England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE EXETER CROWN COURT
(His Honour Judge Gilbert QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/05/2014

Mr Justice Bean :

1. On 3rd April 2013, following a trial at the Crown Court in Exeter before His Honour Judge Gilbert QC and a jury, the appellants were convicted of conspiracy to rob and murder the singer and songwriter Joss Stone. Liverpool (now aged 36) was sentenced to life imprisonment with a minimum term of 10 years 8 months for the conspiracy to murder with a concurrent determinate term of 10 years imprisonment for conspiracy to rob. Bradshaw (now aged 33) was sentenced to a determinate term of 18 years imprisonment for the conspiracy to murder with a concurrent term of 8 years for the conspiracy to rob.
2. At one stage Liverpool sought leave to appeal against conviction but following refusal by the single judge this was, quite rightly, not renewed and we say no more about it. Liverpool wrote a number of letters containing grounds of appeal of his own composition. We have considered them carefully but there is nothing in any of them. They have in any event been superseded by the grounds of appeal against sentence drafted by Mr Laws QC, who did not appear at the trial. Bradshaw also appeals against sentence on grounds drafted by Mr Meeke QC, who did appear at the trial.
3. The single judge granted leave to appeal against sentence to both defendants. In the case of Liverpool he wrote that "although no criticism can be made of the judge in treating you as dangerous and imposing a life sentence, in my view it is arguable that the minimum term, reflecting a notional determinate sentence of 25 years, is excessive."

The facts

4. Liverpool had an interest in music and researched different artists at a library in Manchester where he lived and where Bradshaw shared a flat with him. Liverpool recorded his thoughts and opinions in a notebook. Joss Stone was one of the artists who featured in the notebook. Liverpool's notes suggest that he came to dislike her because she has performed at charity concerts attended by HRH Prince William and was a guest at his wedding. It is plain that Liverpool developed an obsession with Joss Stone. There are entries such as "rob and kill – Jocelyn RIP", "body bags and rob equipment; look for river", "find a river to dump her" and so forth. Between November 2010 and May 2011 Liverpool was in contact with another man by text message: the messages mentioned the plan to rob and kill Joss Stone. The recipient of the messages, who was asked to obtain a vehicle and weapons, did not respond.
5. Joss Stone owned a property in a small village southwest of Taunton. Before she left it in 2008 she made a video which, among other things, showed the outside of the house and her distinctive pink car with a white roof parked outside it. This was freely available to view on the internet. By 2011 she had moved to a different village, located in East Devon.
6. In May 2011 the appellants bought a car. In early June they bought a hammer and some gaffer tape. There was evidence before the jury that in the first half of June they made reconnaissance trips to Devon and drove slowly around what they believed to be the approximate location of Ms Stone's home and also that of her father who lived in Exeter.
7. On 13th June 2011 they loaded two hammers, the gaffer tape, a metal spike, a lock knife, some gloves and a balaclava together with some maps and directions and Liverpool's notes into their car and set off in the early hours to drive from Manchester to Devon. At about five o'clock in the morning the car crashed into a digger and some railings at services of the M5 just north of Bristol. Police attended. It became apparent that Bradshaw had been driving and that he had no licence or insurance. The car was badly damaged. The police told Bradshaw he would be reported for driving without a licence or insurance. They left without seizing or searching the vehicle, which did not look as though it could be moved without assistance. However, the appellants managed to get the vehicle back on the road and continued their journey.
8. Between 7:45 and 9:30 that morning a number of people saw the car, which was badly damaged and had its front number plate hanging down loosely, being driven in a suspicious manner in the area of Ms Stone's home and surrounding villages. The appellants stopped and asked a postman for directions. They produced a picture of Joss Stone and asked where she lived. As Mr Laws observed in his submissions to us, East Devon is not an ethnically diverse part of the country, and two black men emerging from a badly damaged car to ask for directions would have been especially conspicuous.
9. Police were alerted and stopped the car in Cullompton. They searched the vehicle and found a hosepipe and a samurai sword in the boot. Inside the car they found the hammers, metal spike, balaclava, lock knife and other items to which we have referred and which were mentioned in Liverpool's notes.

