Clarke and Others [2018] EWCA Crim 185; [2018] 1 Cr. App. R. (S) 52

In Attorney General’s Reference No 102 of 2017 (Clarke and others) [2018] EWCA Crim 185, the Lord Chief Justice of England and Wales, sitting with Mr Justice Warby and Mr Justice Dove, refused the Attorney General’s application for leave to refer sentences for kidnap and related offences as unduly lenient and refused leave to appeal on behalf of one offender who contended his sentence was manifestly excessive.

Morgan Clarke, Anton Craig Thompson and Declan Andrews had all pleaded guilty in the Crown Court at Manchester before Her Honour Judge Goddard QC to kidnapping and blackmail. Clarke alone pleaded guilty to attempted robbery and possessing an offensive weapon (a hammer). Thompson and Andrews together pleaded guilty to doing an act tending and intended to pervert the course of public justice and theft, and each separately pleaded guilty to having offensive weapons (a hammer and a machete). Thompson also pleaded guilty to handling stolen goods and summary motoring offences. All offenders received a full one-third discount for their guilty pleas. Clarke, who was 18 at the time of the offending, received a total of seven years’ detention in a young offender institution comprising four years eight months for kidnap, three years four months concurrent for blackmail, two years four months consecutive for attempted robbery and 12 months concurrent for possessing an offensive weapon. Thompson, aged 19, received a total of seven years’ detention comprising four years eight months for kidnap, three years four months concurrent for blackmail, two years four months consecutive for perverting the course of justice, 12 months concurrent for possessing an offensive weapon, four months concurrent for handling and no separate penalty for the theft or motoring matters. He was also in breach of a suspended sentence and four months of that term was activated concurrently. Andrews, aged 17, received five years six months’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 comprising three years one month for kidnap, two years five months concurrent for blackmail, two years five months consecutive for perverting the course of justice, and no separate penalty for theft and possessing an offensive weapon.

The facts were deeply serious. On 21st January 2017, all three offenders kidnapped Carl Cain, aged 16, in order to demand a ransom from his brother Connor, aged 18, who had recently received several thousand pounds in compensation following a road traffic accident. The offenders intercepted Carl outside a takeaway in the evening and told him to summon his brother. When Carl said he had no phone credit, Thompson ordered him to accompany them. Carl attempted to flee but was dragged off his bicycle and beaten with punches and kicks. He was taken to woods near the Cain family estate. The offenders telephoned Connor and made Carl speak to confirm he had been kidnapped. They pretended to be notorious local men and demanded £2000. They also spoke to Carl’s mother. When the family contacted the police, Thompson in a later call said Carl would be stabbed and killed if the demand was not met and actually put a knife to Carl’s throat. The family agreed to pay £1400, which was all they could find. Fearing police involvement, the offenders moved Carl to different woods and kept him there all night. They told him that if he spoke to the police they would rape him and kill his parents. At first light police deployed a helicopter. The offenders disposed of a knife and machete, moved Carl back to the original woods, made him remove his top, tied his feet and hands with his shoelaces and left him. Carl freed himself, ran to a friend’s house and was returned home. The ordeal lasted about twelve hours. The family felt unsafe and temporarily moved to Scotland.

On 4th March 2017, after the family had returned, Thompson and Andrews forced entry into the Cain home by smashing a kitchen window. Thompson wore an open ski mask and carried a machete and hammer. Andrews had his hood up. Carl and his mother hid upstairs in hysterics. Mr Cain confronted the intruders at the top of the stairs with a baseball bat and struck Thompson, forcing both men downstairs. Thompson and Andrews caused damage in the living room and stole two bicycles before fleeing. They had been originally charged with aggravated burglary but the Crown accepted pleas to alternative counts including perverting the course of justice, as proving the necessary intent for aggravated burglary was difficult. The offenders accepted their aim was to prevent the family from giving evidence. On 19th May 2017, Clarke and another male confronted a Mr Arem and his friend Mr Bird in a Mercedes. Clarke was armed with a hammer and the other man with an axe. Clarke swung the hammer at Mr Bird, who deflected the blows. The second man attempted to start the car while Clarke tried to gain entry through a passenger door. When Mr Arem ran from his house, Clarke swung the hammer at him. Both men dropped their weapons and fled, having stolen a mobile phone. Overnight on 4th and 5th May 2017, a Yamaha motorcycle worth about £1400 was stolen and Thompson was found riding it on 6th May.

The kidnapping and associated offences had a profound impact on the Cain family. Victim personal statements from Carl, Connor and their parents laid bare the trauma. Mrs Cain was treated for anxiety and depression. Carl suffered adverse psychological effects.

