Eddie Ratcliffe [2024] EWCA Crim 1498
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In Eddie Ratcliffe [2024] EWCA Crim 1498 the Court of Appeal (the Lady Chief Justice, Mr Justice Lavender and Mr Justice Murray) refused leave to appeal against a minimum term imposed for the murder of a 16-year-old girl, holding that a term of 20 years less time on remand was neither manifestly excessive nor wrong in principle.
The applicant, then aged 15 years and 7 months, and his friend Scarlett Jenkinson, aged 15 years and 8 months, were convicted on 20 December 2023 of murdering Brianna Ghey on 11 February 2023. They had lured Brianna, whom they knew from school, to Linear Park near Warrington, where they stabbed her 28 times to the head, neck, chest and back with a hunting knife which Mr Ratcliffe had purchased and brought with him. The trial judge, Mrs Justice Yip, found that each defendant had taken a full part in the killing and each intended Brianna to die. On 2 February 2024 the judge sentenced Mr Ratcliffe to detention at His Majesty’s pleasure with a minimum term of 20 years and Ms Jenkinson with a minimum term of 22 years, in each case less time on remand. The trial had revealed graphic and sinister messages exchanged in the build-up to the attack and cold and callous behaviour afterwards. Brianna was transgender and had been receiving hormone therapy.
Before sentence the judge had heard the evidence at trial, read family impact statements, studied pre-sentence reports and considered numerous medical reports on Mr Ratcliffe. He had no previous convictions. He had been diagnosed after detention with mild autistic spectrum disorder and, following conviction, developed severe anxiety and involuntary selective mutism. The probation report recorded that he maintained his denial at interview, which the judge found untruthful.
The judge concluded that, although Ms Jenkinson had been the driving force behind the plan to kill Brianna, Mr Ratcliffe was not under her control nor had he only helped so that Ms Jenkinson would help him approach a girl in whom he was interested. The judge determined that the appropriate starting point under paragraph 5A of Schedule 21 to the Sentencing Act 2020 was 20 years, on the basis that the seriousness of the murder was particularly high. The Crown had submitted, and the judge accepted, that the murder involved sadistic conduct within paragraph 3(2)(e) and was aggravated by hostility related to transgender identity within paragraph 3(2)(g). As to sadism, the judge found that although Mr Ratcliffe’s motives may not have been the same as Ms Jenkinson’s, he knew what she wanted to do and why, understood her desire to see Brianna suffer, and actively participated in a brutal murder knowing her sadistic motives. He could not avoid the consequences by saying he did not share the same desires. As to hostility related to sexual orientation, the judge found that Mr Ratcliffe had been motivated in part by hostility towards Brianna because she was transgender. He dehumanised her by referring to her as “it”, and his messages about wanting to see if she would scream like a man or a girl and checking Brianna was coming showed his own interests in killing linked to hostility towards her as a transgender person. Ms Jenkinson knew of Mr Ratcliffe’s motives just as he knew of hers. The judge found that both defendants took part in a brutal and planned murder which was sadistic in nature and where a secondary motive was hostility towards Brianna because of her transgender identity.
The judge identified the following aggravating factors: significant planning and premeditation, which Mr Ratcliffe had joined; his encouragement of further attempts to poison Brianna after Ms Jenkinson’s earlier unsuccessful attempt, although none occurred; the involvement of both defendants in a failed attempt to lure Brianna to the park on 28 January 2023; Brianna’s vulnerability and the fact that they picked her because she would be an easy target; Ms Jenkinson’s abuse of Brianna’s trust as a friend, of which Mr Ratcliffe was aware; the brutality of the murder, use of the knife, sadistic motive and transphobic hostility taken together, even in the context of murders of particularly high seriousness; and commission of the murder in broad daylight in a park where other people were around. As mitigating factors, the judge recognised Mr Ratcliffe’s previous good character, his progress in detention including passing his GCSEs and starting A-level study, his good behaviour and the hope that he might one day be rehabilitated. The judge found Mr Ratcliffe less mature than many others within the 15 to 16 age category and his thinking skills less developed in several areas. However, the judge concluded that Mr Ratcliffe’s autism and associated limitations did not significantly lower his culpability for the murder. She was confident that he knew very well that what he was doing was terribly wrong and that he was capable of saying no to Ms Jenkinson, bearing in mind the difficulty of proper assessment while he denied what he had done. The judge recognised that his experience of custody would be made more difficult by his autism, severe anxiety and selective mutism. The judge said that in Ms Jenkinson’s case the aggravating features were significant and would have led to a substantial uplift but for the mitigation, particularly relating to maturity and mental disorder; there must still be an uplift, but it would be moderated. In Mr Ratcliffe’s case, the judge found that the balance between aggravating factors, which were not quite as high as in Ms Jenkinson’s case, and the mitigation was such that they cancelled each other out. In saying that, she had taken account of all the medical evidence and accepted the ASD diagnosis had some impact, but the extent to which it reduced culpability in the circumstances of this offending was limited.
