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Appeals against conviction – England and Wales
Appeal against Sentence – England and Wales

Murder – attempted murder – minimum terms – personality order - brain development in young adults and effect on impulse control - alcohol

 

R v Kai Nazir

 

[2019] EWCA Crim 1403

 

By Isabella Forshall QC

 

 

[This is an important case on the CACD’s approach to sentencing young adults. Ed.]

 

Kai Nazir was 19 years old when, with drink taken, on the verdicts of the jury, he first attempted to murder one young man by stabbing him to the upper abdomen, and then murdered another young man who confronted him shortly later about what he had done, by stabbing him twelve times.  He had brought a knife with him to the scene.

 

Psychiatric and psychological reports noted, and the trial judge accepted, a developing and long-standing disorder of personality. However the appellant’s drunkenness was said by the doctors and accepted by the Judge to have played the primary role in the offence.

 

The trial Judge took a starting point of 30 years to reflect the totality of the offending and those matters which he considered aggravated the offences.  From this he subtracted four years to reflect the appellant’s youth and developing personality disorder, thus arriving at a minimum term of 26 years.

 

The CACD found that the 26 year term was manifestly excessive and reduced it to 23 years. The Court accepted the Judge’s view that drunkenness played a primary role in the offending and that the personality disorder was less important than the youth and immaturity of the appellant in weighing culpability, but found nevertheless that the trial Judge had made insufficient allowance in passing sentence for the youth of the appellant and his psychological difficulties. In the course of the appeal, the Court invited the submission of and considered materials respecting brain development in young adults and its effect on impulse control and hence culpability.

 

The Appellant will now be 43 when he can first apply to the Parole Board for release on life licence where formerly he would have been 47.  The discount to reflect his frailties substituted by the Court of Appeal is of the order of a quarter of the starting point.

 

 

 

Minimum term for 16 year old – murder; 12 year starting-point - aggravating features.

 

Prohibition on identification of youths - s45 Youth Justice and Criminal Evidence Act 1999.

 

R v Ayman Aziz

 

[2019] EWCA Crim 1568

 

By Farrhat Arshad

 

 

[A detailed analysis of the CACD’s approach to the minimum terms for 16 year olds and a judicial review of a prohibition on identification. Ed]

 

A, aged 16, had been convicted of the rape and murder of a 14 year old girl.  He sought to appeal against the minimum term imposed for those offences. 

 

He also sought to judicially review the removal of an order prohibiting his identification in any publication, made under section 45(3) of the Youth Justice and Criminal Evidence Act 1999.

 

The deceased and A were friends.  A had arranged to meet the deceased in a park.  The next morning the deceased’s body was found on a park bench.  Anal intercourse had taken place prior to her death.  The post-mortem examination revealed the deceased had been subjected to a sustained and ferocious attack to the head, involving a large number of blows.  Some of the injuries were consistent with the use of a weapon like a hammer. A accepted that he had met the deceased in the park on the night she died and said that they had engaged in consensual sexual activity. He denied that he had assaulted her and said that she was alive and well when he had left her in the park. Examination of A’s devices revealed that he had deleted messages and researched how to delete his Facebook account.  He was convicted after trial.

 

Following conviction, reports were obtained, including reports from two psychiatrists and a pre-sentence report.  Both psychiatrists described symptoms of psychosis and paranoia, and they agreed that A met the criteria for a diagnosis of paranoid schizophrenia. Neither psychiatrist could say what part A’s mental health had played in the offences.   The judge imposed the mandatory sentence of detention at Her Majesty's pleasure for murder, pursuant to section 90 of the Powers of Criminal Courts (Sentencing) Act 2000. He specified a minimum term of 19 years. A sentence of 10 years' detention was passed for the rape, to be served concurrently.

