R v BGI & Anor

Age-based starting points for murder under Schedule 21 to the Sentencing Code provide guidance and must be applied flexibly, not mechanically. For children aged 14 or under, the court must account for actual age and maturity; the 13-year starting point is not fixed for every child in that bracket. A child barely above the age of criminal responsibility may justify a lower starting point. Sentencing remains individualised, balancing role, culpability, maturity, upbringing and other aggravating and mitigating factors. Joint offenders may receive different terms, although equal terms may be justified where the overall balance warrants it.

Two 12-year-old offenders were convicted of jointly murdering a 19-year-old. The sentencing judge imposed minimum terms of 8 years 6 months, less 315 days spent on remand, for each offender.

The Solicitor General referred the sentences as unduly lenient under section 36 of the Criminal Justice Act 1988. The central issue was how the age-based starting points in paragraph 5A of Schedule 21 should be applied to children barely aged 12, including the relevance of maturity, developmental circumstances, individual culpability and the offenders’ respective roles.

1. Outcome. The sentence reference was allowed. The minimum terms were unduly lenient. They were quashed and, after credit for time spent on remand, minimum terms of 9 years 50 days were substituted for each offender.
2. The starting points in Schedule 21 are guidance rather than fixed tariffs. As explained in Jones [2005] EWCA Crim 3115, they identify the likely range by reference to salient features, but must not be applied mechanistically. Aggravating and mitigating factors may justify a minimum term of any length. The same flexible approach applies to young offenders.
3. Paragraph 5A creates an age-based sliding scale, but the starting point for offenders aged 14 or under cannot be applied identically to every child from the age of criminal responsibility to the eve of the fifteenth birthday. The court applied the principles in Peters [2005] 2 Cr App R (S) 101, SK [2022] EWCA Crim 1421, Kamarra-Jarra [2024] EWCA Crim 198 and Hunt [2024] EWCA Crim 629. A child barely 12 may therefore require an adjusted starting point; 11 years was appropriate in this case.
4. The court declined to adopt the submission based on Ratcliffe [2024] EWCA Crim 1498 that age and maturity could affect only later aggravating and mitigating factors. For children in this age bracket, actual age and maturity must inform the starting-point assessment. Sentencing must remain individualised. Joint responsibility does not require identical terms, but equal terms may be justified after balancing each child’s role, maturity, background and other factors.
5. For the first offender, substantial mitigation arising from immaturity, developmental trauma and complex needs was offset in part by purchasing, bringing and subsequently cleaning the machete. For the second offender, the first offender’s additional aggravating features did not apply, but the mitigation was less substantial. The overall balance nevertheless justified the same minimum term for both.

1. Court of Appeal (Criminal Division): On 19 December 2024, the court allowed the reference, quashed the minimum terms and substituted 9 years 50 days for each offender.
2. Crown Court at Wolverhampton sitting in Nottingham: On 27 September 2024, Mrs Justice Tipples imposed minimum terms of 8 years 6 months, less 315 days spent on remand, for each offender.