R v Gavin Plumb

This is a renewed application for leave to appeal against sentence by Gavin Plumb following refusal by the single judge. The applicant is represented before us by Miss Sacha Wass KC, who appears pro bono. We are extremely grateful to her for undertaking this heavy responsibility on that basis.

We should record at the outset that this case involves sexual offending. Ordinarily, the target of such offending would have been entitled to anonymity; but in the Crown Courts she waived that right. Accordingly, the case has attracted widespread publicity in which she has been named. There is no reporting restriction, therefore, in respect of these proceedings.

On 4 July 2024, following a trial in the Crown Court at Chelmsford before Murray J and a jury, the applicant was convicted of all three counts on an indictment. Count 1 alleged an offence of soliciting the murder of Holly Willoughby, contrary to section 4 of the Offences against the Person Act 1861. Count 2 alleged an offence contrary to section 45 of the Serious Crime Act 2007 of encouraging or assisting others to kidnap Holly Willoughby, believing that the offence would be committed. Count 3 is an offence under the same provision, but on this occasion encouraging or assisting the commission of the rape of Holly Willoughby.

The chronological sequence of events is that counts 2 and 3 were committed by the applicant over a long period of time during which he attempted to persuade people known (accurately or otherwise) as "Marc" and "Ryan" and others to take part with him in the abduction and kidnap of Holly Willoughby and subsequently in a series of brutal rapes. That offending took place, as we have said, over a long period of time. Clearly what was contemplated was conduct of the kind which frequently involves a risk of the death of the victim, and not infrequently in her death.

At the end of that period the conduct which came to form count 1 took place in which Holly Willoughby's death was specifically contemplated and intended.

In sentencing the applicant, the trial judge said this:

That thumbnail sketch of the facts captures the essence of the conduct which led to the applicant's convictions. We will have to add some further detail in what follows, but the essential thrust of the criminality is there encapsulated.

The judge imposed three concurrent sentences of life imprisonment in respect of those three counts. That required him to fix a minimum term which must elapse before the Parole Board can consider whether it is safe for the applicant to be released. The minimum term at which the judge arrived was a period of 16 years. That was reduced to take account of time spent on remand awaiting trial and sentence, with the result that the specified minimum term under section 232 of the Sentencing Act 2020 was 15 years and 85 days. A number of other orders and consequences of those convictions and sentences ensued. Nothing now turns on any of those.

The judge calculated that minimum term by assessing the appropriate determinate sentence (had such a sentence been passed) at 24 years' imprisonment. He was required to reduce that by one third to take account of the early release provisions, which do not apply to minimum terms but which do apply to determinate sentences. The reason why the judge imposed life sentences with those minimum terms was that he had found that for the purposes of the Sentencing Code, the applicant was a dangerous offender. The judge determined that the offences taken together, and aggravated by highly relevant previous convictions, were so serious that life sentences were justified. He was, therefore, in those circumstances required to impose such a sentence by section 274(1) and (3) of the Sentencing Code. Those sentences were ordered to run concurrently with each other. They were all the same. It might be that each individual count on its own might have warranted a different sentence, but in these circumstances it was not an error to impose the same sentence concurrently in respect of all three counts.

When considering the sufficiency or otherwise of those minimum terms, it is important to remember that each of them is designed to reflect the totality of the criminality – that is to say, a long period of time during which a significant number of people were prevailed upon in the hope that they would respectively, along with the applicant, kidnap, rape and murder Holly Willoughby.

We shall now say a little bit more about the facts. It is not necessary for our purposes to go into the facts in the same detail that the judge did after the trial. His sentencing remarks are in the public domain, and the trial itself received a great deal of publicity. What happened is well known. It is, though, important to record that the count of soliciting to murder was left specifically to the jury on the basis that they could only convict of it if they were sure that the applicant intended that Holly Willoughby would be murdered. The intention that the offences there mentioned would actually be carried out is a necessary part of the statutory offences in counts 2 and 3. The sentences were therefore imposed on the basis that the applicant intended all of that offending to take place, and specifically intended the murder, using the knives which he had acquired, of Holly Willoughby.

