R v Nicholas Prosper

This application arises out of the sentences imposed on the offender, Nicholas Prosper, for the murder of his mother, Juliana Falcon, his 13 year old sister, Giselle Prosper, and 16 year old brother, Kyle Prosper, on 13 September 2024 in the family home, and for associated offences. The offender shot each victim with a shotgun. The murders were committed as part of a wider plan to carry out a mass school shooting. Mercifully, that wider plan did not, in the event, come to fruition.

The offender was 18 years old at the time of the murders and 19 years old at the time of conviction and sentence. He pleaded guilty on 24 February 2025 in the Crown Court at Luton and was sentenced on 19 March 2025 by Cheema-Grubb J (the judge) to custody for life, with a minimum term of 48 years and 177 days on each count of murder. He was also sentenced to custody for life, with a minimum term of 18 years, on a count of possession of a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968; to three years and six months' detention on a count of purchasing a firearm without a certificate, contrary to section 1(1)(a) of the Firearms Act 1968; and to one year's detention for having an article with a blade or point, contrary to section 139(1) of the Criminal Justice Act 1988. All sentences were ordered to run concurrently.

This is an application by His Majesty's Solicitor General under section 36 of the Criminal Justice Act 1988 for leave to refer the sentences, which she regards as unduly lenient. By section 321(3)(c) of the Sentencing Act 2020, the court may arrive at a whole life order in the case of an 18 to 20 year old only if it considers that the seriousness of the offence, or the combination of offences, is "exceptionally high" even by the standard of offences which would normally result in a whole life order. This is described, accurately, as an "enhanced exceptionality requirement". The Solicitor General contends that the seriousness of the offending met the enhanced exceptionality requirement such that the judge was wrong not to impose a whole life order.

This court has not previously had to consider a sentence involving section 321(3)(c) of the Sentencing Act 2020. We grant leave.

The offender's parents separated when he was around 8 years old. He lived with his mother and brother and sister in a flat on the 8^th floor of a block of flats in the Marsh Farm area of Luton. He had regular contact with his father who lived not very far away. There were no concerns about the offender's development or mental health during childhood. However, whilst in the sixth form, the offender became noticeably disinterested in interacting with others, both at home and at college. He seemed overwhelmed by social interaction and was unco-operative in lessons. He resisted assessment or intervention and dropped out of college when asked to leave in March 2023.

Not long afterwards, the offender began to think about and then to plan a large scale shooting in the hope that it would make him notorious. He existed in an online world, choosing little real life contact with others, apart from attending a gym and working part-time in a supermarket for a few months. He was deeply fascinated by notorious murderers, perpetrators of mass school shootings and rapists. He collected images of a young girl who died in the Sandy Hook school massacre in 2012, and started to plan to emulate and indeed to outdo the Sandy Hook attacker. He took photographs of two nearby primary schools and over 200 indecent images and videos of children. 19 of these were category A pictures, depicting the rape of children. He recorded audio files discussing topics such as necrophilia, the young female victim in the Sandy Hook attack, and a computer game called "The Walking Dead".

On 13 September 2023, exactly one year before the murders, the offender telephoned St Joseph's Catholic Primary School in Luton to find out the pupils' daily timetable and movements. He carried out reconnaissance at the school and captured images of staff and pupils from the school's website. In a note written after his arrest, he drew a diagram of the early years classroom at the school and wrote alongside it "Kill all".

In April 2024, the offender put together an outfit made up of black and yellow clothing, a yellow bucket hat and shoes with yellow soles. He filmed himself dressed in the outfit, acting out a shooting, with a piece of wood in place of a gun. In June 2024, using a pseudonym, he tried to contact the mother of the young female victim in the Sandy Hook attack.

He looked at numerous images of firearms documentation and details of guns for sale. That summer, he obtained the manifestos of Adders Brevik (who killed 77 people in Norway in 2011) and Christopher Dorner (a former police officer who killed several people in California in 2013). He went on to produce a meticulously forged firearms certificate.

