Is a Ligature a “Knife or Other Weapon”? R v Morgan [2018] EWCA Crim 954;[2018] WLR (D) 177

Abstract

Keywords

Weapon ligature 25-year starting point Criminal Justice Act 2003 sch 21 para 5A

The Applicant was a married businessman and the victim worked as an escort. The Applicant not only paid for sexual intercourse with the victim but also bought her presents (including a car) and paid her household bills. After approximately three years, the relationship was ‘put on a more regular footing’. In exchange for the victim ceasing work as an escort altogether (thereby only having sexual intercourse with the Applicant), she would be paid approximately £7000 a month and would move into a house owned by the Applicant on a rent-free basis.

In November 2015, the victim’s former partner (and father of the victim’s daughter) hanged himself, which the victim took badly due to her own father dying in a similar fashion. As a result, the victim resorted to drink and drugs and blamed the Applicant for the possibility that her daughter might be taken into care by local social services. The victim subsequently commenced a relationship with another man. As a result of his concern about the victim’s behaviour, the Applicant installed a listening device into the house. Through this device, the Applicant learnt that the victim intended to leave him, that she had been lying about the possibility of social services taking her daughter into care, that she intended to obtain full ownership of the house, that she intended to start working as an escort again and also that she planned to continually exploit the Applicant financially through blackmail. The Applicant learnt that the victim had photographs and videos of her and the Applicant engaging in sexual acts in the house the Applicant shared with his wife and family which she intended to send to them.

As a result of what he learnt, the Applicant compiled a list of items required to kill the victim and to dispose of her body. The Applicant obtained bailing twine and prepared it as a ligature. The Applicant however also prepared for a revival of their relationship: he took out a £1 million life insurance policy upon himself with the victim as the sole beneficiary and bought her presents. On 12 January 2016, the Applicant attended the victim’s home, however no revival of the relationship took place as the victim continued to blame the Applicant for the potential loss of her daughter, she was not grateful for the presents and she blamed the Applicant for everything that had happened to her. The Applicant put the bailing twine ligature round her neck and pulled the ligature tight but then loosened it, he then repeated this. The Applicant tightened the ligature a third time until she was dead. The Applicant then hid the body of the victim. In due course, the Applicant was arrested and made a full confession of his actions.

The Applicant was convicted of murder, defences of loss of control and diminished responsibility having failed. The Applicant was sentenced to life imprisonment with a specified minimum term (under the Criminal Justice Act 2003, s 269) of 25 years. The Applicant sought permission to appeal against sentence, which was refused by the single judge. The Applicant renewed the application for permission to appeal to the Full Court.

In the Court of Appeal, the Applicant submitted that the judge was wrong in law to treat the ligature as a weapon triggering the provisions of the Criminal Justice Act 2003, sch 21, para 5A (at [21 & 26]; that bailing twine did not come within ‘or other weapon’ as it was not ejusdem generis with the expression ‘a knife’ (at [27]); and the judge was wrong to treat himself as being bound to take a starting point of 25 years by sch 21 (at [32]). Other grounds were advanced relating to premeditation (at [21 & 36]) and the balance of aggravating and mitigating factors (at [21 & 37]).

Held, in dismissing the renewed application for permission to appeal, that bailing twine prepared as a ligature is a weapon within the meaning of ‘knife or other weapon’ in para 5A(2) and that as para 5A was clear there was no need to invoke the ejusdem generis rule (at [47]).

Commentary

The sentencing of those convicted of murder has been an area of contention since the abolition of the death penalty (Murder (Abolition of Death Penalty) Act 1965, s 1). While the ‘sentence’ is in actuality the mandatory life sentence, it is accepted that such a sentence is composed of three parts: (1) the minimum term (or tariff) which meets the purposes of retribution and deterrence; (2) once the minimum term has been served (or expired), there is a period by which, if the Parole Board does not consider the offender suitable for release, they will serve until such time as the Parole Board does consider them suitable for release; and (3) there is a period following release whereby the offender is on licence for, in effect, the rest of their life. The most contentious of these three parts to the life sentence is the minimum term.

