R v Marcus Jermaine Osborne

The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offence of rape in this case. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

Further, by virtue of an injunction imposed by Lambert J (the judge) on 29 February 2024 under the inherent jurisdiction of the court, publication or broadcasting before 26 October 2040 of the following matters is prohibited:

In the early hours of the morning of 15 May 2023, the applicant (then aged 34) stabbed his former partner, Ms Katie Higton (then aged 27), to death in the front hall of the house that he used to share with her in Huddersfield. He then used Ms Higton's mobile phone to lure her friend, Steven Harnett (then aged 25) to the house. Upon Mr Harnett's arrival, the applicant stabbed him to death as well. At the time there were four children upstairs in bed. Another female, "V", was also present, having been held captive at knifepoint awaiting Ms Higton's return. After killing Ms Higton and Mr Harnett, the applicant went upstairs to ensure that V did not raise the alarm or escape with the children. Later that morning, he raped V at knifepoint.

Following the applicant's guilty pleas, the judge sentenced the applicant to life imprisonment for the two murders, with whole life orders. She imposed concurrent sentences of ten years' imprisonment on each count of false imprisonment and rape.

The applicant now seeks leave to appeal against sentence, his application having been referred to the full court by the Registrar. We have had the benefit of clear oral submissions from Mr Elvidge KC for the applicant and from Mr Sandiford KC for the respondent.

The facts are distressing, but it is necessary to set them out in detail.

The applicant and Ms Higton were in a relationship for approximately five years. The relationship had been positive to begin with, but after approximately two years, the applicant started to become verbally abusive towards Ms Higton and the family. He began to control what Ms Higton wore and what she did. If things were not done exactly as he wished, he became verbally abusive. The verbal abuse quickly turned to physical abuse. The physical abuse became more frequent and less predictable over time.

On 28 April 2023, the applicant assaulted Ms Higton following an altercation about a child. The applicant hit her around the head, pushed her to the ground and kicked her about the ribs. The attack continued upstairs where he punched her about the head and the face. She spent a few days in bed, unable to move. By 2 May she was well enough to leave the house, and she moved in with a relative.

Ms Higton then changed her Facebook status to single. She declined a large number of messages and phone calls from the applicant. On 10 May, the applicant exchanged Snapchat messages with Ms Higton in which she said that she did not wish to see him. He responded by saying that if he found out that she was even messaging anyone else "I will end you fully".

At 1.15 pm on the same day, Ms Higton went to the police station in Huddersfield to make a complaint about the applicant. Arrangements were made for a police officer to visit her early the following morning. Later that day Ms Higton called the police to say that the applicant had contacted her and had threatened to slit the throats of her and other members of the family. When she saw the police officer the following morning, she reported the history as set out above. She said that she did not believe that the applicant would hurt other family members. She did believe, however, that if she did not go back to him, the applicant would seek her out and seriously hurt or kill her. In her statement at the time she said: "He has said that if I ever get another boyfriend he will kill us both".

On 12 May, the applicant was arrested and interviewed on suspicion of domestic violence and coercive and controlling behaviour. He was released on bail on condition not to attend the house in Huddersfield. Ms Higton therefore moved back into her home.

Over the course of the next two days the applicant kept watch on the house. He suspected that she was forming a new relationship with Mr Harnett. He used one of his neighbours to find out if Ms Higton was in or out. During the day of 14 May he was in the street watching the house or spending time with neighbours. In the evening he was hanging around the street, looking towards the house.

At 9.30 pm Ms Higton left the house by taxi to go the cinema with Mr Harnett, leaving V at home caring for four children. Shortly after midnight the applicant took a taxi from his home and made his way to the house, entering by means of an insecure door on the side of the house.

At some point after midnight V became aware of a figure at the door of the bedroom in which she was lying. She saw the outline of a knife and immediately knew that it was the applicant. She challenged him and told him to get out. He struck her with such force that she fell onto the wardrobe, hit her head and was knocked unconscious. When she came round, the applicant was pacing the room. V's telephone rang. It was Ms Higton. The applicant held a knife to V's neck and insisted that she tell Ms Higton to come home. He then took all of the mobile telephones in the house so that V could not summon help.

