Ayman Aziz [2019] EWCA Crim 1568
Summary
R v Ayman Aziz [2019] EWCA Crim 1568 was decided by a constitution of this Court which included the Lord Chief Justice, who refused an application for leave to appeal against a minimum term of 19 years’ detention at Her Majesty’s pleasure and dismissed a challenge to the trial judge’s decision to lift reporting restrictions following conviction. Mr Aziz, aged 16 at the time of the offence, was convicted after trial of the rape and murder of a 14-year-old girl. A concurrent sentence of ten years’ detention was imposed for the rape. On 22 February 2019 the trial judge, Mr Justice Jeremy Baker, specified a minimum term of 19 years for the murder.
In the early hours of 12 April 2018 a dog walker discovered the body of 14-year-old Viktorija Sokolova on a park bench in West Park, Wolverhampton. She was naked from the waist down with clothing on her upper body pulled up. She had been subjected to a sustained and ferocious attack involving a minimum of 21 blows to the head, causing multiple fractures to the skull and facial skeleton. Some injuries were consistent with the use of a weapon such as a hammer. Forensic examination revealed semen in her rectum and anus consistent with anal intercourse. Forensic examination of the pavilion in the park revealed a large pool of her blood, bloodstaining on a bench and panelling, drag marks, and items of her clothing and phone distributed around the park. Mr Aziz had been in contact with Viktorija in the days before her death and they had arranged to meet in the park that evening to chat, smoke cannabis, and discuss travelling to London. CCTV and telephone evidence showed Mr Aziz had arrived shortly before her. His phone was switched off 45 minutes later and he left the park some two hours after arrival. Examination of his phone revealed he had accessed material about anal sex and pornographic videos from the time he re-established contact with Viktorija, as well as searches for films about submissive girls. Facebook messages to and from Viktorija and records of calls had been deleted from his phone. Evidence showed that in the early hours of 12 April, shortly after his return from the park, he and his brother had been researching how to delete Facebook accounts. Mr Aziz’s phone was switched off at 03:29 on 12 April and remained off for over a day. His defence at trial was that the sexual activity was consensual and that someone else had killed Viktorija.
The judge adjourned sentence to allow preparation of a pre-sentence report and psychiatric evaluation. He received a pre-sentence report from two social workers and psychiatric reports from Dr Tina Irani and Dr Nina Champerani. The reports documented a troubled background involving racial abuse, physical attacks and bullying, disengagement from school, and declining mental health from around age 15 including voices and hallucinations. Both psychiatrists diagnosed paranoid schizophrenia. Dr Irani reported that Mr Aziz was unable to give a clear account of his mental state at the time of the offending and was likely non-compliant with medication. She said there was some basis for suggesting he may have had psychotic symptoms at the time but it was difficult to ascertain what impact his mental illness had on his behaviour. Dr Champerani said it was unclear without a clearer account of the nature and severity of his mental state whether there was a link between his mental disorder and the offending. The judge found that the events in the park were carefully planned over two hours. Mr Aziz had arranged to meet Viktorija in an isolated location late at night. The internet research and injuries indicated a plan to rape her anally and then to batter her to death with a weapon he had brought with him. The judge noted the absence of defensive injuries to Viktorija’s hands, indicating she had no opportunity to defend herself, and that her body had been marked with a butterfly configuration indicating contact with a corrosive fluid such as vomit. He took account of steps taken by Mr Aziz after the event to prevent the police connecting him with Viktorija and to dispose of evidence, including blood-covered clothing and the murder weapon. The judge sentenced Mr Aziz to ten years’ detention for rape, treating it as falling within Category 1A of the guideline with a starting point of 15 years for an adult, reduced to ten years applying the Sentencing Council guideline for sentencing children and young people. For murder, the judge identified the statutory starting point of 12 years given Mr Aziz’s age under paragraph 7 of Schedule 21 to the Criminal Justice Act 2003. He identified six aggravating factors: significant planning and premeditation including taking a weapon to the scene; the victim’s vulnerability due to age and domestic circumstances; sexual motivation including the anal rape; the brutal nature of the attack; the degrading position in which the body was abandoned; and significant attempts to dispose of incriminating evidence. Four mitigating factors were identified: lack of previous convictions; Mr Aziz’s age to the extent not already reflected in the starting point; instability in his upbringing; and the mental disorder from which he suffered. On that last factor the judge stated that although the applicant’s mental state at the time of the offending may have been a contributory factor, “I do not consider that there is sufficient evidence before me to conclude that it had the effect of significantly reducing your culpability.” The judge observed that this was supported by the planning and preparation before the offences and the steps taken afterwards to dispose of evidence. The judge concluded that the aggravating factors would have justified a minimum term of 24 years but in view of the mitigating factors the appropriate minimum term was 19 years.
