[2025] EWCA Crim 1461

We have considered the proposed grounds of appeal with anxious care and we have concluded, in respectful disagreement with the single judge, that they are arguable. Accordingly, we will grant leave to appeal and we will grant a representation order for leading counsel to present them.

However, having granted leave for them to be argued, we have concluded that they are ultimately unpersuasive and we dismiss the appeal. We shall now explain shortly our reasoning for taking that course.

First of all, we should say something about the decision of this court in Franks, from which we have quoted extensively above. We do not consider that Franks should be read as meaning that all cases of soliciting murder, contrary to the Offences against the Person Act 1861, are less serious than all offences of attempted murder. That would be a misreading of that decision. The court itself pointed out that extensive planning and premeditation is almost always an element of offences of solicitation that may be entirely absent from many offences of attempted murder, which may involve conduct which arises on the spur of the moment. It is therefore easy to envisage how many offences of soliciting murder may be more serious than some offences of attempted murder. Indeed, looking at the broad category of offending of this kind, it may be difficult to identify any firm rules placing one set of offences as necessarily being more serious than another set of offences. By way of illustration, a case of soliciting to murder involves trying to persuade somebody else to commit the crime. The offender may solicit in a way which is persistent and persuasive; it may involve payment or other inducement for that person to carry out the crime; it may be very close to success. If the person who is solicited does indeed go on to commit the crime, the offender who encouraged that offence will be guilty of murder and liable to be punished by way of a mandatory life sentence with a minimum term fixed under Schedule 21 to the Sentencing Code.

What is necessary in assessing the seriousness of offending of this kind is a close analysis of the facts, of the intention of the offender, of what was planned, and the seriousness of what would have occurred had the offender succeeded.

In our judgment, the decision in Franks is not to be read as authority for the proposition that the attempted murder guideline has no part to play as a yardstick in sentencing cases which do not actually involve attempts but which do involve conduct which is at least as serious in the context of offences of this sort as if they did.

We therefore agree with the trial judge that it was appropriate for him to have regard to the guideline for attempted murder. He placed the case in category B2 of that guideline. That has a starting point of 25 years' custody and a range of 20 to 30 years. That is an assessment which cannot be criticised. The submission based on Franks is that it should not have been undertaken at all. We have rejected that submission. It is important to point out that that is a guideline which applies to single offences. Here there was a long period of time during which the applicant attempted to incite the offences of rape and kidnap, as well as murder. His attempt was not only to incite one potential accomplice. He incited one after another, after another, hoping to find one who would actually help him. In those circumstances there was good reason to consider aggravating the starting point for the offending. But it was necessary to have regard to what Miss Wass has described as the "viability" of the plans and what the judge called their "feasibility". Those are points which were properly taken into account in bringing about a result whereby the determinate sentence, had a life sentence not been imposed, was not pitched at 25 years, but at 24 years.

In our judgment, having regard to all the circumstances of the case, including in particular the appellant's previous convictions, that was an appropriate result. Accordingly, we reject the first main ground on which Miss Wass relies.

So far as the passing of the life sentence is concerned, we also reject the submission that it was necessary for the judge, as part of his reasoning, expressly to contemplate the imposition of an extended sentence and to explain why it would not meet the needs of the case. The statutory scheme is that the judge is first required to consider whether the offender was dangerous. He did that, and there is no criticism of his conclusion on that subject.

Next, the judge was required to consider the level of seriousness of the offending and to take a decision as to whether it justified a life sentence. He concluded that it did. That was a conclusion based on all the offences taken together and also a decision which had regard to the previous convictions.

Having arrived at that point, the statutory scheme requires the judge to impose a life sentence. Providing the judge's reasoning addresses those different stages of the process and arrives at sound conclusions in relation to them, then we do not consider that it was necessary for him to refer to any shortcomings that the extended sentence regime might have had. In any event, we would point out that this is a case where the appellant clearly is dangerous and where there is no way of knowing when or if ever that will cease to be the case. Under an extended determinate sentence, a time would come where the appellant would be entitled to be released, even if he were still dangerous. In the circumstances of this case, that is not an acceptable risk for the court to take with public safety.

Accordingly, adopting both the statutory scheme for dangerous offenders and also considering the basis on which discretionary life sentences are imposed for the protection of the public, we consider that the judge's conclusion in this case on this question was unimpeachable.

For those reasons, we also reject Miss Wass' second core submission and with that the appeal fails and is dismissed.