When Ms Higton arrived home, the applicant ran downstairs, armed with the knife. V heard Ms Higton telling the applicant to get out of the house, but he started to stab her before she got through the door. The applicant inflicted 99 single or groups of knife injuries. Many of the stab wounds were to the chest, penetrating the lungs on both sides. Other internal organs were injured, including the spleen and kidneys. He stabbed her buttocks. There were 26 incisions to Ms Higton's face. Some incisions were inflicted with the intention of disfiguring, as well as killing. Substantial force was used. One stab wound cut the eleventh rib, and another cut into the breastbone.

V witnessed some of the attack from the top of the stairs. She saw the applicant holding Ms Higton with one hand and stabbing her with the other. She heard the applicant say to Ms Higton: "Do you think you're funny? I warned you I was going to kill you. You are a slag. This is your fault that this is happening". V shouted to him to stop and made to go down the stairs, but he told her to shut up or she would be next. The last time V saw her, Ms Higton was on the floor in the hallway saying that she could not breathe. The screaming woke the children and V had to comfort them and tell them not to leave their bedrooms.

The applicant went upstairs and told V: "She is going to die on her own, the bitch. Steven's next". V pleaded with the applicant to allow her to go downstairs to be with Ms Higton, but he said: "She is going to die on her own and you are going to sit up here knowing that the bitch is going to die on her own".

The applicant washed his hands and changed his clothes. He told V that he was going to kill Mr Harnett because he knew that something had been going on between Mr Harnett and Ms Higton. The applicant then lured Mr Harnett to the house using Ms Higton's mobile telephone, and using Ms Higton's taxi app to book a taxi to deliver him. He sent a message to Mr Harnett, purporting to be from Ms Higton, telling Mr Harnett to come into the kitchen through the side door.

As Mr Harnett entered the kitchen as instructed, the applicant attacked him with the kitchen knife. He inflicted 24 injuries on Mr Harnett. The most significant was a stab wound to the right side of the chest, penetrating the lung and causing a large wound in the aorta. It was a lethal injury, and death would have followed very shortly after it was inflicted.

During the attack, the applicant cut off Mr Harnett's penis so that it was almost completely detached from his body. The incision extended around the scrotum, and both testes were exposed. Examination of the body after death showed that this injury was inflicted at or around the time of death.

The applicant returned upstairs and told V that Mr Harnett's death had been "quick and easy" and "that's him dead". He likened Ms Higton and Mr Harnett to Romeo and Juliet, and said that "they can fucking die together now, can't they." The applicant said that Ms Higton had put up a better fight than had Mr Harnett. He told V that he had done what he set out to do and that the "bitch would not be doing this again". He appeared calm and was laughing as he listened to the voice notes exchanged between Mr Harnett and Ms Higton on her mobile telephone.

At some point the applicant went downstairs and moved the two bodies into the living room. Ms Higton's body was stripped naked, save for her underwear which had been pulled up to expose her genitalia. Her body was arranged in a starfish position, legs apart, and arms away from her body. The applicant's semen was later found on swabs taken from her high vaginal area and vulva. His semen was detected towards the front of the crotch of Ms Higton's knickers. Mr Harnett's body was by her side also on his back in a starfish position. His severed penis had been placed on his abdomen. The applicant partially cleaned both bodies.

V had remained in the bedroom, petrified that she or the children would be next in line. She was not sure at precisely what time the applicant came back into the bedroom where she was and raped her, but did remember that the birds had started to sing when he did so. The applicant entered the bedroom and started to attack her, telling her to "shut up" or he would slash her throat. He said: "This is happening. I will slice your throat if you scream. This is the last time that I will have sex in a long time". The incident lasted about five minutes, and he raped her to the point of ejaculation. It was rough and very painful for V. The knife remained by the applicant's side on the bed during the incident. There was a child asleep on the other side of the room.

After the rape the applicant ran a bath for V, but she refused it and the applicant took the bath himself. V remained in the house, unable to get away through fear for her own safety and that of the children. The applicant contacted a neighbour and suggested that the neighbour come to the house to have a look. When the applicant opened the door, the neighbour saw the blood in the hallway. The applicant showed off the bodies in the living room as if he was proud of what he had done. He told the neighbour that he had done it, and that he knew he was going down for murder, but that he needed to sort some stuff out. When he heard the police arriving at the house he ran away, but he later turned himself in. When he was interviewed, he made no reply.

The applicant was aged 35 years at conviction and sentence. He had 12 previous convictions spanning from 2006 to 2015 for 27 offences. His relevant convictions included: robbery and attempted robbery in 2008, for which he was sentenced to four years' detention in a Young Offender Institution; battery in 2011, for which he was sentenced to 16 weeks' imprisonment; causing grievous bodily harm with intent in 2013, for which he was sentenced to 54 months' imprisonment; and battery in 2015, for which he was sentenced to 16 weeks' imprisonment.