On the application for leave to appeal, counsel for Mr Ratcliffe advanced seven grounds, though they confirmed they were not relying on disparity as a distinct ground. They contended that the judge erred in determining a 20-year starting point for Mr Ratcliffe as well as for Ms Jenkinson because they were far from equal in sadistic motivation and conduct, and there was no evidential basis for a finding that a secondary motive was hostility towards Brianna because of her transgender identity; Mr Ratcliffe’s true motive was to please Ms Jenkinson to obtain her help in forming a relationship. They submitted that the judge failed to reflect his age and level of maturity when determining the starting point and that Ms Jenkinson’s far greater culpability should have been reflected in different starting points. They argued that the judge erred in increasing the notional level to reflect aggravating features disproportionately, that Mr Ratcliffe’s involvement in planning was limited, that he was not involved in the earlier poisoning attempt, had never met Brianna, was unaware of her vulnerability, was not in a position of trust towards her, and that the judge double-counted factors already used to justify the 20-year starting point. They contended that the sentence did not sufficiently reflect personal mitigation based on Mr Ratcliffe’s ASD diagnosis and significant impairments in functioning, nor his level of maturity, that the judge failed sufficiently to distinguish between the role and culpability of the two defendants, and that the sentencing remarks did not allow the different levels of uplift and downward adjustment to be gauged. The respondent submitted that the seriousness of the murder was not just particularly high but exceptionally high, that the evidence demonstrated Mr Ratcliffe repeatedly stabbed Brianna in Ms Jenkinson’s presence knowing she derived pleasure from what he was doing, having encouraged her and planned with her, and that the messages were such that the judge was entitled to conclude Mr Ratcliffe was hostile towards Brianna due to her transgender identity and that his participation was motivated in part by that hostility. The respondent argued that the judge correctly identified aggravating factors as they applied to Mr Ratcliffe, that she was entitled to conclude his culpability was not significantly reduced by his ASD, and that while his ASD was capable of affecting his developmental age, Dr Crawford’s view was that it was at the mild end of the spectrum, consistent with his presentation at trial. The judge considered its effect on his ability to cope in detention. The respondent submitted that the judge considered carefully the differing roles and, having heard the trial and seen both defendants give evidence, was in the best position to do so, and that her sentencing remarks were sufficient to explain her approach.
The court rejected grounds 2 and 3 as falsely premised. The choice of starting point from Schedule 21 was the first step; once the appropriate starting point was chosen, the offender’s age, maturity and relative culpability were matters to be taken into account when considering aggravating and mitigating factors, but they did not affect the choice of starting point. If 20 years was the appropriate starting point in Mr Ratcliffe’s case under paragraphs 3 to 5A of Schedule 21, it did not cease to be so because Ms Jenkinson’s culpability was greater; the different roles would be addressed at the aggravation and mitigation stage. The court considered the judge was entitled to choose 20 years as the starting point for both reasons she gave. As to sadistic conduct, paragraph 3(2)(e) of Schedule 21 contemplated a significantly greater degree of awareness of pleasure in the infliction of pain, suffering or humiliation than mere pleasure from attacking. The messages between the defendants made clear that Ms Jenkinson’s motivation was the pleasure she intended to derive from Brianna’s suffering. Mr Ratcliffe was fully aware of this and actively participated in a brutal murder which must have caused Brianna to suffer before she died. The judge was entitled to conclude he took part in a murder involving sadistic conduct. As to hostility related to sexual orientation, it was sufficient under section 66(4)(b)(v) of the Sentencing Act 2020 if the murder was motivated wholly or partly by hostility towards persons who are transgender; sole or primary motivation was not required. The judge’s finding was one of fact which this court would not interfere with unless no reasonable finder of fact could have reached that conclusion. Having regard to the messages sent by Mr Ratcliffe, the finding was open to the judge. His statements in interview and evidence had to be seen in the context that he gave a false account rejected by the jury. The court did not engage directly with the respondent’s submission that seriousness was exceptionally high under paragraph 2 of Schedule 21, as the judge had not sentenced on that basis, though the submission served to emphasise the aggravating factors including that this was a murder of a child, which paragraph 2 showed to be particularly serious.
