Harris v R.

Where a jury verdict permits more than one factual interpretation, the sentencing judge may determine the factual basis to the criminal standard. The defendant receives the most favourable interpretation only if the judge cannot be sure which interpretation is correct.

Under the Manslaughter Definitive Guideline, culpability indicators from more than one category must be balanced to produce a fair overall assessment. A case with features of excessive self-defence does not automatically fall within Category D if it also has Category B features. The sentencing court must identify its category and starting point before adjusting for aggravation and mitigation, and must not count the same use of a knife both in categorisation and again as aggravation.

The appellant was acquitted of murder but convicted at Nottingham Crown Court of manslaughter after fatally stabbing her partner during an argument. She relied at trial on self-defence. The evidence included a history of the victim’s abusive behaviour towards her, but the jury rejected that defence.

The trial judge imposed eight years’ imprisonment after considering the 2018 Manslaughter Definitive Guideline. He treated the case as involving features of both Category B, including an unlawful act carrying an obvious high risk of death or grievous bodily harm, and Category D, concerning self-defence falling short of a defence.

The appeal challenged the factual basis of sentence, categorisation, the treatment of knife use, mitigation and the length of the sentence. The central issue was whether the guideline had been applied without double counting and with a sufficiently clear starting point.

1. Appeal allowed. The eight-year sentence was quashed and replaced with six years’ imprisonment.

2. The judge was not required to adopt the factual hypothesis most favourable to the appellant. Under R v King [2017] EWCA Crim 128, that obligation arises only where more than one interpretation of the verdict is available and the sentencing judge cannot be sure which is correct. The trial judge was entitled to reach his own conclusion on the evidence.

3. The court rejected the submission that the excessive-self-defence features compelled classification in Category D. The guideline requires a balanced and non-mechanistic assessment where features engage more than one category. The judge was entitled to give weight both to the relationship history and to the multiple knife injuries, the appellant’s prior possession of the knife and the obvious risk created by its use.

4. However, the judge did not identify a category and starting point with sufficient precision before considering aggravation and mitigation. On the apparent Category B analysis, use of the sizeable knife had already supplied the feature of an unlawful act carrying an obvious high risk of death or grievous bodily harm. It was therefore wrong to count that same use of the knife again as an aggravating factor. The guideline’s warning against double counting applied.

5. The judge had adequately considered the appellant’s mitigation, including the abusive relationship. Giving it further substantial weight risked double counting matters already reflected in the adjustment for the Category D aspects. The appropriate overall culpability band was Category C. A six-year starting point, with adjustment for knife use and mitigation, produced a sentence of six years. The court gave no credit for an alleged canvassing of a plea to manslaughter.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in [2019] EWCA Crim 2008, quashed the eight-year sentence and substituted six years’ imprisonment.
• Crown Court at Nottingham: The appellant was acquitted of murder, convicted of manslaughter on 22 October 2018, and sentenced to eight years’ imprisonment on 6 December 2018.