The offending in 2011 and 2013 involved domestic abuse, coercive and controlling behaviour on female partners.

The judge had before her moving and dignified Victim Personal statements from V and members of both the Higton and Harnett families. Their suffering has been immense and the damage and harm to them and their entire families permanent and far-reaching.

There was no suggestion that a pre-sentence report was needed, and the judge rightly considered that she was entitled to proceed to sentence without one.

The judge's careful sentencing remarks included the following. The motivation for both killings was sexual in nature. The applicant's primary reason for killing both of them was because of his belief that Ms Higton had started a sexual relationship with another man, and he was pathologically jealous of that sexual relationship. It followed that the murders would normally be considered to be of exceptionally high seriousness and would attract a starting point of a whole life order, before consideration of aggravating and mitigating factors.

In accordance with the relevant sentencing guidelines, the judge took account of the applicant's guilty pleas and the other offences of which he was convicted.

Paragraph 2 of Schedule 21 to the Sentencing Act 2020 (Schedule 21) (the 2020 Act) required the judge to consider whether the murders and other associated offences in combination were of exceptional seriousness. She considered the applicant's false imprisonment of V and her rape to be very serious offences which justified a substantial custodial sentence in their own right. This was a prolonged detention in which threats of violence at knifepoint were made; and it involved the uninvited entry into the victim's home or equivalent. Whilst it was difficult to isolate the impact of the rape upon V from the impact upon her of witnessing Ms Higton's murder, the rape fell into category 1 harm. There were a number of serious aggravating features. Assuming the imposition of a concurrent sentence for the false imprisonment, the rape would attract a sentence of at least 15 years' custody, before reduction for a guilty plea. The applicant was entitled to a reduction of one-third for his guilty pleas to rape and false imprisonment.

The judge acknowledged the applicant's guilty pleas, but added that she put them in the context of his boastful comments at the time and the pride in what he had done. She saw his guilty pleas in that light. She was not persuaded that those guilty pleas should lead her to impose a minimum term, rather than a whole life order. There were no mitigating factors, other than the guilty pleas. There was no psychiatric or other evidence to explain or help the judge to understand the applicant's actions.

The judge identified numerous aggravating factors. We are not able to refer to the full detail of them, but in summary they were as follows: the applicant's substantial criminal record; the fact that the offences were committed on police bail, following Ms Higton's complaint to police on 10 May; the offences involved a degree of planning and preparation; the applicant's previous behaviour towards Ms Higton. The judge stated that, beyond the suffering of Ms Higton and Mr Harnett, there was the anguish to V, starting from the moment when she saw the applicant at the bedroom door holding a knife, then forcing her to encourage Ms Higton home, fearing his murderous intent. The applicant had taunted V and had brutally raped her. Perhaps worst of all, he had made her put her own safety and that of the four children in the balance against the safety of Ms Higton. The anguish caused to her and with which she still lived was unimaginable. In summary, taking the case as a whole, the judge was wholly satisfied that the appropriate and just disposal was the imposition of a whole life order for each murder.

As his primary submission, Mr Elvidge, for the applicant, argues that the judge failed to give sufficient weight to the applicant's guilty pleas. His submission is that, because the imposition of a whole life term prevents any reduction for a guilty plea, it is particularly important that a sentencing judge gives full weight to the value of the guilty plea. As a generality, section 73 of the 2020 Act prescribes that a sentencing judge in these circumstances must take an offender's guilty plea into account. He refers to the Sentencing Council Guideline on Reduction in Sentence for a Guilty Plea, and correctly identifies the key principles behind the encouragement of early guilty pleas. Such encouragement and the entry of early guilty pleas normally reduces the impact of crime, saves victims and witnesses the trauma of giving evidence, and is in the public interest in terms of saving time and money. The purpose of reducing sentences for guilty pleas is to yield these benefits.

Mr Elvidge submits that the entry of a guilty plea is a matter to be considered independently of an offender's personal mitigation, or the presence of aggravating factors; it is a distinct step, not to be merged with others. Here, in particular, given the unique circumstances, as he submits them to be, the judge should have been slow to deny the applicant any credit where time and money had been saved, particularly in circumstances where V was, as a result, not required to give evidence about the highly traumatic events to which she was subjected.

