Reynolds, R. v [2014] EWCA Crim 2205

[2014] EWCA Crim 2205Case Nos: 2014/00337/A7 &2014/01247/A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 31 st October 2014
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE WYN WILLIAMSMR JUSTICE SWEENEY
Between
ReginaRespondentJamie ReynoldsApplicant
ON APPEAL FROM THE CROWN COURT AT STAFFORD
MR JUSTICE WILKIE
ON APPEAL FROM THE CROWN COURT AT BRADFORDMR JUSTICE COULSON
Between
ReginaRespondentAnwar RosserApplicant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Michael Duck QC for applicant ReynoldsAli Naseem Bajwa QC and Vikki Kerly for applicant RosserRichard Whittam QC for Respondent in both appealsHearing Hearing date: 16 October 2014
Judgment

Lord Thomas of Cwmgiedd, CJ:

[1]In these two appeals, both applicants were sentenced to life imprisonment for murder. Each applicant had murdered a person under the age of 18; in the case of Reynolds it was accepted that the murder of the 17 year old girl had been carried out with a sexual and sadistic motivation; in the case of Rosser, it was accepted that the murder of the 4 year old boy had a sadistic motivation but it was denied it had a sexual motivation.[2]In each case, the judge had to consider whether a whole life order should be imposed under s.269 and Schedule 21 of the Criminal Justice Act 2003. Paragraph 4 (1) of the Schedule provides that the appropriate starting point where the seriousness of the offence is exceptionally high and the offender is over 21 is a whole life order. Cases normally falling within that category are described in paragraph 4(2) as including: (b) “The murder of a child involving abduction or sexual or sadistic motivation.” A child is defined as a person under 18.[3]Paragraph 10 of Schedule 21 sets out some of the aggravating circumstances the court is to consider; paragraph 11 sets out some of the mitigating factors. When determining whether a whole life order should be made the court does not take account of the need to protect the public against the future risk of offending.[4]In Attorney General’s Reference No 69 of 2013 (McLoughlin) [2014] EWCA Crim 188, this court set out the background to the 2003 Act in a challenge under the Human Rights Act 1998 to the scheme set out in the Act and associated legislation. It held that the scheme was consistent with the Convention and considered the cases before it. At paragraph 49 the court observed:
“A court must only impose a whole life order if the seriousness is exceptionally high and the requirements of just punishment and retribution make such an order the just penalty.”
At paragraph 59, the court concluded:
“These two cases are exceptional and rare cases of second murders committed by persons serving the custodial part of a life sentence….”
[5]Before turning to the circumstances of each case, it is necessary to refer briefly to the decisions of this court in R v Jones (Neil) [2005] EWCA Crim 3115, [2006] 2 Cr App R(S) 19 where this court (Lord Phillips CJ, Cresswell and Mackay JJ) heard four appeals together so that it could give assistance as to the application of Schedule 21 and to R v Oakes and others [2012] EWCA Crim 2435, [2013] 2 Cr App R (S) 22 where this court (Lord Judge CJ, Hallett, Hughes, Leveson and Rafferty LJJ) gave further assistance. Even though the assistance given in those decisions will be considered by a judge before determining whether a whole life order is required, we would simply emphasise four points. i) The guidance given in Schedule 21 is provided to assist the judge to determine the appropriate sentence. The judge must have regard to the guidance but each case will depend critically on its particular facts. See Jones at paragraph 6. ii) Where a whole life order is called for, often, perhaps usually, the case will not be on the borderline; the facts will leave the judge in no doubt that the defendant must be kept in prison for the rest of his life: see Jones at paragraph 10. iii) The court should consider the fact that the defendant has pleaded guilty to murder when deciding whether it is appropriate to order a whole life term: see Jones at paragraph 15. The Guideline of the Sentencing Guidelines Council which states (in its 2007 Revision) at paragraph 6.6.1 “Where a Court determines that there should be a whole life minimum term, there will be no reduction for a guilty plea”, must be read along with the observations in Jones. iv) The whole life order is reserved for the few exceptionally serious offences where, after reflecting on all the features of aggravation and mitigation, the judge is satisfied that the element of just punishment requires the imposition of a whole life order; see Oakes at paragraph 29.[6]We were referred to the decision of this court in Mullen [2008] EWCA Crim 592 and other cases. Those cases merely illustrate the application of the principles to the facts of a specific case. Such decisions are of no assistance in determining whether a whole life order is required. In each case the judge must determine by a detailed consideration of all the relevant circumstances whether such an order is required by the application of the statutory guidance set out in Schedule 21 and assistance on the guidance given by this court in decisions such as Jones and Oakes.[7]As detailed consideration of the circumstances is required, it is therefore regrettably necessary to set out the horrific circumstances of each of the murders, because only by an objective analysis of the circumstances can a judgment be made as to whether the requirements of just punishment necessitated a whole life order in each case. THE APPLICATION BY REYNOLDS The planning of the murder and its execution