After one failed attempt, the offender succeeded in acquiring a 12 Ball Nikko double- barrelled shotgun and 100 cartridges for £650 on 12 September 2024. The gun and cartridge were delivered to him in the car park of the block of flats where he lived. He spent the rest of that day reading about the impact of shotgun injuries to the neck (the means by which he intended to kill himself after his planned school shooting). He also researched necrophilia, the murder of Sarah Everard and mass shootings.

The next day, 13 September 2023, at 4.11 am, the offender was watching extreme animated pornography; at 4.42 am, he looked at images of school massacres, including from the Columbine High School in 1999. Between then and 5.33 am, the offender was disturbed by his mother, who knew that something was terribly wrong. Upon realising that her son had a gun, she struggled with him before he shot her in the head at close range, in the hallway. Following that, he placed a novel with the title "How to kill your family" on her legs.

His sister woke up. He fired a shot at her from a distance, grazing the back of her head. She ran to hide in the living room, but he pursued her and shot her fatally in the right eye.

His brother tried to seek refuge in the kitchen and to protect himself with a knife, but the offender shot him in the chest from a distance. Whilst his brother was still alive and moving, the offender stabbed and slashed him more than 100 times to his head, face, neck, torso and limbs, whilst the boy pleaded with him for his life. Although his brother managed to run into the hallway, the offender shot him fatally in the head.

The first 999 call was logged at 5.29 am. The police arrived at the flat at 5.50 am to find the three deceased. There was bloodstaining throughout the flat, including handprints in blood, as well as aspirated and spattered blood. Several knives were found bloodstained, and at least one of them apparently bent out of shape. In order to carry out the attacks, the offender would have had to re-load the double-barrelled shotgun at least twice.

The offender spent the next two hours hiding from the police. At 6.22 am he posted a pre-recorded video to Facebook in his shooting uniform, reading a script about "The Walking Dead" game in which he said that he intended to shoot his sister in the face. At 7.55 am, he emerged from the bushes and raised his arm to a marked police car. He had blood on his hands, clothes and glasses. He had re-loaded his gun with two cartridges, but then abandoned it. He still had a kitchen knife in his pocket. Thirty three cartridges and two mobile telephones were recovered, having been discarded between the tower block and the school.

The offender was arrested. He was cheerful and engaged the officers in conversation, asking if the local schools had been locked down. He later admitted that he had joined a paedophile Twitter group to discuss sexual attraction to children, and that the primary purpose in trying to destroy his mobile telephones was to protect his online friends from being "arrested for child porn".

He was taken to the police station and interviewed. He declined to answer any questions, but later did speak to a mental health nurse. He told her that he had planned for a year to kill 34 people, ending in his own suicide. Thirty of them were to be school children aged 4 or 5. The year before, a plan to rob a gun-seller had failed and so he had taken steps to acquire a firearm by deception, he said.

He said that he had intended to carry out the shooting on 12 September, but had decided that 13 September sounded better. He had taken a knife with him when buying the shotgun in case the transaction did not go smoothly, and he said that he had been prepared to kill the gun-seller. He said that he did not hate his mother or his siblings; he had had a good life with them. His intention had been to kill them in their sleep and to rape his sister. He had intended to leave the flat at around 8.30 am, arrive at St Joseph's at 9 am, go into a class and pretend to rob the teachers. He would then start to shoot the 4 year olds, and would continue in another classroom if necessary to achieve the target of 30 children. His mother waking up at 4.50 am had triggered all of this activity early and had disrupted his plan. He commented that he wished he had killed more.

He pleaded guilty to all of the offences when first arraigned, after appropriate psychological assessment.

The judge conducted a two day sentencing hearing, at the conclusion of which she delivered full written, as well as oral, sentencing remarks. She proceeded without a pre-sentence report. We agree that one was unnecessary.

