Neutral Citation Number: [2008] EWCA Crim 2936
Case No: 2008/02288 D1 & 2008/02550 A3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT ST ALBANS
HH Judge Findlay Baker QC
T20077198
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 05/12/2008
Before :

LORD JUSTICE THOMAS
MR JUSTICE SWEENEY
and
RECORDER OF CHESTER (SITTING AS A JUDGE IN THE COURT OF APPEAL CRIMINAL DIVISION
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Between :

	Regina	Respondent	
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	Kelly Elizabeth Sanchez	Appellant	
			
	REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988		
			
	ATTORNEY-GENERAL’S REFERENCE NO 24 OF 2008		

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Mr L French and Ms C O’Connor for the Appellant
Mrs A Evans and Mr P Shaw for the Respondent
Mr A Jafferjee, QC appeared on behalf of the Attorney General

Hearing date : 13 November 2008
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Judgment

Lord Justice Thomas : 
1.	On 26 August 2007 Mark Russell stabbed John Redhead to death at a petrol station in Potters Bar.  Although he accepted that he had inflicted the fatal wounds, he pleaded not guilty to murder on the basis that he acted in lawful self defence.  He was tried with Kelly Elizabeth Sanchez, who was charged with murder as an aider and abetter.  After a trial before His Honour Judge Baker QC and a jury, both Russell and Sanchez were convicted of murder on 26 March 2008.  Russell was sentenced to life imprisonment that day and a minimum term of 14 years less time on remand was specified.  Sanchez was not sentenced that day but subsequently sentenced to life imprisonment; a minimum term of 3 years less time on remand was specified.
2.	There is before the Court an application by Sanchez to appeal against her conviction and Her Majesty’s Attorney-General applies for permission to refer the sentence to this Court on the basis it is unduly lenient.
The background
3.	Sanchez was at the time 21 years of age.  She had been in a relationship with the deceased (a man 20 years her senior) for over a year when in early August 2007, about three weeks prior to the stabbing, she and the deceased broke up their relationship, though Sanchez maintained that they both still loved each other.  There was evidence that the relationship had been a stormy one and there had been previous break-ups.
4.	After the break-up in August 2007, Sanchez formed a relationship with Russell, a 31 year old, again a man older than her; in contradistinction to her relationship with the deceased, it was seen by both as short term.  According to the evidence given at the trial she was sexually attracted to him and she liked to indulge with him in taking cocaine; she had started on her drug habit at the age of 13.  After the break-up the deceased left the premises at which they lived and went to live with John Darling.
5.	In the period between the break-up and the killing, there was evidence from John Darling of telephone calls between the deceased, Russell and Sanchez.  An analysis of the texts sent by Sanchez to the deceased showed they were in many instances abusive of the deceased.
6.	In the early hours of 25 August the deceased sent texts to Sanchez stating he still loved her.  On the afternoon of Saturday, 25 August, Sanchez and the deceased met at the Green Man Public House in Potters Bar some time between 12.30 and about 2 or 3 p.m.  There was evidence that the deceased wanted to resume the relationship but there was an argument.  Sanchez then left.
7.	She stopped at the house of the mother of one of her friends.  The mother, Lisa McCarthy, gave evidence that she was told by Sanchez that the deceased and John Darling had insulted her; that Russell was going to beat the deceased up and she was going to stab John Darling with a screwdriver.  She then went to her father’s house and thereafter spent the rest of the afternoon with Russell.  They drank and took cocaine.  On the evening of that day the deceased sent Sanchez a text which stated, “If you love me come up to The Bridge”, a public house at which Darling worked as a doorman.
8.	At about 10.30 p.m. Sanchez arrived at The Bridge where the deceased had been since about 8.30 p.m.; John Darling was working as doorman.  Relations were calm between Sanchez and the deceased at first but the evidence was that she began to cry; she claimed that John Darling had abused her and the deceased had done nothing in her defence.  Sanchez went outside telling John Darling they were going to get him.  She was refused re-admittance to the public house and said, “We’ll be back”.  She told him that he was going to get it and drew her finger across her throat.  She telephoned Russell.
