[2025] EWCA Crim 1461

Miss Wass relies upon five proposed grounds of appeal. In her oral submissions she refined them into two central submissions. She made it clear that the facts of the case are not in dispute and have never been, save that the applicant denied that he genuinely intended that these things would actually happen. The issue, as she put it, was about intention and the viability of what the applicant said he wanted to do. His chances of successfully committing any of the intended crimes were very limited. In those circumstances, she advances as her first central submission the contention that the notional determinate period (24 years after a trial) was manifestly excessive. She points out that none of this offending actually led to any physical assault, or physical harm to the victim. She identifies by way of illustration three levels of criminality in (as she would put it) descending order of seriousness. First of all, there is the completed offence (in this case rape, kidnap and murder). None of those completed offences occurred. Secondly, she would say, there is the category of offending classified as attempted offending – conduct which involves acts which are more than merely preparatory to the commission of those completed offences. That, she submits, is the second level of seriousness. Thirdly, and finally, she says that the lowest category of seriousness here is soliciting or encouraging others to offend.

In support of that distinction, Miss Wass relies on the decision of this court in R v Franks [2023] EWCA Crim 319; [2023] 2 Cr App R(S) 29. That was a case involving activity on the internet which was designed to recruit an accomplice who would murder the appellant's intended victim. No one was successfully recruited, and the intended victim was not in fact attacked. The sentencing judge at first instance concluded that the attempted murder guidelines could be used as a framework and a starting point. On appeal, this court held that "the guidelines for offences of attempted murder were not in point because, as the full court observed when granting leave to appeal, no attempt of any sort was ever made or was even feasible". The court then said that there were differences between offences of attempted murder and offences of soliciting murder which would govern how seriously the court would view them. The court said:

In Franks the sentencing judge had imposed a sentence of 12 years' imprisonment. The court concluded, following its analysis of the approach to the guideline and the decision in R v Hunter [2007] EWCA Crim 3424, that the term of 12 years had been manifestly excessive. They quashed it and substituted a term of six years' imprisonment in its place.

Miss Wass, it is fair to say, places that decision at the forefront of her submissions about the judge's approached to the determination of the sentence for the offending which was the basis of his calculation of the minimum terms. She submits that, having regard to the approach taken in Franks, the term adopted was far too long.

Her second central submission is that the judge should not have imposed a life sentence in this case. She does not submit that the judge was wrong to treat the applicant as a dangerous offender. However, she says that the life sentence should remain a sentence of last resort and that the judge should have considered an extended sentence and explained why such a sentence would have been inadequate, before moving to the conclusion that a life sentence was required. She makes the point that an extended sentence for offending of this kind could involve an extended period of licence of up to eight years, which would give the court and the Parole Board a substantial assurance that public safety could be protected.