ON APPEAL FROM THE CROWN COURT AT MANCHESTER
MRS JUSTICE YIP
T20237046
The Strand London WC2A 2LL |
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B e f o r e :
BARONESS CARR OF WALTON-on-the-HILL
MR JUSTICE LAVENDER
and
MR JUSTICE MURRAY
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EDDIE RATCLIFFE |
Applicant |
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- and - |
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REX |
Respondent |
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Deanna Heer KC and Cheryl Mottram (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 5 December 2024
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Crown Copyright ©
This judgment was handed down at 2:30pm on 5 December 2024 in Court 4 and by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The Lady Carr of Walton-on-the-Hill, LCJ
(1) Introduction
"Brianna was only 16 years old when she was killed. She had her whole life ahead of her. Brianna had some struggles that made her vulnerable, but she was supported by a loving family who wanted nothing but the best for her. Sadly, no one will ever know what she would have achieved in her life. Even though her life was so short she made an impact. Her family remember her for her laughter, for being full of life and as a good listener. Their loss is unimaginable, but they have bravely and movingly painted a picture of Brianna…"
(2) The Sentencing Hearing
(2)(a) Information Available to the Judge
(1) 3 April 2023: psychological report from Dr Tim Diggle, a consultant clinical psychologist.
(2) 7 April 2023: intermediary report from Dani Williams.
(3) 21 April 2023: psychological report from Dr Louise Bowers, a forensic psychologist.
(4) 30 April 2023: psychiatric report from Dr Lucy Bacon, a consultant forensic psychiatrist.
(5) 24 May 2023: interim psychiatric report from Dr Michael Crawford, a consultant adolescent and forensic psychiatrist.
(6) 23 May 2023: letter from Dr Sarah Mack, the principal clinical psychologist at Barton Moss Secure Care Centre, where the applicant was detained.
(7) 7 July 2023: psychological assessment by Professor Stuart Brody.
(8) 16 July 2023: psychiatric report by Dr Crawford.
(9) 28 August 2023: 2nd psychological report by Dr Bowers.
(10) 6 September 2023: psychiatric report by Dr Henry Ashcroft.
(11) 4 October 2023: email from Dr Crawford.
(12) 15 November 2023: speech & language therapy report by Asma Khanum.
(13) 15 November 2023: addendum psychological report by Dr Diggle.
(14) 16 November 2023: email from Dr Crawford.
(15) 20 November 2023: intermediary update.
(16) 22 January 2014: email from Dr Crawford.
(2)(b) The Role Played by the Applicant
"Beyond being sure Eddie inflicted some of the wounds I cannot be sure precisely who did what. That does not matter for today's purposes. I sentence you on the basis that both of you played a full part in killing Brianna and both intended she should die."
"It would, in my judgment, be wholly wrong to treat you as being under Scarlett's control. I also reject the idea that you only helped so Scarlett would help with your approaches to the girl. On the other hand, I acknowledge that you were not the driving force behind the plan to kill Brianna, Scarlett was."
(2)(c) The Starting Point
"Cases that ( …) would normally fall within sub-paragraph (1)(a) include—
…
(e) a murder involving sexual or sadistic conduct,
…
(g) a murder that is aggravated by racial or religious hostility or by hostility related to sexual orientation…"
"Eddie, although your motives may not have been the same, you knew what Scarlett wanted to do and why. You understood her desire to see Brianna suffer. You actively participated in this brutal murder knowing the sadistic motives behind it and you cannot avoid the consequences just by saying you did not have the same desires."
"I find also that you, Eddie, were motivated in part by hostility towards Brianna because she was transgender. You dehumanised Brianna by constantly referring to her as it and your messages about wanting to see if she would scream like a man or a girl and really wanting to see what size dick it had, along with checking the night before the killing that Brianna was coming show your own interests in killing Brianna linked to your hostility towards her as a transgender person. Just as you knew of Scarlett's motives, she knew of yours, although I cannot go so far as to say she used your transphobic attitude to get you involved.
I therefore find that you both took part in a brutal and planned murder which was sadistic in nature and where a secondary motive was hostility towards Brianna because of her transgender identity."
(2)(d) Aggravating Factors
"Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point."
(1) There was a significant degree of planning and premeditation. This started with Scarlett, but the applicant joined in.