She had the benefit of a psychiatric report from Dr Kooyman, dated 5 February 2025, who concluded that the offender showed clear symptoms of autism. However, he displayed an emotional lack of empathy for others which far surpassed that explicable by autism alone. He did not fulfil the criteria for a full diagnosis of psychopathy at that stage, but he did have two extremely prominent psychopathic traits: lack of empathy and lack of remorse or guilt. Dr Kooyman concluded that the offender was apparently driven by desire to be famous or infamous as a mass murder, having, it seemed, an obsession with mass killers. It was extremely clear, opined Dr Kooyman, that the offender was not impaired in his understanding of the nature of his conduct or in his ability to exercise self-control. His actions were, from his own perspective, entirely rational, with no emotional connection to his family. He had almost no regard for the life of humans and since his arrest had been in high spirits. The offences were driven by his lack of empathy for others and his desire to become infamous, not because of any impairment in logic, reasoning or rational judgment.

A short but moving victim personal statement from Raymond Prosper, the offender's father, described the desolation of his family as a loss that would never be healed. He considered himself to have lost not just one, but two sons.

At no stage did the prosecution contend that a whole life order was appropriate. Rather, it was said that the prosecution could not identify any "additional level of exceptionality" beyond the exceptional level of seriousness justifying a whole life order for an offender aged 21 and over. It was submitted by the prosecution that the appropriate starting point for the minimum term was 30 years. That position was maintained in response to a request by the judge for submissions on the specific question of whether a whole life order was merited, given the offender's planning of a mass school killing, as reflected in his guilty plea to possession of a firearm with intent to endanger life. The defence adopted the prosecution's submissions and emphasised that the offender had abandoned his plan for the school shooting shortly after leaving the home address.

In careful sentencing remarks, the judge set out the facts and the background, then the relevant sentencing framework, including reference to the parties' submissions and the relevant authorities. She indicated that for an adult offender aged 21 or over, this was obviously a case where a whole life order would be the normal starting point. She turned then to the enhanced exceptionality requirement.

She recorded the "explicit joint submission of counsel" that a lengthy finite term would be a sufficiently severe penalty, and that this was not such an exceptionally serious case of the utmost gravity where the sentence of last resort had to be imposed on an offender who was 18 at the time and 19 at the time of sentence.

The judge viewed the case as a whole. Although the offender was "indisputably a very dangerous man", the risk to the public was, she said met by the imposition of a life sentence. She identified ten specific features of his crimes:

The judge bore in mind the Sentencing Council's definitive guideline on sentencing offenders with mental disorders, developmental disorders, or neurological impairments. She summarised the evidence of Dr Kooyman and concluded that the offender's lack of empathy disinhibited him but did not reduce his culpability or afford mitigation. His cognition and ability to refrain from murder were not diminished.

She also referred to the Sentencing Council’s guideline on sentencing children and young people. She did not consider the offender to be immature for someone of his age. She also rejected any suggestion that the separation of his parents provided any meaningful mitigation.

She stated that, although troubled by this shocking case, "axiomatically a case which the judge considers to be on the borderline is not one that cleanly clears the hurdle of enhanced exceptionality". Having reflected, she stated that she agreed with the parties and would not impose a whole life order. She gave three reasons: first, that the offender was thwarted from completing his intentions; secondly, that the prosecution had resulted in guilty pleas; and thirdly, that the offender was 18 years old at the relevant time, "at the bottom of the bracket" for the power provided for in section 321(3)(c) of the Sentencing Act 2020, and she could impose a substantial finite term well above the starting point of 30 years.

Taking account of the aggravating features, and making no deduction for matters which had led her to draw back from making a whole life order, the judge reached the minimum terms that we have set out above. They were based on a very significant increase from the starting point of 30 years, with a lead minimum term of 49 years for the offences of murder (with time already spent on remand to be deducted).

A prison report produced subsequently for this hearing indicates that the offender's behaviour in detention has been stable, with good conduct and no adjudications. Some of his drawings making reference to the index offences have been found, and he has begun to liaise with the prison In Reach Team.

For the Solicitor General Mr Little KC, who did not appear below, submits that the seriousness of this case passed the enhanced exceptionality requirement and that just punishment required the imposition of a whole life order. He submits that, on any view, the facts of this case are exceptional. He recognises the high hurdle that he must overcome, namely that he must establish that the judge was wrong not to impose a whole life order, and that the imposition of a whole life order was the only course properly open to her.