THE APPLICATION BY REYNOLDS

[8]Reynolds, then aged 22, knew his parents were going to be away from the family home in Wellington, Shropshire during the week beginning Sunday 26 May 2013. In the preceding weeks, he sent messages to a number of girls he knew, inviting them to come to the house to participate in what he described as a photographic shoot. A few of the girls showed an interest but his primary interest was in Georgia Williams, a 17 year old school girl with red hair who lived with her parents nearby. That was because, following on from incidents with other girls to which we refer at paragraphs 23-27 below, he was carefully planning the sexually motivated and sadistic murder of Georgia.[9]That planning began no later than 27 January 2013 when Reynolds had started to write on his I-phone a story entitled: Georgia Williams in Surprise. He revised the piece several times, the last occasion being on 2 May 2013. In it he described how he convinced Georgia to come to his house wearing her red hair up in a ponytail and wearing red lipstick. He then described in pornographic terms how he had oral sex with her in the kitchen; how he blindfolded her, tied her hands and told her he had a surprise for her; how he took her upstairs to a position just beneath the loft; how he stood her on a box and slipped a noose around her neck; how when he removed the blindfold, she asked to be let down; how he then tightened the noose around her neck and told her that she was to dance for him; how, as he sexually assaulted her, he told her he liked his girls dead; how he then kicked the box away and again assaulted her sexually as she slowly died from strangulation; how he could not wait to have sex with her dead body. It was clearly his carefully planned intention to act out in reality a substantial part of this story. It is important to note that this was one of several stories he had written with a similar sadistic or pornographic theme.[10]From 27 January 2013 onwards, Reynolds began to tell Georgia in texts how he liked her and how he was interested in her. She had no interest in him. He feigned an interest in artistic photography and, in texts sent to her, he indicated to her that there would be a simulated hanging as an artistic scenario. Just before 26 May 2013 he sent her a text in which he said, “Fake hanging. Just want to double check to make sure you are cool with it because it is totally safe”. He indicated that she should wear red lipstick and her hair in a ponytail. He also took steps to obtain Georgia’s password to her telephone.[11]On 26 May 2013, Reynolds worked until 4.15 p.m. at the shop in Wellington where he had a part time job. He then went for a drink. He was described as being in good spirits. On his return home that evening he constructed a hanging mechanism – a red rope looped over an oar placed across the aperture to the loft. He photographed it and saved it to his computer. As later forensic examination showed, between 6.15 p.m. and 6.31 p.m., he accessed, from his collection of 72 videos and 16,800 images of extreme pornography, videos of partially clothed women being either strangled, their hands being tied behind their back, or hanged from a beam. Another video he accessed showed a man strangling a woman and then having sex with her dead body. He continued to send texts to Georgia about what she should wear; he also sent texts to other girls in case Georgia did not come.[12]When Georgia left home, she told her parents that she was going to see Reynolds whom they knew. She said she was going to model for some photography. She was wearing jeans, a T shirt and jacket.[13]After Georgia’s arrival at about 7.55 p.m. at Reynolds’s house, she changed at Reynolds’s request into a black leather jacket and shorts; Reynolds had bought a number of these and earlier made videos of himself masturbating over them. She then tied her hair back and put on red lipstick. A number of photographs taken by Reynolds showed her posing and smiling in the hallway and in the kitchen dressed in the leather jacket and shorts. There can be no doubt that Reynolds portrayed all of this as necessary for the photograph session. The next set of photographs Reynolds took were 4 minutes later. These showed Georgia standing on a box with the red rope around her neck. She was dressed in the same clothes, her hands were at her side and free. Another photograph 1 minute and 20 seconds later showed her hand held behind her back either with handcuffs he had purchased or cable ties. She was still smiling.[14]Reynolds murdered Georgia between 8.28 p.m. and 8.50 p.m. by pulling the loose end of the rope which was around her neck, forcing her onto her tiptoes and tying it to the banister. At that point the blood supply to her brain would have been compromised but this would not have killed her. Consequently, he applied further pressure to tighten the rope by putting his knee in her back and pulling down. At some point he probably kicked away the box Georgia had been standing on. He then watched her slowly die.[15]The pathologist’s report confirmed that the trauma to Georgia’s neck was far too great to be compatible with ordinary hanging. The marks were more typical of ligature strangulation. An expert in knots concluded that the noose was typical of a genuine hangman’s noose.[16]Over the two hours following her murder, Reynolds engaged in sexual activity with her dead body and photographed himself doing so in different rooms in the house, including on the bed in his parents’ room and in the kitchen. By the time he photographed Georgia’s body in the kitchen, she was completely naked as was he. It is clear from the forensic evidence that he had vaginal intercourse with her dead body and took photographs of sexual assaults that he made upon her dead body. Semen was found in her mouth, vagina and anus. Her underwear, some jewellery and her mobile phone have never been found. These had been hidden by him, together with the rope, the handcuffs and clothing he had purchased for her, as trophies for later use with the photographs he had taken. His objective was to derive further sexual and sadistic pleasure. Subsequent to his sentence, he stated he had stopped at a layby in North Wales and may have thrown items away. A police search found a bag concealed in a layby; it contained the rope used to kill Georgia, the clothes he had purchased for her to wear and the handcuffs. Her jewellery and mobile phone were not found. A further inquiry of Reynolds has provided no useful information.

