Barker, R. v

Where cognitive impairment or another mental condition is relied on in mitigation, its effect on culpability and custody must be assessed carefully in the circumstances of the individual offender. The condition may have little, no, or substantial sentencing effect. A reduction in culpability requires evidence that the impairment materially affected such matters as judgment, self-control, rational choice or understanding of consequences.

In assessing relative culpability in a joint murder, the court considers the offender’s actual contribution to the attack and personal aggravating conduct. A lesser role than the person who inflicted the fatal injury does not require a greater reduction where the offender actively participated in a sustained armed attack.

The applicant and Brian Goldsmith were convicted of murdering Gavin Moon. On 22 July 2019, the Crown Court at Newcastle-upon-Tyne imposed life sentences, with minimum terms of 16 years for the applicant and 18 years for Goldsmith.

The applicant had physical disability and cognitive impairment following strokes and a later head injury. He contended that his minimum term was manifestly excessive because he played a secondary role, did not inflict the fatal wound, and had reduced culpability. His application for permission to appeal was refused by a single judge and renewed before the full court.

The central issue was whether the sentencing judge had given insufficient weight to the applicant’s lesser participation and cognitive impairment.

1. The renewed application was refused. There was no arguable ground for concluding that the 16-year minimum term was manifestly excessive.

2. The sentencing judge had made an adequate distinction between the two offenders. Although Goldsmith inflicted the fatal stab wound, the applicant actively joined a sustained, two-against-one attack upon an unarmed victim. He used a large knife to slash the victim, causing defensive injuries and cuts to the neck and ear. His lesser role had therefore properly been recognised, but did not require a greater reduction.

3. The applicant’s conduct after the attack further aggravated his culpability. He stole cash and drugs from the dying victim and left the body in the flat for a lengthy period. His longstanding friendship with the victim did not reduce his culpability.

4. The court applied the approach described in PS, Dahir and CF [2019] EWCA Crim 2286. A mental condition or disorder relied upon in mitigation requires a careful assessment in the circumstances of the particular case. The expert evidence established cognitive impairment, but did not show significant impairment of the applicant’s ability to exercise judgment or self-control, make rational choices, or understand the consequences of his actions. The sentencing judge had expressly allowed for that impairment and was well placed, having observed the applicant give evidence, to assess its relevance to sentence.

• Court of Appeal (Criminal Division): The single judge refused permission to appeal against sentence. The full court refused the renewed application: [2020] EWCA Crim 271.
• Crown Court at Newcastle-upon-Tyne: On 22 July 2019, the applicant and his co-offender were convicted of murder and sentenced to life imprisonment, with minimum terms of 16 years and 18 years respectively.