(2) Scarlett had tried on an earlier occasion to poison Brianna. The applicant encouraged further attempts at poisoning, but that did not happen.
(3) Both Scarlett and the applicant were involved in a failed attempt to lure Brianna to Linear Park on 28 January 2023, with a view to killing her.
(4) Brianna was vulnerable and was picked on because Scarlett and the applicant thought that she would be an easy target.
(5) Scarlett abused the trust which Brianna placed in her as a friend and the applicant knew that Scarlett was doing this.
(6) The brutality of the murder, the use of the knife, the sadistic motive and the transphobic hostility had been taken into account in identifying the starting point, but taken together they illustrated how serious this offence was, even in the context of the category of murders whose seriousness was particularly high.
(7) The murder was committed in broad daylight in a park where other people were around.
(2)(d) Mitigating Factors
(1) In relation to maturity, the judge said that the applicant was less mature than many others within the 15 to 16 age category and that his thinking skills were less developed in several areas.
(2) However, the judge concluded that the applicant's autism and associated limitations did not significantly lower his culpability for Brianna's murder. In particular, the judge said as follows:
"I bear in mind that it is difficult for a proper assessment to be made as to the impact of your ASD while you continue to deny what you did, but I am confident from all I have seen that you knew very well that what you were doing was terribly wrong and that you were capable of saying no to Scarlett."
(3) On the other hand, the judge recognised that the applicant's experience of custody would be made more difficult by his autism, his severe anxiety and his selective mutism.
(2)(e) The Judge's Conclusions
"In Scarlett's case the aggravating features are significant and would have led to a substantial uplift to the starting point but for the mitigation, particularly that relating to maturity and mental disorder. There must still be an uplift, but it will be moderated.
In Eddie's case I find that the balance to be struck between aggravating factors, which are not quite as high as in Scarlett's case, and the mitigation I have identified is such as to cancel each other out. In saying that I have taken account of all the medical evidence and accept the diagnosis of ASD has some impact, but the extent to which it reduced your culpability in the circumstances of this offending is limited.
This was undoubtedly a very serious offence with multiple aggravating factors. That is the context in which I impose minimum terms which are lengthy for offenders of your age, albeit significantly less than an equivalent sentence for an adult."
(3) The Parties' Submissions
(1) The imposition of a minimum term of 20 years was "manifestly excessive".
(2) The judge erred in determining a 20 year "starting point" for Eddie as well as Scarlett.
(3) The judge failed to reflect the age and level of maturity of the applicant when determining the appropriate "starting point."
(4) The judge erred in increasing the starting point to a notional level reflecting aggravating features disproportionately against the applicant.
(5) The sentence imposed does not sufficiently reflect the personal mitigation advanced on behalf of the applicant based upon his ASD diagnosis and significant impairments in functioning.
(6) The judge failed to sufficiently distinguish between the role and culpability of Scarlett and the applicant.
(7) The judge failed to structure and fully give reasons in her sentencing remarks which makes it impossible to gauge the different levels of uplift and downward adjustment for the respective aggravating and mitigating features. Figures are arrived at but it is not possible to understand the path or reasoning leading to the figure for either Scarlett or the applicant.
(3)(a) Ground 2
(1) In relation to the judge's finding that this was a murder involving sadistic conduct, the judge wrongly chose the same starting point (of 20 years) for both Scarlett and the applicant based equally on their sadistic motivations/conduct, when the evidence showed that they were far from equal.
(2) In relation to the judge's finding that this was a murder aggravated by hostility related to sexual orientation, and by reference to various communications between Scarlett and the applicant and to the various reports on the applicant:
(a) the true motives for killing Brianna were:
(i) in Scarlett's case, to avenge herself on an individual whom she perceived to be a threat to her relationship with her boyfriend; and
(ii) in the applicant's case, to please Scarlett and thereby obtain her help in forming a relationship with a girl in whom he was interested; and
(b) there was no evidential basis for the judge's finding that a secondary motive for the murder was hostility towards Brianna because of her transgender identity.
"Cases that would normally fall within sub-paragraph (1)(a) include—
(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(ba) the murder of a child involving a substantial degree of premeditation or planning, …"
(1) Taken as a whole, the evidence demonstrated that the applicant repeatedly stabbed Brianna, in the presence of Scarlett, knowing that she derived pleasure from what he was doing, having encouraged her and planned with her to commit the offence.
