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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Urfan & Ors, R. v [2025] EWCA Crim 372 (13 March 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/372.html Cite as: [2025] EWCA Crim 372

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
(MR JUSTICE CAVANAGH)
[45KW1011823]

ATTORNEY GENERAL'S REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988

		13 March 2025

This judgment was handed down ex tempore on Thursday 13 March 2025 in Court 4.

Note: An order under section 45A of the Youth Justice and Criminal Act 1999 is in place in respect of a number of witnesses involved in the Crown Court proceedings in this matter who are under the age of 18. Restrictions imposed under section 45A in respect of a victim or witness apply for life.

The Lady Carr of Walton-on-the-Hill, CJ:

An order under section 45A of the Youth Justice and Criminal Act 1999 is in place in respect of a number of witnesses involved in the Crown Court proceedings in this matter who are under the age of 18. Restrictions imposed under section 45A in respect of a victim or witness apply for life.

Introduction

1. The Registrar has referred these three applications for leave to appeal against sentence to the full court. The applicants are the father, stepmother and uncle of Sara Sharif who died on 8 August 2023 at the age of 10.
2. On 11 December 2024, following a trial in the Central Criminal Court before Cavanagh J and a jury, Sara's father, Urfan Sharif (Sharif), and stepmother, Beinash Batool (Batool), were convicted of Sara's murder. On the same day, Sara's paternal uncle, Faisal Malik (Malik), was acquitted of Sara's murder but convicted of causing or allowing her death, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004.
3. The applicants were sentenced by the trial judge on 17 December 2024, with technical adjustment following a slip rule hearing on 23 December 2024, as follows:

(1) Sharif, imprisonment for life, with a minimum term of 40 years, less time spent on remand, meaning a period of 38 years and 271 days specified as the minimum term under section 322 of the Sentencing Act 2020;

(2) Batool, imprisonment for life, with a minimum term of 33 years, less time spent on remand, meaning a period of 31 years and 271 days specified as the minimum term under section 322 of the Sentencing Act 2020;

(3) Malik, 16 years' imprisonment (less 459 spent on remand in custody).

4. Also before us is an application by His Majesty's Solicitor General, under section 36 of the Criminal Justice Act 1988, for leave to refer the sentence imposed on Sharif as being unduly lenient.
5. On an appeal or a Reference by the Law Officers, this court will not substitute its own assessment for that of the sentencing judge. It will interfere only if the sentence in question was manifestly excessive (or wrong in principle) or unduly lenient, as the case may be.
6. The questions for us in the first instance are whether: (1) the sentence imposed on Sharif is (arguably) manifestly excessive or unduly lenient; and (2) the sentences imposed on Batool and Malik are (arguably) manifestly excessive.