The sentence on Liverpool

10. When the jury returned their verdicts counsel then appearing for Liverpool asked the judge not to adjourn for reports but to pass sentence that day. In doing so the judge said:-

"It is clear from your text messages on your telephone that from as early as November 2010 you had been planning to rob someone of what you hoped would be according to your texts in excess of a million pounds, for which purpose by January 2011 you wanted a semi-automatic handgun and for which purpose you had identified Joss Stone as the target. You had no reason to target her, except that you assumed that she would be a wealthy young woman, as she was a successful singer, and as you thought that she was a friend of a member or members of the Royal Family that she would be in a position to deliver you money of that sort by way of robbery.

You intended to rob her and then kill her, before dumping her body in a river, according to your notes, and then leaving the country with the money, and with your friend and accomplice, your co-defendant Junior Bradshaw. All that is apparent from your own documents, which the police found.

The evidence discloses that this was your scheme, in which only you and Bradshaw in my judgment were proved to be involved, and in my judgment based upon the evidence, that it was your scheme, to which you recruited Junior Bradshaw to help you. It may have been, to put it colloquially, a crazy scheme of a crazy person, and one which was very likely to fail at least to the extent that she would not have had anywhere near that sum of money available to you to take, but your writings and what you did, and what you took with you from Manchester to Devon, show that it was as far as you were concerned a very real plan, which you intended to carry out.

You drove to Devon with Junior Bradshaw, armed with a samurai sword, two hammers, two balaclavas, some gloves, some gaffer tape, and maps of where Joss Stone lived, and directions even identifying that she had a pink car with a white roof in front of her house, which we saw on the video shown to the jury was indeed correct, albeit at her previous house.

You demonstrated by your continuing on your journey to Devon, even after your car was severely damaged at Maplewood Service Station in Gloucestershire, your determination to carry out your plan. Fortunately you took the wrong exit it would seem, and as you have said at one stage, off the M5, by leaving at junction 28 rather than junction 27, and became lost in the lanes south of where Joss Stone lived. And you and Bradshaw were arrested then as a result of the alertness of some people in Cullompton, who saw you they thought behaving suspiciously, and I commend them for the alertness.

You had also been in Devon, I conclude, on 27th May. Whether that was for reconnaissance, or for a real journey, only you and Bradshaw know. It is noticeable that on that first date Joss Stone had gone abroad earlier in the day before you got to Devon, so she was not at home.

By their verdicts the jury have stated that they are satisfied that it was your intention to kill her in order to rob her and then escape detention. She was a random target, whom you chose because she was a popular singer, whom you though would be very wealthy and therefore a suitable target for your plans.

For all those reasons I regard you as a very dangerous man. Conspiracy to commit murder is a specified offence within Schedule 15 of the Criminal Justice Act 2003, and is punishable with life imprisonment. I consider that there is a significant risk to members of the public of serious harm occasioned to you of further offences, and I consider that the seriousness of this offence is such as to justify the imposition of a sentence of imprisonment for life; and so I do.

In considering the minimum term for Count 1, I look at the guidelines issued by the Sentencing Guidelines Council for offences of attempted murder. This was a Level 1 offence under those guidelines, as had the charge been murder it would have come within paragraph 5(2)(c) of Schedule 21 of the Criminal Justice Act 2003, with a starting point of 30 years. This was a case which I put in the middle bracket of Level 1, a starting point of 20 years, with a range of 17 to 25 years. Bearing in mind that you were armed with a samurai sword and other weapons, including in total three knives, which you intended to use for the purpose of killing Joss Stone, this case also causes me to have attention to Section 5(a)(1) of the Act as well."

Therefore, the sentence that I pass upon you is one of life imprisonment on Count 1, with a minimum term which you will serve, which I establish at ten years and eight months, calculated by starting at 25 years, taking into account that you have been in custody for 22 months since your arrest in June 2011. Life imprisonment is what it says; it is an indefinite sentence, from which you will not be released until you are considered safe for release, and in any event not before you have served ten years and eight months from today. On Count 3, the conspiracy to rob, ten years concurrent."

11. Reports were obtained on Bradshaw, who was sentenced on 9th July 2013. We shall return to his appeal later.
12. On behalf of Liverpool Mr Laws QC submits a) that the judge was wrong to impose a sentence of life imprisonment; b) that a notional determinate term of 25 years imprisonment arrived at by reference to the Sentencing Guideline Council's attempted murder guideline was too long and used the wrong category within that guideline; and

c) the notional determinate term should in any event have been reduced to reflect the offender's mental disorder which lowered his degree of culpability.