The applicant’s grounds of appeal challenged first the extent to which the judge departed from the statutory starting point, submitting that the starting point of 12 years for those under 18 should exert a substantial restraining influence on aggravating features. Secondly, it was submitted that the judge focused too much on whether mental disorder was causative of offending and too little on the overall mitigation it afforded. Thirdly, it was submitted that the judge paid too much attention to chronological age and insufficient attention to developmental immaturity and emotional and educational deprivation.
The Court rejected the submission that the judge had paid insufficient attention to the statutory starting point. The Court referred to R v Markham and Edwards [2017] EWCA Crim 739 [2017] 2 Cr App R (S) 30, which established that Schedule 21 identifies a free-standing approach for sentencing children and young persons, with a starting point of 12 years whatever the category of murder, which can then be varied according to aggravating and mitigating factors. In Markham, which involved two 14-year-olds who murdered a mother and 13-year-old daughter, an increase from 12 to 21 years before reduction for guilty pleas was upheld. The Court emphasised that aggravating and mitigating factors do not lead to rigid arithmetical increases or decreases but require subtle evaluation. The Court found that the overall increase from 12 to 19 years was not arguably wrong and sat comfortably with Markham. The Court noted that Markham involved double murder with victims including a child but the offenders were 14, whereas the present case involved an offender aged 16 with specific aggravating factors including a weapon brought to the scene, sexual motivation and additional rape, a sadistic element, and prolonged mental and physical suffering. The Court observed that the sadistic and sexual elements would have led to a whole life starting point for someone aged 21 or more under paragraph 4(2)(b) of Schedule 21 and a 30-year starting point for one aged 18 to 21 under paragraph 5. The Court held it was not arguable that the sentence floated free of the statutory starting point. The Court rejected the challenge to the judge’s approach to mental health. The Court held that the finding that the psychiatric evidence did not permit a conclusion that mental disorder reduced culpability was open to the judge and indeed was the only conclusion properly available given the uncertainty expressed by the experts. The Court accepted that mental disorder could nonetheless have a mitigating impact and was satisfied that the judge had taken it into account. The Court held that the sentencing remarks should not be interpreted as first introducing mental illness as a mitigating factor and then ruling it out altogether, but rather that the reduction of five years for mitigation reflected the mental disorder as well as the other mitigating factors listed. The Court noted that the judge had expressly referred to the instability of the applicant’s background and taken it into account. The Court held that although a 19-year minimum term was long in the context of a 16-year-old murderer, it could not arguably be described as manifestly excessive, given the weight properly attached to the truly dreadful nature of the offending and the legitimate assessment of culpability.
