Criminal Briefing: R v Deeprose (and Papworth) [2024] EWCA Crim 1431

By Lee Fish

December 2024

It is often of critical importance, following a conviction for murder or attempted murder, whether a defendant is found to have taken a knife or other weapon to the scene intending it to be used in the commission of an offence or having it available for use as a weapon. This is an issue that will often be the focus of submissions at the sentencing stage as a finding adverse to a defendant will have a significant impact on the sentence. These cases can be finely balanced. In R v Deeprose (and Papworth) [2024] EWCA Crim 1431 the Court of Appeal was required to consider the circumstances in which a vehicle that has been driven to the scene can be found to be a weapon that has been taken to the scene.

Statutory Framework/Sentencing Guideline

Sections 321 and 322 of the Sentencing Act 2020 require a court when passing a life sentence to impose either a minimum term order or a whole life order. Schedule 21 of the Sentencing Act 2020 sets out the structured approach that court is required to follow when determining the minimum term. A whole life order is the starting point when the seriousness of the offence is “exceptionally high.” Examples of such cases include murder of multiple people, children, and police officers (Paragraph 2 of schedule 21.) 30 years is the appropriate starting point where the seriousness of the offence or combination of offences is “particularly high.” Examples of such cases include murder using a firearm or a murder involving sexual or sadistic conduct (Paragraph 3 of schedule 21.)

25 years is the starting point when it is found that “the offender took a knife or other weapon to the scene intending to—

(a) commit any offence, or

(b) have it available to use as a weapon,

and used that knife or other weapon in committing the murder” (Paragraph 4 of Schedule 21.)

Therefore, if a defendant is to avoid a starting point of at least 25 years in terms of the minimum term, whether they took a weapon to the scene will be a crucial issue.

Since July 2021, there has been a definitive guideline for sentencing of offences of attempted murder. The issue of whether an offender took a knife or weapon to the scene intending to commit any offence or have it available for use is a crucial factor in assessing culpability. A finding that a weapon was taken to the scene will result in a finding of “high culpability” with an elevated starting point.

Analysis

It was within this framework that the Court of Appeal was required to assess the circumstances in which a vehicle could be found to be a weapon that had been taken to the scene. The important starting point is that the sentencing framework is not restricted to knives. It includes any weapon, which can include a vehicle. It was submitted on the appellant’s behalf that driving a car did not accord with the natural or ordinary meaning of taking a weapon to the scene. It was further submitted that a vehicle would not be an offensive weapon contrary to section 1 of the Prevention of Crime Act 1953, therefore should fall outside the definition of taking a weapon to the scene.

The Court of Appeal rejected both arguments. They observed that the sentencing framework was not confined to knives or offensive weapons. There was no reason why it would not be open to a court to conclude that a vehicle was a weapon that had been taken to the scene. The court did, however, acknowledge that there may be fine distinctions between different situations. The court observed that the critical issue is that the vehicle is taken to the scene not just as a mode of transport, but with the intention of using it, or least having it available, as a weapon. The vehicle then must have been used as a weapon to commit the murder or attempted murder. This crucial issue will always be the offender’s intention at the time a car was driven to the scene.

The court provided some examples that would fall outside paragraph 4 of schedule 21. First, an offender who drives to a scene intending to commit a theft but once at the scene uses a car as a weapon would not have taken a weapon to the scene within the sentencing framework. Second, someone driving along a road who happens to see a person he is in dispute with, then runs that person over would not have taken the car to the scene as a weapon.

The court was keen to emphasise that every case will be fact specific. In other words, a trial judge will have to make a factual finding based on the evidence. In both the cases before the court, the court declined to interfere with the factual findings of the trial judge. This is almost always the case.

Conclusion

The Court of Appeal did not break any new ground with this judgment. A car is a potentially lethal weapon. The court, however, considered it appropriate to offer further guidance as to how a court should approach the sentencing exercise when a car is used as a weapon in committing an offence of murder or attempted murder. It appears that a court would have to be sure that there was premeditation, and that the car was driven to the scene to use as a weapon or at the very least having it available to be used as a weapon. It is essential considering the impact on sentence that the parties are aware of this possible factual finding and deploy whatever evidence they can to allow for an accurate factual finding. As all criminal practitioners will recognise, once a trial judge has made a factual finding and sentenced accordingly, it is almost impossible to challenge.

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