The further deception of her parents

[17]After murdering Georgia, Reynolds had sent social media messages to other girls he had lined up to come to his home over the following days, putting them off from coming by giving explanations in relation to problems with his camera.[18]Just after midnight, having earlier discovered the password, he used Georgia’s telephone to send a message to her mother, “Ended up going out. Don’t know when I’ll be back”. He sent another message saying, “Phone is about to die too”. When her mother saw the messages the following morning, she enquired by text as to where Georgia was, who she was with and how she was getting home. Reynolds used her mobile telephone to reply, “Stayed with friends, I’ll see you tonight.” Georgia’s sister was also anxious and sent a message to Reynolds. Reynolds replied that Georgia had left the previous evening and suggested she had gone to meet some people.[19]On the morning of 27 May 2013 Reynolds’s sister went to the family house. She spoke to Reynolds and he appeared normal. She saw nothing untoward.

His disposal of the body

[20]By that time it appears from the subsequent investigation that Reynolds had already moved Georgia’s body into the back of his stepfather’s van. Later that morning he drove off in the van. He took with him her body, a sleeping bag and tent, his external hard drive with the photographs he had taken of Georgia alive and dead, videos of strangulation, hanging and sexual violation of dead women as well as some of the CDs which contained extreme pornography. He drove to North Wales, passing through the Nant-y-Garth Pass to Rhyl and then to Wrexham where he went to a cinema to see a film Georgia’s boyfriend had invited Georgia to see with him. After seeing the film, he drove towards Ruthin and back to the Nant-y-Garth Pass. There he drove up a track into an isolated wooded area. He could not get very far before the van got stuck. He then dragged her body from the van into the trees. He left her body, completely naked, lying in a stream.[21]On 28 May 2013, as there had been no word from Georgia, her parents contacted the police. An alert was put out for Reynolds. He was tracked to the Premier Inn in Glasgow. In the meantime the police in Shropshire had entered his home and found his IT equipment which gave an insight into what had happened. Georgia’s body was found the following Friday. It had been attacked by animals and insects.[22]When interviewed, Reynolds initially denied any knowledge of her whereabouts after her leaving his house on Sunday. As the police disclosed some of the evidence they had discovered in the intervening period, he claimed loss of memory. He then offered limited pieces of information. After Georgia’s body had been found he was asked if he accepted he was responsible for her death. He replied, “Even though I don’t remember it, it does certainly look that way. I hate myself for it. I don’t. I never wanted to hurt her”.

