England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		3rd December 2014

Wednesday 3^rd December 2014

Lord Thomas of Cwmgiedd, CJ:

Introduction

1. On Wednesday 22^nd May 2013 the applicant Adebolajo and the appellant Adebowale killed Fusilier Lee Rigby in Woolwich. On 19^th December 2013 both were convicted of his murder at the Central Criminal Court before Sweeney J and a jury. On 26^th February 2014 each was sentenced to life imprisonment; a whole life order was made in respect of Adebolajo, and a minimum term of 45 years was fixed for Adebowale.

2. Adebolajo renews his application for leave to appeal against conviction and sentence after refusal by the single judge. Adebowale appeals against the length of the minimum term by leave of the single judge.

The circumstances of the killing of Fusilier Lee Rigby

2. Although the brutal murder of Fusilier Lee Rigby was widely reported, it is necessary briefly to summarise the facts.
3. Fusilier Lee Rigby was at the time 25 years old. He had joined the Army in 2006. Amongst many postings he had seen active service in Afghanistan in 2009. He was an outgoing and popular person. At the time of his death he was acting as a recruiting officer dealing with young people. He was also involved in other duties at his Regimental Headquarters at the Tower of London. When he was attacked he was on his way from the Tower of London to the Woolwich barracks.
4. Adebolajo is a British citizen. He was aged 29 at the time of the murder. He is married with four stepchildren and two children. He had three convictions in 2008: failing to surrender to custody, possession of an air weapon, and assault on a constable.
5. Adebowale is also a British citizen. At the time he was aged 22. He lived with his mother in Deptford, having left school at the age of 16. He had convictions in 2008 and 2009 for possession of cocaine. Although brought up as a Christian, he had converted to Islam when he was aged 17.
6. After converting to Islam both were radicalised. Each became an extremist. They decided between themselves, in order to advance their extremist cause as they saw it, to murder a soldier in public in broad daylight. They would do so in a way that would generate maximum media coverage. That included getting themselves killed by armed officers who would be bound to attend the scene in the aftermath of the murder. They saw themselves as martyrs who would each gain a place, as they saw it, in paradise. Each plainly had a political or ideological aim in planning the barbaric murder they intended to carry out.
7. The planning for the barbaric murder took place over a period of time. Adebolajo acquired an old hand gun. It did not work. It was simply to be used at the scene to keep the public at bay and to threaten the armed officers when they arrived, with a view to being killed by the armed officers. On Tuesday 21^st May 2013, the day before the murder, Adebolajo bought five knives and a knife sharpener to sharpen some of the knives in preparation for their use in the murder.
8. On Wednesday 22^nd May 2013 they met up in advance. They went in a car driven by Adebolajo to Woolwich. They had with them a total of eight knives and a gun. They parked in Wellington Street. They waited to spot a soldier to murder.
9. Whilst they were waiting there Lee Rigby happened to walk past. He was instantly recognisable as a soldier. He was wearing a "Help For Heroes" top and was carrying his Army rucksack. Adebolajo and Adebowale stalked him in their car as he walked along Wellington Street, crossed the South Circular Road and went into Artillery Place. There he crossed the road in front of them. Adebolajo seized the opportunity. He accelerated hard to 30-40mph. He ran Lee Rigby down from behind. The impact carried him onto the bonnet of the car. It broke five vertebrae in his back and five ribs. The speed of the car was such that it carried on up onto the pavement and crashed into the support of a road sign and stopped. Lee Rigby was thrown into the area between the front of the car and an adjacent wall. He was unconscious and unable to defend himself.
10. Adebolajo and Adebowale got out of the car, armed with knives. Over a period of two to three minutes they butchered Lee Rigby. Adebolajo concentrated on Lee Rigby's neck. He hacked it repeatedly. He first used a substantial cleaver-type knife. He then used another knife. All this was part of an attempt to decapitate him. Its purpose was to have the maximum horrific effect. Adebolajo failed in that process. Nonetheless, he caused horrendous injuries. Adebowale, in contrast, concentrated on Lee Rigby's torso. He stabbed him a number of times in the chest. This was done in a frenzied fashion with severe force. The judge rightly described what had taken place as a "bloodbath".
11. This was seen, as was intended, by members of the public, in furtherance of their aim to achieve their political and ideological cause and the terrorism they espoused. Once they had finished their murderous assault, both carried and dragged Lee Rigby's body into the road and dumped it there. They brought the traffic to a halt.
12. Thirteen minutes then elapsed between that event and the arrival of the armed police. A number of members of the public came to the scene. Adebolajo and Adebowale, in pursuance of their ideological and political aim, and the terrorism which they espoused, gloried in what they had done. Each held a gun at one point or another and used it to warn off any male member of the public who looked as they he might intervene. Adebolajo handed out a prepared written statement seeking to justify their cause and their actions. In addition, carrying the bloodied cleaver in bloody hands and knowing he was being filmed, Adebolajo made a political statement. Images were broadcast around the world. The effect of the two statements was to seek to justify their joint actions as being retaliation for deaths in Muslim lands and to incite the removal of the Government in the United Kingdom.
13. Armed police officers arrived in a marked police vehicle. Adebolajo was still armed with a cleaver and a knife. Adebowale was armed with a gun and a knife. Adebolajo sprinted towards the officers, jettisoning the knife and carrying the cleaver above his head. He appeared to be intent on attacking one or more of them. Adebowale went down on the adjacent pavement and pointed his gun at the officers. The officers skilfully shot at them and merely wounded them.
14. The judge, who heard evidence from Adebolajo, was satisfied that he was the leader of the joint enterprise, but that Adebowale enthusiastically played his part. It was evident from the way in which the matter proceeded that, apart from what the two intended as part of their political cause, they inflicted upon the family of Lee Rigby indescribable suffering with which they must live for the rest of their lives. That is a matter we take much into account.