Clarke had 14 previous convictions from five court appearances including offences of possessing cannabis, shoplifting, having a bladed article, possessing an offensive weapon, criminal damage and battery. He had been made subject to a youth rehabilitation order on 9th December 2016 lasting until 8th December 2017. All present offences were committed during that order. Thompson had 42 convictions from 28 appearances including breaching an Anti-Social Behaviour Order, burglary, theft, affray, malicious wounding, battery, possessing offensive weapons and drugs offences. On 5th January 2017 he received a community order for shoplifting which was varied on 21st February 2017 to four weeks’ detention suspended for 12 months. All the present offences were committed during either the community order or suspended sentence. Andrews had no previous convictions, cautions or reprimands.

The mitigation for Clarke focused on his youth (he was only a month past his 18th birthday at the time of the kidnapping) and his immaturity as noted in the pre-sentence report. For Thompson, aged 19, counsel advanced that he had been brought up in very troubled circumstances with almost no parental boundaries, had started taking drugs aged 11 or 12 and progressed from cannabis to harder substances. Four years before the offending his father committed suicide when Thompson was 15. His mother had long-standing mental health problems and his sister provided the familial mainstay. His antecedent record showed he had been left to run amok in his formative years. However, from 2013 the pattern of offending had been different until the present offences, being limited to minor shoplifting. This was because he had formed a serious relationship with a young woman who provided the court with a detailed written account of Thompson’s difficulties. A few months before the present offending, Thompson’s sister committed suicide, which completely overwhelmed him and he went off the rails again. He attempted suicide, was hospitalised and referred to psychiatric services. He suffers from epilepsy and depression and demonstrated real remorse. Andrews, aged 17, had been brought up in deeply dysfunctional and tragic circumstances. Medical records showed he had been out of control as a young boy, with the first medical intervention occurring when he was 6. He was a problem pupil and had been excluded from school. He had recently been diagnosed with adult ADHD. His mother had been troubled and seriously ill. In April 2016, nine months before the offending, his mother committed suicide after years of pain. He reacted badly and received a provisional diagnosis of post-traumatic stress disorder. He suffered depression, anxiety, stress and insomnia for which medication was provided. He was himself the victim of a very serious assault in 2015 and had been assessed as being at risk of suicide.

The sentencing hearing on 20th October 2017 lasted two and three-quarter hours, during which the judge explored carefully with counsel the circumstances and mitigation. There was significant written material including pre-sentence reports, a detailed psychological report on Andrews and a letter from Thompson and one from his girlfriend. The judge reflected over the weekend and imposed sentence on Monday afternoon. In her sentencing remarks she recognised the parallels between the perverting the course of justice offending and aggravated burglary.

On behalf of the Attorney General, Mr Jarvis submitted that the sentences were unduly lenient on the following grounds. First, the sentence for kidnap should have been much higher for all offenders having regard to recent authority including R v Warren [2016] EWCA Crim 1344, Attorney General’s Reference No 102 and 103 of 2014 [2014] EWCA Crim 2922 and Attorney General’s Reference No 92 of 2014 [2014] EWCA Crim 2713. The starting point for kidnapping alone should have been in double figures before reduction for youth, other mitigation and guilty pleas. Second, Clarke and Thompson should have received significantly higher sentences than Andrews because they were already subject to court orders. Third, Clarke’s attempted robbery should have attracted a longer significant consecutive sentence. Fourth, Thompson and Andrews’ perverting the course of justice convictions should have attracted a significant consecutive sentence much longer than imposed. Fifth, there were parallels with aggravated burglary and the guideline on that offence should have been more firmly in the judge’s mind; that offending should have attracted a starting point of ten years or more. Sixth, whilst totality was properly taken into account, significantly higher sentences were warranted. Seventh, although Andrews had the benefit of the youth guideline and the youth of the other two was a factor, the circumstances meant only a very modest reduction from what would otherwise be appropriate for a mature adult should have been allowed.

On behalf of the offenders, counsel submitted that the judge carefully evaluated all relevant factors. It was not suggested that she failed to take account of important factors or took account of irrelevant matters. The sentences could not be stigmatised as unduly lenient, namely outside the appropriate range given the circumstances of the offending and these offenders. Each offender reminded the court of the mitigating features in his case. Miss Duckworth, for Andrews, submitted that his sentence should have been significantly lower than his co-accused to reflect that he was 17 rather than 18 or 19. She developed a disparity argument in oral submissions and reminded the court that Andrews had been subject to a curfew, albeit one that did not qualify for statutory reduction. She submitted it was nonetheless a factor bearing on totality. Mr Jarvis in oral argument accepted there was no stark cut-off point in sentencing an offender aged 18. Miss Duckworth accepted the same.