(2) The messages exchanged by the applicant and Scarlett were such that the judge was entitled to conclude that the applicant was hostile towards Brianna due to her transgender identity and that his participation in the killing was motivated in part by that hostility.
"(1) This section applies where a court is considering the seriousness of an offence which is aggravated by—
(e) hostility related to transgender identity.
…
(2) The court—
(a) must treat the fact that the offence is aggravated by hostility of any of those types as an aggravating factor, and
(b) must state in open court that the offence is so aggravated…
(4) For the purposes of this section, an offence is aggravated by hostility of one of the kinds mentioned in subsection (1) if—
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—
…
(v) the victim being (or being presumed to be) transgender, or
(b) the offence was motivated (wholly or partly) by—
…
(v) hostility towards persons who are transgender.
(5) For the purposes of paragraphs (a) and (b) of subsection (4), it is immaterial whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned in that paragraph."
(3)(b) Ground 3
(3)(c) Ground 4
(1) The applicant's involvement in the planning was limited to agreeing to become involved and bringing the knife.
(2) The applicant was not involved in Scarlett's earlier attempt to kill Brianna by poisoning her.
(3) The applicant had never met Brianna before, was unaware of her vulnerability and was not in a position of trust towards her.
(1) The applicant was involved in planning the murder.
(2) The murder was committed in broad daylight in a public park.
(3) The judge recognised that Brianna's vulnerability was a factor which applied principally to Scarlett, although the applicant admitted in interview that by the time Brianna arrived he knew that she was timid and did not like being out in public.
(4) The judge recognised that Scarlett's previous attempt to poison Brianna was not an aggravating factor in the applicant's case.
(3)(d) Ground 5
"The table set out in paragraph 5A of Schedule 21 of the 2020 Act cannot be determinative of the appropriate starting point in any given case. First, the section of the table applicable to this offender applies to those aged 15 or 16 i.e. those who have just passed their 15th birthday and those approaching their 17th birthday. Very different considerations may apply to an offender in the first group as opposed to those in the second. We are not concerned with a 15-year-old. How the minimum term in the table would apply to such an individual will have to await a case involving a 15 year-old. Second, and of direct relevance to this case, the principles set out in Peters [2005] 2 Cr App R (S) 101 remain valid, in particular what was said at [11]:
"Therefore although the normal starting point is governed by the defendant's age, when assessing his culpability, the sentencing judge should reflect on and make allowances, as appropriate upwards or downwards, for the level of the offender's maturity.""
(1) The judge was entitled to conclude that the applicant's culpability was not significantly reduced by his ASD.
(2) While the applicant's ASD was capable of having an effect on his developmental age, Dr Crawford's view was that it was at the mild end of the spectrum and this was consistent with his presentation at trial.
(3) The judge considered the effect of the applicant's ASD on his ability to cope in detention.
(3)(e) Ground 6
(3)(f) Ground 7
(4) Analysis
(4)(a) Relevant Statutory Provisions
"(1) It shall be the principal aim of the youth justice system to prevent offending by children and young persons.
(2) In addition to any other duty to which they are subject, it shall be the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to that aim."
"Nothing in this Code affects the duties of the court—
(a) to have regard to the principal aim of the youth justice system (which is to prevent offending (or re-offending) by persons aged under 18: see section 37 of the Crime and Disorder Act 1998);"
"(1) Every court—
(a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and
(b) …
(2) The duty imposed by subsection (1) is subject to—
…
(i) section 321 and Schedule 21 (determination of minimum term in relation to mandatory life sentence);"
"(1) Where a court passes a life sentence, it must make an order under this section.
(2) The order must be a minimum term order unless the court is required to make a whole life order under subsection (3)."
"(1) This section applies where a court passes a life sentence for an offence the sentence for which is fixed by law.
Minimum term
(2) If the court makes a minimum term order, the minimum term must be such part of the offender's sentence as the court considers appropriate taking into account—
(a) the seriousness of—
(i) the offence, or
(ii) the combination of the offence and any one or more offences associated with it, and
(b) …
Determination of seriousness
(3) In considering the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, under—
…
(b) subsection (2) (determining the minimum term),
the court must have regard to—
(i) the general principles set out in Schedule 21, and
(ii) any sentencing guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21.
