Riot at your peril: Manslaughter sentences revisited?

Is it time for the Court of Appeal to revisit manslaughter sentences after Jogee? In Lord Hughes’s Supreme Court judgment in that case [2016 2 W.L.R. 681] the mental element for a secondary party to murder was raised from foresight to intent. Less commented upon was the Court’s accompanying decision about criminal liability for a fatality during public disorder when the secondary accused [“D2”] did not know, typically, that the principal had a knife. Before Jogee such an accused would be guilty of affray, violent disorder or whatever but not of any form of homicide. No longer; D2’s “intention to assist in a crime of violence is not determined only by whether he knows what kind of weapon D1 has in his possession. The tendency which has developed .......to focus on what D2 knew of what weapon D1 was carrying can and should give way to an examination of whether D2 intended to assist in the crime charged” [98].

 

From now on defendants who are part of large fights will stand to be convicted of manslaughter if one of their group kills; what the Supreme Court gives with one hand it takes with the other. Yet the sentences suggested by the Court of Appeal in “manslaughter by stabbing” cases all proceed on the basis that the offender was either the knifeman or knew such a weapon was being carried [Bishop (2012) 1 Cr. App. R. (S.) 60 or Odegbune and Others (2013) EWCA Crim 711 to take two examples]. This could change; Lord Justice Gross gave leave to appeal sentence in recent days in a case in which the appellant pleaded to manslaughter on the basis he only became aware the principal was armed with a knife after the mass violence had begun yet the sentencing judge took a starting point of about 15 years, at the top of the knife-wielding manslaughter range.  The Court of Appeal now has the chance to reconsider the proper sentence range in these less culpable manslaughter cases. Might this be a rare example of the Court intervening to lower a range of sentences? We can but hope.

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