England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		15 March 2017

1. PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 21st March 2016, in the Crown Court at Manchester, before Williams Davis J and a jury, Clayton Ronald Williams, who is now aged 20, was convicted of manslaughter. He then fell to be sentenced for that offence along with the offences of burglary and aggravated vehicle taking resulting in death, to which he had previously pleaded guilty. William Davis J passed a sentence of 20 years' imprisonment for manslaughter, with concurrent terms of 2 years for burglary and 8 years for aggravated vehicle taking resulting in death, making a total sentence of 20 years' detention in a young offender institution. He was also disqualified from driving for life. Other defendants were sentenced for burglary and for assisting this appellant after he had made good his escape following the traffic accident which occurred. He now appeals against sentence by leave of the single judge.
2. The facts must be set out with some care. On 5th October 2015, whilst on duty on the Wirral, an officer of the Merseyside Police, Constable David Phillips, then aged 34 years, was killed when he was struck by a stolen vehicle, driven at speed towards him by the appellant, who was then aged 18.
3. The background was that shortly after 1.00 am a burglary had occurred at commercial premises. The 69-year-old owner of the premises was asleep in a flat above his shop at the time. The two burglars had forced the front door open breaking the door lock. Once inside they stole a pair of car keys for the owner's L200 Mitsubishi vehicle which was parked nearby. They then loaded that vehicle with a number of items including a quantity of electrical goods, jewellery and mobile telephones. Eventually the noise caused by the burglars resulted in the owner waking from his sleep. He looked out of the window and saw the burglars getting into his vehicle. The engine was running. He made his way downstairs. By the time he got there the vehicle was gone.
4. At 1.41 am the vehicle which had then been reported stolen was seen and approached by a police car. It drove off. It was next seen just before 2.00 am in the same area. It failed to stop for an unmarked police car and made off at speed. The police car activated its blue lights and claxon. The appellant was at the wheel. A co-defendant was in the passenger seat.
5. The appellant drove at very high speeds through numerous residential streets in the pursuit that lasted for about 10 minutes, covering several miles of the Wirral. He drove at speeds of up to 80 miles per hour, ignored red lights, drove on the wrong side of the road and regularly reached speeds of 55 to 60 miles per hour in streets subject to the 30 mile per hour speed limit.
6. The pursuing officer provided commentary over his radio. Another officer heard what was happening and tried to assist by driving to the area to deploy a stop stick or stinger, that is to say a piece of equipment which causes the tyres to burst and so the vehicle to slow down. He was not able to get into position in time but he located and joined the pursuit of the stolen vehicle. Ignoring the two police vehicles which followed the Mitsubishi driven by the appellant continued to make its way at speed towards Wallasey.
7. Constable Phillips was on night duty, working from Wallasey police station together with his colleague, Constable Birkett. He heard from a colleague that there was a vehicle pursuit taking place. As a result, he and Constable Birkett tuned into the relevant police radio channel to listen to what was happening. It was clear that the pursuit was heading towards him. A request was made for a stop stick.
8. Constable Phillips had been trained in the use of such equipment and searched one out. Then he and Constable Birkett then drove in an unmarked police vehicle towards the Wallasey Ring Road with activated sirens and illuminated police lights. Having arrived, he parked his vehicle on a roundabout with its emergency lights still illuminated. The two officers alighted and Constable Birkett passed the stop stick from the rear of the vehicle to Constable Phillips. Constable Phillips then ran up the carriageway. Constable Birkett made his way up but stayed a distance behind Constable Phillips standing on the central reservation. Constable Phillips threw the stop stick out across the carriageway. It covered the lane closest to him and part of the adjoining nearside land. Constable Birkett then saw the stolen vehicle appear in the distance driving at speed being followed by the other police vehicles. Its headlights were on full beam and it was travelling in the lanes closest to Constable Phillips. Constable Phillips, illuminated by the full beam of the stolen vehicle, could clearly be seen standing on the central reservation. It appears that the vehicle which the appellant was driving then left the main carriageway, crossed onto the central reservation and notwithstanding there was no evidence of traffic in the opposite direction, turned back onto the central reservation with all four wheels driving directly at Constable Phillips. The front grill hit him more towards the passenger side of the vehicle. Constable Phillips had no time to move at all. He was thrown 10 feet into the air, spinning several times and flew sideways before landing in the middle of the carriage. He hit the floor head first. A pathologist was later to say that he had suffered catastrophic injuries.