So far as relevant, Mr Little's position is that leading counsel for the prosecution below was wrong to submit that a whole life order was inappropriate. He emphasises that a whole life order for an offender aged 21 years or more was, so it is common ground, fully justified. On the basis of the judge's own findings of fact, including her long list of factors grounding the offender's criminality, the enhanced exceptionality requirement was met. He emphasises that this was a murder of three people, including two children; that there was an intention to rape his sister; that the murders took place one after the other in the victims' own home; that they were heard by neighbours; that the victims were aware of the identity of their attacker; that both a firearm and a knife were used; and that this was all part of an intended precursor to the killing of multiple 4 and 5 year old children, again with the use of a firearm. Mr Little emphasises the extent and the very substantial nature of the premeditation and planning involved, and the ambition of achieving not only national but also international notoriety, with the risk of inspiring others to act in a similar fashion. In short, the enhanced exceptionality test was fully satisfied. The offender's age and his guilty plea did not make this a borderline case. Although they were relevant considerations, the offender was not immature and neither they nor the medical evidence justified the judge stepping back from the making of a whole life order.

In conclusion, Mr Little refers to what has been described in writing as a developing trend for judges to state that a case is borderline and therefore not to impose a whole life order. He submits that, whilst that approach, depending on how it is articulated, may be consistent with the case law, there is a danger in it becoming, without care, a gloss on the statutory approach.

For the offender, Mr Bentley KC accepts readily that a whole life order for an adult aged 21 or over would have been merited, but submits that tthat fact does not assist us - nor did it assist the judge - on the question of whether or not the enhanced exceptionality test was met. He submits that that test should accurately be described as a "double exceptionality test". He submits that on the facts that test was not met. He places significant emphasis on the offender's guilty pleas. In summary, his submission is that the judge looked at all relevant factors; that this clearly was very serious offending; and whilst a whole life order for an offender aged 21 and over was merited, there were factors here which allowed and entitled the judge to stand back and withdraw from imposing a whole life order.

By section 1(1) of the Murder (Abolition of Death Penalty) Act 1965, an offender 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 Sentencing Act 2020 which, by subsection (2), must be a minimum term order, enabling the Parole Board to consider whether it is no longer necessary for the protection of the public that the offender should be confined after the conclusion of the minimum term, unless the court is required by subsection (3) to make a whole life order. In the case of a whole life order, the early release provisions are not to apply to the offender.

In the case of an offender aged 21 or over when they committed the offence of murder, the court must make a whole life order 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 (1) the general principles set out in Schedule 21, and (2) any sentencing guidelines relating to offences in general that are 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 a whole life order is the appropriate starting point, as follows:

Until the introduction of section 321(3)( c) of the Sentencing Act 2020 (by section 126 of the Police, Crime, Sentencing and Courts Act 2022), whole life orders were not available for offenders under the age of 21. However, for offences committed on or after 28 June 2022, the court may now arrive at a whole life order in the case of an 18 to 20 year old – but only if it considers that the enhanced exceptionality requirement is met, that is to say that the seriousness of the offence, or the combination of offences, is exceptionally high, even by the standard of offences which would normally result in a whole life order.

Paragraph 3 of Schedule 21 provides for the circumstances in which the starting point for the minimum term is 30 years, namely cases involving offenders aged 18 or over when the offence is committed, where the court considers the seriousness of the offence to be "particularly high". Examples include a murder committed by someone under 21, where the murder would attract a whole life sentence for an offender aged 21 or over at the time of the offence.

Paragraphs 7 to 11 of Schedule 21 make provision in respect of aggravating and mitigating factors. Having chosen the 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.

The principles relating to whole life orders for those aged 21 and over have been considered recently and authoritatively by this court in R v Stewart and Others [2022] EWCA Crim 1063; [2022] 4 WLR 86. There Lord Burnett of Maldon CJ reviewed the statutory provisions and the relevant authorities, and summarised the relevant principles at [19], which we need not repeat. Those same principles are engaged when considering the case of a defendant aged 18 to 21, adjusted to reflect the additional requirement for the enhanced exceptionality test to be met if a whole life order is to be imposed.

