August’s Q & A with Jason Elliott

Q: I received a life sentence for killing my girlfriend. I suffer from schizophrenia and I had been drinking and smoking drugs when I killed her, so I have no memory of what happened. Why was I convicted of murder rather than manslaughter when my barristers told me that a life sentence wasn’t necessary? I loved my girlfriend and I miss her very much.

A: The sole issue at your trial was whether the psychotic episode leading to the killing was caused by you choosing to take drink and drugs or whether it was caused by your schizophrenia being made worse by your intoxication against a background of dependency syndrome. Where a person is suffering from an abnormality of mental functioning which arises from a recognised mental condition and it substantially impairs his ability to understand the nature of his conduct, to form a rational judgment or to exercise self-control and it provides an explanation for his acts, then he shouldn’t be convicted of murder (s. 2(1) Homicide Act 1957 as amended).

You were entitled to argue that the killing was a result of your schizophrenia, notwithstanding the fact that you had been drinking and had taken drugs.  The partial defence of diminished responsibility was available to you, provided the criteria listed in s. 2(1) were met. The recognised medical condition could be either schizophrenia or schizophrenia coupled with alcohol dependency syndrome. However, an abnormality of mental functioning arising solely through voluntary intoxication would not be enough to satisfy the test. The Court will be guided by medical evidence as to the degree of the underlying illness. In the absence of such medical evidence, if the jury didn’t believe that you were suffering from alcohol dependency syndrome, your defence of diminished responsibility would fail and you would be convicted of murder.  The Court recently considered these issues in R v Joyce & Kay [2017] EWCA Crim 647.

Once you had been convicted of murder, the Judge had no choice other than to impose a life sentence.

Q: My girlfriend has just told me that she’s been working as a prostitute to make ends meet while I’m away and that the police say she was blackmailing one of her clients. I’m gutted because we have a son together. What sort of sentence is she looking at?

A: In September 2016 the Court of Appeal considered whether a suspended sentence imposed on a prostitute who had repeatedly blackmailed an elderly client was unduly lenient. She had repeatedly demanded money from him, often backed by promises to repay the money. When those promises failed she threatened to tell the police that he had raped her if he didn’t give her money. In total she took somewhere in the region of £40,000. This amounted to more than his life sentences and left him heavily in debt.

The Court was referred to Collard [2003] 1 Cr App R (S) 98 where a total of £74,000 was demanded to prevent a false allegation of indecent assault.  A first instance sentence of 4 years had been increased to 8 years.

Similarly, in Graeme W [2008] 1 Cr App R (S) 92, a suspended sentence had been increased to a custodial term of 4 years.

The Court said that the appropriate custodial bracket for offences of this type was between 4 and at least 8 years. They quashed the sentence previously imposed and substituted a term of 5 years’ imprisonment.

Q: I pleaded guilty to committing an offence with intent to commit a sexual offence. Nothing sexual happened, but I was spoken to by the Probation Service about what my intentions were. I didn’t really know what I was supposed to tell them. Now I’m confused. Am I going to be sentenced for what I actually did or am I going to be sentenced for what I was thinking? I was caught before anything could happen and I really don’t know if I’d have gone ahead and committed a sexual offence, but I’m embarrassed about the whole thing and I couldn’t face a trial.

A: The Sentencing Council says that sentences for offences under s. 62(1) Sexual Offences Act 2003 “should be commensurate with that of the preliminary offence actually committed with an enhancement to reflect the intention to commit a sexual offence.” So if the primary offence is false imprisonment but it is done with a view to committing a sexual offence that never happens then the sentence should be more than it would be for false imprisonment but less than it should be for false imprisonment and the sexual offence if it had been carried out. The Court of Appeal recently applied this principle to reduce the custodial portion of an extended sentence from 12 years to 10 years; R v Newton [2017] EWCA Crim 874. The Court upheld the sentencing Judge’s decision that the appellant was dangerous and therefore left an extended licence of 8 years intact.

Back to News & Insights

Support Our Chosen Charity: Just4Children