Adebolajo's renewed application for leave to appeal against conviction

15. There are two proposed grounds of appeal against conviction.

(1) The Queen's Peace

16. The first relates to the definition of murder. The Defence Statement sets out the following:

"At all times the [applicant Adebolajo] honestly believed he was fighting a war. He believed he was a soldier fighting that war. He only targeted a serving member of the British armed forces because they were engaged in fighting an unjust war on behalf of the State."

17. After the conclusion of the prosecution case on 5^th December 2013, Adebolajo gave evidence on Monday 9^th December. In his evidence he sought to explain what he had said in his Defence Statement. There was then a delay while the fitness of Adebowale to continue with the trial was examined, a similar issue having arisen before the trial. Adebowale did not give evidence.
18. On Friday 13^th December legal argument took place in relation to the defence which we have set out. The argument was advanced by Mr David Gottlieb who appeared on behalf of Adebolajo. The argument was effectively adopted but not added to by Mr Lakha QC on behalf of Adebowale. He indicated that he adopted the defence on behalf of Adebowale, but proposed to call no evidence.
19. The submission of Mr Gottlieb to Sweeney J was that it had been the law for centuries that the Crown had to prove that a murder was committed under the Sovereign's peace; that did not include killing in the course of a war. The Crown, it was submitted, had to prove that Adebolajo was under "The Queen's Peace" and not at war with the Queen. Whether or not there was a war or rebellion at the time that Lee Rigby was killed was irrelevant. Adebolajo fell to be dealt with upon the facts as he (Adebolajo) honestly, though mistakenly, believed them to be, namely he was at war with the Queen.
20. It was not surprising it was submitted that this element of the offence of murder in relation to the Queen's peace did not normally feature in murder cases because prior to 1997 reliance by a defendant on a state of war would have been likely to involve an admission of treason. On the basis that this argument was available, Adebolajo was therefore entitled to put before the jury his defence that his killing of Lee Rigby was part of a war with the British Government, involving a people's struggle against forceful occupation and aggression; he had not been under the Queen's peace, but at war with the Queen.
21. In support of this argument Mr Gottlieb put before the judge a 28 page skeleton argument and a number of authorities, the list running to some 20 cases. After hearing argument, the judge ruled that, if an element of the offence of murder was that the killing had to be under the Queen's peace, it was a requirement that the victim or deceased be under the Queen's peace and not the killer, as was advanced by Mr Gottlieb. Accordingly, any belief of either appellant, however genuine, as to the existence of a state of war between him and Her Majesty the Queen justifying the carrying out of the killing was entirely irrelevant. The sole issue was whether it was proved that Lee Rigby himself was under the Queen's peace. The judge directed the jury accordingly.
22. In this court, after the refusal of leave to appeal by the single judge, Mr David Gottlieb has renewed this argument before us. We can deal with the matter relatively shortly.
23. Murder is a common law offence. It is not defined by statute. Russell on Crime, 12^th Edition 1964, which was probably the leading textbook on the criminal law during the latter part of the last century, defines murder as:

"When a man of sound memory and of the age of discretion unlawfully kills any reasonable creature in being and under the King's peace, with malice aforethought, either expressed or implied by law, the death taking place within a year and a day."