The Court also considered a challenge to the trial judge’s decision to lift a reporting restriction order made under section 45 of the Youth Justice and Criminal Evidence Act 1999 before trial, which prohibited identification of Mr Aziz as the defendant. After conviction, the Express and Star newspaper submitted written representations inviting the judge to consider lifting the restriction. The judge made what the statute calls an “excepting direction”, discharging the section 45(3) direction in its entirety, staying the direction until after disposal of a claim for judicial review. Mr Aziz brought a judicial review claim which was stayed to allow appointment of a litigation friend and was put before this Court. Section 45(4) of the 1999 Act allows the court to make an excepting direction where it is satisfied it is necessary in the interests of justice. Section 45(5) allows the court to dispense with restrictions if satisfied their effect is to impose a substantial and unreasonable restriction on reporting and it is in the public interest to remove or relax that restriction. The Court held that decisions under these provisions call for the exercise of judgment balancing the competing claims of privacy, a child’s welfare and open justice, and that the court will respect the trial judge’s assessment of weight to be given to particular factors, interfering only where an error of principle is identified or the decision is plainly wrong. The Court referred to principles established under the previous regime of section 39 of the Children and Young Persons Act 1933, summarised in R v Winchester Crown Court ex p B (A Minor) [1999] 1 WLR 788, including that the court will consider whether there are good reasons for naming the defendant, will give considerable weight to the age of the offender and potential damage of public identification, must have regard to the welfare of the child, but must also recognise the powerful deterrent effect of naming, the strong public interest in open justice, and that weight attributed to different factors may shift after conviction and sentence. The Court referred to Re S (A Child) [2004] UKHL 47 [2005] 1 AC 593, which established that neither Article 8 nor Article 10 has precedence, that an intense focus on the comparative importance of specific rights being claimed is necessary, and that the ordinary rule that the press may report everything in a criminal court is a strong rule which can only be displaced by unusual or exceptional circumstances. The Court referred to R v Markham and Edwards, which reviewed principles in the context of a child defendant and held that the general approach is that reports should not be restricted unless there are reasons outweighing the legitimate public interests, that the fact the person is a child will normally be a good reason for restricting reports and only in rare cases will a direction not be given or be discharged, that very great weight must be given to the welfare of the child and power to dispense with anonymity must be exercised with very great care, but that it is not the case that welfare will always trump other considerations and when a juvenile is tried on indictment there is a strong presumption of open justice.
The trial judge recorded that the offences were exceptionally serious and shocking in their planning, duration and brutality. He acknowledged that Mr Aziz had been diagnosed with paranoid schizophrenia but did not consider there was sufficient evidence to conclude this significantly reduced culpability, which might have been a factor in favour of maintaining anonymity. He acknowledged that Mr Aziz reported receiving threats in custody but noted Dr Irani referred to only one attempted assault and there was no evidence of suicidal ideation. The judge concluded the risk of harm within the prison estate could not be excluded but Mr Aziz’s Article 2 rights were not engaged and he was unpersuaded Mr Aziz was at any greater risk than others. He was unpersuaded that loss of anonymity would have a significant detrimental effect on treatment or rehabilitation. He noted the existing order would expire in any event in January 2020 when Mr Aziz turned 18 and considered it relevant in the context of such serious offending that he would lose anonymity in less than a year and remain in custody for a substantial period. He concluded both section 45(4) and section 45(5) applied. The applicant’s grounds of challenge submitted the judge failed to have regard to recommendations in Dr Irani’s report and the pre-sentence report for retaining anonymity, failed to have regard to concerns about increasing paranoia, hypervigilance and anxiety and the prospect of relapse into psychosis, erred in regarding the lack of causative link between schizophrenia and offending as a weighty factor, and in consequence failed to have sufficient regard to welfare. A fifth ground submitted the judge had no regard to a defence submission that the 11 months before the order expired would protect Mr Aziz whilst he underwent secure hospital assessment so the merits of an extended anonymity order under section 11 of the Contempt of Court Act 1981 could be assessed. The Court rejected the first four grounds, holding that the judge was well aware of the need to have regard to welfare, had adjourned for reports for that express purpose, and his ruling contained an evaluation of the psychiatric evidence, its impact on culpability, and the risks of harm. The Court held the judge’s approach to the evidence could not be faulted. The Court noted that the majority of evidence of threats or actual harm amounted to self-reporting by an individual diagnosed with paranoid delusions, and neither the experts nor the authors of the pre-sentence report were able to provide cogent evidence that identification would cause or risk significant harm to health or wellbeing. The Court held the justification for identifying the perpetrator of a serious crime could be thought weaker if offending resulted from or culpability was significantly reduced by paranoid schizophrenia, and the judge was right to assess whether the evidence suggested this and to give the mental illness less weight because