits only limited credit for a late plea, the first reasonable opportunity to admit guilt may arise only after necessary psychiatric investigation. Both appellants had admitted the killings and murderous intent. Their advisers were professionally bound to investigate insanity or diminished responsibility. In these exceptional circumstances, a one-sixth reduction properly recognised their timely factual admissions. The court stressed that this conclusion does not ordinarily apply where a diminished-responsibility defence depends upon a factual account rejected by the jury.

5. Under section 45, anonymity engages a balance between the welfare of the child and the public interest in open justice. International materials had already informed domestic law; they did not displace that fact-sensitive exercise. The completion of a trial cannot alone justify an excepting direction under section 45(5), but it may be material with other changed circumstances.

   Here, full reporting was necessary to understand the exceptionally grave crimes and their family context. No new evidence showed a real risk of relevant harm or adverse rehabilitation consequences. Lifting anonymity was lawful, proportionate and in the public interest. The stay on the order was removed.

• Court of Appeal (Criminal Division): Allowed the appeals against sentence, substituting 17½-year minimum terms less remand time. It dismissed the challenge to the excepting direction and lifted the stay on reporting.
• Crown Court at Nottingham: Haddon-Cave J sentenced each appellant to detention at Her Majesty’s pleasure with a 20-year minimum term less remand time, and directed that reporting restrictions be lifted.
• Administrative Court: Permission for judicial review of the reporting decision had been granted, but the substantive proceedings became academic when this appeal was determined.