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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Mills & Ors, R. v [2017] EWCA Crim 559 (07 March 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/559.html Cite as: [2017] EWCA Crim 559

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988

		Royal Courts of Justice Strand London, WC2A 2LL
		7 March 2017

1. THE VICE PRESIDENT: It is important for everyone to know where they stand today, and we shall therefore give an extempore judgment.

Background

2. The offenders, Imray, Mills and Lawrence, were charged on a seven-count indictment with a co-defendant, James Wheatley. Imray and Wheatley were jointly charged with murder; Imray was charged with a substantive offence of doing acts tending and intended to pervert the course of public justice; the three offenders and Wheatley were charged with conspiracy to pervert the course of justice; and all four were charged with individual offences of causing or allowing the death of a vulnerable adult contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004.
3. On 4 January 2016, the first day of the first trial, Wheatley pleaded guilty to the conspiracy charge, and Imray pleaded guilty to perverting the course of justice and conspiracy to pervert the course of justice. The first jury was discharged several weeks later. A retrial began on 4 October 2016. On 1 December, the offenders and Wheatley were convicted on all the outstanding charges, save that Imray was acquitted of murder.
4. On 2 December 2016, the trial judge sentenced them as follows: Wheatley was sentenced to life imprisonment with a minimum term of 23 years on the murder charge and 2 years' imprisonment ordered to run concurrently on the conspiracy; Imray to 3 years' imprisonment on the section 5 offence and 16 months' imprisonment on the perverting charges ordered to run concurrently; Julie Mills to 7 years' imprisonment on the section 5 offence and 12 months' imprisonment on the perverting charge ordered to run consecutively; Lawrence to 4 years' imprisonment on the section 5 offence and 2 years' imprisonment, ordered to run concurrently.
5. Her Majesty's Solicitor General, represented by Mr Cray, seeks the leave of the court to refer the sentences to us as unduly lenient. We give leave.