it did not. The Court held this did not involve disregarding the factor when it came to welfare. The Court held these grounds amounted in reality to a complaint about how the judge struck the balance, and there was no legal error in his approach. The Court noted that a reporting restriction under section 45 ceases to have effect when the subject reaches 18 and that Mr Kane did not press the submission that section 11 conferred power to make an extended anonymity order, as section 11 presupposes a power to keep information private and the exercise of that power to prevent disclosure even to those in court, which could not apply where identity was made public in open court. The Court noted the only application that could be made in anticipation of majority was for a Venables or Mary Bell injunction grounded in a compelling need to protect a notorious criminal against vigilante action, but no such application had been intimated and there was no evidential basis before the judge for supposing such an application would succeed
In the early hours of 12 April 2018 a dog walker discovered the body of 14-year-old Viktorija Sokolova on a park bench in West Park, Wolverhampton. She was naked from the waist down with clothing on her upper body pulled up. She had been subjected to a sustained and ferocious attack involving a minimum of 21 blows to the head, causing multiple fractures to the skull and facial skeleton. Some injuries were consistent with the use of a weapon such as a hammer. Forensic examination revealed semen in her rectum and anus consistent with anal intercourse. Forensic examination of the pavilion in the park revealed a large pool of her blood, bloodstaining on a bench and panelling, drag marks, and items of her clothing and phone distributed around the park. Mr Aziz had been in contact with Viktorija in the days before her death and they had arranged to meet in the park that evening to chat, smoke cannabis, and discuss travelling to London. CCTV and telephone evidence showed Mr Aziz had arrived shortly before her. His phone was switched off 45 minutes later and he left the park some two hours after arrival. Examination of his phone revealed he had accessed material about anal sex and pornographic videos from the time he re-established contact with Viktorija, as well as searches for films about submissive girls. Facebook messages to and from Viktorija and records of calls had been deleted from his phone. Evidence showed that in the early hours of 12 April, shortly after his return from the park, he and his brother had been researching how to delete Facebook accounts. Mr Aziz’s phone was switched off at 03:29 on 12 April and remained off for over a day. His defence at trial was that the sexual activity was consensual and that someone else had killed Viktorija.
The judge adjourned sentence to allow preparation of a pre-sentence report and psychiatric evaluation. He received a pre-sentence report from two social workers and psychiatric reports from Dr Tina Irani and Dr Nina Champerani. The reports documented a troubled background involving racial abuse, physical attacks and bullying, disengagement from school, and declining mental health from around age 15 including voices and hallucinations. Both psychiatrists diagnosed paranoid schizophrenia. Dr Irani reported that Mr Aziz was unable to give a clear account of his mental state at the time of the offending and was likely non-compliant with medication. She said there was some basis for suggesting he may have had psychotic symptoms at the time but it was difficult to ascertain what impact his mental illness had on his behaviour. Dr Champerani said it was unclear without a clearer account of the nature and severity of his mental state whether there was a link between his mental disorder and the offending. The judge found that the events in the park were carefully planned over two hours. Mr Aziz had arranged to meet Viktorija in an isolated location late at night. The internet research and injuries indicated a plan to rape her anally and then to batter her to death with a weapon he had brought with him. The judge noted the absence of defensive injuries to Viktorija’s hands, indicating she had no opportunity to defend herself, and that her body had been marked with a butterfly configuration indicating contact with a corrosive fluid such as vomit. He took account of steps taken by Mr Aziz after the event to prevent the police connecting him with Viktorija and to dispose of evidence, including blood-covered clothing and the murder weapon. The judge sentenced Mr Aziz to ten years’ detention for rape, treating it as falling within Category 1A of the guideline with a starting point of 15 years for an adult, reduced to ten years applying the Sentencing Council guideline for sentencing children and young people. For murder, the judge identified the statutory starting point of 12 years given Mr Aziz’s age under paragraph 7 of Schedule 21 to the Criminal Justice Act 2003. He identified six aggravating factors: significant planning and premeditation including taking a weapon to the scene; the victim’s vulnerability due to age and domestic circumstances; sexual motivation including the anal rape; the brutal nature of the attack; the degrading position in which the body was abandoned; and significant attempts to dispose of incriminating evidence. Four mitigating factors were identified: lack of previous convictions; Mr Aziz’s age to the extent not already reflected in the starting point; instability in his upbringing; and the mental disorder from which he suffered. On that last factor the judge stated that although the applicant’s mental state at the time of the offending may have been a contributory factor, “I do not consider that there is sufficient evidence before me to conclude that it had the effect of significantly reducing your culpability.” The judge observed that this was supported by the planning and preparation before the offences and the steps taken afterwards to dispose of evidence. The judge concluded that the aggravating factors would have justified a minimum term of 24 years but in view of the mitigating factors the appropriate minimum term was 19 years.