 

A appealed against the minimum term on 3 grounds: (i) the judge paid insufficient regard to the intention of Parliament in setting the statutory starting point for those aged under 18 at 12 years, regardless of the nature of the offence. To have purposive effect, the 12 year starting point must exert a substantial "drag" on aggravating features; (ii) The judge's approach to the appellant’s mental health focussed too much on whether it was causative of the offending and too little on the overall mitigation which his mental disorder afforded him; (iii) the judge paid too much attention to the appellant’s chronological age, and insufficient to his developmental immaturity. His emotional and educational deprivation should have received greater recognition, and more weight in sentencing.

 

The CACD (Lord Burnett of Maldon, LCJ, Warby J. and Edis J.) refused the appeal against sentence.  In the present case, the overall increase, after balancing aggravating and mitigating factors, had been from 12 to 19 years. The CACD did not consider that to be arguably wrong.  There was a range of specific aggravating factors: The murder was carried out with a weapon brought to the scene for the purpose; there was sexual motivation, and the additional offence of rape; there was a sadistic element to the offending; and the victim was subjected to mental and physical suffering over a prolonged period. It was legitimate to keep in mind that the sadistic and sexual elements of this offending would have led to a starting point for someone aged 21 or more of a whole life term (under paragraph 4(2)(b) of Schedule 21) and, for one aged 18 to 21, a starting point of 30 years (paragraph 5(2)(e) and/or (h)). The judge did not overlook the statutory starting point. Although the sentence was a substantial one, the Court did not consider it arguable that the sentence "floated free" of the starting point required by paragraph 12 of Schedule 21. (At paragraph 26 of the judgment). 

 

As to grounds (ii) and (iii), those factors had been properly taken into account as shown by the five year reduction for mitigating features.

 

As for the issue of identification of the appellant in publications:  Prior to trial the judge had made an order under section 45(3) of the Youth Justice and Criminal Evidence Act 1999, prohibiting the identification of the then defendant.  After his conviction, the Express and Star Newspaper submitted written representations, inviting the judge to consider lifting the reporting restriction. The newspaper identified relevant principles and authorities.  The judge granted the newspaper's application and made what the statute calls an "excepting direction". Its effect was to discharge the section 45(3) direction in its entirety. He gave his reasons in writing.  The appellant sought to judicially review that direction and the direction was stayed in the meantime.

 

The CACD discussed the issue of jurisdiction (at paras 51 to 57 of the judgment) but did not come to a definitive conclusion on the issue, not having heard argument on the point, stating (at para 57), “It may become necessary to revisit whether decisions in the Crown Court in this area are properly subject to judicial review, and the relationship between the various provisions to which we have referred conferring power of the Court of Appeal Criminal Division. In the circumstances, not having granted leave to appeal, we reconstitute ourselves as a Divisional Court and deal with this issue in the judicial review.”

 

At paragraph 36 of the judgment, the Court stated:

 

Decisions under these provisions call for the exercise of judgment, requiring the court to balance the competing claims of privacy, a child's welfare and open justice: Markham [75], [83-84]…. ...When considering a challenge to a decision on such an issue, the court (whether by way of appeal or judicial review) will respect the trial judge's assessment of the weight to be given to particular factors, interfering only where an error of principle is identified or the decision is plainly wrong. It is for that reason that this Court emphasised in Markham at [84] that, ‘for the future, submissions in this area of the law should focus on the facts of the particular case relevant to the exercise of the court's judgment, rather than the siren calls of abstract principles that have already informed the approach which the courts adopt.’”

 

In considering the lifting of the restriction, the Court repeated the principles that had been set out in R v Markham and Edwards [2017] EWCA Crim 739 on this issue (at paragraph 40 of the judgment):

 

“In Markham, at [76] to [87], this Court reviewed the principles in the context of a child defendant, an excepting direction under section 45, Article 3 of the UN Convention on the Rights of a Child, and other relevant international instruments concerning the administration of juvenile justice. Key features include the following:

 

(1) The general approach to be taken is that reports of proceedings should not be restricted unless there are reasons to do so which outweigh the legitimate interests of the public in receiving fair and accurate reports of criminal proceedings and knowing the identity of those in the community who have been guilty of criminal conduct and may, therefore, present a danger or threat to the community in which they live: R v Leicester Crown Court ex p S (A Minor [1993] 1 WLR 111, 156 (Watkins LJ); Markham [80].