The court considered the judge was entitled to take account of the aggravating factors she identified: the planning and premeditation, recognising it started with Ms Jenkinson but that Mr Ratcliffe joined in with creativity, for instance proposing code words; the earlier poisoning attempt was primarily aggravating in Ms Jenkinson’s case, though Mr Ratcliffe encouraged further attempts; both were involved in the failed attempt to kill Brianna on 28 January 2023; Brianna’s vulnerability was primarily aggravating in Ms Jenkinson’s case, though the fact that Brianna was a child could have been seen as a significant aggravating factor to which the judge did not refer; Ms Jenkinson abused Brianna’s trust and Mr Ratcliffe knew she was doing this; the existence of more than one factor making seriousness particularly high could be taken into account as an aggravating factor in accordance with usual sentencing practice; and the murder was committed in a park where other people were around. As to mitigating factors, previous good character had to be viewed in the context of very serious offending and the preceding messages. Good behaviour in detention and the prospect of rehabilitation were mitigating, and the court noted that positive behaviour had continued. The court considered the heart of the appeal was the challenge to the judge’s consideration of the medical reports about Mr Ratcliffe. The judge rightly identified three potential mitigating factors: immaturity, reduced culpability and increased hardship in detention. As to immaturity, in accordance with R v Kamarra-Jarra the court was obliged to look beyond mere chronological age. Mr Ratcliffe was a little below the mid-point of the 15 to 16 category by chronological age. The judge recognised he was less mature than many others in that category with less developed thinking skills in several areas. The court carefully considered the medical reports, bearing in mind the judge also had regard to all other evidence including messages and his evidence. Many reports were prepared for purposes other than assessing maturity or culpability, such as fitness to plead. They noted he had no prior involvement with mental health services and had been attending normal school, whereas arrest and detention led to anxiety and consequent communication difficulties. Dr Diggle said Mr Ratcliffe met criteria for ASD but was less certain his difficulties met criteria for core autism. Dr Bowers noted the wide difference between high intellectual functioning and deficits in social and emotional functioning. Measures of cognitive abilities ranged from average to extremely high. He had capacity to understand why it was wrong to kill. Dr Bacon said she had no concerns about his ability to understand that killing was morally wrong or illegal and that he was intelligent, had functioned well academically and had not had overt major problems with functioning. Dr Crawford agreed with the ASD diagnosis, finding no evidence of significant mood disorder or psychosis, and placed the autism at the mild end of the spectrum, based on the absence of learning difficulty, mastery of speech and language, and adequate social and school functioning despite deficits. Dr Diggle’s addendum report was relied on in support of appeal, stating several areas of functioning were like a much younger child, perhaps seven or eight, in ability to express thoughts, understand minds and feelings of others, predict what others might do, engage in social problem solving, recognise social responsibility, understand fine meaning of social communication, use all information received, understand emotions, and assess trustworthiness. None of these reports expressly addressed level of maturity at the time of the murder and several recognised significant change following arrest and detention. Understandably Dr Diggle’s addendum was relied on, but the judge was entitled to assess that alongside other evidence including intelligence, good academic functioning, knowledge that killing was wrong, and the messages he sent. Looking at the evidence overall, the court did not consider the judge was wrong to conclude immaturity was a mitigating factor while not regarding it as so powerful as contended. As to culpability, the judge concluded Mr Ratcliffe’s culpability was not significantly reduced by autism and associated impairments, relying on her assessment that he knew very well what he was doing was terribly wrong and was capable of saying no. This assessment was based not only on medical reports but on other evidence, and the court considered it was one the judge was entitled to make. As to increased hardship in detention, no complaint was made about the judge’s decision to recognise that custody would be made more difficult by autism, severe anxiety and selective mutism.
By ground 7, counsel contended the judge was obliged to specify the amount by which she increased or decreased the minimum term from the starting point. Although some judges do this, the court did not consider a sentencing judge was required to do so; the practice could give the false impression that sentencing was a mathematical exercise rather than an exercise in judgment. The two figures required were the starting point from Schedule 21 and the minimum term imposed. Sections
R v P eters [2005] 2 Cr. App. R. (S.) 101
R v B onellie [2009] Cr App R (S) 55
R v Cairns [2013] 2 Cr App R (S) 73
Kamarra-Jarra [2024] EWCA Crim 198
SK [2022] EWCA Crim 1421; [2023] 1 Cr. App. R. (S.) 26