Neutral Citation Number: [2008] EWCA Crim 2500
Case No: 2008/00509 A7 (1)
2008/01403 A7(2)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM
HIS HONOUR JUDGE STOKES QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/10/2008
Before :

THE LORD CHIEF JUSTICE
LORD JUSTICE THOMAS
LORD JUSTICE LEVESON
MR JUSTICE OWEN
and
MR JUSTICE CHRISTOPHER CLARKE
- - - - - - - - - - - - - - - - - - - - -
Between :

	R		
	- and -		
	HEIGHT (1) AND ANDERSON (2)		
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Timothy Barnes QC for Height
Mr C Milligan for Anderson
Mr Greg Dickinson QC and Mr J Straw for the Prosecution
Hearing date : 7th October 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment

The Lord Chief Justice:
1.	Malcolm Anderson is 55 years old, and John Height is 38 years old.  On 30th April 2007, in the Crown Court at Nottingham, Anderson pleaded guilty to murder, and on 20th December 2007, before His Honour Judge Stokes QC and a jury, Height was convicted of the same murder.  The victim was Anderson’s 52 year old wife.
2.	On 21st December they were both sentenced to life imprisonment, in Height’s case, with a minimum specified term of 24 years (less days served on remand) and in Anderson’s case, with a minimum term of 22 years (again, less days spent on remand).
3.	Height appeals against sentence with leave of the full court.  Anderson’s application for leave to appeal against sentence and an extension of time was referred to the full court by the Registrar.  Anderson’s appeal is based on conventional grounds: in essence it is argued that the minimum term was manifestly excessive.  Height advances the same contention, but Mr Timothy Barnes QC on his behalf suggests that a more fundamental question is engaged.  Putting it briefly, the application of section 269 and schedule 21 of the Criminal Justice Act 2003 produced a result which was obviously unjust.  This result stemmed from what Judge Stokes himself described as the “almost arbitrary nature” of the “widely spread” starting points to which he was obliged to have regard under the statutory scheme.  If that conclusion was forced on the judge by virtue of the statutory provisions, his application of them was too rigid.
The Facts  
4.	 Anderson married his wife, Anita, in 1975.  They had two children who were, at the time of their mother’s death, mature adults.  Her widowed father lived in the vicinity and was visited regularly by his daughter.
5.	During 2006 Anderson began an affair with a colleague.  The affair was discovered by his wife.  The couple separated.  He continued to see his lover. However she ended the relationship and returned to her former boyfriend.  By the end of August 2006 Mr and Mrs Anderson resumed co-habitation in the matrimonial home.  Thereafter, Anderson resumed his affair with his former lover, while simultaneously telling his wife that he was committed to his future with her.  She believed him.  They arranged to go on a cruise in 2007, during which she thought that they would renew their wedding vows. Arrangements were made for a family Christmas.  
6.	In the meantime Anderson told his lover that he saw his future with her.  On 2nd December he told her, untruthfully, that he had spoken to his wife and children, and told them that he wished to be divorced and would move out of the matrimonial home to live with her.  Unknown to each other, he invited both women to go with him to the work’s Christmas party on Saturday 9th December.  Mrs Anderson was murdered on the night of 8th December 2006.
7.	Height ran his own business, carrying out maintenance and repair work on trailers for heavy goods vehicles.  The bulk of his business derived from Anderson, the transport manager at a haulage business, who for all practical purposes was his boss.  According to the account given by Anderson, during November 2006, he spoke to Height at his own place of work, and recalled telling him that he wished there was some way of getting rid of his wife.  Height suggested that this could be arranged, and that if Anderson wished to take the proposal any further, he should let him know.  Later that month they spoke again, and Anderson asked Height what he needed to do.  Height said that he knew people who could take care of it.  The price would be £20,000, to be paid “after the dust had settled”.  Height said that Anderson should give him the name and address and it would be sorted out.  Anderson provided the details, and Height went on to say that it would be made to look like suicide or an accident.  Anderson confirmed that his wife had talked about committing suicide in the past.
8.	Anderson stood to gain financially from his wife’s death, and Mr Barnes identified the potential sources of profit, including not least, a life insurance policy in the sum of £145,000.  The Crown’s case, however, was that Anderson’s motive, as Mr Greg Dickinson QC explained to Judge Stokes, “simply and wickedly, to be rid of his wife”.  From his point of view, any benefit consequent on her death would have been fortuitous. 