The Facts

7. The relevant facts of this tragic case are well known and we summarise them only briefly.
8. Sara was born on 11 January 2013. For the first few years of her life she lived with her mother, her older brother and one of her mother's sons from a previous relationship.
9. In 2014 Sharif began a relationship with Batool, and by early 2015 he and Batool were living together in Woking. Until June 2017, Sharif only had supervised contact with Sara and her brother. From then until March 2019 Sara and her brother would stay with Sharif and Batool on weekends and during school holidays.
10. In March 2019, Sara and her older brother made allegations of abuse at the hands of their mother, following which they moved in with Sharif. Sharif was later awarded custody of both children.
11. In January 2016, Batool gave birth to twins. As the twins, who had behavioural issues, grew older, they became very challenging. In December 2018, Batool gave birth to a son who suffers from ill-health. In July 2022 another son was born. So by July 2022 the family consisted of two adults and six children, including Sara. They lived together in a small flat in West Byfleet from 2017 until April 2023, when they moved into a three-bedroomed house in Woking. Sharif worked long hours as a taxi driver and Batool stayed at home looking after the children.
12. Sharif began regularly assaulting Sara soon after she moved into the family home, often inflicting serious violence on her. He designed unpleasant punishments for her, such as making her stand against a wall holding her arms up, or making her do sit-ups. On occasion, he would wake her in the middle of the night to impose physical punishment on her. From the age of 6 or 7, Sara was made to do the washing and drying. She had to tidy up the house and care for her youngest brother. She was singled out amongst the children for this treatment. There was no evidence of violence towards her older brother or her younger siblings. In general, neither Sharif nor Batool had any concern for Sara's happiness or her quality of life. She was treated as if she was worthless. No allowances were made for her age.
13. In June 2022 and again in April 2023, Sharif removed Sara suddenly from school. He was concerned that the authorities would discover his ill-treatment of her because of her visible signs of abuse. For some time she was made to wear the hijab and her whole body was covered up in order to hide the bruises that were all over her body. Sara was not only subjected to despicable abuse, she was also deprived of an education.
14. Batool did not protect Sara, but went along with Sharif's abuse. Indeed, she encouraged and assisted Sharif in some of his assaults. She cared less about Sara, because Sara was not her own natural child. Batool could be heard by neighbours yelling and swearing at Sara. Although she sometimes put cream on Sara's wounds, Batool did not stop Sharif from hitting Sara. Nor did she seek intervention to protect Sara out of concern that if she did so, she might or would lose custody of all of her children. At times she took active steps to cover up for Sharif. She sometimes put makeup on Sara's bruises to conceal them, and she went along with the decision to home-school Sara. Sometimes she would call Sharif at work to summon him home, knowing full well that this would likely result in a beating to Sara. Sara began to vomit up food and at times she soiled herself. In response to this, Sharif assaulted her further. When Sara soiled herself, Batool would ask Sharif to come home to sort it out, knowing very well and intending that he would deal with it by beating the child.
15. The assaults on Sara were carried out in front of the other children, or at least in locations where the beatings and Sara's screams could be heard by the other children. Sara's older brother was aware of the constant ill-treatment of his sister and this affected his own behaviour towards her.
16. Malik was Sharif's brother. He arrived in the household in December 2022. He had come from Pakistan to undertake a postgraduate course at Portsmouth University. From May 2023, apart from working 20 hours a week at McDonald's, he spent the bulk of his time in the house.
17. As for the last couple of months of Sara's life, the post-mortem evidence showed that when she died she had at least 71 separate fresh injuries on her body, mainly bruises and abrasions in various places. There were also marks of older injuries. She had been beaten on her head, her face, her chest, her abdomen and on each of her arms and legs. Some of the marks were consistent with being tied up. Many of the injuries had tramline markings showing that she had been beaten with an elongated object. Sharif admitted to beating Sara on a number of occasions with a metal pole and a cricket bat, and to hitting her on the head with a mobile telephone.
18. In addition to the 71 fresh injuries, Sara also had 25 separate fractures, including a fractured collar bone, two fractured shoulder blades, fractured ribs, a fractured humerus, 11 separate fractures to her spinal column, and fractures to bones in both of her hands. These fractures were dated variously between eight weeks before death and two weeks before death. They were the result of multiple episodes of violence, each involving a substantial degree of force.