Similar conduct by Reynolds

[23]It is clear from what we have already set out that this was a carefully planned, sadistic and sexually motivated murder. That is confirmed by further evidence of other incidents involving Reynolds.[24]The first was in January 2008 when he was 17. He invited a 17 year old female with red hair to his house to take part in what he described as a media project when his parents were away. When she arrived, she declined his invitation to go upstairs or into the kitchen; he attacked her, grabbing her round the neck. She fought back and ran from the house. When she got home she checked her social media messages and saw he had sent her a message before she got to the house suggesting she wear black, knee-length boots. He apologised subsequently for what he had done. He said he had received counselling but he had relapsed. That was untrue. He was arrested and in interview minimised the whole episode. However, two weeks later Reynolds’s stepfather found images in Reynolds’s bedroom and handed them to the police. They were images of naked females being strangled and suffocated. There were also pictures of females with digitally added nooses round their necks. Reynolds was issued with a final warning by the police and required to undergo counselling. In a review of the medical notes relating to this incident, subsequently carried out by Professor Pickett, a consultant psychiatrist retained by the Crown after the murder of Georgia, the professor concluded that this incident was an attempt to control the victim with a view to a sexual or asphyxiation attack. Despite steps taken by Reynolds’s step-father, Reynolds continued to access extreme pornography.[25]The second incident was two years later in 2010. Reynolds began contacting a second female who also had red hair. He continued to pester her, but she refused to engage with him. When she confronted him in a car park in August 2011 and told him to his face to stop, he reacted violently by reversing at speed into her parked car. In one of the stories, to which we have referred at paragraph 9, Reynolds had written about her; he had an innocent picture of her to which he had added digitally a rope round her neck.[26]The third incident was in February 2013. Reynolds invited a third female with red hair to his house. His parents were away. Reynolds had photographs of this female to which he had added a rope around her neck, ties round her wrists and ankles and two images of penises ejaculating over her. He had given the image the title, “Hanging [the name of female 3]”. This female went to his house and when, at around midnight, she went to leave she found the doors locked. Reynolds claimed he had lost the key. He suggested she should stay the night but she refused. He pretended to search for the keys and found them after she had started to scream and climb out of the window. She got out and went home. Over the next four weeks Reynolds sent her messages apologising and saying he had only been joking. After she had left, Reynolds made a note to himself on his telephone which read, “Remove oar from loft. Cable ties out of drawer. Trousers back in wardrobe.” The note was clearly a reminder to replace the paraphernalia which he was subsequently to use to hang Georgia as we have set out at paragraphs 11 to 14. He wrote a story on 26 April 2013 about this female entitled “Taxi Strangler”.[27]The police investigation found pictures of other females with the digital addition of ropes round their necks or hanging from a gibbet or the subject of sexual images, together with stories of strangulation and sexual assault.[28]There can be no doubt on the facts of this case that a material factor in the criminality that led to the three incidents we have described and the sadistic murder of Georgia and the degradation inflicted on her body was the ready accessibility of extreme pornography of the type we have had to describe.

The psychiatric reports

[29]There were reports from two psychiatrists. i) Professor Pickett, who, as we have mentioned, had been retained by the Crown, concluded Reynolds did not meet any of the statutory criteria for a defence of diminished responsibility. He found that there was no evidence of significant or substantial mental illness; there was nothing to suggest that he had any symptoms of psychosis prior to his remand for the murder of Georgia. Violence during his early childhood had occurred but he had thereafter been well cared for by his natural mother and stepfather; his early upbringing did not account for his behaviour. He might have suffered a brief depressive reaction after being apprehended for the assault on the first female in 2008. He also concluded that he had necrophiliac propensities. His only explanation for Reynolds’s behaviour was that he wanted to hang a girl and have sex with her corpse to fulfil his longstanding necrophiliac fantasy. He concluded that Reynolds posed a grave risk to women and would continue to do so for the rest of his life. As he was intelligent, plausible and capable of learning new tactics and strategies, he clearly had the potential to progress to being a serial killer. ii) Dr Katina Anagnostakis, a consultant forensic psychiatrist retained by those acting on behalf of Reynolds, concluded that he had suffered from paraphilia for several years, at least since his mid-teens. Typical features of paraphilia include an individual experiencing recurrent, intense sexual urges and fantasies involving unusual activities or objects. She concluded that in Reynolds’s case he had an interest in violent, sadistic pornography, a propensity to access such material through a number of means, urges to enact some of his violent fantasies, a preoccupation with violent pornography and a lack of control over his propensity to act on it. Although there was no evidence that Reynolds had a psychotic illness at the time he murdered Georgia, he was experiencing high levels of psychosocial stress which heightened his sexual preoccupations; he suffered low mood.