9.	The evidence was that about some 15 minutes later she returned in a car driven by Russell.  Russell’s evidence was that before picking up Sanchez Russell had picked up a kitchen knife with a 22 cm blade and taken it with him.  He claimed it was in the fly pocket of the baggy trousers he was wearing and it could not be seen because of the jacket he was wearing.  The prosecution case was that Sanchez must have seen the knife when she was in the car with him and the next hour she denied it.
10.	On reaching The Bridge, Russell threatened John Darling on that occasion from the car and they drove past several times; there was at least one further exchange of words.
11.	Between about 11.30 p.m. and 1 a.m. the following morning there was an extensive exchange of texts.
i)	The exchange between Russell and Sanchez was to the effect of asking her to bring the deceased and John Darling to Russell’s house for a fight.
ii)	As between the deceased and Russell the exchanges were abusive.  In one of the exchanges the deceased told Russell that Sanchez had been begging him to resume their relationship.
iii)	At 1 a.m. the deceased sent the applicant a text calling her a cunt.
12.	Shortly after 1 a.m. Sanchez and Russell drove to the location of John Darling’s house where Sanchez knew the deceased was living.  They arrived outside at 1.26 a.m.  This was picked up on CCTV cameras.    The CCTV stills showed both Sanchez and the appellant outside the car.  One of them showed Russell cradling something.
13.	At 1.46 a.m. the deceased and John Darling arrived in their car.  They had been told that Russell was waiting for them outside John Darling’s house.  When they arrived the deceased got out of the car.  There was a fight during which Russell stabbed the deceased, leaving a knife in his arm.  It was Russell’s evidence that the deceased had a gun, but by their verdict, the jury clearly disbelieved him.  There was evidence from John Darling that Sanchez shouted after the deceased had been stabbed by Russell, “Do him as well”, referring to John Darling.
14.	Russell did not do that.  He got into the car and they drove away.  At 2 a.m. Russell was arrested in the company of Sanchez.  He told her not to say anything.  At the police station she was tearful.  There was a conflict of evidence as to whether she said she saw Russell kill the deceased.  During her interview she made no comment and read a Harry Potter book.
The case against Sanchez 
15.	The Crown’s case against Sanchez was clear.
i)	She gave assistance to Russell in directing Russell to the place where he would find the deceased and John Darling.
ii)	It could be inferred that she encouraged him to kill the deceased from all her actions.
THE APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
The grounds
16.	There were six grounds on which there was an application for leave to appeal against conviction.
i)	There was insufficient evidence to leave the case to the jury.
ii)	The direction by the Judge to the jury was inadequate in relation to identifying the acts said to constitute aiding and abetting.
iii)	The direction on intoxication was inadequate.
iv)	The Judge did not give a proper direction in relation to the CCTV evidence and should have advised the jury to proceed with greater caution.
v)	There was an unacceptable break during the jury’s deliberations over the Easter holiday.
vi)	An amendment permitted late in the day to the indictment was prejudicial.
We will take each of those grounds briefly in turn.
Our conclusions on each of the grounds
17.	At the end of prosecution case there was a submission of no case to answer.  In a clear and full ruling, the Judge set out the 14 reasons as to why there was a case to answer.  In essence, apart from the evidence of John Darling, to which we have referred, there was, he concluded, a case based on powerful circumstantial evidence.  This comprised the nature of the relationship between the parties, the consumption by Sanchez and Russell of alcohol and cocaine, the events of the evening at and outside The Bridge, her seeking help from Russell, her accompanying Russell to the home of John Darling, an address which she knew, the wait at the petrol station near John Darling’s home, her presence during the attack, her remark in respect of John Darling and her conduct after the event.  In addition there was the clear inference from the size of the knife that she must have known Russell had it with him in the car.  In our view the Judge correctly identified the salient points of the evidence at the close of the prosecution case.  On the basis of that evidence there was a strong case against Sanchez; the fact that it was significantly based on circumstantial evidence did not in any way detract from its strength.  In our view the Judge was correct and there was a case to answer; this was not a case where there could be any doubt about that.