The applicant’s grounds of appeal challenged first the extent to which the judge departed from the statutory starting point, submitting that the starting point of 12 years for those under 18 should exert a substantial restraining influence on aggravating features. Secondly, it was submitted that the judge focused too much on whether mental disorder was causative of offending and too little on the overall mitigation it afforded. Thirdly, it was submitted that the judge paid too much attention to chronological age and insufficient attention to developmental immaturity and emotional and educational deprivation.
The Court rejected the submission that the judge had paid insufficient attention to the statutory starting point. The Court referred to R v Markham and Edwards [2017] EWCA Crim 739 [2017] 2 Cr App R (S) 30, which established that Schedule 21 identifies a free-standing approach for sentencing children and young persons, with a starting point of 12 years whatever the category of murder, which can then be varied according to aggravating and mitigating factors. In Markham, which involved two 14-year-olds who murdered a mother and 13-year-old daughter, an increase from 12 to 21 years before reduction for guilty pleas was upheld. The Court emphasised that aggravating and mitigating factors do not lead to rigid arithmetical increases or decreases but require subtle evaluation. The Court found that the overall increase from 12 to 19 years was not arguably wrong and sat comfortably with Markham. The Court noted that Markham involved double murder with victims including a child but the offenders were 14, whereas the present case involved an offender aged 16 with specific aggravating factors including a weapon brought to the scene, sexual motivation and additional rape, a sadistic element, and prolonged mental and physical suffering. The Court observed that the sadistic and sexual elements would have led to a whole life starting point for someone aged 21 or more under paragraph 4(2)(b) of Schedule 21 and a 30-year starting point for one aged 18 to 21 under paragraph 5. The Court held it was not arguable that the sentence floated free of the statutory starting point. The Court rejected the challenge to the judge’s approach to mental health. The Court held that the finding that the psychiatric evidence did not permit a conclusion that mental disorder reduced culpability was open to the judge and indeed was the only conclusion properly available given the uncertainty expressed by the experts. The Court accepted that mental disorder could nonetheless have a mitigating impact and was satisfied that the judge had taken it into account. The Court held that the sentencing remarks should not be interpreted as first introducing mental illness as a mitigating factor and then ruling it out altogether, but rather that the reduction of five years for mitigation reflected the mental disorder as well as the other mitigating factors listed. The Court noted that the judge had expressly referred to the instability of the applicant’s background and taken it into account. The Court held that although a 19-year minimum term was long in the context of a 16-year-old murderer, it could not arguably be described as manifestly excessive, given the weight properly attached to the truly dreadful nature of the offending and the legitimate assessment of culpability.