This is a distillation of the principles set out in the founding texts of our criminal law, including Coke's Institutes, Hale's Pleas of the Crown, Hawkins' Pleas of the Crown, East's Pleas of the Crown and Blackstone's Commentaries on the Laws of England.

24. The definition, which is repeated in the current leading textbook on crime, namely Blackstone's Criminal Practice (2015 edition), at paragraph B1.1, includes the ancient element of the crime of murder that the killing must be of a person who is under the Queen's peace.
25. The argument advanced by Mr Gottlieb, on examination, relies upon two cases. The first is that of R v Sawyer (1815) 168 ER 810, (1815) Russ & Ry 294; reported more fully in a note to R v Serva (1845) 2 C&K 22: (the note beginning at page 41 of that report). The facts in Sawyer were straightforward. The defendant was a British subject. He murdered another British subject, Harriet Gaskett, in Lisbon. He was found guilty of murder at the Old Bailey before Lord Ellenborough CJ, Chambre J and Wood B. The point was taken that, as the offence had been committed abroad, the indictment was not framed in a way to make it triable under a statute of King Henry VIII, namely, 33 Hen. VIII. c.23. It was heard by a court comprising the three Chief Justices of the Courts of Common Law and nine puisne judges. The decision of the court was shortly expressed in the first of the reports as follows:

"The judges held that this offence was triable here, though committed in a foreign kingdom, the prisoner and the deceased being both subjects of this realm at the time it was committed. The judges were also of opinion that the stating Harriet Gaskett to be in the king's peace at the time, sufficiently imported that she was the king's subject when the offence was committed, and that the statement in the indictment that this was against the king's peace sufficiently imputed that the prisoner was also at the time a subject of this realm."

The argument before the court presided over by Lord Ellenborough CJ is set out in the note to which we have referred. It was long and learned. It is clear that it turned on the construction of the statute of King Henry VIII, and the requirements of the form of indictment in an age when the law was highly technical in what had to be stated in pleadings and indictments.

26. The point that has been taken by Mr Gottlieb was part of the argument of counsel for the defendant that took place before the court of 12 judges. Lord Ellenborough CJ observed that the King's subjects were protected even if out of the realm of England. The following exchange then took place:

"[COUNSEL FOR THE DEFENDANT]: The offender must be a person amenable to the laws of this country. That nowhere appears by this indictment, which certainly states him to be 'late of London', but that merely shows that he had been a resident in this country at one time; but he might be foreigner notwithstanding that.

LORD ELLENBOROUGH: 'Against the peace of the King' applies to the offender: it relates to his capacity to commit the crime."

It is those few words that have been seized upon by Mr Gottlieb to justify his contention that the killer must be under the Queen's Peace. It is an argument that, in our judgment, is hopelessly misconceived.

28. The decision in Sawyer relates purely to the form of the indictment and whether it was sufficiently established that there was jurisdiction in a court to try a British subject for the murder of another British subject abroad. It is clear from the judgment of the court that the issue was as to jurisdiction and resolved in the manner we have set out. Subsequently there was some doubt as to whether the commission of an offence of murder outside of England and Wales by a British subject of an alien could be tried in England and Wales, but s.9 of the Offences against the Person Act 1861 made clear that it could be. The case of Sawyer therefore provides absolutely no foundation for the misconceived submission made by Mr Gottlieb.

27. The second case was that of R v Page [1954] 1 QB 170, in which a corporal in the Royal Corps of Signals had been tried and convicted by a Court Martial in Egypt for the murder of an Egyptian national in an Egyptian village. The issue in the appeal was whether a Court Martial had jurisdiction under the statute creating it to try for murder a British subject who had killed an alien abroad in circumstances which would amount to murder if the killing was done in England and Wales. It was submitted by Mr Kenneth Diplock QC, who appeared for the soldier, that the conviction was bad in law because it was not murder under the statute or at common law as the murdered man was not within "the Queen's peace"; that was a requirement for the offence of murder and as the murdered man was not under the Queen's Peace no offence of murder had been committed.
28. In giving the judgment of the Court Martial Appeal Court, Lord Goddard CJ, sitting with Havers and Glyn Jones JJ, again examined the origins of the offence of murder. Lord Goddard explained that the general rule of English law had been that the offences committed by British subjects out of England were not punishable by the criminal law of England. Statute had made exceptions to that rule, including the statute of King Henry VIII to which we have referred. After considering the statutory provisions that governed the jurisdiction of Courts Martial, the court concluded that a person subject to military law could be tried for any offence, wherever committed, which would be an offence against the law of England; the crime of murder when defined in a statute had the meaning it always had: an unlawful killing with malice aforethought. The appeal therefore failed on that simple ground.
29. The only relevance to the argument constructed by Mr Gottlieb related to some observations made by Lord Goddard when he referred to the observation of Lord Ellenborough which we have set out. Lord Goddard observed that it was entirely intelligible, as no one would suggest that an English Court should try an alien for an offence not committed on British soil. That was all Lord Goddard said; again it founds no basis whatsoever for the arguments put before Sweeney J by Mr Gottlieb.
30. Finally, in an article entitled Murder Under the Queen's Peace [2008] Crim LR 541, Professor Michael Hirst traces the ambit of the meaning of the term "the Queen's peace" in the offence of murder. He concludes that the phrase essentially goes to jurisdiction and the ambit of the offence of murder under English law, but may be of relevance to the killing of a victim in a time of war.
31. The law is now clear. An offender can generally be tried for murder wherever committed if he is a British subject, or, if not a British subject, the murder was committed within England and Wales. The reference to "the Queen's peace", as originally dealt with in the cases to which we have referred, went essentially to jurisdiction. Although the Queen's Peace may play some part still in the elements that have to be proved for murder as regards the status of the victim (and it is not necessary to examine or define the ambit of that), it can only go to the status of the victim; it has nothing whatsoever to do with the status of the killer. The argument was completely hopeless. We have set out at some length why it was hopeless; it should never have been advanced. We dismiss this ground of appeal as entirely misconceived.

(2) The representation order

32. We can deal more briefly with the second ground of appeal. It relates to representation. Mr Gottlieb seeks to advance an argument in relation to the way in which the judge made orders under Regulation 14(2)(B)(1) of the Criminal Defence (General) (No 2) Regulations 2000.
33. An application was made to Sweeney J for the services of a Queen's Counsel and junior advocate. The judge granted the application. He considered that, under the regulations, that was the appropriate representation. On a number of occasions when the matter came back before him, the judge concluded that, having decided that that was the appropriate representation, it was not within his jurisdiction under the regulations to change that representation, unless there had been a material or significant change of circumstances which went to the representation required.
34. In our judgment the judge was right. If a judge decides that a Queen's Counsel alone, or a Queen's Counsel and a junior are the correct representation, then there is no power to substitute two juniors, unless there has been a material and significant change of circumstances which justifies the change of representation. There was none in this case. It is unarguable that there were any. In any event, even if there had been any merit in this point – and there was none – this was a point that could not conceivably affect the safety of the conviction.
35. It is for those reasons, therefore, we consider both points advanced by Mr Gottlieb to be wholly unarguable. Accordingly, the renewed application for leave to appeal against conviction is refused.

Adebolajo's renewed application for leave to appeal against sentence

36. By paragraph 4 of Schedule 21 to the Criminal Justice Act 2003 the appropriate starting point for a murder that is committed for the purpose of advancing a political, religious, racial or ideological cause is a whole life order. The judge concluded that the murder was committed for such a purpose and the purposes of terrorism.
37. It has been urged upon us that the judge should not be bound by the reasons that Adebolajo had given for his actions, but should have regarded the offence as one motivated by simple religious hatred or the equivalent of the murder of a police officer.
38. We cannot see any basis on which such an argument could properly be advanced. It is clear, in our judgment, that there was more than sufficient evidence upon which the judge could have concluded that this murder was committed solely for the purpose of advancing a political or ideological cause aimed at the State. We should record that Adebolajo did not suffer from any mental illness. On the contrary, it was asserted that the actions were deliberate and carried out in the full understanding of what was done.
39. Having made that finding, the judge concluded that it was one of those rare cases where not only was the seriousness exceptionally high, but the requirements of just punishment and retribution made a whole life order the just penalty.
40. We have carefully considered the submissions that have been made before us. It has been suggested that we should carefully review the imposition of a whole life order and that we should give Adebolajo a chance to atone for what he has done and not uphold the order that will mean that he will spend the rest of his life in prison.
41. In the case of any whole life order a court is bound to review with the utmost care the circumstances of the murder, the motives for it, and the submissions made both before the judge and before us. We have done so. We have also taken into account the devastating effect that Lee Rigby's family will continue to suffer for the rest of their lives.
42. In our judgement it is plain that Adebolajo intended to commit a barbaric murder for political and ideological purposes. His actions were aimed against the State and against any civilised society. He carried out the murder in a horrific manner. It was intended to have the maximum effect to promote the misguided political and ideological cause he espoused. Having killed Lee Rigby, he did not stop there; he gloried in the murder and sought to use it to advance his ideological causes by publicising it and making the statements he did.
43. Taking all of the circumstances of the case into account, we can see no conceivable basis upon which it can be argued that a whole life order was not the just penalty for such a horrific and barbaric crime. The renewed application is therefore refused.

Adebowale's appeal against sentence

44. We turn finally to consider the appeal by Adebowale which is made by leave of the single judge. Sweeney J concluded that in his case also the murder was carried out for the purposes of advancing a political, religious, racial or ideological cause. There was plain evidence on which he was entitled to come to that conclusion. He took the view, similar to that in the case of Adebolajo, that the offence was of exceptionally high seriousness and that his starting point should be a whole life term. He identified three aggravating factors: a significant degree of planning and premeditation; the fact that the victim was performing a public duty; and the way the body was treated. He considered, however, that there were mitigating factors: first, Adebowale's lesser role; second, his youth; and third, his pre-existing and continuing mental condition. The judge concluded that it was not appropriate to impose a whole life term, but that there should be a substantial minimum term. He settled upon the period of 45 years.
45. On behalf of Adebowale, it is properly accepted by Mr Lakha QC, who has made his submissions with the restraint to be expected in such a case, that on the facts of the case and on the application of the principles in Schedule 21 to the Criminal Justice Act 2003, there could be no doubt that the judge had been correct to identify the aggravating factors and that he was entitled to reach the view that he did.
46. He therefore advanced an eloquent submission as to why the minimum term of 45 years was manifestly excessive, grounded upon Adebowale's mental condition. As we have already noted, issues arose as to his fitness to stand trial. In reports made in November 2013 a number of psychiatrists concluded that he had signs of a psychotic episode. Reports were obtained from a number of other psychiatrists who diagnosed him as suffering from time to time from psychosis. The judge ruled that he was fit to stand trial. No challenge was made to the ruling. It is clear from our re-examination of those reports in the light of the submissions that have been made before us today, that it was clear at the time – and this is a very important factor – that it was accepted that the mental element played no part in Adebowale's culpability for the barbaric murder of Lee Rigby.
47. After sentence, it became apparent in late May 2014 that Adebowale's mental condition was deteriorating. He was transferred to Broadmoor on 3^rd July 2014. The latest medical evidence before us is based on a report made on 14^th November 2014. It is said that Adebowale has substantially recovered from the further episode of psychosis. It is said that when he was interviewed he was rational and understood the nature of the appeal. However, the conclusion of Dr Boast (the psychiatrist) was that there was a high risk of a further episode of psychosis and the possibility of him developing an enduring schizophrenic condition. Dr Boast also pointed out that another element of his mental condition was depression. It was his opinion that the stress of Adebowale's current sentence produced understandable depression, but the stress of the length of the sentence had been a factor in the most recent episode of psychotic mental illness. He also considered that hopelessness in the context of depression was a major risk factor.
48. On the basis of the reports that were before the judge, and the most recent report that is before us, it was urged upon us that Adebowale suffered from clear and significant psychotic episodes after the offences. He had shown some symptoms of mental illness prior to the offence, albeit not significant enough to be a proper basis on which to found a defence of diminished responsibility, or in any way to lessen his culpability for his actions. However, his mental condition was a mitigating factor; it was recognised and it should be taken into account.
49. It was also submitted that we should take into account Adebowale's lesser role, the fact that although he had pleaded not guilty he did not contest or challenge the evidence in relation to the murder. The only challenge was in relation to the inference to be drawn in relation to the attempted murder of a police officer (of which he was acquitted). We were also urged, most importantly, to take into account his youth.
50. We have carefully considered all of those submissions. We have paid particular attention to the evidence in relation to his mental condition. At the time of the trial, as we have set out, it is clear from the reports of Dr Boast and the other psychiatrists that there was no evidence that the mental illness had any role at all in Adebowale's culpability. Nonetheless, we think that the judge was right to take into account the mental illness from which he had suffered thereafter, his symptoms at the time, his lesser role, the part he played and his youth. We consider that the judge fairly took all of those matters into account.
51. We have also had regard to the current report of Dr Boast. His view is that, prior to the trial and probably at the time of the offence, there might have been an element of psychosis. However, having carefully looked at this and having considered all the other reports, we are quite satisfied that there is no evidential basis on which it can be put before this court that psychosis played any part at the time of the offence, or that any other aspect of his mental illness affected his culpability for, the offence.
52. On that basis, therefore, we consider that the judge was entitled to pass the sentence that he did. It was within the range of the minimum term appropriate for this barbaric crime. Accordingly, we dismiss Adebowale's appeal against sentence.
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