9. Instinctively Constable Birkett ran towards his colleague. He did all he could to help him and was joined by his colleagues who fought ultimately in vain to save Constable Phillips' life. Paramedics attended and medical assistance was carried out in the roadway but he was in cardiac arrest. Taken to hospital he was ultimately pronounced dead at 3.15 am.
10. The appellant, with his co-defendant, no longer pursued by the police drove away. He went to the address of others and informed them of what he had done. We make it clear there is no suggestion that he then appreciated that the officer had suffered fatal injuries but must have appreciated the gravity of what he had done.
11. His friends assisted him by burning his clothes in a bin in the kitchen and disposing of the burnt clothing. It is not without significance that the learned judge observed that the cover up passed into the time when it was known what in fact had happened to Constable Phillips, although it was initiated before that became general knowledge.
12. The appellant was ultimately arrested. When interviewed he claimed that he had struck Constable Phillips by accident and that he had not intended his death.
13. At the date of sentence the appellant was 19 years of age. He had 19 previous convictions for 33 offences, spanning between November 2008 (when he would have been 12) to 15th October 2015. His relevant convictions included five offences of battery, two offences of theft of a cycle, three offences of handling stolen goods, attempted theft of a vehicle, disorderly behaviour, shoplifting, two offences of driving a motor vehicle without consent, four offences of driving otherwise in accordance with a licence, burglary and aggravated vehicle taking.
14. It is not without significance that at the time of this offence the appellant was on licence having been released from a sentence in a young offender institution for aggravated vehicle taking, involving dangerous driving, driving without insurance and otherwise in accordance with a licence, with a further offence of driving a motor vehicle taken without authority. At the time, he was disqualified from driving and indeed would have continued to be disqualified until an extended test had been passed. His total disregard for the rules of the road can only be described as breathtaking.
15. Before the judge there were a series of victim personal statements from three generations of this officer's family. The extent of the impact of the harm that has rippled through all generations and devastated his family was and is obvious. Listening to those statements, it is clear that the judge recognised that the appellant recognised the impact of his conduct and suffered a degree of remorse. We shall return to this aspect of the case shortly.
16. When passing sentence William Davis J did not accept the submission made by Mr Adam Davis QC on his behalf and repeated both in writing and to us that the criminality for the offence of manslaughter in the context of this case was not substantially different to the offence of aggravated vehicle taking and causing death. The judge observed, entirely accurately, that he had been convicted of deliberately driving at the police officer, recognising that doing so inevitably subjected him to the risk of injury. The judge had no doubt about that because he had left to the jury the offence of manslaughter on the basis that he could only be convicted of that crime if the jury were sure that he had deliberately driven at the police officer with that recognition. The judge observed it was a very grave offence of manslaughter indeed and was not helped by the fact that he was on licence for an offence of dangerous driving, that is to say, identical conduct.
17. The judge went on to say that had the appellant been convicted of murder, for which he was tried by the jury but acquitted, given at the time of the offence he was aged under 21 but over 18, he would have received a life sentence and been liable to face (at least by way of starting point) a minimum term of 30 years, that is to say a determinate term of 60 years' imprisonment.
18. Dealing with remorse the judge said:

"... I am prepared to accept that now, particularly after what you have just heard, you may have some understanding of the devastation you have caused, but equally I can entirely understand why those whose statements have just been read out conclude that reallyany remorse is false, because at the time that poor policeman was fighting for his life you were busy covering up what you had done. That is not remorse."

19. By making that observation the learned judge was not rejecting the submission that the appellant felt remorse but making the point that he must have known that he had caused injury to this officer but that his only interest was in escaping the consequences of his conduct.
20. In this court we have also had the benefit of a prison report which reveals that the appellant's behaviour in custody has been truly lamentable. We do not go into the details of his prison offending because it is not relevant but we do make the point that positive behaviour might have been of real benefit to his submission that he was demonstrating true remorse for the devastation that he had caused.
21. Mr Davis advances the proposition that the learned judge passed a sentence that was manifestly excessive in all the circumstances; indeed he goes further and submits that the learned judge fell into serious error in his approach to this sentencing exercise. He argues that expressing the proposition that the minimum term for this appellant, had he been convicted of murder, would have been life imprisonment with a minimum term of 30 years set too high a hypothetical tariff. That expressing the view that this was a very grave offence of manslaughter indeed was unsupported by the evidence and unjust in all the circumstances.
22. No guidance has been issued by the Sentencing Council in relation to the offence of manslaughter, still less for manslaughter consequent upon road traffic offending. The starting point for any discussion, therefore, has to be section 143(1) of the Criminal Justice Act 2003 which focused significant importance on the consequences of every offence. It provides:

"In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused. Thus, at the core is culpability and harm and, for manslaughter, the extent of the culpability can vary enormously although the harm is always at the highest level."

23. In that regard, it is equally important to underline the direction provided by the legislation in relation to the crime of murder set out in section 269 and Schedule 21 of the same Act, where the starting point for the minimum term of the mandatory life sentence is prescribed. It is also appropriate to refer to the inevitable link between that which the legislature has determined for murder and appropriate sentences for manslaughter. Thus in R v Wood [2009] EWCA Crim 651; [2010] 1 Cr App Rep (S) 2, a five judge court rejected the notion that gravity of an offence of manslaughter by reason of diminished responsibility must be assessed on the basis of culpability alone. On the contrary, Lord Judge CJ specifically identified a link with the approach to murder observing (at para 21):

"There is no express statutory link between the guidance in schedule 21 of the 2003 Act and the principles to be applied to sentencing decisions in diminished responsibility manslaughter. Where diminished responsibility is established it serves to reduce the defendant's culpability for his actions when doing the killing, but the remaining circumstances of the homicide are unchanged. Specific features of the seriousness of the homicide, for example a double rather than a single killing, or the sadistic killing of a child may be common both to murder and diminished responsibility manslaughter. At the same time the mitigating features expressly identified in schedule 21 extend to what may approximate but not amount to the defence of diminished responsibility and provide an additional connection between the schedule and the defence. Finally, the culpability of the defendant in diminished responsibility manslaughter may sometimes be reduced almost to extinction, while in others, it may remain very high. Accordingly when the sentencing court is assessing the seriousness of the offence with a view to fixing the minimum term, we can discern no logical reason why, subject to the specific element of reduced culpability inherent in the defence, the assessment of the seriousness of the instant offence of diminished responsibility manslaughter should ignore the guidance. Indeed we suggest that the link is plain."

He went on:

"22. One of the striking features of schedule 21 is well known but not as yet perhaps fully appreciated. Any of the suggested levels of sentence represent the time actually to the served in custody. A thirty year term is therefore the equivalent of a sixty year determinate sentence, and a fifteen year term equivalent to a thirty year determinate sentence. This reality cannot be ignored, and a vast disproportion between sentences for murder and the sentences for offences of manslaughter which can sometimes come very close to murder would be inimical to the administration of justice...

23. We derive some further, indirect support to our approach from the stark reality that the legislature has concluded, dealing with it generally, that the punitive element in sentences for murder should be increased. This coincides with increased levels of sentence for offences resulting in death, such as causing death by dangerous driving and causing death by careless driving. Parliament's intention seems clear: crimes which result in death should be treated more seriously and dealt with more severely than before. Our conclusion is not governed by, but is consistent with this approach."