18.	In his direction to the jury, in our view, the Judge made clear to the jury the acts said to constitute aiding and abetting.  In a short and succinct passage the Judge said:
“It is said that Miss Sanchez gave assistance in directing Mr Russell to the place where he would find Mr Redhead and Mr Darling and you are invited to infer that she encouraged him in the act of murder as well.”
That was in essence the case of the Crown.  It was succinctly put.  There is no merit in the suggestion that the direction to the jury was inadequate.
19.	The Judge gave, as he was required to do on the basis of the evidence, a direction in regard to intoxication.  The direction was in standard form but tailored to the facts of the case.  There is no arguable ground in respect of that.
20.	We have already referred to the importance of CCTV evidence.  There were 9 “stills” abstracted from the CCTV camera at timed intervals.  It was taken not from a digital recording system but from a tape; the images were not as clear as modern digital systems.  However they clearly showed Sanchez outside in one still and Russell in a separate still cradling something.  It was suggested that the jury should have been particularly warned to have been careful about the images.  The Judge referred to the evidence in fair terms.  It was perfectly obvious to the jury that the images were not of the highest quality; it was unnecessary, in our judgment, to point that out to the jury as they were as well aware as anyone else of the quality of the images.
21.	There was a break of 6 days over Easter.  The jury retired at 3.58 p.m. on Tuesday, 18 March and had a retirement of approximately half an hour that evening.  They retired again on Wednesday, 19 March.  It became clear on the afternoon of that Wednesday that the jury were unlikely to reach agreement that afternoon.  At the close of the afternoon the Judge released the jury until Wednesday, 26 March; the break was necessary because of the public holiday for the Easter Weekend.  Before the jury resumed their deliberations on 26 March 2008 the Judge gave a very clear direction to the jury in relation to their ability to ask him to remind them of any part of the evidence or the directions.  The jury returned at 11.33 a.m. that same day and gave their verdicts.
22.	Matters of jury management are essentially a matter for the trial Judge.  The precise timing and length of a trial where a public holiday period intervenes is always difficult to manage.  In the circumstances we consider that the Judge did what was entirely reasonable in hearing the two speeches and summing up to the jury and giving them a day to consider the matter before the holiday period intervened.  There is no arguable ground in relation to his conduct.
23.	The last ground of appeal related to the form of the indictment.  What had happened surprised us.  The indictment as originally drafted contained two counts.  It contained a simple count of murder in respect of Russell and a count of “aiding and abetting murder contrary to common law and s.8 of the Accessories and Abetters Act 1861”.  That count was then amended prior to the commencement of the trial so that count 2 was a count of “murder contrary to common law” with the particulars of the offence being that Sanchez had aided and abetted Russell when Russell murdered the deceased.  A submission was made after the close of the Crown’s case that the amendment in this form was bad in law.  The Judge enquired why the indictment was not in the form of a single count.  The Crown applied to amend the indictment so that there was a single count charging murder at common law with the particulars being that Russell had murdered the deceased and that Sanchez had aided and abetted Russell in committing the offence.  An objection was taken that this would be prejudicial and should not be permitted.
24.	It is clear that throughout, not only in the previous versions of the indictment but in the way the case had been put before the jury, the Crown’s case was that Sanchez was an aider and abetter.  We can see no basis upon which it could possibly be argued there was any prejudice to Sanchez in amending the indictment in the way suggested.
25.	Each of the grounds put forward has no prospect of success whatsoever.  The summing up was characteristically clear, fair and full.  The conviction is safe.  We refuse leave to appeal.