The court emphasised that reaching the age of 18 has many legal consequences but does not present a cliff edge for sentencing purposes. This had long been clear, as illustrated by R v Peters [2005] EWCA Crim 605. Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays. Experience of life reflected in scientific research is that young people continue to mature, albeit at different rates, for some time beyond their 18th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision even if an offender has passed his or her 18th birthday. The ages of these offenders illustrated the point. The youth and immaturity of Clarke and Thompson were appropriate factors for the judge to take into account even though both were over 18 when they offended. It was apparent the judge did so, not only in the case of Andrews.

The starting points implicit in the overall sentences before discount for guilty pleas but after taking account of all other mitigation were: Clarke ten years six months, Thompson ten years six months and Andrews eight years three months. Although the judge did not indicate where she had started before taking account of mitigation including youth and immaturity, and in Andrews’ case the distinct guideline relating to young offenders, it was apparent that were these offenders mature adults they would have received very much longer sentences. There was explicit reference to the guideline relating to young offenders in the course of argument before the judge.

The various cases to which Mr Jarvis drew attention undoubtedly demonstrated that lengthy sentences will be imposed in cases of kidnapping, especially where aggravating features are present. There is no guideline for kidnapping. As was emphasised in the cited cases, the circumstances of such offending can be very varied. The court did not consider that close comparison with the facts in any of the three cited cases would provide useful assistance.

The court addressed Mr Jarvis’s submission that the offending which surrounded the offence of perverting the course of justice had similarities with aggravated burglary, flowing from the fact that aggravated burglary was originally charged. The court noted the circumstances which led to the alternative counts being preferred. Mr Jarvis recognised that the judge, both in argument with counsel and in her sentencing remarks, drew the parallel with aggravated burglary. He submitted she should have explicitly taken account of and referred to the definitive guideline on aggravated burglary, albeit it was not submitted by the prosecution at the time that she should do so. Mr Jarvis submitted that section 125 of the Coroners and Justice Act 2009 required the judge to consider that guideline. Section 125(1) provides that every court must in sentencing an offender follow any sentencing guidelines which are relevant to the offender’s case unless the court is satisfied it would be contrary to the interests of justice to do so. Mr Jarvis submitted the aggravated burglary guideline was “relevant” to the offending because of the coincidence of at least many of the factual circumstances.

The court rejected the submission that in using the word “relevant” Parliament intended to impose a statutory duty to have regard to any definitive guideline from the Sentencing Council which might be useful in helping to determine the appropriate sentence for an offence for which no guideline exists. Put differently, the court did not consider that a judge has a duty to consider guidelines to help with range finding in a case for which no guideline exists. The word “relevant” in this context is to be read as referring to a guideline that applies to the offence or to the circumstances of the offender. That said, the judge plainly had in mind that the offending shared many of the indicia of aggravated burglary and she took that into account.

The court did not accept the submission that the circumstances should lead to the conclusion that any notional reduction in the sentences to reflect the youth of Andrews or the relative youth of Clarke and Thompson should have been minimal. Such a feature may be a potent factor in determining the eventual sentence. It was quite clear from the totality of the hearing and the sentencing remarks that this experienced judge was sensitive to the questions of youth and immaturity.

The underlying question in considering the Attorney General’s application was to determine whether the sentences fell outside the range of sentences which the judge, applying her mind to all relevant factors, could reasonably consider appropriate. That was how the matter was put by Lord Lane CJ in Attorney General’s Reference No 4 of 1989 (1989) 11 Cr App R(S) 517 at page 521. Whilst the court recognised that a different judge may have imposed longer sentences in this case, given the youth of the offenders and

Peters & Ors [2005] EWCA Crim 605
Atkins; Gibney [2014] EWCA Crim 2713; [2015] 1 Cr App R (S) 44
Attorney General Reference No. 102 and 103 of 2014 [2014] EWCA Crim 2922; [2015] 1 Cr App R (S) 55
Warren, Williamson and Croxall [2016] EWCA Crim 1344