The facts

6. Lee Irving was 24 years old when he was killed. He suffered from a substantial learning disability. His IQ was assessed at about 56. He was in the bottom one percentile for intellectual capability. His vulnerability was described as "obvious", and he struggled with everyday life. Despite a loving and supportive family, he suffered a lifetime of physical, emotional and financial abuse.
7. In early 2014 he attached himself to the Mills family and began living with them at Studdon Walk in Kenton. Wheatley is Julie Mills' son and lived at home with her and his teenage sister. He had a reputation as an extremely violent man, prone to sudden acts of aggression. He was known to control those around him, particularly girlfriends. Lawrence was his latest girlfriend, who began seeing him in early May 2015. She did not live at the house but she was a regular visitor. She did not get on with Lee Irving. Barry Imray was Mills' lodger. He slept on the ground floor with the dogs. Lee Irving slept in Wheatley's bedroom.
8. Lawrence obtained Lee Irving's bank card in May 2015 from Mrs Irving (Lee's mother) to gain access to Lee Irving's benefit payments. With Wheatley, she opened online banking arrangements on Lee Irving's account and allegedly withdrew his benefits, not all of which were used for Lee Irving's living expenses.
9. Witnesses saw Wheatley hit Lee Irving many times. One assault was described as having sufficient force "to burst his nose". In addition, Mills gave Lee Irving antipsychotic medication that had been prescribed for her, and permitted him to take the drug Ritalin, which had been prescribed for Wheatley. She told a neighbour that Wheatley had given Irving cardiac medicine prescribed for a dog.
10. Wheatley's violence towards Lee Irving escalated over a period of eight days at the end of May 2015 and early June 2015. On 28 May 2015, Wheatley struck Lee about the head. At 10.01 am that day, Wheatley sent a text message to Lawrence informing her that he had "smashed" Lee Irving 'all over' because Lee Irving had urinated in his (Wheatley's) bed. In a further text message sent at 11.22 am, Wheatley informed Lawrence that he had given Lee Irving a broken nose, two black eyes and a cut on his eye. Later that evening, James Wheatley assaulted Lee Irving again probably by kicking and stamping.
11. The combined effect of the two assaults were 21 separate rib fractures, fractures of the nasal bones and a particularly serious injury to the soft tissues of the face. Bleeding at the rib fracture sites led to an accumulation of almost a litre of blood in the pleural cavity and a partially collapsed lung. Lee Irving would have been in severe pain and his breathing would have been significantly impaired. The degree of force necessary to have caused the fractures was likened by the pathologist to someone being in a car crash without wearing a seat belt.
12. Thereafter, Lee never left Studdon Walk. The offenders aware of the attacks and the potential consequences, made no attempt to summon medical help or to call Beverley Irving. On the contrary, they fed Lee various drugs, including morphine, paracetamol and diazepam, to keep him sedated, and when the police called on an unrelated matter Lawrence made sure he was kept upstairs out of sight.
13. On 28 May, Lawrence sent a text message to a friend which read "Fkn spacka here has been stamped all over". On 29 May, Lawrence took a photograph of Lee Irving's facial injuries on her mobile telephone. The photograph depicted Lee Irving in bed in Wheatley's bedroom lying on a bloodstained pillow, his face bleeding and injured. In another text message she mentioned that Lee Irving had asked her to ask Wheatley to stop bullying him. Julie Mills also took a photograph of Lee Irving's injuries depicting severe swelling to the left-hand side of his face.
14. Further text messages revealed that Mills, Lawrence and Wheatley planned to keep Lee in the property until his facial injuries had healed and then take him to Durham and leave him on the street. They then planned to destroy all the evidence of his presence at Studdon Walk, including blood staining in Wheatley's bedroom.
15. The final assault upon Lee Irving by Wheatley took place 12 to 36 hours before his death, during which he suffered a further three rib fractures, a bruised right lung and bruising to the spleen. The mechanism of injury was likely to have been kicking or stamping. Barry Imray was present in the property for most of the period between the mid-evening on Friday, 5 June during the final attack and until he died. Nicola Lawrence arrived on 5 June in the late afternoon. On the Friday evening, Imray was left alone in the house whilst the others went out. When they returned, Imray was instructed to move Lee Irving from Mills' bedroom to a downstairs room. When he did so, he became concerned about Lee Irving's state and raised the alarm with the others.
16. Examination of Lawrence's telephone revealed that between 7.25 pm on 5 June and 3.45 am on 6 June, she researched online possible explanations for Lee Irving's condition; for example, why someone's face should have turned yellow. By the early hours she was researching the symptoms of brain haemorrhage and an explanation of why a person's extremities may have become cold.
17. After Lee Irving's death, the offenders and James Wheatley devised a plan to conceal the fact that Lee Irving had ever been at Studdon Walk. His body was dressed and attempts made to clean up his blood. Bloodstained training shoes worn by Wheatley and telephones belonging to Wheatley, Mills and Lawrence were hidden in the garage. Drugs of the type that had been administered to Lee Irving prior to his death were put into a waste bin. The offenders and James Wheatley agreed that they would claim, if asked, that Lee Irving and Imray had not been in the property.
18. Imray was instructed to dispose of the body. At about 8 am on Saturday, 6 June, approximately four hours after Lee had died, Imray left Studdon Walk pushing a pram containing Lee Irving's body. He walked half a mile or so and put the body at the side of a public footpath. In the meantime, Mills left the house to go to the home of her other son. She told him that Lee was dead and that Imray had dumped his body.
19. Imray telephoned the emergency services to say he had just discovered the body. He was asked by the police officers where he lived. He gave the address at Studdon Walk. He was arrested on suspicion of murder.
20. Officers went to Studdon Walk. Wheatley and Lawrence claimed the only other person in the house during the relevant period was Mills. Mills returned home and provided a similar account. Lawrence was allowed to leave the house. She later informed her sister that Lee Irving had "died slowly". In interview she said she believed he had died as a result of the first assault. Barry Imray maintained his account that he had simply discovered the body and did not know the identity of the deceased man. However, he was caught on tape saying that he could not get the picture of Lee Irving's body lying in the house out of his mind.
21. Imray was the only offender to give evidence at trial, during which he implicated the other offenders.