 

(2) The fact that the person before the court is a child or young person will normally be a good reason for restricting reports of the proceedings in the way permitted by the legislation; and it will only be in rare cases that a direction under section 45(3) will not be given or, having been given, will be discharged: ibid.

 

(3) Very great weight must be given to the welfare of such a child or young person. Power to dispense with anonymity must be exercised with very great care, caution and circumspection; the court must be clear in its mind why it is in the public interest to dispense with the restrictions, which will very rarely be the case: McKerry v Teesdale and Wear Valley Justices (2000) 164 JP 355 [2001] EMLR 5, Markham [81].

 

(4) It is not the case, however, that the welfare of the child or young person will always trump other considerations. Even in the youth court, where the regime requires that proceedings should be held in private, with the public excluded, the court has power to lift restrictions. When a juvenile is tried on indictment in the Crown Court there is a strong presumption that justice takes place in open and the press may report the proceedings, as made clear by the House of Lords in Re S; Markham [82].”

Having considered these principles the Court upheld the trial judge’s decision: 

 

“The judge was well aware of the need to have regard to the welfare of the offender. He had adjourned sentence for the express purpose of obtaining psychiatric reports, and a pre-sentence report. His ruling on the Express and Star's application began by referring to these reports. We see no basis for the assertion that he failed to have regard to the contents of those documents. On the contrary, his ruling contained an evaluation of the psychiatric evidence, its impact on culpability, and the risks of harm to the appellant. We have carefully reviewed the material that was before the Judge. His approach to the evidence cannot be faulted. The reality is that the majority of the evidence of threats or actual harm amounted to self-reporting by an individual diagnosed as suffering from paranoid delusions. Neither the experts nor the authors of the pre-sentence report were able to provide cogent evidence that identification of Aziz would cause or risk significant harm to his health or wellbeing.

The justification for identifying the perpetrator of a serious crime could be thought weaker if his offending resulted from, or his culpability was significantly reduced by, paranoid schizophrenia. The judge was right to assess whether the evidence suggested this was so, and to give the mental illness less weight because it did not. That did not involve disregarding that same factor when it came to the issue of welfare. In our judgment, these four grounds of appeal amount, in reality, to a complaint about the way in which the judge struck the balance. The arguments advanced on behalf of Aziz naturally focus on one side of the balance, namely his interests. The judge was concerned also with the public interest. In our judgment there was no legal error in his approach.”  (At paragraphs 46 and 47).

 

The Court further held that the trial judge was right to proceed on the basis that the Order prohibiting publication of the appellant’s identity only lasted until he was aged 18, after which it fell away.  The only application that could be made in anticipation of the appellant’s majority was for what might be called a "Venables" or "Mary Bell" Order: an injunction against all the world grounded in a compelling need to protect a notorious criminal against vigilante action that threatens his personal safety or wellbeing: Venables v News Group Newspapers Ltd [2001] Fam 430; X, a woman formerly known as Mary Bell v O'Brien [2003] EMLR 37.  The Court emphasised that such orders were exceptional - RXG v Ministry of Justice [2019] EWHC 2026 (QB) at [32] to [35].  The judge was justified in proceeding on the assumption that anonymity would soon fall away. He was entitled to take the view that continued anonymity was not warranted, in order to allow what could only be a relatively short period of treatment and assessment. (At paragraph 50).

 

 

If you'd like to speak to Isabella Forshall QC or Farrhat Arshad about these cases, please click here for Isabella and here for Farrhat.