The Court also considered a challenge to the trial judge’s decision to lift a reporting restriction order made under section 45 of the Youth Justice and Criminal Evidence Act 1999 before trial, which prohibited identification of Mr Aziz as the defendant. After conviction, the Express and Star newspaper submitted written representations inviting the judge to consider lifting the restriction. The judge made what the statute calls an “excepting direction”, discharging the section 45(3) direction in its entirety, staying the direction until after disposal of a claim for judicial review. Mr Aziz brought a judicial review claim which was stayed to allow appointment of a litigation friend and was put before this Court. Section 45(4) of the 1999 Act allows the court to make an excepting direction where it is satisfied it is necessary in the interests of justice. Section 45(5) allows the court to dispense with restrictions if satisfied their effect is to impose a substantial and unreasonable restriction on reporting and it is in the public interest to remove or relax that restriction. The Court held that decisions under these provisions call for the exercise of judgment balancing the competing claims of privacy, a child’s welfare and open justice, and that the court will respect the trial judge’s assessment of weight to be given to particular factors, interfering only where an error of principle is identified or the decision is plainly wrong. The Court referred to principles established under the previous regime of section 39 of the Children and Young Persons Act 1933, summarised in R v Winchester Crown Court ex p B (A Minor) [1999] 1 WLR 788, including that the court will consider whether there are good reasons for naming the defendant, will give considerable weight to the age of the offender and potential damage of public identification, must have regard to the welfare of the child, but must also recognise the powerful deterrent effect of naming, the strong public interest in open justice, and that weight attributed to different factors may shift after conviction and sentence. The Court referred to Re S (A Child) [2004] UKHL 47 [2005] 1 AC 593, which established that neither Article 8 nor Article 10 has precedence, that an intense focus on the comparative importance of specific rights being claimed is necessary, and that the ordinary rule that the press may report everything in a criminal court is a strong rule which can only be displaced by unusual or exceptional circumstances. The Court referred to R v Markham and Edwards, which reviewed principles in the context of a child defendant and held that the general approach is that reports should not be restricted unless there are reasons outweighing the legitimate public interests, that the fact the person is a child will normally be a good reason for restricting reports and only in rare cases will a direction not be given or be discharged, that very great weight must be given to the welfare of the child and power to dispense with anonymity must be exercised with very great care, but that it is not the case that welfare will always trump other considerations and when a juvenile is tried on indictment there is a strong presumption of open justice.
The trial judge recorded that the offences were exceptionally serious and shocking in their planning, duration and brutality. He acknowledged that Mr Aziz had been diagnosed with paranoid schizophrenia but did not consider there was sufficient evidence to conclude this significantly reduced culpability, which might have been a factor in favour of maintaining anonymity. He acknowledged that Mr Aziz reported receiving threats in custody but noted Dr Irani referred to only one attempted assault and there was no evidence of suicidal ideation. The judge concluded the risk of harm within the prison estate could not be excluded but Mr Aziz’s Article 2 rights were not engaged and he was unpersuaded Mr Aziz was at any greater risk than others. He was unpersuaded that loss of anonymity would have a significant detrimental effect on treatment or rehabilitation. He noted the existing order would expire in any event in January 2020 when Mr Aziz turned 18 and considered it relevant in the context of such serious offending that he would lose anonymity in less than a year and remain in custody for a substantial period. He concluded both section 45(4) and section 45(5) applied. The applicant’s grounds of challenge submitted the judge failed to have regard to recommendations in Dr Irani’s report and the pre-sentence report for retaining anonymity, failed to have regard to concerns about increasing paranoia, hypervigilance and anxiety and the prospect of relapse into psychosis, erred in regarding the lack of causative link between schizophrenia and offending as a weighty factor, and in consequence failed to have sufficient regard to welfare. A fifth ground submitted the judge had no regard to a defence submission that the 11 months before the order expired would protect Mr Aziz whilst he underwent secure hospital assessment so the merits of an extended anonymity order under section 11 of the Contempt of Court Act 1981 could be assessed. The Court rejected the first four grounds, holding that the judge was well aware of the need to have regard to welfare, had adjourned for reports for that express purpose, and his ruling contained an evaluation of the psychiatric evidence, its