Clarke & Ors, R v

For sentencing purposes, attaining 18 does not create a sharp divide between youth and adulthood. An offender’s youth, maturity and development may remain significant mitigating factors after that age.

Under Coroners and Justice Act 2009, section 125 requires a court to follow a sentencing guideline which applies to the offence or offender. It does not require consultation of a guideline which is merely helpful for finding a range where no applicable guideline exists.

A sentence is unduly lenient only if it falls outside the range which a judge applying all relevant factors could reasonably regard as appropriate.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the sentences imposed at the Crown Court at Manchester on Clarke, Thompson and Andrews for kidnapping, blackmail and related offences. Andrews, who was 17 when the principal offending occurred, also sought leave to appeal on the ground that his sentence was manifestly excessive.

The kidnapping involved the detention of a 16-year-old boy for about 12 hours, threats of serious violence, and demands for ransom. Thompson and Andrews later threatened the victim’s family in an attempt to deter them from giving evidence. The central issues were the effect of the offenders’ youth, the relevance of the aggravated burglary guideline, and whether the total sentences were outside the proper range.

1. The court refused both applications for leave. The total sentences, although severe offending was involved, were not unduly lenient. Andrews’s sentence was not manifestly excessive and disclosed no objectionable disparity.

2. Reaching 18 does not create a sentencing cliff edge. Youth and immaturity remain relevant after that age because maturity develops at different rates. The judge was entitled to take account of the youth and immaturity of Clarke and Thompson, as well as applying the distinct youth guideline to Andrews. The court rejected the submission that only a minimal reduction for youth was permissible.

3. Section 125(1) of the Coroners and Justice Act 2009 did not oblige the judge to consider the definitive aggravated burglary guideline. A guideline is “relevant” where it applies to the offence or the offender’s circumstances. The provision does not impose a duty to consult a guideline merely because it may assist range-finding for an offence, such as kidnapping, for which no guideline exists. The judge had nevertheless properly taken account of the aggravated-burglary-like features of the later offending.

4. The court accepted that the kidnapping authorities showed that lengthy sentences may be appropriate where aggravating features are present. However, kidnapping varies greatly in its circumstances, and close factual comparison with the cited cases provided no useful assistance here.

5. Applying the test in Attorney General's Reference No 4 of 1989 (1989) 11 Cr App R(S) 517, the question was whether the sentences fell outside the range which a judge considering all relevant factors could reasonably regard as appropriate. A different judge might have imposed longer sentences, but that did not meet the test. The Attorney General’s application and Andrews’s application were therefore refused.

• Court of Appeal (Criminal Division): refused the Attorney General leave to refer the sentences under section 36 of the Criminal Justice Act 1988, and refused Andrews leave to appeal his sentence.
• Crown Court at Manchester: on 23 October 2017, sentenced Clarke and Thompson to seven years’ detention and Andrews to five years and six months’ detention for kidnapping, blackmail and related offences.