REFERENCE BY THE ATTORNEY GENERAL
The Facts
26.	After the jury had returned their verdict on Wednesday, 26 March the Judge made clear that in the case of Sanchez he would ask for a pre-sentence report but would sentence Russell immediately.  He observed to counsel for Sanchez:
“Mr French, I think it may be of assistance both to you and your client if I indicate now that, having given some considerable consideration to my statutory obligations in relation to sentence, I am not minded to adopt any of the statutory starting points in this case.”
After counsel for Sanchez had expressed his extreme gratitude for that indication, the Judge proceeded to sentence Russell.  It is, we think, of importance to note that the first junior counsel for the Crown, Mrs Evans, was not present when the Judge made the remarks we have set out; the second junior counsel instructed in the case said nothing.
27.	A pre-sentence report was prepared.  It set out in considerable detail the background of Sanchez and her account of events.
28.	The matter came before the Judge for sentence on Friday, 18 April.  After short mitigation from counsel for Sanchez, the Judge proceeded to sentence.  He set out in very clear terms his findings.  They can be summarised as follows:
i)	Sanchez had had a long-standing relationship with the deceased, a man she had loved, and 20 years her senior; it had broken down; she had started a “fling” with Russell.
ii)	Although 21, she was emotionally extremely ill-equipped to deal with the changes in her life.
iii)	She rendered herself less able to deal with the problems by taking drink and Class A drugs on which she had a long-term dependency.
iv)	She gave some encouragement in the pub and elsewhere for Russell to hurt the deceased but the precise nature of that was unclear.
v)	She must have known that Russell had taken a large knife from his mother’s home.
vi)	She was not so far gone as a result of drink and drugs that she did not know that he had in mind at least to cause serious injury to the deceased.
vii)	She directed Russell to the flat where she knew Redhead would return and waited for his return; she must have been aware that that was an ambush.
viii)	She played no part in the killing and within a short time afterwards began to realise the enormity of what she had been involved in.
ix)	The Judge had no doubt that she deeply regretted the part she had played in causing the death of the deceased.  She would not have contemplated doing anything to help Russell if she had not been significantly under the influence of alcohol and drugs.  Russell was a malign evil influence upon her.
29.	The Judge then said:
“I have already indicated that I will not take the statutory starting point of the minimum term at 15 years.  The reasons for declining to adopt that starting point lie in the secondary role that you played and in the influence Mark Russell seems to have had upon you.  However it has to be said that playing any criminal part in the events that lead to the loss of someone’s life has to be taken seriously.”
He then imposed the sentence of life imprisonment with a specified term of 3 years, stating that it was the equivalent of a 6 year determinate sentence.
The provisions of the Criminal Justice Act 2003
30.	It is, we would observe, a matter for very significant regret that counsel for the Crown did not, at any time after the Judge had indicated that he was not going to take a statutory starting point, point out that that was a course that needed to be considered by reference to the Criminal Justice Act 2003.  The provisions are those in ss.269 and 270.  S.269(5) requires the court to have regard to the general principles set out in Schedule 21.  Under s.270 the court is under a duty to give reasons.  S.270(2) provides:
“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.”
The statutory starting points are set out in Schedule 21; paragraph 6 of the schedule provides that if the case does not fall within what are described as offences where the seriousness is exceptionally high or particularly high then the appropriate starting point in determining a minimum term is 15 years.  The statutory framework was recently reviewed in R v Height & Anderson [2008] EWCA Crim 2500, a court presided over by the Lord Chief Justice of England and Wales.  At paragraphs 27-30 the court set out the approach that should be adopted by a Judge.
The starting point
31.	It was the submission of Mr Jafferjee QC on behalf of Her Majesty’s Attorney General that the approach adopted by the learned Judge had been wrong.  The appropriate starting point in this case had been 15 years and the Judge should have started at that point.  The course the Judge adopted was not open to him.  In his submissions to us, Mr French, on behalf of Sanchez, accepted that submission and that the Judge had fallen into error.