Duty to give reasons for minimum term order or whole life order
(4) Where the court makes a minimum term order or a whole life order, in complying with the duty under section 52(2) to state its reasons for deciding on the order made, the court must in particular—
(a) state which of the starting points in Schedule 21 it has chosen and its reasons for doing so, and
(b) state its reasons for any departure from that starting point."
"(1) A court passing sentence on an offender has the duties in subsections (2) and (3).
(2) The court must state in open court, in ordinary language and in general terms, the court's reasons for deciding on the sentence."
"(5) Subsections (6) to (9) are particular duties of the court in complying with the duty in subsection (2).
Sentencing guidelines
(6) The court must identify any sentencing guidelines relevant to the offender's case and—
(a) explain how the court discharged any duty imposed on it by section 59 or 60 (duty to follow guidelines unless satisfied it would be contrary to the interests of justice to do so);
(b) where the court was satisfied it would be contrary to the interests of justice to follow the guidelines, state why."
(4)(b) The Determination of the Appropriate Starting Point
"Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order."
(1) If 20 years is the appropriate starting point in the applicant's case, having regard to the matters set out in paragraphs 3 to 5A of Schedule 21, it does not cease to be so merely because Scarlett's culpability was greater than that of the applicant. In those circumstances, the role played by each of Scarlett and the applicant in the murder would be a matter to be taken into account when considering the aggravating and mitigating factors.
(2) In choosing 20 years as the appropriate starting point, the judge took account of the applicant's age to the extent provided for by paragraphs 3 to 5A of Schedule 21, since those paragraphs provide for different starting points in the case of offences of particularly high seriousness committed by defendants who are 18 or older (30 years), 17 (27 years), 15 or 16 (20 years) or 14 or younger (15 years). Once the appropriate starting point has been chosen, the offender's age and maturity may be a matter to be taken into account when considering the aggravating and mitigating factors, but they do not affect the choice of the appropriate starting point. As was said in R v Peters [2005] 2 Cr App R (S) 101, at [12]:
"The first stage in the process nevertheless remains the prescribed statutory starting point. This ensures consistency of approach, and appropriate adherence to the relevant legislative provisions. Sch. 21 does not envisage a moveable starting point, upwards or downwards, from the dates fixed by reference to the offender's 18th or 21st birthdays. Nor does it provide a mathematical scale, … The principle is simple. Where the offender's age, as it affects his culpability and the seriousness of the crime justifies it, a substantial, or even a very substantial discount, from the starting point may be appropriate. …"
(4)(b)(i) Murder involving Sadistic Conduct
"Sadly, it is often the case that those who attack others derive pleasure from so doing. Many a person kicking someone else on the ground derives such pleasure. A person, too, may gain pleasure from baiting a vulnerable individual, or showing off to his friends. That is not enough, in our view, to bring the case within subs. (e) [of paragraph 3(2) of Schedule 21]. That subsection contemplates a significantly greater degree of awareness of pleasure in the infliction of pain, suffering or humiliation, perverted though the pleasure we have described may be."
(4)(b)(ii) Murder Aggravated by Hostility related to Sexual Orientation
(4)(b)(iii) Paragraph 2 of Schedule 21
(4)(c) Aggravating and Mitigating Factors
(4)(c)(i) Aggravating Factors
(1) It is clear from the messages exchanged by Scarlett and the applicant that there was a significant degree of planning and premeditation. The judge recognised that the planning started with Scarlett, but was entitled to take account of the fact that the applicant joined in and with creativity. For instance, the applicant proposed the use of code words.
(2) The judge recognised that it was an aggravating factor in Scarlett's case that she had tried on an earlier occasion to poison Brianna. The judge also noted that the applicant had encouraged further attempts at poisoning, but recognised that that did not happen.
(3) The judge was entitled to conclude that both Scarlett and the applicant were involved in a failed attempt to kill Brianna on 28 January 2023.
(4) It was an aggravating factor that Brianna was vulnerable and was picked on because she would be an easy target, but the judge rightly recognised that this was primarily an aggravating factor in Scarlett's case. On the other hand, as the respondent has pointed out, the mere fact that Brianna was a child can be seen as a significant aggravating factor, to which the judge did not refer, although she could have done.