Antecedents

22. Imray is 35. He has no relevant previous convictions. He has a significant learning difficulty or disability himself, and at trial gave evidence with the help of an intermediary. A doctor who examined him for the purposes of assessing his fitness to plead suggested that it would be advisable to admit him for in-patient assessment under section 35 of the Mental Health Act. The extent of his difficulties had not been resolved by the time of sentence.
23. Julie Mills is aged 52. She had several previous convictions, including matters of public order and assault. In June 2014 she was convicted of committing acts tending and intended to pervert the course of public justice by bribing a witness in a police investigation relating to another son to withdraw or modify their evidence.
24. Nicole Lawrence is aged 22. She has one previous conviction for an offence of assault occasioning actual bodily harm. In 2010, in company with several others, she attacked a young woman in the street. The victim fell to the ground. One of the attackers took her handbag. The rest of the group ran away, but Lawrence remained and kicked the complainant repeatedly whilst she was on the ground.

25. Victim Impact Statements

25. There were victim impact statements from Lee Irving's mother Beverley Irving, and from his father Paul Young. They set out the devastating impact that Lee's death has had upon them and upon other members of their family.

27. Aggravating factors

26. The following aggravating factors were present:

(i) 29. Lee Irving experienced prolonged suffering before he died.

(ii) His suffering must have been obvious to all.

(iii) The attacks were carried out at an address which had effectively become his home.

(iv) There had been cruel and exploitative treatment of him in the year before his death.

(v) His body was removed from the scene and dumped unceremoniously in the street.

27. In Mills' case, there were the additional aggravating features of her being the householder and mother of the perpetrator, her feeding Lee a cocktail of drugs and a recent previous conviction for perverting the course of justice. In Lawrence's case, she too had a relevant conviction and she played an active part in preventing the police see Lee's condition.
28. The judge could not be sure that either limb of section 146 of the Criminal Justice Act 2003 applied; in other words, he could not say that the offences were motivated by or demonstrated hostility towards Lee Irving based on his disability. On that basis, Mr Cray did not attempt to argue that it was an aggravating feature of the offence.

32. Mitigating factors

Mills

29. Mr Woodcock QC advanced the following mitigating factors on behalf of Mills:

(i) 34. There was no evidence that violence had been perpetrated in Mills' presence. Wheatley and Lee Irving spent most of the day in Wheatley's bedroom, and Mills was not a regular or welcome visitor to it.

(ii) There was no evidence that Mills was aware of the extent of Lee Irving's injuries. She stood to be sentenced on the basis that for a period of eight days she was indifferent to the obvious suffering of a member of her household where the risk was, or ought to have been, obvious.

(iii) For all Lee Irving's difficulties, he was not a child and he was not incapacitated.

(iv) There was no evidence that she was involved in any financial exploitation.

Imray

30. Mr Hill QC categorised Imray's offending as stemming from fear of Wheatley. Fear led to inaction on his part (his failure to seek help for Lee) and fear led to action on his part (his disposing of the body). He relied on the following specific factors:

(i) Imray had no relevant previous convictions.

(ii) He entered guilty pleas to counts 2 and 3 at what was for him the first reasonable opportunity.

(iii) He suffered from either a learning disability or a learning difficulty himself. He was described by various witnesses, including Lee Irving's mother, as having a similar level of vulnerability to Lee Irving. Lee Irving himself had expressed concern for Imray's safety in the Mills household. Text messages from Mills to Imray showed him being addressed in similar disparaging terms to those used about Lee Irving.