19. The medical experts identified a fracture in the hyoid bone in Sara's neck. That is a very unusual injury and was the result of very vigorous and energetic manual strangulation. Sara had also sustained a serious brain injury a few days before she died as a result of a blow to her head. She had two open burn wounds on her buttocks. These were in the shape of the soleplate of an iron and matched the iron that was found in the house. The wounds had undoubtedly been caused by her buttocks being pressed for several seconds against the hot plate of the iron. This would have required two people to carry out: one to hold the little girl down and the other to press her against the iron. This injury had been sustained between two and six weeks before death. Nobody had treated it. Nobody had sought medical help. Had Sara lived, it would have caused permanent disfigurement. Sara had open burn wounds also on the bones of the inside of each ankle, indicating that her ankles had been tied and then either her feet wrapped around a hot pipe, or, more likely, boiling water being poured on her ankles. She also had six bite marks on her body: five on her left arm and one on the inside of her left thigh, assumed to have been caused by Batool.
20. In the last weeks of her life, Sara was tied up. She was trussed up with masking tape and skipping rope and hooded. Plastic bags were put over her head and held in place with masking tape. A hole was ripped in the plastic bag so that she could breathe.
21. When the bins at the house were examined after her death, the police found a soiled nappy wrapped around her leggings – evidence that Sharif and Batool were putting her in pull-up nappies because they were not allowing her to go to the toilet whilst she was trussed up. Moreover, the medical evidence showed that Sara had been left in her own urine and faeces, with restraints so tight that her feet and ankles were pulled up so that they were in contact with her bottom. She was underweight and she was undernourished.
22. The cause of death was complications arising from multiple injuries and neglect, suffered cumulatively, not specific to a single injury or incident.
23. In the early evening of Tuesday 8 August 2023, Batool saw that Sara was very unwell. She called Sharif, asking him to come home. When he returned, Sara was floppy in Batool's arms. Sharif proceeded to beat Sara vigorously with a metal pole on her abdomen for pretending to be ill. A few moments later she died. Malik was in the house at the time.
24. None of the three adults called for an ambulance or the police. Rather, they made immediate preparations to flee to Pakistan with a view to abandoning Sara's body in the house. Indeed, within less than an hour of her death they were arranging flights to Pakistan for the rest of the family. They then took steps to cover up what they had done. Sara's body was washed, put in clean clothes and placed on a bed. Her leggings, the nappy she was wearing, the masking tape and the hoods were all put into bins. The metal pole was hidden in an outbuilding. Malik's McDonald's uniform was found partly in and partly next to the bins, alongside the other items. Part of the uniform was soaking wet.
25. Sharif removed the Ring doorbell to hide any video evidence, and he left a note on Sara's body saying: "Whoever sees this note, it's me, Urfan Sharif, who killed my daughter by beating. I am running away because I'm scared, but I promise that I will hand over myself and take punishment".
26. The following morning, Sharif, Batool and Malik drove the remaining children to Heathrow. They stopped on the way for Sharif and Batool to withdraw substantial sums of money in cash, before fleeing to Pakistan.
27. Upon their arrival at Islamabad, Sharif rang Surrey Police, saying he had killed his daughter; her body could be found at the house. He said tearfully: "I did legally punish my daughter and she died". He said that he intended to hand himself in, but did not tell the police where he was. They all then went into hiding in Pakistan.
28. On 6 September 2023, Sharif and Batool took part in a video press statement in which they referred only briefly to Sara, saying that it was "an incident". They then spent the rest of the time complaining about the pressure under which they were from the Pakistani authorities.
29. On 13 September 2023, Sharif, Batool and Malik flew back to the United Kingdom. They were arrested on arrival and interviewed. All declined to answer questions in police interview.
30. Sharif was 43 years old at the time of conviction. He had one previous conviction in 2013 for an offence of employer theft.
31. Batool was aged 30 at the time of conviction. She had previous convictions for two offences of theft and making a false representation.
32. Malik was 29 years old at the time of conviction. He had no previous convictions or cautions.
33. Sara was a little girl full of personality – a beautiful, brave, feisty and spirited child who adored her younger brother. Her teacher described her as bubbly, confident, chatty and engaging. She loved to sing and dance.