Victim personal statements

[30]It is clear from the statement of Georgia’s father provided to the trial judge that Georgia had been part of a warm and loving family. At school she was a student mentor and counsellor and had become Head Girl. She was a corporal in the RAF Air Cadets and loved outdoor life. Her dream was to join the Air Force. He described how the actions of Reynolds had not only taken Georgia’s life but taken the life of her family as well. Her father said he was not ashamed to say that each day he cried endlessly. His wife cried herself to sleep each night and was violently woken by dreams and images of what had happened to Georgia.[31]It is clear from a further statement provided to this court that the family’s grief and suffering will never abate.

The course of the proceedings

[32]Reynolds was sent for trial on 1 June 2013. A trial was fixed for 9 December 2013; on 2 December 2013, a few days before, he pleaded guilty. Although the evidence we have set out showed that there was no conceivable defence to the act of killing Georgia, he did not even admit that. Georgia’s parents had to endure the prospect of a trial and the Crown had to prepare for trial. On 18 November 2013, Dr Katina Anagnostakis submitted her second report in which she said that there was insufficient evidence of psychotic illness or personality disorder. It was only after that report that it was indicated he would plead guilty.[33]The plea of guilty was taken before Wilkie J at the Crown Court at Stafford. On 19 December 2013 Wilkie J sentenced him to life imprisonment with a whole life order. The only issue before the judge had been whether a substantial minimum term with a 30 year starting point or a whole life order should have been imposed.[34]The judge concluded, after considering the detail of the circumstances of the offence which we have summarised, that the seriousness of the offence was exceptionally high and fell within paragraph 4(2)(b) of Schedule 21. There had been a significant degree of planning and premeditation. The method of murder was designed to give him sadistic and sexual pleasure. Meticulous preparations had been made. The victim was plainly vulnerable. Horrible mental and physical suffering had been inflicted before death; he had watched her suffer and die. He had violated the body after death; there had been concealment and dismemberment of the body. He had kept trophies. He concluded that this was not a marginal or borderline case.[35]The judge concluded that the only mitigation was the plea of guilty and the fact that Reynolds was only 22 years of age. The guilty plea counted for little given the overwhelming evidence, its lateness and the lack of any genuine remorse. His young age had to be taken into account, not only because the impact of a whole life term would be much greater, but the court had always to have regard to maturity, insight and understanding which might affect culpability. In his case his actions were not accounted for by immaturity but were in character, as he had been obsessed for at least five years with sexual violence against women, strangulation and sexual violation after death. The psychiatric reports provided no evidence that lowered his culpability.

The submission made on behalf of Reynolds

[36]Mr Michael Duck QC on behalf of Reynolds submitted to us that the judge had failed to take into account the reason for the lateness of the plea. It had been indicated at the pre-trial hearings that there were issues as to fitness to plead and diminished responsibility. Until both had been investigated, no plea could be made. As soon as the second report had been received from Dr Katina Anagnostakis, Reynolds had been seen in conference on 25 November 2013 and the Crown told that there would be no trial; he should therefore have received credit for an early guilty plea as it was proper to explore the possibility of a plea of diminished responsibility.[37]The judge had failed to give proper weight to the fact that Reynolds was 22 years of age and the fact that Georgia was 17 years old – only just a child within the statutory definition. Nor had the judge given sufficient weight to the evidence of the psychiatrists.

Our conclusion

[38]As we have explained at paragraphs 5 and 6, a trial judge must take into account all the circumstances of the case. We have no doubt that Wilkie J did. As to the mitigating factors, the judge rightly gave little weight to the guilty plea; Reynolds did not admit he committed the killing until a few days before the trial; the evidence was overwhelming and we can find nothing in the psychiatric evidence that in any way justifies the failure to admit the killing, even if the mental element needed investigation. He showed no remorse.[39]As to Reynolds’s young age, it was clear from the evidence we have set out that the determination to commit the kind of grotesque murder he carried out was of long standing; the planning for the murder was very careful, the suffering inflicted was indescribable and motivation both sadistic and sexual. There is no psychiatric evidence that in any way provides any exculpatory explanation. Where there is a difference between the psychiatrists, we prefer the evidence and clear analysis of Professor Pickett. Not only does it set out the lack of any exculpatory explanation, but clearly demonstrates that Reynolds was a clever, resourceful and manipulative man who was determined to carry out a murder for sadistic and sexual pleasure. The fact that Georgia was 17 years old was not a material consideration; Parliament provided that she was to be considered as a child. In any event, she was without doubt vulnerable to the premeditated plans of Reynolds, as one of the perverted sexual attractions was the closeness in age which facilitated the commission of the offence.[40]It is unnecessary for us to elaborate upon the aggravating factors – the long standing desire to commit such a crime, the detailed planning, the females he had in reserve, the way in which he watched Georgia slowly die, his degradation of her body by his sexual violation of it, the taking of trophies and the dumping of the body.[41]Quite apart from the future danger Reynolds poses (which is not a matter for the sentencing judge), the judge was plainly entitled to conclude, for the reasons we have given, that the only just punishment for the murder of Georgia was a whole life order. There is no basis on which it can properly be argued that a whole life order was not required. The application is refused. THE APPLICATION BY ROSSER The murder of Riley Turner

