R v Brikel Palaj & Ors

In sentencing an offender whose conduct arose from violence involving self-defence or defence of another, the sentencing judge may recognise elements of self-defence even though the jury rejected a complete defence because the force was excessive. The judge may weigh the surrounding circumstances, including an apparent ambush, organised criminal activity and public fear, subject to proper findings and the statutory framework. For manslaughter, conduct may fall within a medium-culpability category where facts also disclose a high risk of death or GBH and defensive conduct not amounting to a defence. The Court of Appeal will not interfere with factual findings unless they lack evidential basis, are internally or externally inconsistent, irrational or suffer a similar defect. A sentence that may appear generous is not unduly lenient merely because another view of the balancing exercise is possible.

Following a trial in the Crown Court at Bristol, Brikel Palaj and Radian Lika were convicted of murder and Nikola Palaj was convicted of manslaughter. On 21 April 2023, the first two offenders received life sentences with 20-year minimum terms, less time spent on remand. Nikola Palaj received five years’ imprisonment.

The Solicitor General sought leave to refer the sentences as unduly lenient under section 36 of the Criminal Justice Act 1988. Brikel Palaj separately sought leave to appeal against sentence. The issues included the treatment of organised criminal activity, public fear caused by the violence, self-defence and defence of others, and the correct manslaughter guideline category for Nikola Palaj.

The court, in the judgment of Lord Justice Dingemans, refused the Solicitor General’s applications for leave to refer the sentences and refused Brikel Palaj leave to appeal against sentence.

1. Appellate restraint. The Court of Appeal will respect factual findings made by a sentencing judge after trial unless they lack an evidential basis, are internally inconsistent, conflict with uncontroverted facts, are irrational or suffer from a similar defect. Those tests are demanding. No such error was established.
2. Sentencing factors. The sentencing judge had properly taken account of the organised criminal activity and the conflict between the groups. The purchase of knives to secure Nikola Palaj’s release had contributed to the 25-year starting point under Schedule 21 to the Sentencing Act 2020. Fear caused to members of the public by violence in a residential street was not a statutory aggravating factor, but it was a relevant matter which the judge was entitled to weigh.
3. Self-defence and defence of others. Although the jury rejected a complete defence because excessive force had been used, the judge was entitled to find that the offenders had acted to some extent in self-defence or defence of others. That assessment could take account of the apparent ambush and the extreme violence faced before and during the incident. There was no justiciable error in the resulting mitigation.
4. Nikola Palaj. The facts disclosed both a category B feature under the manslaughter guideline, namely an obvious high risk of death or GBH, and category D defensive conduct not amounting to a defence. The judge was nevertheless entitled to place the offending in category C, involving culpability between the higher and lower levels. Applying the aggravating and mitigating features was primarily for the sentencing judge. The five-year sentence might be generous, but it was not unduly lenient.

• Crown Court at Bristol: on 21 April 2023, Brikel Palaj and Radian Lika were sentenced to life imprisonment with 20-year minimum terms, less remand time; Nikola Palaj was sentenced to five years’ imprisonment. No lower-court citation was stated.
• Court of Appeal (Criminal Division): refused leave for the Solicitor General’s unduly lenient sentence reference under section 36 of the Criminal Justice Act 1988, and refused Brikel Palaj leave to appeal against sentence, in [2023] EWCA Crim 932.