Plainly, that behaviour arose out of an obsession which the applicant had formed for her. It is important to note that the applicant's personal circumstances would have made it very difficult for him to carry out these offences. He appears to have been substantially immobile, perhaps due to obesity. He is not in good health. He cannot drive and does not have a car. Nor does he have access to the sort of property which might serve as a temporary prison in which a kidnapped victim could be held, raped and murdered.

However, the applicant attempted to overcome those handicaps and obstacles in his path by recruiting other people to help him. It was precisely because he was not able to carry out such acts on his own that he needed help. Occasionally he said that he would carry the plan out on his own, but the judge said that that was simply bravado. The judge said that the applicant intended to carry out the plan if he could find the right "crew" to help him to do so.

It seems that the applicant's obsession dated back to 2018. After long and (to the applicant) disappointing conversations with Marc, Ryan and others, he finally found (he thought) "David Nelson" who, in 2023, expressed a desire to travel to the United Kingdom from the United States of America to help him to carry out this plan.

The judge was particularly concerned to point out that during these exchanges with "David Nelson", the applicant suggested that he had another potential victim available on whom they could practise. He further suggested that his own son (then aged 15) was interested in taking part. In the interests of that young person, it is essential to make it entirely clear that the police investigated that assertion and found that there was nothing whatever to suggest that this boy was in fact interested in playing any part in furthering his father's depraved schemes.

The conduct came to light because "David Nelson" is an American Law Enforcement Agent. He was so concerned by the conversations that he was having with the applicant that he urgently drew then to the attention of the relevant police force in the United Kingdom, who themselves urgently took steps to apprehend the applicant.

It is not necessary for us to set out any detail of those conversations or of the earlier conversations which the applicant had with other people. They were horrifying and contained graphic detail of what the applicant proposed to do to Holly Willoughby. They are distressing even for seasoned professionals to read.

The offending has a further and important background, as the judge recorded. We have mentioned already in passing the previous convictions of the applicant, who is now 38 years old. In 2006, when he was aged 19, he approached a woman on the Stansted Express train. He gave her a note saying that he had a gun and that she should get off at the next station, otherwise he would shoot her and everyone else on the train and himself. Other passengers intervened because they saw that she was distressed. The applicant then got off the train. Two days later, he made a similar approach to another woman on the same railway line. This time he said that he was a police officer and that she should get off the train at the next stop. She refused to do so. Eventually, the applicant was arrested. He was found to be in possession of an imitation firearm and three rope ligatures. He pleaded guilty to two offences of attempted kidnapping and was sentenced to 12 months' custody, suspended for two years with supervision and activity requirements. It need hardly be said that that sentencing took account of two factors which would have been of significance then: first, he was only 19 years old; and secondly, he had no relevant previous convictions. That was an opportunity to disrupt the behaviour which was, in the result, unsuccessful. In 2008, when he was aged 21, the applicant approached two girls who worked with him at the Woolworths store in Harlow. He had with him a box cutter and a type of Stanley knife and he told them to go into the back of the stock room. He bound the hands of one of the girls, but the other was able to escape and raise the alarm. He was arrested. He pleaded guilty to two offences of false imprisonment in June 2009 and was sentenced to 32 months' imprisonment.

Those previous convictions, given the circumstances of the present offending, were gravely concerning.

In arriving at the determinate sentence which was the basis for the calculation of the minimum terms, the judge had regard "to a limited extent" to the Sentencing Council guideline for attempted murder. He also considered a number of previous decisions of this court, including in respect of the offence of kidnap, the recent decision in R v Saqib [2022] EWCA Crim 213. In respect of the offence of encouraging or assisting rape, the judge said hat he had had regard to the Sentencing Council guideline for rape.

The judge found that each of the offences involved high culpability because of the sexual motivation for the offending and the specific intention to inflict extreme and gratuitous degradation on the victim. The intended harm was of the highest category for each offence. Miss Wass correctly points out in her submissions that these were offences of a preparatory kind. No completed offences took place. Ms Willoughby was not actually attacked or threatened in any way, and was unaware of the offending while it was taking place. However, in assessing culpability and harm for the purpose of assessing seriousness, the court is not only required to consider harm which has actually occurred, but also the harm which was intended. In this case the harm which was intended was of the gravest and highest possible kind. As the judge put it, if the applicant had found one or more genuine, willing accomplices, this plan would have been put into effect.