13. On 4th March 2014 Lord Thomas of Cwmgiedd CJ, giving the judgment of this court in Burinskas [2014] EWCA Crim 334, gave authoritative guidance on the proper approach to the imposition of life sentences (for offences other than murder) under the Criminal Justice Act 2003, as most recently amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012:-

"9. Section 225 of the CJA 2003 applies where a person is convicted of a serious offence after 3 December 2012 and the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. S.224 of the CJA defines a specified offence and a serious offence: "

i) An offence is a serious offence within the meaning of Chapter 5 if it is a specified offence and is punishable by imprisonment for life (s.224 (2)).

ii) A specified offence means a specified violent offence as set out in Part 1 of Schedule 15 to the CJA or a specified sexual offence as set out in Part 2 of Schedule 15. Serious harm means death or serious personal injury, whether physical or psychological (s.224 (3)).

10. If s.225 applies on the basis to which we have referred in the preceding paragraph, then s.225(2) provides that if

(a) the offence is one where the offender would be liable for imprisonment for life and

(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life,

the court must impose a sentence of imprisonment for life or in the case of a person aged at least 18 but under 21, sentence of custody for life.

Where the sentencing judge is satisfied in the exercise of his judgment that an offender is dangerous and that the two conditions at s.225(2)(a) and (b) are met, there is no discretion. He must pass a life sentence. ……

22. In our judgment, taking into account the law prior to the coming into force of the CJA 2003 and the whole of the new statutory provisions, the question in s.225(2)(b) as to whether the seriousness of the offence (or of the offence and one or more offences associated with it) is such as to justify a life sentence requires consideration of:-

i) The seriousness of the offence itself, on its own or with other offences associated with it in accordance with the provisions of s.143(1). This is always a matter for the judgment of the court.

ii) The defendant's previous convictions (in accordance with s.143(2)).

iii) The level of danger to the public posed by the defendant and whether there is a reliable estimate of the length of time he will remain a danger.

iv) The available alternative sentences."