Overall, Mr Elvidge submits that by entering his guilty pleas at the earliest stage possible, as the applicant did, this was an unusual case where the guilty pleas had real traction. They should have been given greater weight. The effect of the whole life orders that she imposed was to give no value to the applicant's guilty pleas. Mr Elvidge submits that that simply was "not right". The real value behind the guilty pleas meant that this was at the very least a borderline case which justified the imposition of a minimum term, as opposed to whole life orders.

As a secondary and separate point, Mr Elvidge submits that the judge also overemphasised the degree to which the murders involved sexual conduct. Here the primary motivation of the applicant, it is said, was jealousy, not sexual gratification. The sexual conduct was secondary to the murders. It was conducted when the victims were either unconscious or dead. The murders were not carried out, it is suggested, for a sexual purpose; nor was either killing committed in the course of carrying out sexual offences. Thus the sexual conduct is said arguably to be at the "lower end of the spectrum". Again, this was a feature which justified a conclusion by the judge that this was a borderline case, which should have led to a minimum term order.

Mr Sandiford, for the respondent, addressing primarily at our invitation the ground of appeal advanced by reference to the weight attached to the applicant's guilty pleas, suggests that the judge did not err in any way in either process or substance. In particular, he emphasises that the guilty pleas were the only mitigating feature; that the relevant guidelines allow only a maximum reduction of five years for a plea of guilty to murder; that the offences of rape and false imprisonment warranted sentences of ten years' imprisonment, allowing full credit. Allowing for totality, the upwards adjustment to the starting point for the murders, which had to reflect the offences of rape and false imprisonment, on its own outweighed the mitigating effect of the guilty pleas. Additionally, there were numerous other significant aggravating features. In short, Mr Sandiford supports and seeks to uphold the judge's conclusions.

By reason of section 1(1) of the Murder (Abolition of Death Penalty) Act 1965, an offender who is convicted of murder must be sentenced to imprisonment for life. However, when imposing a life sentence it is also necessary for the court to make an order under section 321 of the 2020 Act which, by subsection (2), must be a minimum term order, unless the court is required by subsection (3) to make a whole life order, whereby the early release provisions of sections 28(5) to (8) of the Crime (Sentences) Act 1997 are not to apply to the offender.

In the case of an offender who is aged 21 or over when he committed the offence of murder, the court must make a whole life order under section 321(3)(b) of the 2020 Act if:

In considering the seriousness of the offence, or a combination of the offence and one or more offences associated with it, either for the purposes of determining whether to make a whole life order, or determining the minimum term, the court must have regard, under section 322(3) of the 2020 Act, to i) the general principles set out in Schedule 21 and ii) any sentencing guidelines relating to offences in general relevant to the case and not incompatible with the provisions of Schedule 21.

Schedule 21 sets out a series of starting points for the court's determination as to whether to impose a whole life order or a minimum term order; and, in the latter case, the length of the minimum term. Paragraph 2 of Schedule 21 provides for the circumstances in which the starting point is a whole life order, materially as follows:

Paragraph 3 of Schedule 21 provides for the circumstances in which the starting point for the minimum term is 30 years' imprisonment, namely cases involving offenders aged 18 or over when the offence is committed, where the court considers the seriousness of the offence or the combination of the offence and one or more offences associated with it as particularly high. Cases normally falling within paragraph 3 include cases of a murder involving sexual or sadistic conduct, or the murder of two or more persons.

Paragraphs 7 to 11 of Schedule 21 make provision in respect of aggravating and mitigating factors. Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point. Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order."

Aggravating factors include a significant degree of planning or premeditation; mental or physical suffering inflicted on the victim before death; and dismemberment of the body.

Under section 73 of the 2020 Act, where an offender has pleaded guilty, the court must take account of the stage of the proceedings when the guilty plea was indicated and the circumstance in which it was tendered.