24. Neither is that observation limited to cases in which all the ingredients of murder have been established and the offence is reduced by reason of diminished responsibility. In another five judge constitution, Attorney-General's Ref No 60 of 2009 (Appleby & Ors) [2010] 2 Cr App R (S) 46, Lord Judge CJ considered the appropriate sentence for unlawful act manslaughter, and, in particular, those which arise from a single blow from which there can be no question that the risk of death was foreseen although they arose in the context of incidents of public disorder. He recognised that the maximum penalty for inflicting grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861 was 5 years' imprisonment only but he set the scene by observing (at para 3):

"Taken together, these three cases provide the court with an opportunity to reconsider the approach to sentencing in cases of manslaughter when, notwithstanding that the defendant intended neither to kill nor to cause the deceased grievous bodily harm, he is convicted of manslaughter on the basis that the death was consequent on an act of unlawful violence. They are, of course, always tragic in their consequences, but they do not constitute murder, and they cannot be sentenced as if they were. If the defendant is convicted of manslaughter the consequences must be treated as if they were unintentional and unintended. The court must honour the verdict of the jury (if the jury convicts of manslaughter) or the plea to manslaughter accepted by the Crown (if that is the basis on which the case is prosecuted) yet, whether the case falls to be sentenced as murder or manslaughter, the catastrophic result for the deceased and his or her family is the same: the loss of a precious life. In each of these cases we have been made aware of the poignant, lamentable impact of the deaths of each victim on the families who are left behind to grieve."

25. Having considered the authorities and referred back to Wood together with the disparity between a sentence for murder with the tariff fixed by reference to Schedule 21 of the 2003 Act and that for manslaughter, he went on (at para 22)

"... crimes which result in death should be treated more seriously, not so as to equate the sentencing in unlawful act manslaughter with the sentence levels suggested in schedule 21 of the 2003 Act, but so as to ensure that the increased focus on the fact that a victim has died in consequence of an unlawful act of violence, even where the conviction is for manslaughter, should, in accordance with the legislative intention, be given greater weight."