(iv) Imray's culpability was significantly diminished both by his learning difficulty/disability and by his role. Imray took far longer than the others to appreciate the seriousness of what was happening. He had very little contact with Lee Irving and would have had little understanding of how vulnerable he was. A combination of his learning difficulty, his fear of Wheatley and pressure would have made it more difficult for him to appreciate not only the seriousness of the situation but the urgency of the situation and the need to act upon it.

(v) Imray's difficulties were compounded by his experience in custody, where Wheatley orchestrated a campaign of violence and intimidation against him, designed to frame Imray for the murder and or to get Imray to confess to the murder.

(vi) Imray was not motivated by a desire to conceal Lee Irving's death, Wheatley's guilt or even his own guilt; his principal motivation was to do as he was told. As he put it in evidence, "You don't say no to James".

(vii) His attempt at covering up the death was spontaneous and in panic. He was not part of the plan until almost the end. It was a plan that was ill-conceived, badly executed and doomed to fail. Imray was so poor at lying to the police, his behaviour triggered the investigation as opposed to hindering it. There was in fact no prejudice or delay to it.

(viii) The judge had had the opportunity of seeing Imray in the witness box over a period of five days.

Lawrence

31. Mr Sutton QC advanced the following mitigating factors on behalf of Lawrence:

(i) 37. Her role was limited.

(ii) 38. She was aware of Wheatley's violence towards Lee Irving on 28 May but not of any earlier violence and was not a party to any cruelty.

(iii) 39. She was young, she was in thrall to Wheatley and she had only recently entered what was on any view an abusive household.

(iv) 40. The judge found that Wheatley intended to cause grievous bodily harm rather than to kill in which case Lawrence cannot have foreseen the risk of death.

(v) 41. Although she was callously indifferent to Lee Irving's suffering, had Lawrence succeeded in her plan to turn him out onto the street he would not have died.

(vi) 42. There was no evidence that she administered drugs to Lee Irving; on the contrary, her refusal to do so was said to be one of the reasons they did not get on and why she wanted him out of the house.

(vii) 43. The perverting the course of justice offence arose out of the section 5 offence and was an attempt to avoid responsibility for it. To that extent it was parasitic on the section 5 offence.

(viii) 44. Lawrence did not instigate the conspiracy. Her involvement in it was a panic reaction to events, she did not persist in her lies for long and they did not have much adverse impact upon the investigation.

Previous decisions

Offences under Section 5 of the Domestic Violence, Crime and Victims Act 2004

32. Counsel helpfully provided the court with a number of previous decisions in section 5 cases. However, they provide limited assistance, in that none of them purports to provide general guidance and each is very much fact-specific.
33. The most relevant decision is that of R v Ikram and Parveen [2008] EWCA Crim 586, in which Sir Igor Judge P, as he then was, at paragraph 67 observed:

"We repeat that section 5 of the Act created a new offence. It provides a route to conviction whenever the jury are unable to say which of two (or sometimes more) defendants, caused or allowed the death of a child or vulnerable adult. Even if the identity of the person responsible for the fatal injuries cannot be established, the possible range of culpability, both in relation to the circumstances in which death occurred and as between the different defendants, is very wide. The victim may have been killed in circumstances which amount to murder. Culpability for the death may also encompass all the levels of manslaughter, both at the higher and towards the lower end of the scale. In the present case for example, it is difficult to imagine the state of mind which impelled the deliberate forced fracturing of the left femur on the leg which had only recently been subjected to a fracture of the tibia which was less than an intention to cause really serious bodily harm. [...] Wherever the case may fall in terms of the culpability of the perpetrator, a conviction of the section 5 offence means that it has been established that the defendant who failed to protect the victim either appreciated or ought to have appreciated that there was a significant risk that the victim would endure serious harm at the hands of the ultimate perpetrator, in circumstances which that defendant foresaw or ought to have foreseen. Although section 5 of the 2004 Act created a new offence, its link with manslaughter is clear, and the general approach to sentencing in manslaughter cases provides useful assistance to the court considering the sentencing decision after conviction of the section 5 offence."