9.	On the afternoon of 8th December, again while at work, Anderson and Height spoke again.  According to Anderson Height gave him a sterile mobile telephone with instructions for its use. He told Anderson that he should contact him when he was ready to go ahead.  
10.	During the evening of 8th December, at Height’s suggestion, Anderson sought to make his wife drowsy by crushing two tablets and putting them in a drink for her to take.  As it happened she left most of that drink, and the tablets had no effect.  The two of them went to a public house in a nearby village for a meal.  They walked home hand in hand afterwards.  On their return Anderson telephoned Height using the mobile phone and said “ready when you are”.  Height said he would be there within an hour, and he set off to Anderson’s house.  
11.	At about 10.30pm Anderson returned to the kitchen at his home.  His wife was dozing on the settee.  He picked up a saucepan.  He struck her twice on the head with it in an attempt to render her unconscious.  The attack wounded her and caused her to bleed, but did not render her unconscious.  She cried out that she needed an ambulance.  Her head injuries were serious, but not life threatening.  He fetched a towel and wrapped it round her head, and told her he would take her to hospital.  
12.	Anderson did not drive his wife to hospital, but rather to the pre-arranged meeting place at Frampton Bank in Lincolnshire.  Height was waiting there in a van.  Anderson took his wife from their car, and led her to the rear of the van.  Height refused to take her away while she was conscious, and according to Anderson, he declined to attack her himself while she was awake, saying  “I need her unconscious, you will have to deliver the knock-out punch because I can’t.”  According to Anderson, Height offered him a knife and suggested that he cut his wife’s throat.  Anderson said that he could not do that while she was awake, and Height then handed him a hammer.  Anderson struck his wife repeated heavy blows on the head with it.  She fell to the ground, and he struck her head again, more than once.  All the breath seemed to come out of her body.  She stopped making any noise.  They thought she was dead.  With that she was placed in the back of Height’s van.  Anderson returned to his home.  He telephoned his lover, and spun a story to her about his wife deserting him.  He said she had packed a bag and driven away.  He invited her to go abroad with him, but she refused, but said that she wanted to go to the Christmas party with him.  
13.	In the meantime, Height, who was supposed to be disposing of Mrs Anderson’s body, discovered that she was alive.  He telephoned Anderson.  He told him that he could hear Mrs Anderson in the back of the van, shouting and banging.  Height would not kill her himself.  Anderson agreed to meet him near to the matrimonial home and he drove in his wife’s car to an isolated area across the Fens to the River Welland with Height following in convoy.  When they met, Height gave Anderson the knife he had shown him earlier.  They opened the back of the van.  Anderson removed his wife from it.  He pushed her down a steep bank.  She fell to the ground.  She said, “what’s going on, why are you trying to kill me?”  He straddled her and stabbed her some eight or nine times with the knife in the chest and stomach.  According to Anderson, Height at that stage said something like “go for the throat”, and whether Height in fact said so or not, Anderson cut his wife’s throat with the knife.  They believed that she was dead.  Together they dragged the body to the river.  As it entered the river she finally expired.  She was covered by Height with a tyre in an attempt at concealment.  Her body was found when it was spotted next morning by a passing fisherman, floating in the shallows of the river.  
14.	Together they set fire to Mrs Anderson’s car.  They went back to their place of work and there the van was put through a carwash, and cleaned.  Height then drove Anderson home.  
15.	Next day Anderson repeated to his family, and eventually the police, his untruthful story about Mrs Anderson driving away and deserting him.  He went to the Christmas Party on 9th December, accompanied by his lover.
16.	At post mortem, it was apparent that Mrs Anderson had suffered head injuries which were themselves life threatening, entirely consistent with repeated blows from a hammer, stab wounds to the front of her body and deep cuts to both sides of the neck.  The main blood vessels in both sides of the neck, the carotid arteries, the vertebral arteries and jugular vein were severed.  The pattern of injuries as a whole was entirely consistent with this narrative account of her sad death.