(5) It was an aggravating factor in Scarlett's case that she abused the trust which Brianna placed in her as a friend, but the judge was also entitled to take account of the fact that the applicant knew that Scarlett was doing this.
(6) In accordance with usual sentencing practice, the judge was entitled to take account as an aggravating factor of the fact that there was more than one factor making the seriousness of this offence particularly high.
(7) It was an aggravating factor that the murder was committed in a park where other people were around.
(4)(c)(ii) Mitigating Factors
(1) As to immaturity, this is addressed in the guideline on Sentencing Children and Young Persons. This court said in R v Kamarra-Jarra [2024] EWCA Crim 198 at [33] that:
"Age governs the normal starting point for a minimum term, but not the assessment of culpability by reference to maturity. The court is always obliged to look beyond mere chronological age."
(2) As to culpability, paragraphs 10 to 13 of the Mental Health Guideline provide as follows:
"10. The sentencer should make an initial assessment of culpability in accordance with any relevant offence-specific guideline, and should then consider whether culpability was reduced by reason of the impairment or disorder.
11. Culpability will only be reduced if there is sufficient connection between the offender's impairment or disorder and the offending behaviour.
12. In some cases, the impairment or disorder may mean that culpability is significantly reduced. In other cases, the impairment or disorder may have no relevance to culpability. A careful analysis of all the circumstances of the case and all relevant materials is therefore required.
13. The sentencer, who will be in possession of all relevant information, is in the best position to make the assessment of culpability. Where relevant expert evidence is put forward, it must always be considered and will often be very valuable. However, it is the duty of the sentencer to make their own decision, and the court is not bound to follow expert opinion if there are compelling reasons to set it aside."
(3) As to increased hardship in detention, paragraph 22 of the Mental Health Guideline provides as follows:
"… Where custody or detention is unavoidable, consideration of the impact on the offender of the impairment or disorder may be relevant to the length of sentence and to the issue of whether any sentence may be suspended. This is because an offender's impairment or disorder may mean that a custodial sentence weighs more heavily on them and/or because custody can exacerbate the effects of impairments or disorders. In accordance with the principles applicable in cases of physical ill-health, impairments or disorders can only be taken into account in a limited way so far as the impact of custody is concerned. Nonetheless, the court must have regard both to any additional impact of a custodial sentence on the offender because of an impairment or disorder, and to any personal mitigation to which their impairment or disorder is relevant."
(4)(c)(ii)(1) Immaturity
"is an intelligent young man who has functioned well academically and who has not had overt major problems with functioning in other domains during his life, up to now."
"I would place [the applicant's] autism spectrum disorder at the mild end of the spectrum. I base this opinion on a number of factors. There is no learning difficulty, Eddie has mastered speech and language, (notwithstanding that he has stopped speaking at present), and he has functioned adequately both socially and in school despite his obvious deficits in social interaction, reciprocal communication, and restricted patterns of interest, behaviour and activity."
"Several areas of [the applicant's] functioning are more like that of a much younger child (perhaps a seven- or eight-year-old) than that of a 16-year-old. These features include a lower-than-expected ability to:
a. Express what he thinks and his ability to articulate his ideas,
b. Understand what is in the mind of others and how they might feel,
c. Predict not only what others think but what others might do,
d. To engage in social problem solving and to think creatively,
e. Draw upon a bank of experience to problem solve resulting in his being socially naïve,
f. Engage in social problem solving; dealing with social complications is difficult,
g. Go to others for help when faced with a problem,
h. Recognise social responsibility and show naivety or have a less mature outlook on what society expects of him,
i. Understand the fine meaning and the contextual information of social communication,
j. Use all the information received and instead only use some of the information looking at an issue in a black and white way,
k. Understand his own emotions and others,
l. Accurately assess whether he can trust someone,
m. Have the social ability to form sexual relationships (despite having the same sexual interest as other 16-year-old boys)."
(4)(c)(ii)(2) Culpability
(4)(c)(ii)(3) Increased Hardship in Detention
(4)(d) Aggravating and Mitigating Factors: Reasons
(4)(e) Aggravating and Mitigating Factors: The Judge's Conclusion
(5) Summary