32.	Mr Jafferjee QC contended that if the Judge had started at 15 years, then it would have been apparent to him that in comparison to the position of Russell, the minimum term of 3 years which he specified in relation to Sanchez was wholly disproportionate and did not take into account the proper operation of the statutory scheme.  He submitted that if the Judge had approached the matter correctly and in accordance with principle, the minimum could not have been less than a term in double figures.
33.	On behalf of Sanchez, Mr French submitted that the provisions of Schedule 21 did not deal with the position of a secondary party; a Judge was therefore entitled to approach the position of a secondary party in a flexible manner.  We cannot accept that submission.  It is quite clear, not the least from the judgment of this court in Height and Anderson, that the approach of a court to a sentence of life imprisonment for murder whether the offender is a principal or a secondary party is governed by the provisions of Schedule 21.  Furthermore the type of case where one person inflicts violence, with one or more than one encouraging or assisting him, is not these days uncommon.  Although the culpability of the secondary party may in many cases be less than the principal, the sentences must be viewed proportionately in the light of the policy of the law, that he who encourages the commission of a murder or assists with the commission is to be dealt with as a murderer.
The specified term
34.	In approaching the particular circumstances of this case we have taken into account what the Judge said in relation to Russell.  In respect of Russell he found that the killing was a pre-meditated act of aggression, an ambush leading to a vicious multiple stabbing in which he could see no lesser intention than an intention to kill.  He also considered that the motivation for the offence was sexual jealousy fuelled by alcohol and cocaine.  He then stated:
“I have adopted the statutory starting point of 15 years, being of the opinion that your case fits into that category.  I treat you as a man who has no relevant other convictions and no record of violence.  Although there was an element of pre-meditation in this case that is not inconsistent with there also being an element of impulsiveness.  The provocative texts sent by the deceased provides some but really little by way of mitigation.”
The Judge then specified a period of 14 years.
35.	The position of Sanchez was different on the basis of the Judge’s findings, to which we have referred.  However we would observe that although she had not realised that there was an intention to kill, but insofar as the Judge found that in the case of Russell there was an element of pre-meditation, this must also have applied to Sanchez.  A lesser specified term was clearly called for in her case but that term cannot have been less than 10 years.  No reduction can be made any longer for any element of double jeopardy (see s.36(3a) of the Criminal Justice Act 1988).  We appreciate that the term of 10 years is a low term, but it has to be fixed by us in relation to the minimum term imposed on Russell in respect of which there has been no reference.  The term cannot in these circumstances be viewed as guidance for any other case.  
36.	We therefore quash the specified minimum term of 3 years less time on remand and substitute a specified minimum term of 10 years, less time on remand.
Postscript
37.	It is self-evident that the effect on any young woman of the magnitude of the increase which we have had to make in this case has been profound.  No less has been the distress to the family of the deceased at the proceedings before this Court which have been rendered necessary.  There is now clear guidance to prosecutors as to the assistance to which a Judge is entitled in a case.  The Judge made clear his intended course.  Counsel for the Crown should have drawn to his attention the specific provisions of the 2003 Act.  If counsel for the Crown had done this, the Judge would have approached the matter, we have no doubt, in accordance with the statutory provisions and would not have imposed the specified term that he did.
38.	A report was published on 4 November 2008 by HM Crown Prosecution Service Inspectorate in respect of the guidelines given by the Attorney General in 2007 in relation to the prosecution role in sentencing when a plea was accepted.  It was pointed out that there was a low level of compliance with the guidance given.  The obligation of counsel for the prosecution to assist the judge in relation to his powers on sentencing have been made clear for a longer period.  This case illustrates a failure of compliance in the discharge of that duty.
39.	The course of events in this case is also a poignant reminder of the absolute necessity of counsel for the Crown discharging their duty in this respect and the wholly unnecessary distress this has caused to the family of the victim.