Sanderson [2022] EWCA Crim 349
Kane Gamble, 20 April 2018
Hobbs and DM [2018] EWCA Crim 1003; [2018] 2 Cr.App.R.(S.) 36, CA.
Naa’imur Zakariyah Rahman, Unreported 31 August 2018
Kahar [2018] EWCA Crim 2522
Hashi [2019] EWCA Crim 185
Ogunjimi [2019] EWCA Crim 201
Daniels [2019] EWCA Crim 296
Quartey [2019] EWCA Crim 374
Mohammed Khalid and Neville Bowen [2019] EWCA Crim 701
Hamilton [2019] EWCA Crim 625
Geoghegan [2019] EWCA Crim 787
Aaron Miller & others, Sentencing Remarks 21 May 2019
New JUSTICE Report: Prosecuting Sexual Offences
Brett Everitt [2018] EWCA Crim 2241; [2019] R.T.R. 22, CA.
Basil Assaf & Others [2019] EWCA Crim 1057
Joanna Hill & Others [2019] EWCA Crim 1046
Dale Hayward & Steven Weaving [2019] EWCA Crim 1501
ACF [2019] EWCA Crim 1677
Ford & Lawrenson [2019] EWCA Crim 1757
Matus Horvath [2019] EWCA Crim 1795
Raja Mohammed [2019] EWCA Crim 2095
Zakaria Mohammed [2019] EWCA Crim 1881
Jason Hunte & Others [2019] EWCA Crim 2432
Kaya Douggan [2020] EWCA Crim 174
Attorney General v Gordon [2020] EWCA Crim 360, [2020] Cr App R (S) 35
Sobiya Iqbal & Uzma Iqbal [2020] EWCA Crim 376
Kate Huddart & Others [2020] EWCA Crim 438
Jack Stevens [2020] EWCA Crim 280
Bradley Garrett [2020] EWCA Crim 623
Lord [2020] EWCA Crim 753
Hundreds of children facing endless delays in the criminal justice system to be convicted as adults
Adison Smith & Others [2020] EWCA Crim 973; [2021] 1 Cr. App. R. (S.) 31
Burgan [2020] EWCA Crim 1186
Arjan Sandhu [2020] EWCA Crim 815
Redknapp & Howells [2020] EWCA Crim 1613
Magistrates Association publish new report on maturity in the magistrates’ court
Baldwin [2021] EWCA Crim 417
Semusu [2021] EWCA Crim 513
Popoola [2021] EWCA Crim 842
Mason [2021] EWCA Crim 113
Ormond [2020] EWCA Crim 1923
Coleman [2021] EWCA Crim 1406
Karolia & Others [2021] EWCA Crim 1839
Vajdik v Bratislava District Court (Slovakia) [2022] EWHC 55 (Admin)
Law [2021] EWCA Crim 1985
Miller-Cross [2022] EWCA Crim 346
Woods [2022] EWCA Crim 416
Mascall [2022] EWCA Crim 483
Patino-Guerrero [2022] EWCA Crim 418
Hassan-Ali [2022] EWCA Crim 739
Meanley [2022] EWCA Crim 1065
Omar [2022] EWCA Crim 1360
Rowson [2022] EWCA Crim 1381
Smith [2023] EWCA Crim 72
KH [2023] EWCA Crim 147
Khan-Brown [2023] EWCA Crim 99
Harding [2022] EWCA Crim 1918
Odoi [2021] EWCA Crim 728
Horgan [2023] EWCA Crim 378
Kamara & others [2023] EWCA Crim 492
Diba-Musangu [2022] EWCA Crim 957
McCarron & Others [2023] EWCA Crim 959
Nicholson [2023] EWCA Crim 1086
Marsden [2023] EWCA Crim 1211
Mohammed [2023] EWCA Crim 1325
Batty [2023] EWCA Crim 1535
Ahmed [2023] EWCA Crim 1521
Kamarra-Jarra [2024] EWCA Crim 198
Boshein [2023] EWCA Crim 560
Saultan [2024] EWCA Crim 347
Kitching [2024] EWCA Crim 288
Baker [2024] EWCA Crim 413
Abadilla [2023] EWCA Crim 1772
Head [2024] EWCA Crim 836
Ashmore [2024] EWCA Crim 1083
Donegan & Bell [2024] EWCA Crim 1264
Thomas [2024] EWCA Crim 1652
Salisbury [2024] EWCA Crim 1573
Hallam & Others [2025] EWCA Crim 199
Quaye v Secretary of State for Justice [2025] EWCA Civ 226
Castano-Coloque [2025] EWCA Crim 36
Cunningham [2025] EWCA Crim 513
Miller [2025] EWCA Crim 533
Thomas [2025] EWCA Crim 718
Revill [2025] EWCA Crim 762
Yusuf [2025] EWCA Crim 1010 
Price & Anor [2025] EWCA Crim 871
Ball [2026] EWCA Crim 121
Riley [2026] EWCA Crim 158
Odeyemi [2026] EWCA Crim 162
Omar [2026] EWCA Crim 92
WFU [2026] EWCA Crim 286 
Arshad [2026] EWCA Crim 296
R. v Hallam (Julian Roger) [2025] EWCA Crim 199
R v Jacob Graham [2025] EWCA Crim 403
R v Jake Roderick and Bradley Cocking and Leon White [2025] EWCA Crim 491
R v Jack Cracknell [2025] EWCA Crim 693
R v Keane Mulligan [2026] EWCA Crim 212
Hoe (Thomas) [2026] EWCA Crim 554
Davis & Others (DPP/IPP Appeals) [2026] EWCA Crim 743