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					Sentencing Guidelines Council - Consultation on assaults and other offences against the person A Response by the Criminal Bar Association of England and Wales Introduction 1. The Council has published for consultation a guideline, „Assault and other offences against the person‟ that considers the factors and approach relevant to seven offences of violence. The Council has largely accepted the advice of the Sentencing Advisory Panel. However, in relation to attempted murder, since the Panel undertook the consultation that led to its advice, there has been growing support for the view that the level of sentencing needs to be linked more obviously with the level of sentencing for murder. 2. Although death will not have resulted, there will be many occasions where an attempted murder will arise from a deliberate intention to kill which has resulted in very serious injuries; indeed, death may have been avoided only by the speed and skill of medical intervention. Since Parliament has so recently established statutory starting points for murder, the Council has considered whether the approach for attempted murder should be different from that advised by the Panel and has concluded that this part of the consultation guideline should be based on a different approach. 3. The Council has considered recent decisions of the Court of Appeal (Criminal Division) and determined that the consultation guideline should be based on the “clear and obvious link” with the approach to sentencing for murder enacted in schedule 21 of the Criminal Justice Act 2003. 4. Accordingly, the Council has decided to consult more widely than normal on this part of the consultation guideline. In accordance with section 170(8)(b) of the Criminal Justice Act

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2003, the Council is seeking views which it will consider before determining whether to issue definitive guidelines. 5. This paper is the CBA‟s response to that consultation exercise. Executive summary The Consultation has asked the following questions: 6. Do you agree that the starting points for sentencing for attempted murder should be based on a “clear and obvious” link with the statutory starting points for murder? If not, what do you consider the approach should be? A qualified yes, see below. 7. Do you agree that it is possible (with minor adjustments) to apply to attempted murder the three levels of seriousness and the aggravating and mitigating factors set out in schedule 21 to 2003 Act? If not, how should the levels of seriousness be catergorised? The link is only appropriate in the most serious cases of attempted murder. 8. Do you agree that the starting point should be based on an offence where no harm has resulted? If not, what should be the basis of the starting point? Yes 9. Do you agree that the starting point for an offence of attempted murder where no harm has resulted should result in a time spent in custody that would be 40% of the minimum term that would have been imposed if the offence had been murder? We have some concern, as to how the 40% figure has been arrived at and whether the application of a fixed percentage starting point will do justice in every case. 10. Do you agree that no further guidance is necessary as to the extent to which that percentage should increase with the level of harm inflicted? If not, what should be the basis of that guidance?

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Yes. There must be a wide margin of discretion afforded to the sentencing judge in arriving at a sentence that appropriately reflects the particular facts of each case.

Discussion in detail Question 1 Do you agree that the starting points for sentencing for attempted murder should be based on a “clear and obvious” link with the statutory starting points for murder? If not, what do you consider the approach should be? 11. In brief we agree that the sentences for Attempted Murder could be „linked‟ to those for murder in the way set out in the proposed guidance. In light of the fact that attempted murder, by definition, requires proof of an intention to kill it is an offence that is properly regarded as being at the highest level of seriousness. However, the spectrum of factual scenarios which may give rise to a charge of attempted murder is very wide. “Attempted murder is always a very serious offence because the intention proved is to kill. However, the range and culpability for the offence is wide given the infinite variety of circumstances in which the intention can be formed, the duration of that intent and the calculation or spontaneity with which that intention was carried out. There needs to be a correlation with the factors which will determine the sentence for the completed offence.” [Per Pitchford J in R v Paul Clarke [2007] EWCA Crim 2195] 12. During the passage of the Criminal Justice Bill 2003 Parliament does not appear to have discussed the implications of schedule 21 at any length, even when considering murder. Schedule 21 was never intended to apply to attempted murder. However, we do not see why, in light of the Court of Appeal‟s consideration of schedule 21‟s application to Attempted Murder in R v Ford it could not apply to the most grave and serious cases of attempted murder. For the following reasons, we are concerned at how it will apply to the less serious cases of attempted murder; (i) There is no mechanism as yet identified for adjustments for the defences of diminished responsibility and

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provocation being available in attempted murder – these factors often account for a significant reduction in murder cases. (ii) In the less serious cases of attempted murder, if death had resulted, the conviction would often be for manslaughter – no mechanism has been identified yet by the panel for reflecting the much lower sentences for manslaughter within the framework of schedule 21.

