Court of Appeal, Criminal Division

Published November 6, 2009

Attorney-General’s Reference (No 16 of 2009)

Regina v Yates

Before Lord Judge, Lord Chief Justice, Mrs Justice Rafferty
and Mr Justice Henriques

Judgment October 28, 2009

An offender who chose to be loyal to a gang member who had committed murder and assisted in impeding his apprehension had to expect a substantial prison sentence.

The Court of Appeal, Criminal Division, so held when granting an application by the Solicitor-General, on behalf of the Attorney-General under section 36 of the Criminal Justice Act 1988, for leave to refer as unduly lenient a total sentence imposed on James Yates, on January 29, 2009, by Mr Justice Irwin at Liverpool Crown Court of detention for seven years in a young offender institution, following his conviction of one offence of possessing a prohibited firearm, contrary to section 5(1) of the Firearms Act 1968, and concurrent prison terms of six years for two offences of assisting an offender, contrary to section 4(1) of the Criminal Law Act 1967.

Mr Simon Denison, QC, for the Solicitor-General; Mr Alaric Walmsley, solicitor, assigned by the Registrar of Criminal Appeals, for the offender.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the offender was a member of a gang of young men in Croxteth which had an intense criminal and territorial rivalry with another gang from neighbouring Norris Green.

In the early evening of August 22, 2007, Sean Mercer, aged 16, a member of the gang, fired three shots from a handgun at members of the Norris Green gang.

One of the shots hit and killed a boy, aged 11, who was walking home from football practice. The gun used by Mercer had been made available to him by the offender only minutes before the murder. Thereafter, with others, the offender assisted Mercer to conceal the gun, to dispose of his clothing and to wash away any possible evidence which might link Mercer with the murder.

That was a concerted attempt to pervert the course of justice and the police investigation was hampered by a climate of fear in the area.

On behalf of the Attorney-General, it was submitted that this was a case for consecutive rather than concurrent sentences.

Their Lordships did not intend to give detailed guidance on the sentences which would be appropriate for assisting an offender who had committed an offence but when assessing sentence in such cases the first question to be addressed was the nature and extent of the criminality of the offender for whom assistance was provided.

The second was the nature and extent of the assistance actually provided and the third was the extent to which the efforts at assisting the killer had damaged the interests of justice.

One of the problems in such a case was that some of those gangs included members who were, by any standard, young men. But when they joined those gangs they did so quite deliberately and they knew the potential and disastrous consequences of arming themselves with guns and ammunition.

The sentences in this type of case should normally be consecutive to the sentence imposed for any other offence. Taking into account the principle of totality the six-year prison sentence for assisting an offender would be ordered to run consecutively but would be reduced to five years on each count. The detention sentence would be increased from seven to 12 years.

Solicitors: Treasury Solicitor.

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