R v Cunnard: Judicial application and expansion of section 102 of the Sentencing Act 2002

Section 102 of the Sentencing Act 2002 gives judges’ only limited discretion when sentencing for stage-1 murder: the discretion to rebut the presumption of life imprisonment in circumstances where the sentence would otherwise be “manifestly unjust”. This is a high threshold, and the Court of Appeal has said that it will be met only in exceptional cases. The judgment in R v Cunnard is the first time that a person who derived their conviction of murder from a principal offender has had the presumption displaced, and this essay explores whether or not this decision has lowered the threshold to establish manifest injustice. Although Miller J’s judgment conforms to the common features that exist in the few cases where the presumption has been successfully displaced, it is not without criticism. There are issues as to whether an overall assessment of the circumstances of the offence and the offender were made, as well as significant concerns regarding the emphasis the judge placed on sentence parity between co-offenders.