Neil Walgate, 48, who murdered a 15-year-old boy in 1999
1. On 17 November 1999, after a trial before myself (as a High Court Judge) and a jury at Lincoln Crown Court, Neil Walgate (pictured above) of Beacon Park Drive, Skegness was found guilty, by a majority of 10 to 2, of murder.
He was sentenced to life imprisonment. His case has now been referred to the court, pursuant to paragraph 6 of schedule 22 to the Criminal Justice Act 2003, for the determination of his minimum term under section 269 of the 2003 Act.
The circumstances of the offence
2. The following account is taken from my report to the Home Secretary following the trial.
3. The deceased was a 15 year old boy who died on the beach at Skegness on the night of 2-3 January 1999.
The cause of death was suffocation: his head had been pressed down firmly into the sand for some 20-30 seconds.
Sand had also been heaped around the head, but this must have been done after death, possibly in an aborted attempt to bury the body.
There were injuries to the left side of the mouth and to the neck which were the result of two separate blows but were not themselves significantly incapacitating. He was found lying face down in the sand, with his arms folded under him. His jeans had been undone and partly pulled own to expose his buttocks.
He had defecated, probably as a bodily reaction when suffocating.
There were faeces on the inside and outside of his clothing and a small quantity was pressed into the hair at the back of his head.
His penis was partly protruding from his clothing.
The position and state of the body suggested that sexual activity had taken place or was about to take place at the time of death.
4. The defendant was a homosexual man, aged 32 at the time of the offence, who lived with his male partner in the town.
His homosexuality was widely known. He socialised a lot with teenage boys and young men, seemingly using the social smoking of cannabis as a means of ingratiating himself. But he had no record of sexual offending or of violence.
5. The deceased and the defendant knew each other. The deceased tended to mix with people somewhat older than himself. He knew that the defendant was a homosexual. The evidence about the deceased’s own sexuality was not so clear-cut.
6. On the evening of 2 January the deceased and the defendant met at a night club in Skegness, to which each had gone separately with his own group of friends.
During the evening they chatted and sang karaoke together. The atmosphere was very friendly. One witness described the deceased as following the defendant around and touching him, though more a ‘mates together’ gesture than a sign of affection.
7. The defendant and the deceased left the nightclub together at just before 11.30 pm. By that time the deceased had had a lot to drink: the post mortem found his alcohol level to be about three times higher than the legal limit for driving. The evidence was that the drink was bound to have some effect on him but would not have incapacitated him. He had also smoked a small quantity of cannabis, but not enough to show up on later tests.
8. The defendant and the deceased were seen to walk quite fast, ‘linked together’, in the direction of the beach. They were not seen returning. The deceased was not seen alive after that. His body was found on the beach the next morning. It had been there for many hours but the precise time of death could not be established. The next identification of the defendant, collecting his bicycle from the house where he had left it before going to the nightclub, was some 15-20 minutes after he had been seen walking with the deceased in the direction of the beach. This was almost certainly the period during which the offence was committed.
9. The defendant eventually admitted to the police – in his 17th interview – that he had gone down to the sea-front with the deceased, but denied going onto the beach with him. His account was that he had had oral sex with the deceased in the toilets of the nightclub; he had then gone to the sea-front with the deceased at the deceased’s request in order to pick up a package (he understood it to be a package of drugs); two men had appeared and he thought that a deal took place between them and the deceased; one of the men then threatened the defendant with violence if he talked about it; and the defendant then ran off in fright, leaving the deceased behind with the two men.
10. The defendant did not give evidence at the trial.
11. The jury must have disbelieved the defendant’s account to the police and must have been sure that (i) it was the defendant who pressed the deceased’s head into the sand, causing him to suffocate, and (ii) at the time of that act the defendant intended to kill the deceased or to cause him really serious harm.
12. The most likely explanation for what happened is that the defendant started to engage in consensual homosexual activity with the deceased but lost his self-control in a state of sexual excitement, holding the deceased firmly down despite the deceased’s struggles to breathe. There was no evidence of premeditation or planning. It is impossible to say whether the jury found an intention to kill or simply an intention to cause really serious harm. In either case, however, the intention must have been formed suddenly at the time of the incident.