We remind ourselves at the outset that we may only increase a sentence if it is unduly lenient, and not merely because we are of the opinion that the original sentence is less than we would have imposed. A sentence will only be unduly lenient if it falls outside the range of sentences which the judge, applying her mind to all the relevant factors, could reasonably consider appropriate. It will only be unduly lenient where, in the absence of alteration, public confidence or the public perception of the administration of justice would be affected.

As identified in Stewart at [19] a whole life order is a sentence of last resort for cases of the most extreme gravity, reserved for the few exceptionally serious cases where the judge is satisfied that the element of just punishment requires the imposition of a whole life order. The case must be exceptionally serious, even in the context of a case of murder. If the judge is in any doubt as to whether this standard is reached, that "may itself well be" an indication that a finite minimum term is the appropriate disposal. To be imprisoned for a period of 30 years or more is already a very severe penalty.

In the case of a defendant aged 18 or over but under 21, as here, the enhanced exceptionality test must be met in order for a whole life order to be justified. This is an additional factor that has to be satisfied for the making of a whole life order in the case of a young offender. We consider it unhelpful to place any gloss on the clear wording of the statute: the court may arrive at the opinion that a whole life order is required “only if it considers that the seriousness of the offence, or combination of offences, is exceptionally high even by the standard of offences which would normally result in a whole life order” in the case of an offender aged 21 or over. What is required is a comparison of the facts of the case involving the young offender with the facts that would justify the imposition of a whole life order on an adult offender.

Before turning to the grounds relied upon by the Solicitor General, we make two preliminary observations.

First, any concession by the prosecution at first instance is no legal bar to the Law Officers now seeking to contend that the judge's sentence was unduly lenient (as confirmed in R v Stewart [2016] EWCA Crim 2238; [2017] 1 Cr App R(S) 48). But the prosecution position may, of course, be relevant to an assessment of whether or not it was unduly lenient not to impose a whole life order. Here, it is striking that the prosecution not only did not press for a whole life order, but submitted positively that "this [was] not a case where a whole life order should be imposed". It was acknowledged that a whole life order for an adult with full mental capacity would have been justified. Given, however, the offender's age, capacity and the enhanced exceptionality requirement, the prosecution's submission before the judge was that the relevant test was not met.

Whilst, as she rightly recognised, it was always for the judge to reach her own decision, she was nevertheless entitled to place weight on the clear, reasoned and sustained position taken by experienced prosecution leading counsel, to the effect that this was not a case that called for a whole life order.

Secondly and relatedly, whilst there was no trial, the judge did consider whether to make a whole life order with conspicuous care. Amongst other things, she sought specific further written submissions on the issue. Absent an error of law or principle, this court should be slow to interfere with her overall assessment of where the correct balance law between, on the one hand, a whole life order or, on the other, custody for life with a minimum term of 49 years.

Against this background, we turn to the grounds relied upon by the Solicitor General.

The primary submission is that if a whole life sentence was not appropriate in this case, the bar for passing one is set too high.

As set out above, the bar for passing a whole life term on an adult offender is, and always has been, a very high one, reflected in the fact that there are fewer than 100 prisoners in prison today who are the subject of a whole life order. It is for the sentencing judge to assess whether a murder or murders fall into the rare category of crime where a whole life order is required. Paragraph 2(2) of Schedule 21 gives assistance as to which crimes might qualify for1 a whole life order. But the ultimate test is whether the seriousness of the individual offence or the combination of offences is exceptionally high.

That hurdle has been set even higher where the offender is aged 18 or over and under 21, by reason of the enhanced exceptionality requirement It is now accepted that people do not reach full maturity on their 18^th birthday. Indeed, there is evidence to suggest that a majority of men in particular are developing in maturity well beyond their 21^st birthday. This has an impact not only on the culpability of offenders of this age, but is also relevant to their ability to develop and change more readily as they mature.

