R v Elijah Moussa Clark [2025] EWCA Crim 931

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[2025] EWCA Crim 931

Venue Royal Courts of Justice, Strand, London WC2A 2LL

Date Tuesday 1 July 2025

Before

LADY JUSTICE ANDREWS

MRS JUSTICE CUTTS

THE RECORDER OF NORWICH

(Her Honour Judge Alice Robinson)

Between

REXCrown

Between

ELIJAH MOUSSA CLARK

(The provisions of section 45A Youth Justice and Criminal Evidence Act applies.)

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Computer Aided Transcript of Epiq Europe Ltd,

Lower Ground, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_________

David Etherington KC and Robert Ward appeared for Applicant

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JUDGMENT

[1]An order was made on 12 April 2024 in the Crown Court pursuant to section 45A of the Youth Justice and Criminal Evidence Act 1999 relating to two young persons who were witnesses in these proceedings. That order provides that no matter relating to either of those individuals shall during their respective lifetimes be included in any publication if it is likely to lead members of the public to identify them as being a person concerned in the proceedings. No application has been made to this court to discharge that order and we confirm that it remains in force. For the avoidance of doubt, it applies to any report of the proceedings before this Court.

[2]This is a renewed application for leave to appeal against the sentence passed by Sweeting J following the applicant's conviction of manslaughter at Chelmsford Crown Court on 2 May 2025. Mr Etherington KC and Mr Ward, who represented the applicant at trial, have appeared today pro bono in the best traditions of the Bar. We are very grateful to both of them for their written submissions and to Mr Etherington for his attractive and focused oral submissions to us this morning.

[3]The victim, Andy Wood, was 16 years old, just a few days short of his 17th birthday. He and a 17-year-old friend (whom we shall call “C”) were involved in selling drugs, mainly cannabis. They would send out marketing texts for their business under the name 'Mr Deals' with a list of what they had to sell. The applicant (then aged 18, a few weeks short of his 19th birthday) received some of these marketing texts in February 2023. He too was involved in selling drugs in the area near his home in Chelmsford. He had never met Andy or C before. Late in the evening of Sunday 13 February 2023 he set up a meeting with them in order to purchase cannabis and cigarettes.

[4]The meeting, arranged in an exchange of text messages shortly beforehand, was to take place in a park in Chelmsford known to the youth of the town as Mudhills. There is a play area with some seating in one corner of the park and a small wooded area with trees and undergrowth. When all three had arrived in the Mudhills area, the applicant sent a text message to C's phone saying, "Go into the woods. I will meet you there."

[5]The wooded area is well away from the streetlights. On the night in question, it was very dark. The applicant went into the woods wearing dark clothing with a balaclava over his face. The other two youths met up with him there. Andy went in first. He was followed shortly afterwards by C. C gave evidence at trial that Andy was scrabbling around in the undergrowth for a couple of minutes before they both met up with the applicant, but nobody knows why he was doing it or what, if anything, was there.

[6]Shortly after the trio met, witnesses heard shouting and saw the applicant running from the scene. By this time, he was no longer wearing a face covering. Andy and his friend also ran off, but in a different direction. Andy did not get far. He had suffered a penetrating wound to the neck which had partially severed his jugular vein and subclavian artery. He collapsed on the pavement outside the park. Although passers-by tried to help, there was nothing they could do. Andy was pronounced dead shortly after his arrival at hospital.

[7]C had also suffered a cutting injury to his hand. This was of a defensive nature. C's evidence was that the applicant had tried to slash at his neck and he suffered the injury trying to protect himself.

[8]The prosecution case was that the applicant had set up the meeting not in order to purchase drugs but to rob the sellers and/or to warn them off dealing drugs in his area. The applicant accepted causing the wounds to both victims using a large knife, but he claimed that he had done so in self-defence. That was the version of events that he had maintained ever since he was first remanded into custody.

[9]There were only two living persons who knew what happened in the woods that night - the applicant and C - and each accused the other of starting the incident by trying to rob them.

[10]One of the issues at trial was whether the knife which caused the fatal injury, and also the injury to C, had been brought to the scene by the applicant, or whether (as he claimed) it had been brought there by C whom he had disarmed in the course of the altercation in the woods. The applicant took the knife away with him when he fled the scene. He told the jury that he had disposed of it on his way home by dropping it down a drain.

[11]It was accepted by the prosecution that Andy had been carrying a small lock-knife that evening which was found on the pavement next to where he fell. That knife, though small, was capable of inflicting a deep and potentially fatal wound. Although the knife was in the open position when it was discovered, there was no finding that Andy had used it and no forensic evidence to suggest that it was responsible for a small puncture wound that the applicant had sustained to his front torso.

[12]The applicant was acquitted of murder but convicted of manslaughter. He was also convicted of assaulting C occasioning actual bodily harm. He was acquitted of having a bladed article in public. That meant that the jury could not be sure that he had brought a knife to the scene. That is a point on which Mr Etherington laid considerable importance.

[13]The judge sentenced on a basis which was consistent with that verdict, namely that the applicant had not gone to the meeting in order to rob the deceased and his friends of drugs and cigarettes or to warn them off, but that however the fight had started, the applicant had come into possession of a large knife. The jury rejected the applicant's claim that he was acting in lawful self-defence, and therefore he knowingly inflicted harm with an intention to do so that fell just short of an intent to inflict really serious bodily harm.