26. R v Burridge [2010] EWCA Crim 2847; [2011] 2 Cr App Rep (S) 27 dealt with the manslaughter of an 8-week-old child at the hands of his father. Wood and Appleby were cited, it being observed (at [139]) that the words equally applied to unlawful act manslaughter of babies and children as they did to disorder in the street.
27. We have no doubt that they apply with equal, if not greater, force to offences of manslaughter arising out of the deliberate use of a motor vehicle. At one end of the spectrum is the offence of murder (of which we underline that this appellant was acquitted) but which leads to a mandatory life sentence with an appropriate minimum term based on a starting point set out in Schedule 21. At the other end of the spectrum is the offence of causing death by careless driving, created by the Road Safety Act 2006 which has a maximum sentence of 5 years' imprisonment although we recognise that, at the lowest end of culpability when it arises from what can only properly be described as momentary inattention, the offence may well not pass the custody threshold even though death has, tragically, resulted.
28. In the spectrum above causing death by careless driving is causing death by dangerous driving which has been variously described over the years since the Road Traffic Act 1960 which created the offence prescribing a maximum penalty of 5 years' imprisonment. The maximum was increased to 10 years by section 67(1) of the Criminal Justice Act 1993 and by section 285(4) of the Criminal Justice Act 2003, the same Act which introduced Schedule 21, to 14 years. The culpability of the offending can be derived by a consideration of the statutory language which regards a person as driving dangerously if the way he drives falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous: see section 2A(1) of the Road Traffic Act 1988. The relevant sentencing guideline makes it clear that the most serious offences encompassing driving involving a deliberate decision to ignore (or flagrant disregard for) the rules of the road and an apparent disregard for the great danger being caused to others allows a sentencing range up to the maximum for the offence.
29. It is clear that killing another person on the road can be the result of conduct which, in terms of culpability, lies above that contained within the definition of causing death by dangerous driving but short of establishing the intention required for murder. It is in that space that is found the crime of manslaughter. On the authorities, the risk of death involved in such an offence must be very high. In R v Seymour [1983] 2 AC 493, the House of Lords made it clear that it was a more grave offence, Lord Roskill observing (at 506-7) that there were degrees of turpitude which would vary according to the gravity of the risk. Thus in R v Pimm (1993) 14 Cr App R (S) 730, the deceased tried to stop a stolen van being driven away by standing in front of it; the vehicle leapt forward and the deceased was forced to jump onto the bonnet, then thrown onto the roof, whereupon the van swerved to the right and left eventually dislodging him. As will be appreciated from what we have said, at that time, the maximum sentence for causing death by dangerous driving was only 5 years' imprisonment; a sentence of 9 years was not surprisingly upheld. Lord Taylor CJ observed that the appellant was lucky not to be convicted of murder. Similarly, it was made clear in Brown (Uriah) v The Queen [2005] UKPC 18; [2006] 1 AC 1 at [29, 30]) that manslaughter requires recklessness plus an extra element of turpitude that the risk of death caused by the driving must be very high.
30. Thus, with great respect the submissions advanced by Mr Davis for the most part, they simply miss the point. Of course, any public display violence is significant but it was most certainly not the primary concern of Appleby and the authorities there set out to provide overarching principles. The case deals only with such violence because that is the type of manslaughter with which the court was then concerned.
31. Similarly, many of the offences of causing death in motor collisions simply do not assist. R v Rule [2002] EWCA Crim 1858; [2003] 1 Cr App R (S) 47 was concerned with a guilty plea to manslaughter prior to the passage of the Criminal Justice Act 2003 which altered the court's approach to homicide generally and also at a time when the maximum sentence for causing death by dangerous driving was 10 years. Whereas we agree that the offence was characterised as "an act of significant dangerousness and of a very high level of culpability", the sentence of 9 years following allowance for remorse (the then appellant having surrendered himself to the police and pleaded guilty) is, in our judgment, substantially less than the sentence that he would receive today. R v Parfitt [2004] EWCA Crim 1755; [2005] 1 Cr App R (S) 50 and R v Dudley [2006] EWCA Crim 387; [2006] 2 Cr App R (S) 77 were also serious offences of motor manslaughter in relation to police officers, leading to sentences of 12 years' (plus one year consecutive for other offences) and 14 years' respectively (the latter involving two victims) but, notwithstanding the dates upon which this court dealt with the cases, were both committed (albeit not sentenced) before the 2003 Act came into force and were based on a consideration of Rule. In both cases, the court dismissed appeals against sentence: although in Dudley the sentence was described as severe, they are not authorities for the proposition even at that time that a higher sentence would have been wrong in principle or manifestly excessive.
32. Cases that come after the change of the law include Attorney General's Reference No. 111 of 2006 (Hussain) [2006] EWCA Crim 3269; [2007] 2 Cr App R 26 although the cases cited all predate the implementation of the Criminal Justice Act 2003 save only for the reference to the change in the maximum sentence for causing death by dangerous driving. The circumstances were very different and do not assist. Neither do the decisions cited to the court which deal with some of the very different and wide-ranging circumstances in which manslaughter can be committed.
33. The only example of a decision that does provide some insight into the sentencing approach that these cases now require is R v Willett [2011] EWCA Crim 2710; [2012] 2 Cr App R (S) 18. The appellant, who was 22 years of age, had been involved with his brother stealing from vehicles when the driver of a van from which they were attempting to steal intervened. They escaped in a car which his brother was driving but the van driver stood in front of the car to prevent their escape. The car drove over him inflicting fatal injuries. His brother, the driver, was convicted of murder and he was convicted of manslaughter. The court approached sentence on the basis that he and his brother had agreed that they should escape, that he was aware and agreed that his brother would drive dangerously so as to make their escape. It was therefore an offence involving a high degree of culpability. In sentencing him, the judge identified a number of aggravating features, namely the fact that it was an offence committed while they were escaping from crime; the use of the car as a weapon; and the fact that neither the appellant nor his brother took any steps thereafter to see whether the victim was alright. There are echos of these features in this case. The judge noted the absence of convictions for violence in the appellant's criminal record, but observed that what had happened on this occasion involved a high degree of risk and that, although the appellant may not have intended the death, the risk of serious injury and possible death was manifest from the outset. This court observed that account had to be taken of the upward movement in manslaughter sentencing in recent years to reflect the higher minimum terms imposed pursuant to the provisions of the 2003 Act in cases of murder and noted that the driver had received a life sentence with a minimum term of 25 years. The appellant, who as we have said was 22 years of age, was sentenced to 16 years' imprisonment reduced by this court to 14 years' on the basis that his culpability as a passenger was lower than if he had been the driver.
34. In this case, William Davis J specifically directed the jury that before a conviction for murder or manslaughter could be returned, they had to be sure that the appellant deliberately drove the stolen car at Constable Phillips and that, in doing so, he recognised that he had inevitably subjected the officer to the risk of some injury. This followed 10 minutes of high speed driving with reckless disregard for the safety of anyone in the vicinity. Acquitting the appellant of murder meant that the jury were not sure that he intended to cause really serious bodily harm but, in our judgment, deliberately driving at a police officer, even if that realisation came within only a very short time before the collision, necessarily involves a very high degree of culpability. We therefore agree with the judge that this was a very grave offence of manslaughter.
35. There was some discussion in the Crown Court of the possible sentence had the appellant been convicted of murder. Mr Davis takes issue with the judge's analysis that the assessment of a minimum term to serve in such a case would have been 30 years. There would have been two justifications for that starting point, namely the fact that the victim was a police officer and that it was intended to interfere with or obstruct the course of justice. The fact that it was in the course of crime and while on licence for dangerous driving were aggravating features and the only real mitigation would have been the appellant's age. Noting the 25 year minimum term passed on Willett's brother, which is the equivalent of a 50 year determinate term, without the additional element of the victim being a police officer, it is beyond argument that the judge was entitled to reason as he did.
36. This was not, of course, an offence of murder but the very different offence of manslaughter, as indeed was the sentence to that which otherwise would have been appropriate had there been a conviction for murder. Furthermore, the judge specifically took into account the appellant's age of 18 and also concluded that rather than impose a consecutive term for the offence of burglary which anteceded the chase and the death of Constable Phillips in his efforts to bring the appellant to justice, he would pass a concurrent term. Had he passed a term of 18 years for manslaughter with 2 years' detention consecutive for burglary, the sentence would only have been 4 years longer than that imposed after appeal on the passenger in Willetts. The appellant was not a passenger but the principal.
37. In our judgment, although undoubtedly severe, the appellant cannot have any complaint with the sentence passed upon him: it was thoroughly deserved. Condign and severe punishment will be imposed on all those who kill or injure police officers who, acting in the course of their public duty, do their best to keep the public from harm. If that fact is publicised and recognised by those prepared to steal cars and drive dangerously, then perhaps they will think twice before doing so. This appeal is dismissed.
38. MR DAVIS: Can I raise as a matter of fact, the case of Dudley which will appear within your Lordship's judgment. In fact of the two Dudley was decided post Schedule 21 coming into operation. It is pre-Appleby, that is certainly correct, but it was February 15th 2006 and Schedule 21, as I understand it, came into force on December 18th 2003.
39. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: Yes. With great respect Mr Davis, the offence was in August 2002.
40. MR DAVIS: I agree.
41. PRESIDENT OF THE QUEEN'S BENCH DIVISION: Then you cannot pass a sentence.
42. MR DAVIS: No. Sorry, the judgment was issued post Schedule 21.
43. PRESIDENT OF THE QUEEN'S BENCH DIVISION: Yes. But the offence was prior to the legislation.
44. MR DAVIS: That is what your Lordship was saying. Forgive me.
45. PRESIDENT OF THE QUEEN'S BENCH DIVISION: That is the point because that is what governs the sentence.
46. MR DAVIS: Thank you.
47. PRESIDENT OF THE QUEEN'S BENCH DIVISION: I will check the transcript to make sure it is clear.
48. Mr Davis I would not want the appellant to misunderstand the position. You took every point that could be taken. I commented maybe on a couple that could not be, but every point that could be taken was advanced. He can have no complaint at the skillful way in which he has been represented.
49. MR DAVIS: Thank you very much.