14. Mr Laws accepts that paragraph 22 of Burinskas requires the court to make a composite decision on seriousness taking into account all the factors listed.
15. We should note in the present case that Liverpool has only previously received custodial sentences of very short length for bail offences and non-custodial sentences for blackmail, battery, having a bladed article and affray. He has not been convicted of any listed offences and therefore Section 224A of the 2003 Act as amended in 2012 (generally known as the "two strikes" provision) does not apply.
16. We have available to us reports from Dr Parker and Dr Beales, which were in possession of the defence at trial but were (understandably) not placed before the judge; and, following a direction by the single judge, a recent report from Dr Lucy Bacon as well as two pre-appeal reports from Ms Jane Mitchell, an offender manager who has supervised the defendant for some time.
17. Dr Parker's report, dated 12th October 2011, stated that Liverpool poses a high risk of future violence. He meets the criteria for a diagnosis of paranoid schizophrenia and cannabis dependence. His condition was then stable but any deterioration in his mental state, exacerbated by non-compliance and cannabis misuse would heighten the risk. His mental health problems rendered him more prone to antisocial conduct but in Dr Parker's opinion psychosis was not the main factor behind his offending. He described the appellant as a man charged with serious offences who happened to have schizophrenia, rather than a man charged with serious offences which occurred because of his schizophrenia. He did not require hospital treatment. Compliance with treatment and abstinence from cannabis would reduce the risk.
18. Dr Beales, who reported on 16th April 2012, found clear evidence that the appellant suffered from a mental disorder, most likely paranoid schizophrenia, although he was fit to plead and stand trial. He had shown a positive response to treatment and had only required one relatively brief hospital admission. His response to treatment was complicated by continued use of cannabis and intermittent non-compliance with medication. His condition deteriorated in custody. In Dr Beales' opinion he had become non-compliant with medication in order to increase the likelihood of a transfer out of custody; but appropriate treatment was available in custody and there was nothing to indicate that a transfer to hospital was required. Dr Beales, like Dr Parker, found no clear evidence that the offences in any way related to the appellant's mental disorder.
19. Dr Bacon's psychiatric report dated 8th January 2014 took a somewhat different view. Unlike her predecessors, Dr Bacon had had access to the appellant's extensive writings. These suggested, in her view, that it is highly likely that he was experiencing psychotic symptoms "with content relating to Joss Stone" in the period leading up to the offences and that there was a definite link between his mental disorder and the offences. Had Dr Parker and Dr Beales had access to the appellant's extensive writings, she wrote, it might have affected their conclusions about the link between his illness and his offending. She agreed, however, that as matters stood in January 2014 he could be treated in prison without a transfer to hospital.
20. Ms Mitchell prepared one report after sentence on 15th July 2013 and another for the purposes of the appeal dated 18th February 2014. In the earlier report she expressed full agreement with Dr Parker's view that there was a high risk of future violence; that the seriousness of the offences indicated a high risk of serious harm; and that the appellant's mental illness was not the driving factor behind the offences. In her recent report she noted that deteriorating mental health due to cannabis misuse leading to disengagement from treatment was a problem, but the appellant had a good insight into his illness and sought appropriate assistance when his symptoms worsened. She noted Dr Bacon's view but observed that it is "hard to find a coherent explanation for the weapons in the vehicle being driven near to Joss Stone's address".
21. In the light of this formidable body of evidence Mr Laws realistically accepted that he cannot argue against the judge's finding that the appellant is dangerous, that is to say that he poses a high risk of serious harm to members of the public. We agree. Mr Laws submits, however, that this conspiracy, clumsy and badly planned as it was, was not so serious as to qualify his client for a life sentence.
22. We cannot accept this submission. A conspiracy to murder using this array of weapons, and persisted in even after the setback of the damage to the car, is in our view plainly of sufficient seriousness in itself to bring the case within the guidance set out in paragraph 22(i) of Burinskas. When coupled with the finding that the appellant poses a high risk of serious harm to the public, it leads to the clear conclusion that a life sentence was justified.
23. Mr Laws points out that there was an alternative available to the judge, namely an extended sentence, which would still provide a substantial measure of protection to the public. But Dr Bacon takes the view that the links between Mr Liverpool's mental disorder and his actions on the day of the offence "will require exploration over time to gain a full understanding of his future risk"; and Ms Mitchell writes that "it may be that those working with Mr Liverpool will need a number of years in order to establish whether behaviour demonstrated some two years ago was led by fantasy or driven with purpose". Given the seriousness of the offence itself; the level of risk to the public; and the very real difficulty of the experts and the Probation Officer in the case in predicting whether, if at all, the appellant's condition will improve, we cannot say that an extended sentence would suffice.
24. We therefore dismiss Liverpool's appeal insofar as it challenges the imposition of a sentence of life imprisonment.
25. We turn to the issue of the minimum term. The judge took a notional determinate term of 25 years. This then falls to be reduced by half (to take account of the fact that there is no remission credited against the minimum term attached to a life sentence) and is then reduced to reflect time spent on remand in custody prior to sentence in the Crown Court, which in this case was 22 months. The judge's calculation was therefore: notional determinate term 25 years; half of that equals 12½ years from the date of remand in custody; the formal order of the court therefore specified a minimum term of 10 years 8 months from the date of sentence.
26. There is no guideline for cases of conspiracy to murder but in many cases the attempted murder guidelines can be applied by analogy. Indeed, in his sentencing remarks the judge referred to them. Level 1 applies where the murder which was attempted was of the most serious kind, including those which, if the murder had been carried out, would have fallen within paragraphs 4 and 5 of schedule 21 to the Criminal Justice Act 2003.
27. We consider that the judge was correct to treat this as a Level 1 offence. Although had the murder been carried out it would probably have been with a weapon other than a firearm taken to the scene, and thus falling within paragraph 5A of schedule 21 (which did not exist at the time of the attempted murder guideline) rather than paragraphs 4 or 5, it would nevertheless have been one which could properly have been regarded as being of the most serious kind.
28. Within Level 1 there are three categories:-

a) Serious and long term physical or psychological harm: starting point 30 years, sentencing range 27-35 years.

b) Some physical or psychological harm: starting point 20 years, sentencing range 17-25 years.

c) Little or no physical or psychological harm: starting point 15 years, sentencing range 12-20 years.