Prior to the judgment of the House of Lords in R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 and the enactment of the Criminal Justice Act 2003, the responsibility for setting the minimum term of how long a person convicted of murder must serve before being eligible for release on parole was the responsibility (and discretion) of the Home Secretary. Following the creation of the Parole Board in 1968, various Home Secretaries sought to give clarification on how they would exercise their discretion (notably in 1975 (Roy Jenkins), 1983 (Leon Brittan), 1987 (Douglas Hurd), 1993 (Michael Howard) and 1997 (Jack Straw)). The Home Secretary, however, took advice from the judiciary and would routinely accept such advice on the length of minimum term to be served in most cases, although not all. On 10 February 1997, Lord Bingham CJ wrote to judges who had to make recommendations as to minimum terms to give some guidance as to the approach to take. Lord Bingham CJ sought to achieve some consistency of approach in murder cases but not to bind trial judges. Whereas the trial judge had the benefit of hearing evidence and so on, the Lord Chief Justice would have an overall view of the entirety of murder cases. Lord Bingham CJ recommended to judges that a minimum term of 14 years was to be served for the ‘average’, ‘normal’ or ‘unexceptional’ murder and a minimum term of 30 years in very rare cases. Lord Bingham CJ also gave guidance on what he considered to be factors which would mitigate or aggravate the normal penalty. One such aggravating factor was the use of firearms or other dangerous weapons, whether carried for defensive or offensive reasons. Lord Bingham CJ’s approach was confirmed by his successor Lord Woolf CJ (see Practice Statement (Juveniles: Murder Tariff) [2000] 1 WLR 1655, 1656).

On 15 March 2002, the Sentencing Advisory Panel gave advice to the Court of Appeal on minimum terms in murder cases. Whereas previous guidance had suggested a ‘normal’ starting point of 14 years, the Panel recommended that a starting point of 12 years was appropriate. However, as minimum terms varied widely above and below the ‘normal’, the Panel suggested that starting points should be either a ‘lower’ (8–9 years in cases which come close to the borderline between murder and manslaughter), ‘middle’ (12 years in cases involving the killing of an adult victim between two people known to each other) or ‘higher’ (15–16 years in cases such as contract killings, multiple murders etc.). The Panel also gave advice on aggravating factors such as the use of a weapon and whether the offender armed themselves in advance. This advice was accepted by Lord Woolf CJ in Practice Statement (Crime: Life Sentences) [2002] 1 WLR 1789 and confirmed in Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870, 2906–2910.

Following the enactment of the Criminal Justice Act 2003, sch 21 with the imposition of three starting points (of 15 years, 30 years and whole life) and the transfer of sole responsibility of setting minimum terms to the trial judge, Lord Woolf CJ gave further guidance: Practice Direction (Crime: Mandatory Life Sentences) [2004] 1 WLR 1874. Lord Woolf CJ emphasised that the determination of a minimum term was to take a three-step approach of (1) determining the starting point; (2) adjustments made for the non-exhaustive aggravating and mitigating factors contained within sch 21 paras 10 and 11; and (3) credit given for time spent on remand. Aggravating factors in para 10, however, did not include the use of a weapon as the use of a firearm was a specific factor which would lead to a starting point of 30 years (sch 21 paras 5(2)(a); see also para 8 and R v Kelly [2011] EWCA Crim 1462; [2012] 1 WLR 55 at [11] (Judge CJ)). Further guidance was also given by Woolf CJ in R v Sullivan & Others [2004] EWCA Crim 1762; [2005] 1 Cr App R 3.

The new starting points enacted by sch 21 initiated a new approach for the determination of minimum terms. Prior to its enactment, the intentions behind a killing where of less relevance than the fact of killing. For example, the motive for killing a police officer was of less importance than the fact that a police officer had been killed, and it was this latter fact which drew a higher starting point. Schedule 21 amalgamated some of this former practice in its creation of a new approach which looked not only at motive or intentions but also at method. So, for example, the use of both a firearm and murder done for gain would give rise to a starting point of 30 years. The use of a firearm or weapon and so on had been considered only as aggravating factors that would suggest an increase of the starting point (see R v M [2009] EWCA Crim 2544; [2010] 2 Cr App R (S) 117 at [7] (Judge CJ)) rather than factors that would suggest a starting point of their own.