The Sentence

34. The judge proceeded to sentence without any pre-sentence reports, and we agree that none were necessary.
35. In careful and well-structured sentencing remarks, the judge described the campaign of abuse against Sara as torture. He said that none of the applicants had shown a shred of true remorse. At trial, Sharif had blamed Batool for Sara's injuries, until it became clear that his description of events simply had no credibility. He then asserted that he had not intended to cause any injury to Sara and that his admitted assaults were not the cause of her death.
36. Malik and Batool remained silent at trial and had made no effort to accept any responsibility for their offending.

Sharif

37. The judge stated that Sharif's offending did not come within the class of offending for which a whole life order would be appropriate. The way that Sharif treated Sara, culminating in her murder, was of such seriousness, however, as to warrant a 30 year starting point. Even if the word "sadistic" was not precisely apt to describe the offending which did not fall within any of the specific examples in Schedule 21 to the Sentencing Act 2020 (Schedule 21), for which a starting point of 30 years for the minimum term was appropriate, that list was not exhaustive. Sharif had plainly derived grim satisfaction from his campaign of violence against Sara.
38. The judge then identified three statutory and 11 non-statutory aggravating factors. Statutory aggravating factors were: Sara's particular vulnerability due to her age; the fact that she experienced extreme mental and physical suffering, mainly at the hands of Sharif; and the fact that the assaults, which went on for four years, were accompanied by other acts of cruelty which meant that Sara must have been in a constant state of terror. Sharif took Sara out of school to conceal what he had done. In the last few weeks, Sara was tied up, hooded, left to wallow in her own urine and faeces, and tortured. Thirdly, there was the abuse of trust, although the judge bore in mind the overlap between the abuse of a position of trust and Sara's vulnerability.
39. As for non-statutory aggravating factors, Sara had been singled out as a female child who was not Batool's child. Weapons and restraints had been used and the assaults took place in front, or within the hearing, of other children. When Sara was close to death, Sharif did not call an ambulance or seek medical help. He beat her with a metal rod. Following her murder, he fled abroad, went into hiding, and then denied everything until six days into his evidence at trial. He disposed of evidence. He sought to blame Batool, which the judge described as a major aggravating factor. He had a history of preying on vulnerable women and had shown no real remorse, but was suffused with self-pity.
40. The judge said that the previous conviction was of no relevance. Whilst he had been careful to avoid double counting, a sentence of 30 years would not reflect the gravity of Sharif's offending. There was very little by way of mitigation. The judge accepted that Sharif did not intend to kill Sara, but this was scant mitigation in the circumstances.

Batool

41. The judge said that Batool's involvement consisted mainly of encouraging and assisting Sharif in his assaults. She valued Sara less than her other children and was prepared to sacrifice Sara in fear of losing her other children.
42. Batool had taken an active part in some of the maltreatment of Sara. She had bitten her on the arm and inner thigh shortly before she died. She had taken part in the tying up and hooding of Sara. The judge had no doubt that Batool was involved in the burning of Sara with an iron. She sincerely expressed horror and concern in the early stages of Sharif's treatment of Sara, but did nothing about it and became complicit in it. The judge said that her conduct was of such seriousness as to warrant a 30 year starting point.
43. The judge then identified the same statutory aggravating factors as for Sharif, with the same caution about overlap and the need to avoid double counting.
44. As for non-statutory aggravating features, he identified: the singling out of Sara for ill-treatment as a female with a different mother; the use of weapons and restraints; the fact that the assault took place in front, or within the hearing, of other children; the deliberate concealment of the maltreatment; the failure to seek medical help; the fleeing to Pakistan; the abandoning of Sara's body; the disposal of evidence; the uprooting of her other children and stepchild from their home; and the lack of credible remorse.
45. The judge then identified the following mitigating features, which he described as "significant". Batool was not the prime mover in the assaults; her role was a secondary one of assisting and encouraging Sharif. She had displayed the occasional act of kindness towards Sara. Batool was in a coercive and controlling relationship. Sharif was considerably older and she felt under pressure to obey him and follow his lead. She was vulnerable when they met and was the occasional victim of abuse by Sharif. She was under a great deal of strain as essentially the sole carer of six children in a flat and then a house, each of which was far too small. The twins had challenging behaviour. She had had a difficult, strict and religious upbringing. She had been disowned by her own father, had a medical history of depression, and was effectively of good character. However, the judge said that the impact of the mitigation was limited. Batool had a strong character and could have stood up to Sharif in relation to his treatment of Sara. She should have taken steps to stop the torture of Sara, but instead took a positive decision not to seek help. She had not intended to kill Sara, but this again was scant mitigation.