29. The judge placed the case in the middle category, that is to say where the intended victim has been caused some physical or psychological harm. With respect, we do not understand on what basis he did so. There is no reference in his sentencing remarks to any victim impact evidence or statement and both Mr Meeke QC and Mr Morgan, who were present at the trial, have confirmed that no such evidence was provided. On the contrary: Ms Stone, who briefly gave evidence for the prosecution in the course of the trial, did not hear of the conspiracy until after the defendant's arrest and when asked what the consequences had been for her told the jury that she was now careful not to leave the door unlocked when she went out. Plainly she did not suffer physical harm, and it was not suggested to the judge that she had suffered psychological harm. She has continued her successful career.
30. In those circumstances we consider that the correct starting point, whether for attempted murder or conspiracy to murder, was a notional determinate term of 15 years. We also accept the submission of Mr Laws that there should be some reduction from that starting point to reflect the offender's mental illness although we do not consider that such reduction should be very great. We take the view that the correct notional determinate term in Liverpool's case was 13 years. Applying the same calculation as the judge was required to make, this results in a minimum term of 6½ years from the appellant's arrest and remand in custody, and a formal order of the court specifying a minimum term of 4 years and 8 months from the date on which the judge passed sentence. The concurrent determinate term for the conspiracy to rob will be reduced to 7 years' imprisonment.
31. We wish to emphasise that we are not ordering that the appellant is to be released in December 2017. Far from it. The significance of the minimum term is that it specifies that the Parole Board will only be able to consider for the first time in late 2017 whether the appellant can safely be released. The assessment of future risk is a matter for the Parole Board and not for this court. We have already noted the many references in the reports on Liverpool to the need for him to be observed for a substantial period of time before a conclusion can be reached on the level of risk which he poses. The purpose and effect of a sentence of life imprisonment is that if it is never considered safe for the offender to be released, he may remain detained for life, and that if he is ever released it can only be on licence and subject to supervision.

The sentence on Bradshaw

32. We turn to the case of Bradshaw. He has appeared before the courts on 21 previous occasions for a variety of offences, none of them of sufficient gravity to impact upon the proper sentence in the present case. He is of exceptionally low intellectual capacity, with an IQ of 65. As the judge noted, he did know what Liverpool was intending to do and the jury's verdict showed that he shared the intention to rob and kill. But, as the judge also noted, and has never been in dispute, Liverpool was the instigator and Bradshaw was the foot soldier; and had he been more intelligent he would have realised that the chances of a successful and profitable robbery were so remote as not to be worth attempting.
33. A report of 4th July 2012 prepared by Dr Jenkins found that Bradshaw suffered from hebephrenic schizophrenia in which mood changes and inappropriate and unpredictable behaviour were prominent. At that stage Dr Jenkins took the view that Bradshaw was unfit to plead but three weeks later he found that Bradshaw had improved with anti-psychotic medication and was now fit to plead. Dr Latham, on 29th July 2012, found that Bradshaw was on balance fit to plead and agreed with the diagnosis of schizophrenia. Later reports from Dr Latham and Dr Alcock recommended a hospital order with restrictions, however, a report dated 4th July 2013, five days before sentencing by Dr Owens said that Bradshaw's psychotic illness was in remission and that it was clear that admission to a high security unit was not required since the illness was not such of a nature or a degree to warrant such attention in a hospital. The judge concluded that although "it was a close run thing", Bradshaw should not be classified as a dangerous offender within the terms of the 2003 Act.
34. Mr Meeke QC submits that the judge took too high a starting point in Bradshaw's case, as he had with Liverpool; and emphasises in particular his client's very low IQ, and the judge's finding that he was only a "foot soldier".
35. We consider that in the light of the reduction we have made to the minimum term in Liverpool's case and the judge's finding, which was clearly correct, that Bradshaw was to be treated as a "foot soldier", a reduction in his sentence should likewise be made. We quash the sentence on count 1 of 18 years imprisonment and substitute one of 10 years imprisonment (the effect of which is likely to be that he will be released on licence five years from the date of his arrest and remand in custody). The concurrent term on count 2 is reduced to one of 5 years' imprisonment.
36. To the extent we have stated, these appeals are therefore allowed.