In November 2009, the Secretary of State for Justice (Jack Straw) announced that he intended to introduce a new 25-year starting point for murder involving a knife or other weapon carried to the scene with the intention of use as a weapon (HC Deb Vol. 499 Col. 155 10 November 2009). This change to sch 21 was introduced by the Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2010 (SI 2010/197). This Order inserted para 5A into sch 21:

(1) If – (a) the case does not fall within paragraph 4(1) or 5(1), (b) the offence falls within sub-paragraph (2), and (c) the offender was aged 18 or over when the offender committed the offence, the offence is normally to be regarded as sufficiently serious for the appropriate starting point, in determining the minimum term, to be 25 years.

(2) The offence falls within this sub-paragraph if the offender took a knife or other weapon to the scene intending to – (a) commit any offence, or (b) have it available to use as a weapon, and used that knife or other weapon in committing the murder.

The question for the Court of Appeal in the Applicant’s case was not whether a ligature was a weapon per se but rather whether a ligature fell within the confines of a ‘knife or other weapon’ in para 5A(2). To answer this question, the Applicant submitted that the intention of Parliament must be understood and that by application of the ejusdem generis rule ‘or other weapon’ must be interpreted by virtue of the preceding item, namely a knife. The Court of Appeal rejected these submissions (at [47]). Hallett LJ, giving the judgment of the Court, was in ‘no doubt that the applicant took a weapon with him to the scene within the terms of paragraph 5A(2)’ (at [47]). The ‘intended and only purpose’ of the bailing twine prepared as a ligature was to be used as a weapon (at [47]). So, while the Applicant submitted that the intention of Parliament in enacting para 5A was the punishment and deterrence of knife crime (at [28]), the Court rejected this and concluded that the words of para 5A were clear and that they were not limited to bladed articles (at [47]). Both conclusions were correct.

The Court of Appeal, given the clear words of para 5A, saw no need to resort to Hansard to assist with interpretation (at [48]). Such a review would, in my view, have weakened the Applicant’s case rather than strengthened it. For example, when the draft 2010 Order was considered in the House of Commons Delegated Legislation Committee, the Parliamentary Under-Secretary of State for Justice (Claire Ward) stated that:

…we consider that we should include any weapon carried to the scene, because although the current culture of carrying knives gives particular cause for concern, there should be no difference in the starting point if the weapon carried is a knife, screwdriver, baseball bat or any other weapon. Under the order, the word “weapon” has its ordinary meaning; it is not a term of art requiring a specific definition. (HC Fourth Delegated Legislation Committee 12 January 2010 cols 3–4)

Likewise, in the House of Lords, the Attorney-General (Baroness Scotland of Asthal) stated that:

While the focus has, rightly, been on the use of knives, we have included any weapon carried to the scene because there should be no difference in the starting point if the weapon carried is a knife, a screwdriver, a baseball bat or any other weapon. It is not the method of killing that is most important but the intention to carry and use any weapon to kill. (HL Deb Vol. 716 col 308GC 26 January 2010)

While the prevention of murders using a knife may have been the original purpose prompting the government to review the law (see the Explanatory Memorandum to the 2010 Order para 4.3), that original purpose was altered to include other weapons. The Parliamentary record therefore weakened the Applicant’s case, a baseball bat is not ejusdem generis with a knife but it is an ‘other weapon’. As do the precedents on para 5A. In R v Beckford [2014] EWCA Crim 1299; [2014] 2 Cr App R (S) 34, the Court concluded that the use of a car to knock the victim off his bike was a weapon within the meaning of para 5A and in R v Singer [2014] EWCA Crim 1322 the Court concluded that the use of a rolling pin was also weapon within para 5A.

There is a distinction between an item and an item which is intended to be used as a weapon, which was the point emphasised by the Attorney-General. The question to be asked by the court in a case in which they are considering whether a weapon (which is accepted to have been taken to the scene) engages para 5A is did the defendant intend to kill the victim with the use of that weapon? Did Morgan intend to kill the victim with the use of the ligature? If the answer is ‘yes’, para 5A applies and the starting point is 25 years. If the answer is ‘no’, para 5A does not apply and the starting point is 15 years (sch 21 para 6).

Andrew Beetham