The Sentencing Council's Overarching Guideline on Reduction in Sentence for a Guilty Plea provides specific guidance in relation to the offence of murder as follows:

The principles relating to whole life orders have been recently considered by this court in R v Stewart and Others [2022] EWCA Crim 1063, where Lord Burnett of Maldon CJ reviewed the statutory provisions and the relevant authorities. He went on at [19] to summarise the following principles to be derived, which are material for present purposes, as follows:

In relation to the question whether a murder involves sexual or sadistic conduct for the purposes of paragraph 223 or paragraph 3(2)(e) of Schedule 21, the court in R v Daniel Walker [2007] EWCA Crim 2631 at [26] considered that the phrase was "intended to cover circumstances where the acts which resulted in the death of the victim were sexual in nature or accompanied by sexual activity that increased the ordeal of the victim, or the depravity of the murder, or both". However, as was recently observed in R v Mottram [2022] EWCA Crim 954, this is not to be treated as "an all encompassing definition of what constitutes a murder involving sexual activity" for the purpose of Schedule 21. The court said:

It is convenient to address first the second proposed ground of appeal. As set out above, it is suggested that the judge overlooked the fact that the degree of sexual conduct was "at the lower end of the spectrum". It is not suggested that there was no sexual conduct involved; nor could it be.

In our judgment, there is no merit in the suggestion that the judge overplayed the sexual nature of the offending. The applicant's primary motivation was sexual jealousy, as evidenced, for example, by his messages to Ms Higton before the murders and his words as he killed her, calling her "a slag". Consistent with this motivation were his actions, which were also sexual in nature.

As for Ms Higton, the judge was, and was entitled to be, sure that the applicant engaged in sexual activity with Ms Higton when she was dead or was dying. Whilst the applicant's DNA might have remained in the high vaginal area for up to a maximum of ten days, in the context of the growing relationship between Ms Higton and Mr Harnett, and Ms Higton's obvious hostility towards the applicant, it was inconceivable that consensual sexual activity took place between them in the ten days leading up to the attack. Ms Higton had wanted nothing to do with the applicant. There was no mention in the social media dialogue, or in any private messaging of them having had sexual intercourse together. The applicant removed Ms Higton's clothes so that she was naked, apart from her knickers and a shoe. Her knickers were pulled up so as to expose her genitalia.

As for Mr Harnett, the applicant stripped and posed him. He mutilated Mr Harnett's body by cutting off his penis to emasculate him.

In short, the applicant was motivated by sex and his desire to degrade and to sexually humiliate, and his actions were entirely consistent with that motivation. Both murders involved sexual conduct to a significant degree, and the judge was fully entitled to conclude that the whole course of the applicant's conduct was motivated by sexual pre-occupations and had a number of individual sexual acts at its core. As such, in our judgment, there is no legitimate criticism of the judge's sentencing exercise on the basis that she overemphasised the sexual nature of the applicant's offending.

We turn to the applicant's first proposed ground of appeal, namely, that the judge failed to give sufficient weight to the applicant's guilty pleas.

We do not accept the submission that the judge inappropriately reduced the weight to be attached to the applicant's guilty pleas, either as a matter of process or of substance. As we have set out above, the Guideline on Reduction in Sentence for a Guilty Plea provides:

The judge was faithful to the Guideline. She considered the fact that the applicant had pleaded guilty to murder when deciding whether it was appropriate to order a whole life term. She determined, taking that into account, that a whole life term was appropriate. She had to take that decision in the light of all the circumstances, including the applicant's guilty pleas and including the context, as she described it, of what the applicant did and said at the time of the killings. She had to consider the aggravating factors:

In addition, the judge had to take into account the associated offences of rape and false imprisonment.

In summary, the judge's conclusion that this was not a borderline case and that whole life orders were justified, despite the applicant's guilty pleas, cannot be impugned.

As this court has now said on several occasions, the period that a murderer must serve does not reflect the value of the life (and here lives) taken away, and does not attempt to do so. The judge imposed whole life orders on the basis of correct legal principle, including having properly considered the applicant's guilty pleas alongside relevant aggravating factors. She was, in her own words, "fully aware that such a disposal is a rare one and reserved for only the most extreme cases". She was entitled to consider that this was not a borderline case and to be in no doubt as to its gravity, being of such exceptional seriousness that even a very long minimum term would not amount to just punishment.

A murder can be so heinous that a whole life term can be appropriate, despite a guilty plea. Such cases may be rare, and there will no doubt be occasions where a guilty plea will properly lead a sentencing judge to pull back from a whole life order. But the facts of these two murders, together with their associated offences and taking into account relevant aggravating factors, are so horrific that whole life terms were appropriate, despite the applicant's guilty pleas. At the end of the day, these were two planned and brutal murders, motivated by sexual jealousy and involving sexual conduct, committed in circumstances designed to maximise the depravity of the murders by an individual with a history of significant domestic violence against one of the victims and previous domestic partners.

For these reasons we refuse the application for leave to appeal against sentence.