34. The appellant Ikram was the father of the 18-month-old child who died and Parveen his partner. It could not be established who had inflicted the fatal multiple injuries. A term of 9 years' imprisonment after trial for each offender was held to be severe but not excessive.
35. In R v Liu and Tan [2006] EWCA Crim 3321, Tan pleaded guilty to a section 5 offence; Liu pleaded guilty to manslaughter. The victim, Tan's wife, was a vulnerable adult. She had been brought to the United Kingdom and treated as a slave by him and by Liu, his mistress. The victim was kept in a filthy state, subjected to bullying and suffered serious injuries at the hands of Liu. She was eventually thrown out of the house on a freezing cold night, and died as a result of bleeding, shock and or hypothermia. Tan had stood "idly by" while his wife was assaulted and abused. Sentences of 6 years for Tan and 9 years on a plea for Liu were described as richly deserved.
36. In R v Jason Owen [2009] EWCA Crim 2259, Owen was the brother of one of the perpetrators of the killing. He moved into the house with his brother and partner five weeks before the death of the partner's 17-month-old child. The child suffered numerous injuries over time, inc`luding fractured ribs seven to ten days before death. Jason Owen knew that the child was suffering and told his brother and partner to take the child to hospital. They refused to do so and he did not press the point. It could not be established who was responsible for causing the injuries. All three were convicted of a section 5 offence. The mother received a sentence of 10 years, the brother 12 years, and Jason Owens 6 years. The sentence on Jason Owens was described by this court as in no way excessive.
37. In R v Khan, Naureen and Hussain [2009] EWCA Crim 2, a husband beat his wife, a vulnerable adult, to death. The appellants were all members of his family who lived at the same address and were convicted of allowing the death. Two of the appellants advanced powerful mitigation and sentences of 2 years' imprisonment imposed on them were upheld.
38. In R v Vestuto [2010] EWCA Crim 721 a mother obtained and administered adult antidepressant drugs to her two children over a period of time. One of them, aged 18 months, died. 16 years' imprisonment after trial for causing the child's death was described as in no way excessive.

52. Offences of Perverting the Course of Justice

39. We were taken to one decision in respect of the offence of perverting the course of justice namely R v Tunney [2006] EWCA Crim 2066; [2007] 1 Cr App R (S) 91. It is a decision of a two-judge court, and would not normally be cited. However, Stanley Burnton J (as he then was) giving the judgment of the court, helpfully and succinctly summarised the three factors to which the court should have regard: the seriousness of the substantive offence to which the perverting of the course of justice relates, the degree of persistence in the conduct, and the effect of the attempt to pervert the course of justice on the course of justice itself.