THE APPLICATION BY ROSSER

[42]On 19 January 2013 Rosser, then aged 32, after drinking in a pub in the Keighley area, went with two friends to visit Sharon Smith and her partner Guy Earwaker. They lived nearby with Sharon Smith’s son, Riley Turner, his twin brother and baby brother. Riley and his twin were four years of age. The friends left. Rosser asked if he could stay the night; he had known them for some months and they had helped him furnish his flat. He said that persons to whom he owed money were waiting outside. Although drunk he was coherent; he was able to walk and in control of his actions. They agreed to let him sleep on the sofa on the ground floor, as they took pity on him.[43]At about 1 a.m. Sharon Smith and her partner went to their bedroom, checking on Riley and his brother; each had his own bedroom. Their baby son was in their bedroom. At some time between 4 and 4.30 a.m. Sharon Smith woke to find Rosser was at the side of her bed, curled up in a ball with his head down. She woke her partner and told Rosser to get out. He asked for some tobacco, said he had been there for some time and was sorry. He went.[44]Almost immediately after, Sharon Smith asked her partner to check that Rosser was not in the bathroom as she needed to use it; her partner got up. As he left the bedroom he noticed on the floor the blade of an electric knife that he had been using earlier in the day in the kitchen. He saw the light was on in Riley’s bedroom. He went into the room and saw Riley covered in blood; shocked and unable to speak, he went back to the bedroom. Sharon Smith went into Riley’s room. She found Riley dead with his throat cut and multiple stab wounds to his body. His pyjama bottoms had been taken off.[45]As Sharon Smith had asked her partner to check the bathroom almost immediately after Rosser had left their bedroom, Rosser must have killed Riley before entering their bedroom.[46]Subsequent investigation and a post mortem examination showed that Riley had been fit and healthy at the time of the attack upon him. The findings in relation to his murder can be summarised as follows. i) Bruising of the skin on the chin and jaw and asphyxial features present in the eyes indicated that Rosser had placed his hands around Riley’s neck and strangled him. ii) There were 30 separate stab wounds to multiple parts of his body. 14 of these were to the neck, including a large stab wound to the centre of the neck which had penetrated deeply into the neck, severing the trachea. Two stab wounds penetrated deeply into that wound and partially severed the spine. There was an immediate and severe haemorrhage. iii) In addition there were five stab wounds to the back. There were a further five stab wounds to the chest and penetrating wounds to the chest wall; both lungs had been deeply penetrated. iv) There were six stab wounds to the abdomen; the knife had penetrated the anterior wall of the stomach. v) There was one stab wound to the left side of the boy’s scrotum through which the left testis was protruding. vi) Inside Riley’s rectum was a marker pen. Injuries to the rectum indicated that repeated rectal insertions by an object had been performed. These were associated with multiple penetrating injuries to the bowel wall with some significant haemorrhage into the adjacent tissues indicating that they were inflicted whilst the boy was still alive or near to the time of his death. vii) There was a bite mark on the outside of the upper left thigh; there was no doubt that during the attack Rosser had bitten Riley hard. viii) Analysis of the pair of pyjama bottoms showed they were stained with urine and blood. The expert view was that his pyjama bottoms were removed after they became wet with urine and after he had sustained at least some of his injuries. ix) A coat hanger was also found on Riley’s bed. This had on it faeces and blood from Riley; the expert view was the coat hanger had been inserted into the child’s anus to a substantial depth. x) The cause of death was manual strangulation with multiple stab wounds and incised wounds.[47]A brown handled knife used to stab Riley was found at the side of the bed in Sharon Smith and Guy Earwaker’s room. That knife had been taken by Rosser from a public house at which he had been working; the clear inference was that Rosser took the knife to the scene. It was not, however, the prosecution case that Rosser took it to the scene to attack one of the occupants; it could never be known whether that was his motive; however, the prosecution accepted that it was a realistic possibility that he carried the knife as a general part of the paranoia he was experiencing and expressing at the time. Two more knives were found in Sharon Smith and Guy Earwaker’s bedroom, a silver handled knife and a black handled knife in addition to the knife that Guy Earwaker had found earlier and the brown handled knife. It was apparent that after killing Riley, Rosser entered their bedroom with the four knives. It was clear from the whole of the forensic evidence that the knife Rosser used to kill Riley and inflict the other injuries was the brown handled knife he had brought with him to the house.

