CHRISTIAN FEARON v REGINA

For a secondary participant in a knife murder, the weapon starting point in Schedule 21 does not automatically apply merely because the participant became aware of the weapon moments before it was used. The court must identify whether that participant took, or was party to taking, the weapon to the scene. It must then assess culpability and impose a just and proportionate minimum term.

Participation in violence while aware that a weapon will be used with murderous intent remains a serious aggravating feature. A related robbery may be reflected in the minimum term, but must not be double-counted. Isolated jury irregularities will not render a conviction unsafe where they are promptly and properly addressed and there is no basis to conclude that the remaining jury failed to follow the judge’s directions.

The appellant and his co-defendant were convicted at the Central Criminal Court of the murder and robbery of Lennox Alcendor. The co-defendant inflicted the fatal neck wound with a saw/knife. The prosecution alleged that the appellant was liable for murder as a secondary party.

The appellant renewed an application for leave to appeal against conviction. He relied on an improper question in cross-examination and concerns about jury deliberations, including a discharged juror’s internet research. He also appealed his minimum term of 24 years’ imprisonment.

The principal sentencing issue was whether the 25-year weapon starting point applied where the appellant learned of the weapon only moments before it was used, and how his lesser role and the robbery should affect the minimum term.

1. The renewed application for leave to appeal against conviction was refused. The improper question suggesting that the appellant shared his co-defendant’s criminal lifestyle was withdrawn and corrected by an agreed statement to the jury. The judge also gave clear directions that the appellant’s directed acquittal on the offensive-weapon count was irrelevant to the remaining counts.

   The juror who conducted internet research was appropriately discharged after the judge’s enquiries established that very little had been disclosed to the other jurors. There was no basis for concluding that the remaining jurors had exerted improper pressure, failed to follow the agreed directions, or returned unsafe verdicts. Further enquiry was not justified.

2. The appeal against sentence was allowed. Paragraph 5A of Schedule 21 to the Criminal Justice Act 2003, now paragraph 4 of Schedule 21 to the Sentencing Act 2020, did not provide the starting point for this appellant. He was not party to the co-defendant’s taking the saw/knife from the flat, and only became aware of it moments before the fatal wound was inflicted.

   Applying the guidance in Kelly v R [2011] EWCA Crim 1462, a secondary participant may be guilty of murder and seriously aggravated by knowingly joining knife violence, without being fixed with the statutory culpability of an offender who took, or was party to taking, the weapon to the scene. The appropriate starting point was therefore 15 years.

3. A considerable upward adjustment was nevertheless warranted. Relevant aggravating factors included the appellant’s previous convictions, his participation after knowing the weapon would be used, the gratuitous violence inflicted after the fatal wound, and the robbery of the deceased’s watch. The robbery could be reflected in the minimum term but not double-counted. The appellant’s materially lesser role than the co-defendant, who armed himself and led the attack, also required recognition.

   The minimum term of 24 years was quashed and replaced with a minimum term of 21 years’ imprisonment. The concurrent four-year sentence for robbery remained unchanged.

• Court of Appeal (Criminal Division): Renewed leave to appeal against conviction refused. Appeal against the minimum term allowed; the 24-year minimum term was quashed and replaced by 21 years.
• Central Criminal Court: The appellant was convicted of murder and robbery. He received life imprisonment with a 24-year minimum term for murder and a concurrent four-year sentence for robbery.