Malik

46. The judge stated that Malik's offending consisted of failing to take reasonable steps to protect Sara from the risk of physical harm being caused to her by the unlawful acts of Sharif and Batool. There was no evidence that Malik had played an active part in the ill-treatment of Sara, but he could not have failed to have been aware of much of the terrible ill-treatment, yet he stood by and did nothing. He was present for, and well aware of, a substantial number of the assaults on Sara during his time with the family.
47. The judge placed the offending in very high culpability category 1A, with a starting point of 14 years' imprisonment, and a range of 12 to 18 years' imprisonment. The judge said that Malik's failure to protect Sara was extreme.
48. The judge identified as aggravating factors: the prolonged and exceptional suffering endured by Sara, recognising the need to avoid double counting; the fact that the offences were committed in the presence of other children; the failure to seek medical help; the fact that Malik had helped the family to flee to Pakistan; the disposal of important evidence on Malik's mobile telephone; and the lack of remorse.
49. As mitigating features, the judge identified Malik's previous good character and the fact that much of the abuse took place before Malik arrived in the United Kingdom.
50. The judge concluded that Malik did not meet the criteria for dangerousness.

The Grounds of Appeal against Sentence

Sharif

51. It is accepted for Sharif that, whilst not falling within any of the non-exhaustive categories identified in paragraph 3(2) of Schedule 21, the judge was entitled to take 30 years as a notional starting point, before considering aggravating features.
52. The first ground of appeal is that the judge must have double counted some of the aggravating features. Mr Mian KC submits that, having taken a 30 year starting point because of the nature of the overall offending, the court had to be astute to avoid double counting. Whilst the sentencing remarks show that the judge was alive to the risk, in the result it is suggested that he failed to avoid it. It is said that, by reference to the three statutory and 14 non-statutory aggravating factors which he identified, the judge in effect double counted: the mental and physical suffering inflicted on Sara before death, the singling out of Sara amongst the children for harsh treatment, the use of weapons and restraints, and the particular conduct on 8 August. Mr Mian submits that the uplift to 40 years can only be explained on the basis of inadvertent double counting.
53. In summary, it is suggested that the pre-death conduct relied upon by the judge in order to reach a starting point of 30 years could not be used in any way as an aggravating feature to lift the term above 30 years.
54. The second ground of appeal is that the judge took into account matters which should not have been treated as aggravating factors and/or gave such factors undue weight. It is said to have been wrong to treat as aggravating factors the uprooting of the other children, the placing of blame on Batool, and the lack of remorse.
55. As to the uprooting, this presupposed, without supportive evidence, that the children would have been better off here, almost certainly split up from each other, rather than with their family in Pakistan.
56. As for blame on Batool, it is said to have been wrong to treat this as a major aggravating factor. Placing blame on others was capable of being such a factor, but this was typically in circumstances where the blame is being placed on an innocent person.
57. As to remorse, its presence was a mitigating factor; its absence was not an aggravating one.
58. Finally, it is suggested that the judge failed to give sufficient weight to the mitigating factor of absence of intent to kill. The combined result of these errors is suggested to have resulted in a manifestly excessive minimum term of 40 years.