13. In my report to the Home Secretary I made the observation, based on my assessment of the evidence at the trial, that although a finding of murder was open to the jury, a finding of manslaughter would not have been in the least surprising.
Legislative framework and procedural matters
14. In determining the minimum period to be served, I have directed myself by reference to the provisions of schedule 22 to the 2003 Act, in particular paragraphs 6-8, and to the provisions of section 269, including the need to have regard to the principles set out in schedule 21 in considering the seriousness of the offence.
15. An important feature of the relevant provisions is that the minimum term specified by me must not be greater than that which, under the practice followed before December 2002, the Home Secretary would have been likely to notify as the minimum period to be served before the defendant’s release on licence. Account must also be taken of any period served in custody on remand before sentence was passed.
16. The material I have considered includes representations made by the defendant’s solicitors to the Secretary of State, dated 29 November 2002, and further representations made to the court, dated 23 June 2004. In a letter dated 25 January 2005 the defendant’s solicitors requested an oral hearing. I have considered that request but have concluded that a hearing is not necessary and that the matter can fairly be determined on the papers (see R (Hammond) v Secretary of State for the Home Office [2005] UKHL 69).
17. The material I have considered also includes letters from the deceased’s mother and sister describing the impact of his death upon the family.
Discussion and decision
18. In determining the minimum term, the starting point under schedule 21 to the 2003 Act would be 15 years: I do not think that the offence should be categorised as “a murder involving sexual or sadistic conduct” so as to call for a 30 year starting point under paragraph 5 of schedule 21. The starting point under the regime operating at the relevant time (see paragraph 8 of schedule 22 and paragraphs IV.49.14-IV.49.21 of the Consolidated Criminal Practice Direction, as amended) was 14 years.
19. The principal aggravating factor is the youth and vulnerability of the 15 year old victim, especially bearing in mind the much greater age of the defendant and the apparent homosexual context.
20. The principal mitigating factors are the lack of premeditation or planning and the absence of previous convictions in respect of remotely similar offences (though the defendant was not of good character: he had convictions mainly for offences of dishonesty or minor instances of obstructing the police, but had also received a suspended sentence of 12 months’ imprisonment in 1991 for having a firearm with intent to resist arrest). I also think it right to proceed for this purpose on the basis that the defendant’s intention at the material time was to cause really serious harm rather than to kill.
21. In my report to the Home Secretary I observed that the defendant’s adherence to a lying account and the absence of any clear expression of remorse deprived the defendant of substantial mitigation that would have reduced the recommended term. In his solicitor’s representations it is said on his behalf that, whilst maintaining his innocence, the defendant is remorseful for the victim’s family and understands that the family will continue to suffer as a result of their loss. I take that into account but do not regard it as having a significant effect on the minimum term.
22. The representations state that the defendant has made good progress in prison and has been of exemplary behaviour. I am prepared to accept those points, though I have not been given supporting details. But in my view the case does not fall within the exceptional category where progress in prison might justify some reduction in the minimum term (see Cole and Others v Secretary of State for the Home Department [2003] EWHC 1789, paragraph 88).
23. The representations also suggest that the delay that has occurred in setting the minimum term since the conviction in November 1999 will have a detrimental effect on the defendant’s progress, as there is no indication of when his first review or tariff expiry review will take place. I am not satisfied that the delay will have any adverse effect of that kind, but I take into account, as a point in the defendant’s favour, the fact that he has been left in a position of uncertainty for such a long period.
24. In my report to the Home Secretary I recommended a minimum term of 12 years. On the basis of my report the Lord Chief Justice observed that the defendant was perhaps unfortunate to be convicted of murder and that, assuming the correctness of the verdict, a term of 12-13 years seemed appropriate.
25. In all the circumstances I have decided to make an order under section 269(2) of the 2003 Act that the early release provisions are to apply to the defendant as soon as he has served 12 years of his sentence, less the period of 10 months 6 days spent in custody on remand.