Conclusions

40. Causing or allowing a child or vulnerable adult to die is a serious offence, in some cases as serious an offence as the most serious offence of manslaughter. It is an offence that can be committed in a wide variety of circumstances and for the purposes of sentence, an offender's culpability must be assessed very carefully. This will involve an assessment of all the circumstances including the nature of the relationship between the offender and the victim and the nature of what Mr Cray called the breach of duty towards the victim. We were not persuaded that any greater emphasis should necessarily be placed on the nature of the relationship (as the offenders argued) or on the nature of the breach of duty (as Mr Cray argued). They may be both equally relevant.
41. We also reject the offenders' assertion that allowing a child or vulnerable adult to die is necessarily less culpable than causing a child or vulnerable adult to die. It will depend on all the circumstances.
42. We proceed on the basis that each of the offenders before us was convicted of allowing, rather than causing, Lee Irving's death. There is no evidence (or even suggestion) that any of the offenders was directly involved in causing the injuries that led to Lee Irving's death. However, they must all have been aware of his prolonged suffering and the seriousness of his condition and the conduct of at least two of them went beyond a mere failure to get help. Both Mills and Lawrence took active steps to prevent Lee Irving getting the medical attention he needed and that might have saved his life. They were callously indifferent to his suffering and thereby played a part in his death.
43. We also bear in mind the fact that the offenders had not sought or gone out of their way to accept responsibility for a vulnerable adult in the sense, for example, that a professional carer or family member may accept responsibility. However, as Mr Cray properly observed, Parliament has imposed a positive duty on members of a household to protect the vulnerable. The vulnerable, as is now acknowledged, includes not just children but vulnerable adults. Lee Irving was a particularly vulnerable adult.
44. After the final fatal attack on him, the offenders made plans to dispose of the evidence and to dispose of his body in a way that has caused Lee's family considerable additional pain. The offenders thought only of themselves, determined, as they were, to protect themselves and to protect Wheatley.
45. These were all factors the trial judge bore in mind when he conducted what was clearly a very careful sentencing exercise. We are in no way critical of his general approach. Our only concern, having had the benefit of greater research and the additional submissions of counsel, has been in relation to the final determination of the level of sentence.
46. Mills was the most culpable of the offenders before us in Lee Irving's death. She was head of the household. She knew her son was a violent bully. She was prepared to do anything to ensure he did not suffer the consequences of his savage attacks, whatever the consequences for Lee Irving. She sedated Lee Irving and took pictures of his injuries. She was the instigator of the conspiracy to cover up a murder, a serious offence that merited a substantial consecutive sentence. She had a previous conviction for perverting the course of justice to protect her child.
47. Given her level of culpability, although we reject Mr Cray's submission that she should have received a sentence close to the maximum sentence of 14 years for the section 5 offence, we are persuaded that the overall sentence of 8 years imposed on her was unduly lenient. We give leave to refer. We quash the sentence of 7 years on the section 5 offence and impose one of 8 years, we quash the sentence of 12 months on the conspiracy charge and impose one of 2 years to run consecutively making a sentence of 10 years in all.
48. Lawrence was young, 'in thrall' to her violent boyfriend and she was not living in the house on a full time basis. Her culpability was not as high as Mills' in either the section 5 or the conspiracy offence, but she played an active part in both. She was well aware of how Wheatley was treating Lee Irving and far from helping Lee, she prevented anyone finding out how bad his condition was. She too took pictures and sent appalling text messages about Lee Irving's suffering. In our judgment, the section 5 offence merited a sentence of at least 5 years' imprisonment and we would have expected the sentence for perverting the course of justice to be ordered to be served consecutively. Therefore, we give leave to refer, we quash the sentence of 4 years and substitute a sentence of 5 years' imprisonment on the section 5 offence. We order the sentence of 2 years' imprisonment to run consecutively, making a total of 7 years in all.
49. We turn finally to the sentence imposed on Imray. We did not find this straightforward. On the one hand, Imray did nothing to help Lee Irving, someone he had every cause to know was vulnerable, and he was responsible for the disposal of Lee Irving's body. On the other hand, he is a vulnerable adult himself; in other circumstances he could have been Wheatley's victim.
50. His difficulties go beyond simple learning difficulties: they may well amount to a learning disability. It is unfortunate, from this court's point of view, that the position was not resolved by the time of sentence, but the trial judge was able to form his own opinion. He had seen Imray give evidence. He was in a far better position than the members of this court to judge the extent of Imray's disability or difficulties and their impact on his culpability.
51. On any view, Imray's culpability for the section 5 offence was much lower than his co-accused. At first blush his culpability on the conspiracy charge would seem higher; however he was simply doing as he was told and he may not have fully appreciated the seriousness of what he was doing or the impact on Lee's family.
52. The trial judge aware of how Imray had been treated, both by the Mills/Wheatley household and in prison, decided that a total sentence of 3 years for his offending met the justice of his individual circumstances. Some may think the judge was over generous to him and we understand why the application to refer his sentence was made. However, Imray has now been released from prison after a very harrowing time. He has left the area where the offences were committed and despite his problems he is doing well. In all those circumstances, and with a degree of hesitation, we have come to the conclusion that, although the total sentence of 3 years was lenient, it was not unduly lenient.