The judge then identified a series of aggravating factors which it is unnecessary for us to identify. They emerge from the account of the facts that we have already given.

We have also touched on the mitigating factors in passing. In the circumstances which actually existed, as opposed to those which the applicant hoped existed, the plan was unlikely to succeed. He would have had a great deal of difficulty in actually carrying it out.

The judge had before him when sentencing: the facts, which we have identified, and the previous convictions, which we have described. He did not have a pre-sentence report. He had presided over the trial. He concluded that none was necessary, and that was a perfectly appropriate conclusion for him to reach. We also consider that no such report is required now.

In addition to that material, the judge had victim personal statements. In particular, there was a statement from Ms Willoughby. That statement was treated confidentially below, at her request. It was not read out to the court. The judge, prosecuting counsel and defence counsel had read it. By agreement, the following was said in open court. The words used are the words of the prosecution, rather than the victim's own words. The form of words is as follows:

Miss Wass relies upon five proposed grounds of appeal. In her oral submissions she refined them into two central submissions. She made it clear that the facts of the case are not in dispute and have never been, save that the applicant denied that he genuinely intended that these things would actually happen. The issue, as she put it, was about intention and the viability of what the applicant said he wanted to do. His chances of successfully committing any of the intended crimes were very limited. In those circumstances, she advances as her first central submission the contention that the notional determinate period (24 years after a trial) was manifestly excessive. She points out that none of this offending actually led to any physical assault, or physical harm to the victim. She identifies by way of illustration three levels of criminality in (as she would put it) descending order of seriousness. First of all, there is the completed offence (in this case rape, kidnap and murder). None of those completed offences occurred. Secondly, she would say, there is the category of offending classified as attempted offending – conduct which involves acts which are more than merely preparatory to the commission of those completed offences. That, she submits, is the second level of seriousness. Thirdly, and finally, she says that the lowest category of seriousness here is soliciting or encouraging others to offend.

In support of that distinction, Miss Wass relies on the decision of this court in R v Franks [2023] EWCA Crim 319; [2023] 2 Cr App R(S) 29. That was a case involving activity on the internet which was designed to recruit an accomplice who would murder the appellant's intended victim. No one was successfully recruited, and the intended victim was not in fact attacked. The sentencing judge at first instance concluded that the attempted murder guidelines could be used as a framework and a starting point. On appeal, this court held that "the guidelines for offences of attempted murder were not in point because, as the full court observed when granting leave to appeal, no attempt of any sort was ever made or was even feasible". The court then said that there were differences between offences of attempted murder and offences of soliciting murder which would govern how seriously the court would view them. The court said:

In Franks the sentencing judge had imposed a sentence of 12 years' imprisonment. The court concluded, following its analysis of the approach to the guideline and the decision in R v Hunter [2007] EWCA Crim 3424, that the term of 12 years had been manifestly excessive. They quashed it and substituted a term of six years' imprisonment in its place.

Miss Wass, it is fair to say, places that decision at the forefront of her submissions about the judge's approached to the determination of the sentence for the offending which was the basis of his calculation of the minimum terms. She submits that, having regard to the approach taken in Franks, the term adopted was far too long.

Her second central submission is that the judge should not have imposed a life sentence in this case. She does not submit that the judge was wrong to treat the applicant as a dangerous offender. However, she says that the life sentence should remain a sentence of last resort and that the judge should have considered an extended sentence and explained why such a sentence would have been inadequate, before moving to the conclusion that a life sentence was required. She makes the point that an extended sentence for offending of this kind could involve an extended period of licence of up to eight years, which would give the court and the Parole Board a substantial assurance that public safety could be protected.

We have considered the proposed grounds of appeal with anxious care and we have concluded, in respectful disagreement with the single judge, that they are arguable. Accordingly, we will grant leave to appeal and we will grant a representation order for leading counsel to present them.

However, having granted leave for them to be argued, we have concluded that they are ultimately unpersuasive and we dismiss the appeal. We shall now explain shortly our reasoning for taking that course.

First of all, we should say something about the decision of this court in Franks, from which we have quoted extensively above. We do not consider that Franks should be read as meaning that all cases of soliciting murder, contrary to the Offences against the Person Act 1861, are less serious than all offences of attempted murder. That would be a misreading of that decision. The court itself pointed out that extensive planning and premeditation is almost always an element of offences of solicitation that may be entirely absent from many offences of attempted murder, which may involve conduct which arises on the spur of the moment. It is therefore easy to envisage how many offences of soliciting murder may be more serious than some offences of attempted murder. Indeed, looking at the broad category of offending of this kind, it may be difficult to identify any firm rules placing one set of offences as necessarily being more serious than another set of offences. By way of illustration, a case of soliciting to murder involves trying to persuade somebody else to commit the crime. The offender may solicit in a way which is persistent and persuasive; it may involve payment or other inducement for that person to carry out the crime; it may be very close to success. If the person who is solicited does indeed go on to commit the crime, the offender who encouraged that offence will be guilty of murder and liable to be punished by way of a mandatory life sentence with a minimum term fixed under Schedule 21 to the Sentencing Code.

What is necessary in assessing the seriousness of offending of this kind is a close analysis of the facts, of the intention of the offender, of what was planned, and the seriousness of what would have occurred had the offender succeeded.

In our judgment, the decision in Franks is not to be read as authority for the proposition that the attempted murder guideline has no part to play as a yardstick in sentencing cases which do not actually involve attempts but which do involve conduct which is at least as serious in the context of offences of this sort as if they did.

We therefore agree with the trial judge that it was appropriate for him to have regard to the guideline for attempted murder. He placed the case in category B2 of that guideline. That has a starting point of 25 years' custody and a range of 20 to 30 years. That is an assessment which cannot be criticised. The submission based on Franks is that it should not have been undertaken at all. We have rejected that submission. It is important to point out that that is a guideline which applies to single offences. Here there was a long period of time during which the applicant attempted to incite the offences of rape and kidnap, as well as murder. His attempt was not only to incite one potential accomplice. He incited one after another, after another, hoping to find one who would actually help him. In those circumstances there was good reason to consider aggravating the starting point for the offending. But it was necessary to have regard to what Miss Wass has described as the "viability" of the plans and what the judge called their "feasibility". Those are points which were properly taken into account in bringing about a result whereby the determinate sentence, had a life sentence not been imposed, was not pitched at 25 years, but at 24 years.

In our judgment, having regard to all the circumstances of the case, including in particular the appellant's previous convictions, that was an appropriate result. Accordingly, we reject the first main ground on which Miss Wass relies.

So far as the passing of the life sentence is concerned, we also reject the submission that it was necessary for the judge, as part of his reasoning, expressly to contemplate the imposition of an extended sentence and to explain why it would not meet the needs of the case. The statutory scheme is that the judge is first required to consider whether the offender was dangerous. He did that, and there is no criticism of his conclusion on that subject.

Next, the judge was required to consider the level of seriousness of the offending and to take a decision as to whether it justified a life sentence. He concluded that it did. That was a conclusion based on all the offences taken together and also a decision which had regard to the previous convictions.

Having arrived at that point, the statutory scheme requires the judge to impose a life sentence. Providing the judge's reasoning addresses those different stages of the process and arrives at sound conclusions in relation to them, then we do not consider that it was necessary for him to refer to any shortcomings that the extended sentence regime might have had. In any event, we would point out that this is a case where the appellant clearly is dangerous and where there is no way of knowing when or if ever that will cease to be the case. Under an extended determinate sentence, a time would come where the appellant would be entitled to be released, even if he were still dangerous. In the circumstances of this case, that is not an acceptable risk for the court to take with public safety.

Accordingly, adopting both the statutory scheme for dangerous offenders and also considering the basis on which discretionary life sentences are imposed for the protection of the public, we consider that the judge's conclusion in this case on this question was unimpeachable.

For those reasons, we also reject Miss Wass' second core submission and with that the appeal fails and is dismissed.