[14]It is clear from his sentencing remarks that the judge accepted that it was possible that the applicant may have started out defending himself, but as the prosecution put it in the Respondent's Notice, "gone well over the top." He said:

"The conditions under which you met – late at night, in the dark, and mutually suspicious of each other – lent themselves to the possibility that one or other of you would misread the situation. The fact that you were dressed in dark clothing, with a balaclava, may have generated additional unease on the part of those that you were meeting. All of you were young men, within a few years of each other in age, with all that that implies in relation to the potential for impulsive behaviour and bad decision making, but however it was that the fight started, your actions went beyond self-defence and involved knowingly inflicting harm on Andy and [C] with a large bladed weapon."

[15]The judge passed custodial sentences of 13 years for the offence of manslaughter and 18 months for the assault which he directed to run concurrently. As the offences were committed at a time when the applicant was subject to a suspended sentence order, the judge activated 2 months (half) of the suspended sentence and directed that sentence to run concurrently with the others.

[16]The applicant was aged 20 at the time of conviction and sentence, and therefore the sentences should all have been sentences of detention in a young offender institution. However, by a slip of the tongue, the judge in his sentencing remarks stated that the sentence was one of imprisonment. The imposition of a sentence of imprisonment on a person aged under 21 is prohibited by section 227 of the Sentencing Act 2020. The Crown Court record sheet correctly records the sentences for the indicted offences as ‘detention in a young offender institution’ but the concurrent sentence for breach of the suspended sentence order is recorded as ‘imprisonment’. We will consider how to deal with the technical errors after examining the merits of the grounds of appeal which relate to the sentence for manslaughter.

[17]As both prosecution and defence have acknowledged, manslaughter is a difficult crime to sentence even with the assistance of the guidelines. It is highly fact specific. In this case, the judge had the considerable advantage of presiding over the trial. He was therefore in the best position to evaluate the factual basis on which to sentence and to assess the weight to attach to the various factors which he identified as relevant to the determination of the final tariff.

[18]The judge placed the manslaughter offence into culpability category B within the guidelines because it involved stabbing a large knife towards Andy's neck, which carried with it a high risk of causing death or serious injury which should have been obvious to the applicant. The starting point was therefore one of 12 years' custody with a range of 8 to 16 years. Mr Etherington rightly does not take any issue with that. The prosecution pointed out that there were factors capable of taking the offence up into categorya. A. The judge identified them, but he was not persuaded that these were enough to take the case beyond category

b. B. There is and can be no quarrel with the judge putting this offence into category B and taking the starting point in that category, for the reasons that he gave.

[19]The judge identified a number of aggravating features, making it plain that he had taken care not to double count. Those included the age of the victim; the fact that he was physically smaller than the applicant; the sustained nature of the attack as shown by the number of injuries sustained by Andy despite the short time over which the incident occurred; the use of a weapon; the disposal of the knife after the offence; the fact that the offending occurred in a public place; and the fact that the offence was committed whilst the applicant was subject to a suspended sentence order for carrying a bladed article.

[20]In terms of mitigation, the judge paid careful attention to the applicant's age and immaturity, with specific reference to the observations of this court in R v ZA [2023] 2 Cr App R (S). He also took into account the applicant's troubled background, the lack of previous offending of this nature or seriousness, and a letter from the applicant expressing remorse. He expressly considered the impact of the applicant's youth and immaturity on the prospects of his rehabilitation. He referred to the evidence that supported the view that there was a realistic prospect of rehabilitation in his case. He made it clear that he had the principle of totality in mind, and that the overall criminality was reflected in the sentence passed in respect of the offence of manslaughter. The offence of causing actual bodily harm was therefore encapsulated in the overall tariff.

[21]The pre-sentence report was of limited value, as the judge recognised, since the author had misunderstood how the evidence emerged at trial.

[22]Having balanced the aggravating and mitigating factors and taken the overall criminality into account, the judge reached the figure of 13 years, which was comfortably within the range in the guideline.

[23]On behalf of the applicant Mr Etherington contends that the judge placed too much weight on the aggravating features and too little weight on the mitigating features. That is a very difficult submission to sustain at the best of times. In a case like this, however eloquently expressed, it could be regarded as ambitious.

[24]The aggravating features identified by the judge were capable of outweighing the mitigating features. The Crown were right, in our judgment, to point to the disposal of the knife as a highly aggravating feature in the circumstances of this case. We are unpersuaded by the submissions made in the Advice and Grounds that the fact that this was not sophisticated concealment, and that the alternative course of taking the knife home was equally unpalatable, make that factor less powerful. Even though the judge sentenced on the basis that the applicant did not take the knife to the scene, if that knife had been found it would have been important evidence supporting or undermining his claim that it had been brought to the scene by C, and quite apart from any forensic examination that might have had a bearing on that issue, efforts would no doubt have been made to discover where it came from.

[25]However, as the single judge rightly pointed out when refusing leave, because the overall criminality was being reflected in the sentence passed for the manslaughter in accordance with the Totality guideline, the assault and the breach of the suspended sentence order in themselves justified making an uplift from the starting point, even if the aggravating and mitigating factors counterbalanced each other.

[26]It is possible that another judge might have passed a longer or a shorter sentence, but there is no obvious error in the trial judge's approach, and 13 years for offending of this nature cannot be described as manifestly excessive. Accordingly, we refuse this renewed application for leave.

[27]We have pointed out that the sentence of imprisonment passed at the Crown Court was unlawful due to a technical defect in the pronouncement. However, in accordance with the approach in R v Stocker

[2013] EWCA Crim 1993

;

(2014) 1 Cr App R 18

, there is no need for us to allow an appeal on the basis of a purely technical defect. We will simply direct that the Crown Court record be amended to reflect that all the sentences passed were sentences of detention in a young offender institution. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk