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England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Saleh, R. v [2025] EWCA Crim 720 (08 May 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/720.html
Cite as: [2025] EWCA Crim 720

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Neutral Citation Number: [2025] EWCA Crim 720
CASE NO: 202402677 A1

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE MARK DENNIS KC T20237180

Royal Courts of Justice
Strand, London, WC2A 2LL
8 May 2025

B e f o r e :

LORD JUSTICE GREEN
MR JUSTICE GOOSE
MRS JUSTICE YIP DBE

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REX

- v -

AWADH SALEH

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Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

____________________

MR JONATHAN HIGGS KC appeared on behalf of the Applicant
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HTML VERSION OF APPROVED JUDGMENT
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Crown Copyright ©

    MRS JUSTICE YIP:

  1. On 12 June 2024 at the Central Criminal Court the applicant was sentenced to life imprisonment with a minimum term of 36 years for the murder of Abubakarr Jah on 26 April 2021. He seeks leave to appeal that sentence.
  2. His application, which was brought out of time, was refused by the single judge. He now renews his application for an extension of time and for leave. Mr Higgs KC, who appears on his behalf today, as he did below, submits that if there was a delay in submitting the appeal then that delay rests with his lawyers and certainly not with Mr Saleh. We accept that for the purposes of this application.
  3. The sole ground of appeal advanced in the grounds is that the judge was wrong not to reduce the minimum term to reflect the time that the applicant had been in custody awaiting trial. That argument has been further developed by Mr Higgs today.
  4. For the purposes of this application, it is unnecessary to dwell on the circumstances of the murder. It suffices to say that Mr Jah was 18 years old and that there was nothing to suggest that he was anything other than an innocent victim. The motive for his murder was unclear, but it appeared that he was the victim of either mistaken identity or a random attack in the context of serious organised crime involving contested gang-related drug-dealing activity.
  5. The applicant and his co-accused, Rio Burton-Devine, had been driving around when they saw Mr Jah standing alone in a residential area in East London. They pulled up alongside him and called him over to the car. The victim was then immediately shot in the chest at point-blank range, before the applicant got out of the car and stabbed him twice in the chest with a large knife. This all occurred in broad daylight, when other members of the public were around. The offenders drove off, and the stolen car in which they were travelling was later discovered, having been set alight.
  6. The applicant stood trial and was convicted of murder and associated offences relating to his possession of the firearm and knife used in the murder for which he received concurrent sentences.
  7. The chronology leading up to the applicant's conviction and sentencing for this murder is as follows.
  8. On 27 February 2021 (that is two months before the relevant offending) he committed other offences including attempted murder. He was arrested for the earlier offending after commission of the murder and was remanded into custody on 10 May 2021. While in custody, on 9 September 2021 he was arrested and interviewed in relation to the offending with which we are concerned. He was not charged until 13 April 2023. In the meantime, on 7 March 2022 he had been sentenced for the earlier offending to a term of 16 years' imprisonment with an extended licence period of 5 years. It follows that by the time he was charged and remanded in relation to the murder and associated offences, he was already serving his custodial sentence for the earlier offences.
  9. During the sentencing hearing competing submissions were made as to what account, if any, should be taken of the time spent in custody prior to conviction and sentence when determining the minimum term. When it became apparent that the issue required detailed consideration, the judge decided to proceed to sentence, setting the notional minimum term but adjourning consideration of whether any adjustment was required to a further hearing within the period in which a correction could be made under the slip rule. That hearing took place on 27 June 2024. The judge decided that the applicant's minimum term should not be adjusted and should remain as 36 years. In the case of the co-defendant Burton-Divine the minimum term of 31 years imposed on him was adjusted to a term of 30 years 214 days, reflecting a period of 125 days spent on remand in custody.
  10. The judge provided clear reasons for his decisions. In the applicant's case he explained that although there were similarities between the February offending and the murder, the two matters were otherwise unconnected and were not associated offences for the purpose of section 322 of the Sentencing Act 2020. The applicant had been sentenced for the February offending two years before he was sentenced for the April murder. He was serving the sentence of imprisonment for the February offending throughout the entire time he was remanded in custody for the murder.
  11. Applying section 240ZA(4) and (10) of the Criminal Justice Act 2003, the days on remand were not to be deducted from any notional minimum term. The judge said that he had taken account of the remand and history considering the applicant's overall offending and endeavouring to adjust the minimum term to impose a sentence that was fair and proportionate in all the circumstances. He observed that it had to be borne in mind that the February and April offences reflected a pattern of offending of the utmost gravity.
  12. In the case of Burton-Devine, the judge took the same approach in relation to the period of his remand in custody, which overlapped with a term of imprisonment in respect of another unrelated matter. In his case, however, he spent 125 days on remand for the April murder prior to being sentenced for the unrelated matter. The judge reduced his minimum term to reflect that fact.