The apprehension of Rosser

[48]When they were in Riley’s bedroom the front door slammed; Rosser must have waited to listen to their distress. Guy Earwaker realised what Rosser had done and that he was leaving. He went after him but he got away. Later that morning he broke into a caravan where he was discovered. He responded, “I have ruined my life”. The police were called and he was arrested. He told the police, “I know I have done summat but I don’t know what. After what I have done I am a piece of shit”.

Basis of plea

[49]Rosser pleaded guilty on the basis that he had no recollection of killing the victim but accepted that the evidence proved he killed the victim and he must have done so unlawfully and with an intention to kill. His actions were unpremeditated. He did not accept there was a sexual motivation in any of the terrible things he did to the victim. He could not find the words to express the depth of his remorse or to frame an appropriate apology for what he had done and the loss he had caused. He was as sorry as it was possible to be and entirely accepting of the punishment the court had to impose.

The impact on Sharon Smith and Sharon Smith’s mother, Riley’s grandmother

[50]In the personal statements made by Sharon Smith and her mother each described utter shock and fear. Sharon Smith described how she had panic attacks when a man walked past or was behind her. She described the effect on Riley’s twin and the upset and anger that he felt. She felt guilty at having allowed Rosser to stay the night. Sharon Smith’s mother set out how the murder of Riley had ruined the family. She had lost faith and trust in anyone.

Previous convictions and psychiatric state

[51]Rosser was 33 years old at the time of the murder. He had a number of convictions for criminal damage, dishonesty, two minor offences of violence and driving offences, including the offences of driving with excess alcohol. In December 1996 he received a caution for assault occasioning actual bodily harm. In addition a complaint was made to the police that in or around 1996 Rosser attacked a boy at a party whilst he was asleep in a bedroom upstairs, smashing a trophy into his head and causing a laceration that required 14 stitches.[52]A number of psychiatric reports were before the court. These showed that at the age of nine, Rosser had been referred to Child and Family Mental Health Services after fire setting; a consultant psychiatrist recorded that he was an impulsive child who caused trouble if he was bored, as well as being deceitful and a persistent liar. Albeit the fire setting had not recurred, he had been bullying others at school. In July 2003 he was diagnosed with a depressive disorder and as suffering from alcohol dependency syndrome.[53]The psychiatric reports showed that Rosser was fit to plead and that there was no mental or other condition that gave rise to circumstances of diminished responsibility. The conclusion was that he suffered from a personality disorder, specifically an anti-social personality disorder; he was diagnosed as suffering from psychopathy. He had at the time of the killing of Riley an alcohol dependency syndrome.[54]Dr Kent, a psychiatrist instructed on behalf of the Crown, concluded that the murder had all the hallmarks of a sadistically motivated offence, perhaps linked to sadistic sexual fantasies and deep-seated sexual pathology not revealed by the perpetrator. He expressed the view that he presented a high risk of serious or grave harm to the public and would do so for the foreseeable future.