impact on culpability, and the risks of harm. The Court held the judge’s approach to the evidence could not be faulted. The Court noted that the majority of evidence of threats or actual harm amounted to self-reporting by an individual diagnosed with paranoid delusions, and neither the experts nor the authors of the pre-sentence report were able to provide cogent evidence that identification would cause or risk significant harm to health or wellbeing. The Court held the justification for identifying the perpetrator of a serious crime could be thought weaker if offending resulted from or culpability was significantly reduced by paranoid schizophrenia, and the judge was right to assess whether the evidence suggested this and to give the mental illness less weight because it did not. The Court held this did not involve disregarding the factor when it came to welfare. The Court held these grounds amounted in reality to a complaint about how the judge struck the balance, and there was no legal error in his approach. The Court noted that a reporting restriction under section 45 ceases to have effect when the subject reaches 18 and that Mr Kane did not press the submission that section 11 conferred power to make an extended anonymity order, as section 11 presupposes a power to keep information private and the exercise of that power to prevent disclosure even to those in court, which could not apply where identity was made public in open court. The Court noted the only application that could be made in anticipation of majority was for a Venables or Mary Bell injunction grounded in a compelling need to protect a notorious criminal against vigilante action, but no such application had been intimated and there was no evidential basis before the judge for supposing such an application would succeed
The appellant was convicted of the rape and murder of a 14 year old girl. He was 16 at the time of the offending. He was sentenced to detention at HM pleasure with a minimum term of 19 years.
The victim had been friends with the appellant, and after losing touch for a while had recently made contact. The post mortem revealed she had suffered a sustained and ferocious attack to the head. A minimum of 21 blows had been inflicted, some consistent with the use of a weapon. Semen was found consistent with anal intercourse.
The appellant accepted meeting the victim, and that consensual intercourse took place but that he had left her alive.
The pre-sentence report reported a troubled background and expert reports described symptoms of psychosis and paranoia with the criteria met for a diagnosis of paranoid schizophrenia.
On appeal it was argued the judge paid insufficient regard to the statutory starting point for those under 18. The approach to the appellant’s mental health was criticised and also that too much attention was paid the appellant’s chronological age and not his developmental immaturity.
Held: the overall increase, after balancing aggravating and mitigating factors, was from 12 to 19 years. That was not wrong and sat comfortably with the approach on Markham. The murder was carried out with a weapon; there was sexual motivation, rape, and a sadistic element to the offending. It was legitimate to keep in mind that the sadistic and sexual elements of the offending would have led to a starting point for someone over 21 of a whole life term. The Court was unpersuaded that the minimum term was manifestly excessive. The severity of the sentence flowed from the weight attached to the “truly dreadful” nature of the offending.
In the Crown Court, the judge had made an “excepting direction” to discharge the s45(3) direction on the identification of the appellant. Permission to apply for judicial review was granted, and an interim anonymity order made. The issue was considered in the appeal. The judge had set out the relevant statutory provisions and referred to authority on the importance of open justice, identifying the competing considerations. The offences committed were exceptionally serious and shocking in their planning, the length of time over which they were perpetrated and their brutality. Although he had been diagnosed with paranoid schizophrenia the judge did not consider there was sufficient evidence to conclude this significantly reduced culpability, which could have been a factor in favour of maintaining anonymity.
It was submitted the judge failed to have due regard to the expert reports and author of the PSR, and the prospect the appellant may relapse into psychosis. Also, that he erred in regarding the lack of any causative link as a weighty factor in deciding whether to lift the reporting restriction and failed to have sufficient regard to the applicant’s welfare.
The Court held that the criticisms were ill-founded. The judge was well aware of the welfare of the applicant and had adjourned for reports. His ruling contained an evaluation of the psychiatric evidence, its impact on culpability and the risks of harm to the applicant. His approach to the evidence cannot be faulted.
The Court also heard argument on jurisdiction. In the circumstances, not having granted leave to appeal, the Court reconstituted as a Divisional Court and dealt with the issue in judicial review. The stay on the proceedings was lifted and the appellate hearing treated as the substantive judicial review.
The claim was dismissed, and the anonymity order discharged.