17.	On 10th December Anderson learned that his wife’s body had been found.  He drove to France.  He telephoned his lover and invited her to join him, but she refused.  On the following day he telephoned her to say that he was returning home to face the music.  He was arrested as he queued at the Euro Tunnel bound for England.  In his initial police interviews, Anderson admitted responsibility for his wife’s death, but sought to set out a defence of provocation.  Subsequently he pleaded guilty to murder and made a detailed witness statement in which admitted full responsibility for death of his wife and provided a full and detailed a full and detailed account of Height’s involvement in the murder.  He gave crucial evidence for the Crown against Height.  In the context of his assistance to the police pre-trial, and to the prosecution by way of giving evidence against Height, it was said by the senior investigating officer that Anderson’s assistance played a significant part in securing Height’s conviction for murder.  As we have explained, Height pleaded not guilty, but he was convicted by the jury.
Sentencing Observations
18.	Mr Barnes highlighted and relied on judge’s assessment of the characters and personality of both defendants, formed at the conclusion of the trial after he had seen both of them give evidence.  Judge Stokes recorded that Anderson had recruited Height by offering him a “not insubstantial sum” of money, that Anderson was more intelligent than Height and that “while the presence and active assistance of John Height was an undoubted factor in your proceeding with this wicked plan, I am quite certain that you, Malcolm Anderson, were the prime mover in all this”.  Later he said that, having heard both Height and Anderson giving evidence, he was satisfied that Anderson was the “real driving force” behind the killing, an observation which he later repeated.  He told Height that if he, like Anderson, had pleaded guilty he would have received the same sentence as Anderson.  
19.	When seeking to assist the judge, Mr Greg Dickinson QC, having pointed out that the Crown’s case against Anderson was that he wished to be rid of his wife rather than to make a financial gain, suggested that for him the starting point, under Schedule 21, was 15 rather than 30 years.  This led Judge Stokes to observe
“It does show, does it not, the somewhat arbitrary nature of these starting points; that he who does it for money has a starting point of 30 years and he who gets him to do it for money has a starting point of 15 years.”
20.	When, in accordance with his understanding of the statutory obligation, he identified the relevant starting points, Judge Stokes said that for Height the starting point would be 30 years “because this was a killing done simply in pursuit of financial gain”.  In Anderson’s case, in view of the submissions made to him, he would take a starting point at 15 years, although that would be substantially below the appropriate minimum period. Relating the judge’s assessment of the relative characters of the two defendants, and their respective involvements in this appalling crime, as a matter of elementary justice between defendants we must record our surprise that the starting point for the sentencing decision in Anderson’s case could be half the starting point for Height, and that the end result was that the minimum term to be served by Anderson was shorter than that imposed on Height.  We believe that any fair minded member of the public would share our surprise.
21.	This legislation has been considered in this court on numerous occasions, but as far as we can ascertain, this is the first occasion on which the statutory structure has required attention in the context of an apparent and surprising disparity on grounds other than age between two or more defendants convicted of participation in the same murder.  
Statutory Framework
22.	The basis for the sentencing decision was section 269 of the Criminal Justice Act 2003 which governs the determination of the minimum term in relation to a mandatory life sentence for murder.
Section 269(3) requires the court to take into account
“… (a) the seriousness of the offence, or the combination of the offence and any one or more offences associated with it…   ”
The sentence must be “appropriate” to reflect the seriousness of the instant offence.
23.	Section 269(5) requires the court making this determination to
“….have regard to
(a)	the general principles set out in Schedule 21, and
(b)	any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21”
24.	Section 270 requires the court to give the reasons for its decision.  That is unsurprising.  However in stating its reasons
“…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.”
25.	In short, when assessing the seriousness of the offence, the court is required to have regard to what the statute itself describes as the “general principles” to be found in schedule 21 while, at the same, publicly identifying the starting points in the Schedule which it has chosen for the purpose of assessing the appropriate minimum term.
26.	Schedule 21 provides:

      “4	(1) If-
(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and
(b) the offender was aged 21 or over when he committed the offence, the appropriate starting point is a whole life order.

(2) Cases that would normally fall within sub-paragraph (1) (a) include-

(a) the murder of two or more persons, where each murder involves any of the following-
(i)	a substantial degree of premeditation or planning,
(ii)	the abduction of the victim, or
(iii)	sexual or sadistic conduct,

(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,

(c) a murder done for the purpose of advancing a political, religious or ideological cause, or
(d) a murder by an offender previously convicted of murder.

      5	(1) If-
(a) the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one of more offence associated with it) is particularly high, and 

(b) the offender was aged 18 or over when he committed the   offence, the appropriate starting point, in determining the minimum term, is 30 years.

(2) Cases that (if not falling within paragraph 4 (1)) would normally fall within sub-paragraph (1)(a) include-
(a)	the murder of a police officer of prison officer in the course of 
      his duty,
(b)	 a murder involving the use of a firearm or explosive,
(c)	 a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),
(d)	 a murder intended to obstruct or interfere with the course of justice,
(e)	 a murder involving sexual or sadistic conduct,
(f)	 the murder of two or more persons,
(g)	 a murder that is racially or religiously aggravated or aggravated by sexual orientation, or
(h)	 a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.

      6	If the offender was aged 18 or over when he committed the offence and the case does not fall within paragraph 4(1) or 5(1), the appropriate starting point, in determining the minimum term, is 15 years.

      7	If the offender was aged under 18 when he committed the offence, the appropriate starting point, in determining the minimum term is 12 years.

            Aggravating and mitigating factors

      8	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.

      9	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.

      10	Aggravating factors (additional to those mentioned in paragraph 4(2) and 5(2) that may be relevant to the offence of murder include-
(a)	a significant degree of planning or premeditation,
(b)	the fact that the victim was particularly vulnerable because of age or disability,
(c)	mental or physical suffering inflicted on the victim before death,
(d)	the abuse of a position of trust,
(e)	the use of duress or threats against another person to facilitate the commission of the offence,
(f)	the fact that the victim was providing a public service or performing a public duty, and
(g)	concealment, destruction or dismemberment of the body.

      11	Mitigating factors that may be relevant to the offence of murder include- 
(a) an intention to cause serious bodily harm rather than to kill,
(b) lack of premeditation,
(c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c.11)), lowered his degree of culpability,
(d) the fact that the offender was provoked (for example, by prolonged stress) in a way not amounting to a defence of   provocation,
(e) the fact that the offender acted to any extent in self-defence,
(f) a belief by the offender that the murder was an act of mercy, and
(g) the age of the offender.”