13. There are two possible answers to (i) and (ii) above; the first, that schedule 21 would apply only to the exceptional cases – these would be easily identifiable by the existence of “exceptional features” identified in the Schedule itself and reiterated by the Court of Appeal in the cases of Ford and Clarke. It is these cases (exceptional ones) that caused the Court of Appeal Criminal Division to have concern as sentences passed were very often too low. 14. Secondly, if the Schedule is to apply across the board to all cases, then the sentencing court it would have to ask itself this question – “if death occurred, would it have amounted to manslaughter or murder and then make the appropriate adjustments”. Question 2 Do you agree that it is possible (with minor adjustments) to apply to attempted murder the three levels of seriousness and the aggravating and mitigating factors set out in schedule 21 to 2003 Act? If not, how should the levels of seriousness be catergorised? 15. We have grave reservations about the effect on the length of sentences. We are fortified in our concern when one considers the fact that the CJA 2003 and schedule 21 thereto, because of their significant impact on the level of sentences to be passed for Murder was the subject of intense parliamentary debate and scrutiny. This has not occurred in respect of attempted murder. The CACD recognizes the impact on future sentences in this area 16. The range of culpability for the offence of attempted murder is very wide. In considering the relationship between the sentence for the full offence and an attempt, we are inclined to the view that, the time to be served for the full

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offence ought to be significantly higher than that for an attempt. It is necessary to mark the fact that a life has been lost by an increased level of sentence. 17. The level of sentence for attempted murders of a particularly serious kind, we agree should now be generally higher, whilst retaining a proportionate discount from the term appropriate to be served for the full offence. 18. It follows that it is only in the correspondingly graver cases of attempted murder that increased level of sentencing is required. For murders lacking the in the more serious aggravating factors the courts had anticipated no general increase in sentencing levels. It follows that in attempted murders lacking such factors no general increase in sentences should be required. Question 3 Do you agree that the starting point should be based on an offence where no harm has resulted? If not, what should be the basis of the starting point? 19. The level of harm suffered by the victim will always be an important factor in the assessment of seriousness of any individual offence. In some cases the victim may suffer no injury at all. In such cases there will be a very marked imbalance between culpability and harm. In such circumstances which factor ought to be the driver? We submit that the answer can be found from two sources. First, the definition of harm in the SGC‟s Guideline Overarching Principles is wide and includes not only harm actually caused but also the harm the offender intended to cause. Second, it is a well-established principle of sentencing practice that where there exists an imbalance between culpability and harm, it is culpability that ought to be the driving factor in the court‟s assessment of seriousness. Question 4 Do you agree that the starting point for an offence of attempted murder where no harm has resulted should result in a time spent in custody that would be 40% of the minimum term that would have been imposed if the offence had been murder?

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20. We consider this to be an arbitrary starting point. An analysis of cases in the Court of Appeal dealing with attempted murder, suggests that under previous sentencing levels the discount for attempted murder as opposed to the full offence, was in practice about one half (50%), of that for the full offence. Statistical evidence given by the former Sentencing Advisory Panel‟s Advice to the Court of Appeal in 2002, on minimum terms in murder cases at paragraph 26 would appear to support at view. 21. We have in mind the fact that the maximum sentence for attempted murder is life imprisonment, this, therefore allows a court the widest possible range when passing sentence. In the light of the wide spectrum of factual scenarios which may be prosecuted as attempted murder this wide margin of discretion afforded to the sentencing judge is entirely appropriate. We are concerned, therefore, at the presupposed implementation of any measure that seeks to limit that margin of discretion unless there is shown to exist conclusive evidence that such a step is essential to promoting greater consistency of sentencing in this area. 22. We are concerned that the introduction of the new framework for sentencing in attempted murder cases may result in substantial, across-the-board, increases in the level of sentences imposed for attempted murder. Whilst there may be a compelling argument that there now exists an unacceptable disparity between the level of sentence for most serious examples of attempted murder and the level of sentence for murder under schedule 21, that argument is far from compelling when considering cases of attempted murder which fall outside the highest category of seriousness. 23. An analysis of recent cases reveals that the Court of Appeal has approved a broad range of sentences of imprisonment for attempted murder. It appears to us that in many cases the sentences that would result from the application of the proposed framework would be markedly higher that those actually upheld by the Court of Appeal. 24. In R v Ford [2006] 1 Cr App R (S) 36 the Court of Appeal considered what effect, if any, the statutory minimum terms for murder (introduced by the Criminal Justice Act 2003) should have on sentencing for the offence of attempted murder. It observed that the public might perceive that there was an inappropriate and objectionable disparity between the levels of sentence for murder and the levels of sentence for