The judge clearly recognised that she needed to address the question of whether the enhanced exceptionality threshold had been met, and so whether or not a whole life order should be imposed. She set out her reasons for concluding that it was not appropriate to impose a whole life order. She highlighted the age of the offender. He was 18 at the time of the offending – and, we would add, in fact 17 when the planning first started – and therefore of the youngest age when such a sentence becomes available. This was not to double count, but to contextualise the sentencing exercise within the relevant sentencing regime where age is a constituent part of the enhanced exceptionality requirement. The offender had also pleaded guilty – again, a relevant consideration. Further, the offender had intended to rape his sister and to kill a large number of people in a mass school shooting. He had not put those plans into action – a decision of his own.

We consider that the judge would also have been entitled to refer to the offender's diagnosis of autism. Whilst not necessarily reducing culpability, his abnormality of mind had caused significant emotional and behavioural difficulties from the age of 16, according to the evidence of Dr Kooyman.

The judge rightly observed that the offender was a dangerous man. But she went on, correctly, to observe that this was not a factor relevant to her decision whether to pass a whole life order. Dangerousness is catered for by the imposition of a life sentence. It is that part of the sentence which ensures that the offender can, if necessary to protect the public, be detained indefinitely. The whole life, or minimum term, is imposed solely to reflect proper punishment for the crime.

The judge's decision to pass a life sentence with a minimum term of 48 years, less days already served, was itself a very severe sentence for a 19 year old. It is a sentence which does not allow anyone even to consider him for release until he is almost 68 years old. It ensures that he spends the rest of his youth and the whole of his middle age in custody.

We do not accept the Solicitor General's submission that, in reaching her conclusion in the way that she did, the judge was unduly influenced by what did not happen and gave too little weight to what did happen. She identified the multiple factors that made it appropriate for her to consider the making of a whole life order. She set those factors in context by referring to them in the context of age, the guilty plea and the ultimate result. She balanced the factors carefully and reached the conclusion that she did.

The Solicitor General urges us to say that this was not a course properly open to her to take. If a whole life term was not required in this case, she asks rhetorically, when will it be required? It is generally unhelpful to speculate on whether or not a case can properly be described as the worse of its kind; but an obvious answer to that difficult question might be the very circumstances envisaged by the offender here, namely where a carefully planned, mass child shooting has in fact occurred.

Finally, we do not consider that the judge's approach supports the notion that there is any developing trend to the effect that whole life orders are not being imposed whenever the sentencing judge considers a case to be borderline. However, for the sake of completeness, we agree with the Solicitor General that it is important that there be no gloss on the statutory test laid down by Parliament. As Stewart makes clear, if the judge is in doubt that the offender must be kept in prison for the rest of their life, that "may itself well" be an indicator that a whole life order is not appropriate. If that is the case for an adult offender, it is just as, if not more, apposite for a young offender. But it is no more than a potential indicator, and certainly not determinative against the making of a whole life order.

These were undoubtedly offences of the utmost gravity, with multiple features incorporating disturbing, recurrent themes around school shootings, such as a young male perpetrator, the selection of distinctive clothing, the recording of messages about the activities, a sexual interest in children, withdrawal into an online world, reference to violent computer games, suicidal intention and a lack of empathy towards the victims. As the judge put it, it was the offender's intention to unleash disaster on the community of Luton, with intelligent, calculating and selfish planning.

Had the offender been 21 or over at the time of the offending, a whole life order would undoubtedly have been merited, as the judge indicated. But when extending the availability of a whole life order to those aged 18 or over but under 21, Parliament chose to set what is already a very high threshold for a whole life order for an adult even higher for young offenders. The judge was entitled to conclude that the enhanced exceptionality test was not met on the facts, in line with both prosecution and defence submissions advanced to her at the time, and to conclude that a whole life order was not required.

Appalling though these crimes were, we are not persuaded that anything less than a whole life order was unduly lenient. The reference will be refused. The sentences imposed require a youth of 18, as he was at the time of his arrest, to remain in custody until he is in his late 60s, and might well result in him never being released.

Finally, as the courts have stated repeatedly, no sentence can ever reflect the value of lives lost. We share our sympathies for the tragic losses of the lives of Juliana Falcon, and Kyle and Giselle Prosper, with all those affected.