Batool

59. On behalf of Batool, Miss Carberry KC does not challenge the judge's starting point of 30 years but submits that, once selected, that term should have been the ceiling of the minimum term, not its floor. She submits, first, that the judge failed sufficiently to recognise that Batool's culpability was significantly less than that of Sharif; and secondly, that the judge laid too much weight on aggravating factors and too little weight on mitigating factors.
60. As to culpability, Miss Carberry points to the fact that Batool had a secondary role only in the assaults. It is suggested that, having accepted that Batool was not the prime mover in the assaults on Sara, the judge then undermined that mitigation by going on to state that she did take part in inflicting some horrible injuries on Sara. Further, it is suggested that the judge wrongly identified that Batool had sometimes participated in acts of extreme cruelty over a long period, when Batool's participation had only taken place towards the end of the campaign.
61. As for aggravating features, it is suggested again, as with Sharif, that whilst the judge clearly had in mind the risk of double counting, he failed to avoid the trap and must have double counted aggravating features in relation to mental and physical suffering, the use of weapons and the use of restraints.
62. As for mitigating factors, it is suggested that too little weight was placed on Batool's history of domestic abuse within the childhood home, honour-based abuse in her teenage years and isolation from her family, lack of support, guidance or advice from her family, and extreme cultural pressure being placed on Batool. Miss Carberry emphasises that Batool was only 20 years of age when she met Sharif, a man 13 years her senior, and had a history of depression. It is also suggested that the judge failed to place adequate weight on the absence of an intent to kill.
63. The final ground of appeal builds on the first and second and contends that the minimum term should have been reduced below the 30 year starting point and that accordingly the term of 33 years was manifestly excessive.
64. In written submissions, Miss Carberry sought to support her arguments by reference to a number of other cases considered by this court. She sought to draw a contrast between the minimum terms there imposed and the present.
65. We say immediately that we have not been assisted by the citation of these cases. The attempt to draw on supposed similarities and distinctions to and from the present case has not been helpful. When each case is inevitably and particularly dependent on its own facts and circumstances, it is simply not a useful exercise.

Malik

66. It is submitted for Malik that his sentence was manifestly excessive for the following reasons: first, that the judge adopted too high a category within the relevant Sentencing Council guideline: the categorisation should have been 1B, towards the top of the range, and not category 1A. Secondly, it is said that Malik should be sentenced only for what he could be proved to have known or witnessed, not on that which he could not. Thirdly, and in extension, it is said that the judge accepted that Malik had not himself caused any injury to the deceased and this should have reduced his sentence further. Fourthly, it is suggested that many of the aggravating factors of seriousness did not apply to Malik, but they were nevertheless taken into account against him. Fifthly, the criticism is that the judge failed to draw a distinction that Malik did not cause Sara's death; he only allowed it. Sixthly, reliance is placed on the suggestion that if the sentences of Sharif and Batool are to be reduced, then so should the sentence of Malik.
67. In the course of his oral submissions, Mr Ivers KC emphasised in particular that the nature of Malik's offending, namely that it was allowing rather than causing the death of Sara, was not taken into account adequately. Furthermore, the nature of the allowing was not to be treated as extreme, as, for example, might be the case where active steps are taken by an offender to conceal the offending in question.

Grounds of Opposition

68. In summary, it is said that none of the sentences imposed in this case can properly be described as manifestly excessive. The judge, who heard the lengthy trial, was right to describe Sara's death as the culmination of years of neglect, frequent assaults and torture. The judge's approach to sentencing had regard to the relevant sentencing framework in relation to each applicant, based upon the judge's assessments of the facts as he found them to be. It is submitted that none of the grounds raised is arguable.

The Reference under section 36 of the Criminal Justice Act 1988

69. The Solicitor General submits that the judge was wrong not to impose a whole life order on the offender Sharif. The Solicitor General recognises the advantage of the trial judge in assessing seriousness of the offending. It is emphasised that Schedule 21 is, however, not a straitjacket. There must come a point at which the balance tips in favour of a whole life order, even if the facts do not strictly fit the non-exhaustive examples given in paragraph 2. This was a truly awful case of the murder of the child. Given the judge's findings of fact as to the extent, the nature and the duration of the offending, this was a case, it is suggested, where only a whole life order could be imposed.
70. It is said that the judge dealt only briefly with this issue when he could and should have said more as to why he was not imposing a whole life order, given the findings of fact that he was making. It is suggested that it is difficult to conceive of a murder being perpetrated on a young girl by her own father that could be any more serious. There was not an intention to kill, but the judge, it is suggested, rightly regarded that as scant mitigation.
71. It is emphasised by Mr Little KC for the Solicitor General that the categories in Schedule 21 at paragraph 2(2) are not exhaustive, and it is difficult, in the alternative, to see in principle why a case that merits the description of torture should be regarded as less serious, for example, than a murder involving sadistic conduct. Such sadistic conduct can be relatively short lived and still meet that threshold. Indeed, here the judge found torture and grim satisfaction on the part of Sharif from his campaign of violence.
72. Having summarised the facts and the respective arguments, we first set out the relevant sentencing framework for murder, and then our separate analysis in relation to each applicant.

