Report on Mandatory Sentences - Law Reform Commission

considers that the seriousness of the offence is “exceptionally high”, the starting point is a “whole life
tariff”. 45 This starting point may only apply in respect of an offender who was at least 21 years of age
when he or she committed the offence. 46
3.24 If the court considers that the seriousness of the offence is “particularly high”, the starting point is
30 years. 47 This starting point may only apply where the offender was at least 18 years of age when he
or she committed the offence. If the case does not fall within either of the preceding provisions,
paragraph 5A of Schedule 21 (discussed below in R v Kelly) provides that the starting point is 25 years if
the offender took a knife or other weapon to the scene intending to commit any offence (or to have it
available to use as a weapon) and then used that knife or other weapon in committing the murder. This
starting point only applies, however, where the offender was at least 18 years of age when he or she
committed the offence. 48 For every other case, where the offender was aged 18 years or over at the time
of the offence, the starting point is 15 years. 49 Where the offender is under 18 years of age, the starting
point is 12 years. 50 Schedule 21 also sets out the factors which tend to aggravate or mitigate the duration
of the minimum term. 51
3.25 Paragraph 5A of Schedule 21 of the 2003 Act was considered in R v Kelly, 52 in which the English
Court of Appeal heard 7 cases where all of the defendants had been convicted of murder involving a
knife. The primary issue in the cases was whether the offender “took the knife or other weapon to the
scene” within the meaning of paragraph 5A.
3.26 The defendants in the first three cases and the first defendant in the fourth case contended that
paragraph 5A should not have been applied. In the first case, K took a knife from the kitchen, went
upstairs to the bathroom and broke down the door to get to the victim. He then stabbed him. In the
second case, the victim banged on B’s front door and threatened him. B picked up two knives, went out
of the house and stabbed the victim who was standing on the pavement. S, the defendant in the third
case (the appeal), lived in a bedsit above a factory. He took a knife from the upstairs kitchen in his own
premises and went downstairs into the working area of the factory. He walked through an open door, a
distance of some 50 metres, and killed the victim. In the fourth case, to the knowledge of all, one knife
was taken to the scene by R and a second knife, which was also used, was taken by H from a kitchen
drawer and carried to where the victim lay in a bedroom, where he was killed. The Crown accepted that
the second knife had not been “taken to the scene”. H submitted that it was unfair to infer from the
evidence that he was party to a joint enterprise whereby someone else had brought the first knife to the
house and that taking a knife from one part of the house to the bedroom was not, of itself, sufficient to
bring the conduct within paragraph 5A.
3.27 The English Court of Appeal held that the seriousness of an offence falling within paragraph 5A
was “normally” marginally lower than “particularly high”. Paragraph 5A thus required flexibility of
approach. Schedule 21 did not create a stepped sentencing regime with fixed dividing lines between the
specified categories. Paragraphs 4(1) and 5(1) identified not the ultimate decision but the “appropriate
starting point”, and paragraphs 4(2) and 5(2) specified the cases of murder which would “normally,” but
not inevitably, trigger a finding of exceptional or particularly high seriousness. It was also plain from the
structure of paragraph 5A, particularly by reference to paragraph 5(2)(b) (“a murder involving the use of a
firearm or explosive”), that it was not the legislative intention that every murder involving the use of a knife
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Paragraph 4(1) of Schedule 21 of the Criminal Justice Act 2003.
Paragraph 4(1) of Schedule 21 of the Criminal Justice Act 2003.
Paragraph 5(1) of Schedule 21 of the Criminal Justice Act 2003.
Paragraph 5A(1) - Paragraph 5A(2) of Schedule 21 of the Criminal Justice Act 2003, inserted by the Criminal
Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2010.
Paragraph 6 of Schedule 21 of the Criminal Justice Act 2003.
Paragraph 7 of Schedule 21 of the Criminal Justice Act 2003.
Paragraph 8 to paragraph 11 of Schedule 21 of the Criminal Justice Act 2003.
R v Kelly [2011] 4 All ER 687.
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