  13. By his grounds of appeal, the applicant contends that the judge was wrong to decide that the applicant's minimum term should not be reduced by the time spent in custody awaiting trial and that the sentence was thereby manifestly excessive. It is further argued that the judge was wrong to distinguish his situation from Burton-Divine's and that the distinction highlights the unfairness in the judge's approach to the minimum term imposed on the applicant.
  14. During his oral submissions Mr Higgs developed that argument further. He realistically acknowledged that the applicant had been convicted of a very grave murder and that undoubtedly the offence attracted a minimum term above the starting point of 30 years. He referred to the chronology, noting that the applicant had been in custody since 8 May 2021. He explained that the February offences proceeded quickly but although the applicant was interviewed for the April murder he was not charged for some time and had not in fact been charged by the time that the applicant was sentenced for the February matters. He described this as a historical accident which meant that the two matters did not appear together before a single sentencing judge. Mr Higgs submitted that had the offences been charged together, the practical effect would have been that the applicant would have been made the subject of a life sentence but that the minimum term approaching in effect 30 to 40 years was manifestly excessive.
  15. Mr Higgs's arguments were persuasively and attractively presented to us, and we have considered them carefully. However, like the single judge, we do not consider that the applicant's grounds of appeal are properly arguable. In our judgment the judge gave careful consideration both to the relevant statutory provisions and to the authorities, including R v Trendell [2022] EWCA (Crim) 1434. He was plainly right in the approach that he adopted as a matter of principle.
  16. In setting the minimum term the judge correctly adopted a starting point of 30 years because the murder involved the use of a firearm and therefore came within paragraph 3 of Schedule 21 of the Sentencing Act 2020. There were multiple aggravating factors which applied to the applicant. In relation to the offence, there was a significant degree of planning and premeditation. The judge was required to take account of the time and location of the offence and the fact that it occurred in the presence of other members of the public. The attempt to avoid detection and the applicant's offending history were also to be taken into account. The judge noted that the applicant was the principal party after the shooting, being the party who got out of the car and stabbed the victim in the chest. At the time of the offence the applicant was on the run, having removed an electronic tag which had been fitted as part of his conditions of bail for drugs offences. The applicant's mitigation was limited, although the judge took account of his relatively young age. The aggravating factors significantly outweighed any mitigation, such that, considering the murder alone, the starting point of 30 years was required to be uplifted to some significant degree. The judge also had to consider the impact of the sentence that the applicant was already serving for the unrelated attempted murder.
  17. Had the applicant not subsequently been convicted of and sentenced for the April offending, he would have been required to serve a minimum of two-thirds of the 16-year custodial term imposed for the February offending (that is, 10 years and 9 months). He had served just over 3 years of that sentence when sentenced for the murder. It follows that there was still a significant part of the custodial element of the attempted murder sentence remaining when that sentence became subsumed by the sentence of life imprisonment imposed in June 2024. The judge took all of this into account when setting the minimum term. He recognised that the applicant had begun serving his term of imprisonment in May 2021 and that the minimum term which he imposed would commence from the date of sentence. The judge considered totality and sought to impose a sentence that was fair and proportionate in all the circumstances. In our view he achieved that. The reason that the applicant will be required to spend a very long period in custody is that he committed extremely serious offending on two separate occasions. The minimum term imposed in June 2024 reflected both the multiple aggravating factors and consideration of totality where the applicant had served over 3 years in custody but still had a significant proportion of the earlier sentence remaining.
  18. Comparison with Burton-Devine does not assist the applicant. There were distinctions to be drawn between the two offenders. Unlike the applicant, Burton-Devine had spent a period on remand in connection with the April offences before he was sentenced for the other matters. It was that period and that alone which the judge credited against the notional minimum term in his case. In relation to the longer period for which Burton-Divine was awaiting trial and sentence for the April offences after having been sentenced for the other matters, the judge adopted the same approach as for the applicant.
  19. There was nothing wrong in principle in the judge's approach to the time spent in custody up to the applicant's sentence. His decision that he should not credit the time spent on remand by reducing the minimum term was entirely in accordance with established principle, given that the applicant was serving a term of imprisonment for unrelated offences for the whole of the period for which he was remanded. Further, notwithstanding the arguments advanced on his behalf, it is not arguable that the minimum term imposed in June 2024 was manifestly excessive having regard to all the circumstances of the offending and to the principle of totality.
  20. We would accordingly refuse leave to appeal on the merits. In those circumstances, although we would have granted an extension of time if the appeal was meritorious, we refuse this application.

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