The Relevant Sentencing Framework

73. By section 1(1) of the Murder (Abolition of Death Penalty) Act 1965, an offender who is 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 which case the early release provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 are not to apply to the offender.
74. In the case of an offender who was aged 21 or over when they committed the offence of murder, the court must make a whole life order if:

"The court is of the opinion that because of the seriousness of –

(i) the offence; or

(ii) the combination of the offence and one or more offences associated with it,

it should not make a minimum term order."

75. 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 which are relevant to the case and not incompatible with the provisions of Schedule 21.
76. 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.
77. Paragraph 2 of Schedule 21 provides for the circumstances in which the starting point is a whole life order, materially as follows:

"2 (1) If —

(a) the court considers that the seriousness of the offence … is exceptionally high, and

(b) the offender was aged 21 or over when the offence was committed,

the appropriate starting point is a whole life order.

(2) Cases that would normally fall within sub-paragraph (1)(a) include —

…

(ba) the murder of a child involving a substantial degree of premeditation or planning, where the offence was committed on or after the day on which section 125 of the Police, Crime, Sentencing and Courts Act 2022 came into force [28 June 2022]."

78. 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. Cases normally falling within paragraph 3 include cases of murder involving sadistic conduct.
79. Paragraphs 7 to 11 of Schedule 21 make provision in respect of aggravating and mitigating factors. Having chosen a 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 fact that the victim was particularly vulnerable because of age, mental or physical suffering inflicted on the victim before death, and the abuse of a position of trust. Mitigating factors include an intention to cause serious bodily harm, rather than to kill.
80. The principles relating to whole life orders have been considered recently and authoritatively by the court in R v Stewart and Others [2022] EWCA Crim 1063 (Stewart), where Lord Burnett of Maldon CJ reviewed the statutory provisions and the relevant authorities and summarised the relevant principles at [19]. We do not need to rehearse them here.
81. The parties, during the course of written and oral submissions, referred us to various authorities, including R v Tustin, one of the cases in Stewart, and also R v Lennon [2024] EWCA Crim 719 (Lennon). Even a cursory comparison of the facts of those cases reveals multiple material differences, confirming that there is, in reality, no useful illumination or guidance to be derived from them for our purposes.