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attempted murder. It was clear however, that the Court of Appeal had in mind an upward revision of the level of sentence in respect of the most serious cases of attempted murder only and expressed the view that most categories of attempted murder are unlikely to call for increased levels of sentence. “It follows that it is only the correspondingly graver cases of attempted murder that (an) increased level of sentencing is likely to be required. For murders lacing in the more serious aggravating factors the court anticipated no general increase in sentencing levels” (per Gibbs J at para. 26). 25. The Court of Appeal in Ford also noted, as we have above, that although attempted murder is always a serious offence the range of culpability for the offence is wide. We give two examples that illustrate the point; Case 1: A professional „Hit- man‟ shoots his victim with a high-powered rifle but at the critical moment the victim moves and the shot misses. Case 2: A woman who had been subjected to a long period of physical abuse by her partner can take no more and in the heart of the moment picks up a knife and plunges it into the chest of her tormentor. At that moment her intention was to kill but very soon after she regrets her actions, summons emergency help and the victim‟s life is saved by the skill of the surgeons who subsequently operate on him. Although he survives he suffers significant and permanent brain damage. 26. We are concerned that the application of the framework in the Consultation Guideline will give rise to anomalies. In the factual scenario in case 1 above the starting point would appear to be 12 years (40% of 30 years starting point for murder). In case 2 the starting point would be close to 15 years (no significant reduction from the 15 year tariff for murder in the light of the extent of the harm caused). We question whether such a result would be regarded as just. 27. The position is complicated by the fact that the partial defences of provocation and diminished responsibility which are available in murder cases are not available in cases of attempted murder. In case 2 above if the victim had died it is distinctly possible that the defendant would be convicted not of murder but of manslaughter. Does it not follow that the

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“clear and obvious link” is not with the appropriate level of sentence for murder but rather that for manslaughter? 28. Indeed in some cases, the mental state of the offender has led the Court of Appeal to reduce sentences to a significantly lower level. In Nixon [1994] 15 Cr App R (S) 429, a sentence of six years‟ imprisonment after trial was reduced to four in light of the Court of Appeal‟s view that, had the offence been one of murder, the partial defence of diminished responsibility would have been established. 29. In the preamble to the section of the Consultation Guideline that deals with attempted murder [see p.17] it is stated: „This guideline does not apply in circumstances where, had the victim died; the defendant would have been convicted and sentenced for manslaughter and not murder‟ 30. For the reasons set out above we regard it as essential that this exclusionary provision is retained in the Definitive Guideline. Question 5 Do you agree that no further guidance is necessary as to the extent to which that percentage should increase with the level of harm inflicted? If not, what should be the basis of that guidance? 31. We have real concerns that an overly-prescriptive approach to the sentencing exercise for attempted murder may, whilst promoting a degree of consistency, not well serve the interests of justice. We are strongly inclined to the view that the wide margin of discretion currently afforded to the sentencing judge in such cases should not be eroded. We seriously question whether the proposed framework permits of a sufficiently wide margin of discretion. Conclusions 32. In conclusion, precisely for the reasons identified by the Court of Appeal Criminal Division that there was disparity in sentences for the graver categories of Attempted Murder (being too low), we agree that in those graver cases there should be a closer link with the statutory starting points for

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murder but with this important caveat, there needs to be retained an ability to reflect the wide range of factual scenarios which can give rise to an allegation of attempted murder. Albeit that schedule 21 of the 2003 Act with minor adjustments could apply to attempted murder, we are concerned about the effect on length of sentences. Whilst we agree that the level of sentences for graver cases may warrant an increase in sentence, attempted murders lacking such factors do not require such intervention. In determining the starting point, if the level of harm caused is to be the decisive factor, it must be capable of reflecting not only harm caused but also the harm the offender intended to cause. The use of 40% as the guiding percentage for a reduction of the minimum term that would have been imposed if the offence had been murder, is somewhat arbitrary. Analysis of previous cases suggests the figure should be closer to 50%, with a broad discretion being afforded to the sentencing judge, in order to be able to properly reflect the wide range of factual scenarios that can arise in such cases. It is useful to remind ourselves of the preamble to the section of the Consultation Guideline that deals with attempted murder [see p.17] it is stated: „This guideline does not apply in circumstances where, had the victim died; the defendant would have been convicted and sentenced for manslaughter and not murder‟

Mohammed Khamisa QC Simon Mayo Gillian Jones Felicia Davy

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