By John Pring Disability News Service 19/01/2017

The solicitor general has agreed to appeal the allegedly “unduly lenient” sentences handed down to three people jailed for offences connected with the murder of a disabled man who was imprisoned and tortured to death.

But the solicitor general, the Tory MP Robert Buckland, has refused to appeal against the sentence handed to James Wheatley, the man who murdered 24-year-old Lee Irving.

His decisions have caused further confusion about the law on sentencing disability hate crimes, and its application by the criminal justice system.

Wheatley, 29, from Kenton Bar, Newcastle, repeatedly kicked, punched and stamped on Irving in attacks that took place over nine days, leaving him with multiple broken bones and other injuries.

After he died, his body was taken on a pushchair through a housing estate and dumped on a patch of grass near the A1.

Wheatley was found guilty of murder and was sentenced to life in prison, and will have to serve at least 23 years.

But if the murder had been dealt with by the judge as a disability hate crime, he would have had to serve a minimum of 30 years in prison.

Three other defendants – Wheatley’s mother Julie Mills, 52, girlfriend Nicole Lawrence, 22, and lodger Barry Imray, 35 – were also jailed for offences connected with Irving’s death, Mills to eight years, Lawrence to four years, and Imray to three.

Northumbria police and the Crown Prosecution Service (CPS) had treated Irving’s death as a disability hate crime, but the judge had instead increased Wheatley’s sentence on the less serious basis of Irving’s “vulnerability”, after deciding there was not enough evidence to prove any of the offences were motivated by disability-related hostility.

Lee’s aunt, Lisa Irving, told Disability News Service that the family were “immensely thankful that the attorney general has decided to reopen this case”.

She joined with the Disability Hate Crime Network (DHCN) late last year to write to the attorney general to ask him to appeal the sentences on the grounds that the offences were disability hate crimes*.

She said last night (Wednesday): “The trial was particularly harrowing for our family and friends to endure, though it was important we attended and showed our support.

“This concluded with what we believed to be inadequate sentencing, not just for Julie and Nikki, but for James also.”

She believes that Imray, who himself has learning difficulties, was probably a victim of disability hate crime himself and was forced by Wheatley to help him cover up his crimes.

She added: “To be told the motivation for the murder was not Lee’s disability is hard to comprehend.

“Lee was targeted, manipulated and isolated because of his disabilities.

“Someone without Lee’s condition would have been able to potentially spot signs of danger, as well as able to remove themselves from any harmful situation.

“Make no mistake, this was very much a crime motivated by disability.”

She added: “No words will ever portray the hurt and anguish [of] Lee’s death to the full extent, but it is imperative that the correct sentences are handed out for our sense of closure and justice, as well as a deterrent for others, so it is particularly disappointing that James’ sentence has not been re-examined.”

CPS also wrote to the attorney general late last year, “to seek leave to appeal the sentences of Barry Imray, Julie Mills and Nicole Lawrence, on the grounds that the original sentences did not adequately reflect the severity of their offending”.

But a CPS spokesman had failed to say by 1pm today (Thursday) whether part of its argument was that the offences should have been sentenced as disability hate crimes, and why it did not seek leave to appeal Wheatley’s sentence.

Anne Novis, a DHCN coordinator who leads for Inclusion London on disability hate crime, said she was disappointed that the Wheatley sentence had not been referred to the court of appeal, although she welcomed the decision to look again at the sentencing in the other cases.

She said the case highlighted the continuing confusion in the criminal justice system about its treatment of “vulnerability” and disability hate crime.

She said she hoped that the issue of disability hate crime would be addressed in the appeal hearing, but she added: “Being so disappointed in the past around sentencing, I wouldn’t get my hopes up in respect of a just outcome.”

A spokeswoman for Buckland has declined to say whether disability hate crime played any part in the decision to appeal.

She confirmed that the sentences for Mills, Lawrence and Imray had been referred to the court of appeal under the Unduly Lenient Sentence scheme, with the hearing set for 7 March.

She added: “After careful consideration, the solicitor general has decided not to refer the life sentence passed on James Wheatley to the court of appeal.

“He concluded that the minimum term of 23 years to be served by the offender before he will be considered for release would not be increased by the court of appeal.”

She said she could not comment on “the arguments in respect of the three sentences”, which “will be set out by counsel at the court of appeal hearing”.

*Section 146 of the Criminal Justice Act 2003 imposes a duty on the court to increase sentences for offences motivated by disability-related hostility, while the Legal Aid, Sentencing and Punishment of Offenders Act 2012 doubles to 30 years the starting point for sentences for disability hate crime murders