R v Jamie Malcolm Martin Russell

The common-law offence of preventing a lawful and decent burial normally requires custody, save in exceptional circumstances. Sentencing must distinguish an intention to obstruct investigation of an unnatural death, active concealment coupled with misleading the police, and a passive failure to report a death. The latter ordinarily calls for a substantially lower starting point, generally 18 months to two years before adjustment for aggravation and mitigation. The duration of non-discovery, opportunities to disclose the death, effects on relatives, and health risks remain material. Rehabilitation and remorse may reduce the term, but they do not require suspension where the seriousness of the offending can be marked only by immediate custody.

The applicant pleaded guilty at the first opportunity to preventing a decent and lawful burial of Matthew Scott’s body. Mr Scott had died in the applicant’s flat after they had taken heroin. The applicant did not report the death and the body remained there for about 18 to 21 days, until police enquiries led to its discovery.

At the Crown Court at Swansea, the applicant received two years’ immediate imprisonment. He appealed on the grounds that the term was manifestly excessive and should have been suspended. The central issues were the proper sentencing category for a passive failure to report a death, the effect of the applicant’s personal mitigation, and whether immediate custody remained necessary.

1. The appeal was allowed. The court quashed the sentence of two years’ imprisonment and substituted 12 months’ imprisonment.
2. The offence is serious because it degrades the deceased, causes anxiety and distress to relatives, may create health risks, and impedes investigation of the death. Custody will ordinarily be required. Sentencing, however, depends materially on the offender’s purpose and conduct. A deliberate attempt to prevent investigation of an unnatural death may justify a pre-mitigation sentence of five to six years. Deliberate concealment and misleading the police, without that purpose, may justify about three years. Passive non-reporting generally attracts a starting point of 18 months to two years.
3. The applicant did not intend to obstruct an investigation into an unnatural death, actively conceal the body, or mislead the police when they arrived. His case was therefore materially different from R v Parry and McLean (1986) 8 Cr App R (S) 470. The more comparable authorities, R v King (Diane Susan) (1990) 12 Cr App R (S) 76 and R v Peddar [2002] Cr App R (S) 36, showed that the correct starting point was 18 months.
4. There were serious aggravating features. The applicant failed to seek emergency assistance when the deceased was unresponsive, repeatedly failed to disclose the death over several weeks, and caused substantial suffering to the deceased’s family. His remorse, vulnerability, and sustained engagement with drug, alcohol and mental-health support were significant mitigation. With full credit for the guilty plea, 18 months became 12 months.
5. Despite the real prospect of rehabilitation, immediate custody remained necessary to reflect the seriousness of the offending. The rehabilitative factors properly reduced the length of the sentence but did not justify suspension.

• Court of Appeal (Criminal Division) Allowed the appeal against sentence, quashed the two-year sentence, and substituted 12 months’ imprisonment: [2023] EWCA Crim 1080.
• Crown Court at Swansea On 16 June 2023, imposed two years’ immediate imprisonment following the applicant’s guilty plea.