27.	Taking it broadly, schedule 21 itself provides in paragraph 4 for the “whole life order” where the seriousness of the offence is “exceptionally high” and the offender aged 21 or over.  Paragraph 5 identifies cases of “particularly high” seriousness, where, subject to age considerations which do not arise here, the appropriate starting point would be 30 years.  Paragraph 6, read literally, and in isolation from the remaining parts of the schedule, may suggest that any case which falls outside the express criteria identified in paragraphs 4(2) and 5(2) should have a 15 year starting point.  
28.	This however is problematic.  Section 269 itself provides that schedule 21 reflects general principles.  The criteria which purport to identify those cases where the seriousness is “exceptionally high” or “particularly high” apply “normally”, but not invariably. They are not exhaustive of the cases which may fall into the “exceptionally high” or “particularly high” category, and they do not exclude the possibility that in some cases, probably rare, the seriousness may be such as to justify the “exceptionally high” or “particularly high” starting point, even when the express criteria “normally” required for this purpose are absent.  The same may indeed apply in reverse.   In the light of and having regard to the relevant criteria, as required by the legislation, the judge must decide whether the seriousness of the crime (and any associated offences) should be treated as exceptionally high or particularly high, or neither.  That will provide him with the appropriate starting point.  Thereafter the judge must – and it is a matter of obligation – identify the starting point he has chosen, his reasons for doing so, and, where appropriate, his reasons for departing from what would otherwise appear to be the normal starting point.  
29.	We have lost count of the number of times when this court has emphasised that these provisions are not intended to be applied inflexibly.  Indeed, in our judgment, an inflexible approach would be inconsistent with the terms of the statutory framework.  No scheme or guidance or statutory framework can be fully comprehensive, and any system of purported compartmentalisation or prescription has the potential to produce injustice.  Even when the approach to the sentencing decision is laid down in an apparently detailed, and on the face of it, intentionally comprehensive scheme, the sentencing judge must achieve a just result.     
30.	As we have observed, Height’s motive for involving himself was financial gain, whereas the prosecution accepted throughout, that although Anderson stood to benefit financially from his wife’s death, his primary motivation was simply to get rid of her.  The appropriate starting point in Height’s case, falling squarely within the express criteria, meant that the starting point should reflect the 30 year term appropriate for cases of a “particularly high” seriousness.  However we must say without apology that something must be wrong with the conclusion that the starting point for a man who wishes to have his wife murdered, and arranges and agrees to pay for it, should have a different starting point to the man he employs to carry out the killing, merely because no reference is made to this type of case in either paragraphs 4 or 5 of the schedule.  It is difficult to conceive of many cases in which one defendant, acting for gain, should be subject to a different starting point to the individual who paid or agreed to pay him, at any rate where, as here, Height asked for money which Anderson was only too willing to pay him.  The fact that the statutory framework omitted expressly to address this consideration did not preclude the sentencing judge from making the necessary judgment and deciding that the same starting point applied to both Anderson and to Height.    The potential absurdity in this particular case is highlighted by the fact that on the approach to the statutory framework adopted in this case, the different starting points were applied, even when, in the end, it was the husband and not his paid associate who actually carried out the killing.
31.	The understandable error into which Judge Stokes fell was that he loyally focussed on the specific criteria and overlooked that there would be cases which, because of all the aggravating circumstances, would nevertheless make the seriousness “particularly high” even if none of the express criteria applied to it.  Therefore, although Height’s financial motivation made a 30 year starting point appropriate, Anderson’s culpability, with all the many aggravating features which were its hallmark, should also have been regarded as a case of particularly high seriousness, and the same starting point adopted.  Thereafter, as the aggravating features taken as a whole had indeed taken Anderson’s case into the particularly high level of seriousness, there could  be no double counting of the aggravating features, and appropriate deductions would fall to be made for any mitigation.  
32.	Accordingly, in our judgment, the appropriate starting point for both Anderson and Height was 30 years: however it is examined this was an offence which fell into the particularly high level of seriousness.  Anderson’s sentence fell to be reduced because of his guilty plea and the assistance which contributed to Height’s conviction.  Although it was suggested on Anderson’s behalf that the judge, taking a 15 year starting point, had failed sufficiently to allow for the mitigation, he has no legitimate complaint at the assessment of his minimum term at 22 years.  It is true that Height lacked the mitigation open to Anderson, but it is equally clear, as Judge Stokes explained, that he was not the prime mover or the leader, and, although his participation in this murder was complete, his actions lacked the utter brutality displayed by Anderson to his wife and mother of his children.  His culpability was lower than Anderson, but given the purely pragmatic reasons for allowing a discount to Anderson for an early guilty plea and assistance to the prosecution, a fair balance between the various considerations would, for different reasons, produce the same minimum term for him.  We shall accordingly reduce the minimum term in Height’s case to 22 years.  We refuse Anderson’s application.  The life sentences on both, of course, remain in force.