The decision of the judge

[55]Rosser was sent for trial on 22 January 2013; he pleaded guilty on 13 February 2014 at the Crown Court at Bradford before Coulson J. The very significant delay was brought about by the failures of the defence to provide their expert reports in accordance with the directions of the court. Coulson J was rightly critical of the delays which he was satisfied caused real and unacceptable suffering to Riley’s family. We will ask the Criminal Procedure Rule Committee to consider whether amendments to the Rules are required or what other steps should be taken to ensure that experts comply with the orders of the court so that unacceptable delays of the type experienced in this case are avoided.[56]The only issue before the court was whether a significant minimum term should be passed or whether the judge should impose a whole life order as the murder fell within paragraph 4(2)(b) of Schedule 21.[57]The judge concluded that there was a sadistic motivation from the catalogue of injuries and from Rosser’s conduct in going into the parents’ bedroom and in waiting downstairs after committing the murder, so he could hear the reaction of Riley’s mother and her partner when they found the body. In addition the murder had a strong sexual component and had been carried out in breach of trust as he had been allowed to stay the night. The judge concluded that it had been premeditated. Rosser had gone upstairs with four knives (including a knife he had stolen from the restaurant at which he worked) and at that time clearly intended to kill or cause really serious bodily harm.[58]None of the many experts suggested his antisocial personality disorder and psychopathy significantly reduced his criminal culpability or that his responsibility was in any way diminished. He knew full well what he was doing. His intoxication that night, even if triggered by the alcohol dependency syndrome, was self-induced; the evidence was that he was able to hold a rational conversation that evening.[59]The judge concluded that the aggravating factors significantly outweighed the mitigating factors of his personality disorder, his considerable remorse and his guilty plea. As to the guilty plea, the evidence against Rosser was irrefutable and could count for little. There was nothing in the material before the court that could or should lead the court to depart from the statutory starting point of a whole life order. He was in no doubt. The judge therefore imposed a whole life order.

The submissions made on behalf of Rosser

[60]It was first submitted that the judge had been wrong in his conclusion as to there being a sexual component as an aggravating factor. There was no DNA evidence relating to the commission of a sexual offence recovered from Riley or from the scene of the murder; there was no evidence of any inappropriate sexual materials being recovered from Rosser’s premises; Rosser had no convictions for sexual offences and he had not been charged with any sexual offences. It had been unfair for the judge to conclude that the murder involved a sexual component. The judge had also acted unfairly in concluding the murder was premeditated; the judge’s findings as to the bringing of the knives to the house was wrong; the Crown had not opened the case on that basis.[61]It was submitted that Rosser’s convictions were minor. The judge had been wrong to make no allowance for Rosser’s alcohol dependency syndrome. The intoxication had not been self-induced. The judge had not made a sufficient distinction between a mental condition that would allow a partial defence to murder and a mental condition that could be taken into account in assessing the culpability of Rosser. The Crown had accepted that the personality disorder played a major part, in combination with drink, in causing Rosser to kill Riley.[62]The judge had made no proper allowance for the remorse and guilty plea. The judge had not taken into account the fact that when a defendant had pleaded guilty to murder the court should take into account the plea in deciding whether it was appropriate to order a whole life term.

Our conclusion

[63]It was not and could not be disputed that the murder involved sadistic motivation. We cannot accept the argument that the judge was wrong in finding it also had a sexual component. Although Rosser did not commit sexual acts which would have resulted in his DNA being deposited on Riley, the conclusion that the murder was sexually motivated was well founded; Rosser inserted a metal coat hanger to a depth of 15 centimetres into Riley’s anus either before he died or shortly thereafter and left a marker pen in his anus; he cut into his testicles and left one exposed. These actions went beyond the sadistic infliction of the other injuries into the deliberate commission of acts that were sexually motivated.[64]Nor can we accept that the judge was wrong to find a degree of premeditation, though as the judge said, the murder was not long planned. Rosser went upstairs with four knives with the plain intention to kill. Nor can we accept that the judge was wrong in his view as to the significance of the violent offence in 1996 or of his past conduct which was characterised by violent behaviour after drink.[65]We accept that there may be cases where the fact that a plea of guilty has been tendered may be of relevance in determining whether just punishment requires a whole life order. In the circumstances of this case, it is of no relevance. As the judge rightly observed the evidence against him was irrefutable. There was, however, considerable remorse which the judge properly took into account.[66]The criticism of the judge in respect of the account he took of Rosser’s antisocial personality disorder and psychopathy is misplaced. The judge took it into account, but made clear that its extent should not be overstated as none of the experts suggested that the disorders significantly reduced culpability.[67]It is evident, in our view, that the judge took into account all the circumstances of the case; he was entitled to give to each of those circumstances the weight he gave them. This was plainly a murder of a young child that was sadistically and sexually motivated. The judge was entitled to conclude that the only just punishment for the murder of Riley was a whole life order. There is no basis on which it can properly be argued that a whole life order was wrongly imposed. The application is refused.

Cited in 3 later judgments