Analysis

Sharif

82. We take, first, the Solicitor General's application for leave to refer the sentence. Whilst the prosecution did not press for a whole life order, it did leave open the possibility of such an outcome, both in their written note on sentence and orally at the sentencing hearing. In any event, any concession by the prosecution at first instance is no bar to the Law Officers seeking to contend that the judge's sentence was unduly lenient. But the prosecution approach may, of course, be relevant to whether it was unduly lenient not to impose a whole life order.
83. 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 a very severe penalty. Further, as identified in Stewart at [81], in some cases, probably rare, the seriousness of the offending may be regarded as exceptionally high, even though the circumstances of the case do not fall within one of the criteria set out in paragraph 2(2) of Schedule 21. The criteria are not exhaustive. It is common ground here that Sharif's offending did not fall strictly within any of the criteria.
84. As set out above, the gist of the Solicitor General's argument is that Sharif's offending can and should properly be equated with two of the criteria in paragraph 2(2) of Schedule 21 and that, accordingly, anything less than a whole life order was unduly lenient.
85. We recognise the force of the analogy drawn: the use of repeated, routine, serious violence on a child over such a lengthy period bears comparison with a single act of premeditated lethal violence, amounting to the murder of a child involving a substantial degree of premeditation or planning. Further, Sharif's conduct, described by the judge as a campaign of abuse amounting to torture from which he obtained grim satisfaction, could be said to be of no less gravity than the murder of a child involving sadistic conduct. As the Solicitor General points out, in the latter case the conduct, unlike in the present case, may be short-lived.
86. However, we are not persuaded that anything less than a whole life order was unduly lenient. The judge considered the imposition of a whole life order and judged it to be inappropriate. The fact that he did not give detailed reasons for his conclusion is unsurprising, given the prosecution's lack of emphasis on such an outcome at the sentencing hearing. Whilst the prosecution submitted that the imposition of a whole life order at least merited the court's serious consideration, it went on to submit that the contention that this was a murder of particularly high seriousness was one which could be said "sensibly" to apply to the particular facts of the case.
87. First, whilst recognising always that the categories identified in paragraph 2(2) of Schedule 21 are not exhaustive, the facts of this case, terrible as they are, do not fall within those categories. The absence of planning or premeditation to that end does distinguish this case from a planned or premeditated murder. Equally, as the judge found, the case did not fall within the strict category of murder involving sadistic conduct. Further, in this case, there was an intention to cause serious bodily harm, rather than to kill, and in this context that was a material factor.
88. Secondly, as the authorities demonstrate, it must remain a rare case where the court should impose the last resort of a whole life order in a case falling outside the identified categories.
89. Thirdly, in considering whether or not the case should nonetheless have been met with a whole life order, we remark that this court should give very great weight to the assessment of the trial judge who had heard the evidence in the course of a lengthy trial. He was thus in the very best position to make the overall assessment that he did.
90. In all the circumstances, whilst we grant leave for the Reference, we conclude that the sentence was not unduly lenient.
91. We turn to Sharif's application for leave to appeal against sentence. We are here not persuaded that any of the grounds identified above, individually or collectively, provides any arguable basis on which to challenge the minimum term imposed by the judge.
92. As for double counting, the judge expressly and repeatedly directed himself on the importance of avoiding that risk. On the facts of this case, as we have described them, the net uplift to a 40 year minimum term provides no basis for any concern that he failed to comply with that necessary self-direction. We reject the submission that there is some bright line to be drawn in relation to events before and after Sara's death. The sheer severity, the weight and the extent of the events pre-death entitled the judge, having reached his notional starting point of 30 years, to use those factors to go beyond that starting point without impermissibly double counting.
93. As to aggravating factors taken into account, the judge was fully entitled to treat the uprooting of the other children as an aggravating factor. They were born in the UK and were in education here. The judge likewise rightly took account of the attempt to place the blame on Batool in the course of several days of evidence in the witness box, before changing tack and beginning to take some limited responsibility.
94. Conversely, we accept that the judge was wrong to include absence of remorse as an aggravating factor, but he did so as an entry at the end of a very long list of other aggravating factors. In the context of the facts of this case and the overall sentencing exercise, we are sure that this can have had no material effect on the final minimum term which he imposed.
95. As to the mitigating factor of absence of intent to kill, the judge clearly took account of it, but gave it limited weight. He was both entitled and right to do so.
96. Standing back and looking at the overall result, we see no arguable basis to challenge the conclusion of the trial judge that 40 years was the appropriate minimum term for Sharif. Accordingly, we refuse his application for leave to appeal against his sentence.

Batool

97. We are also not persuaded that any of the grounds identified for Batool, either individually or collectively, provides any arguable basis on which to challenge the minimum term imposed by the judge.
98. As for double counting, we again see no arguable basis to contend that the judge fell into error. He correctly directed himself to be on guard against double counting, and there is nothing in the ultimate minimum sentence to suggest that he failed to heed his own direction. Quite independently of the factors which justified the 30 year starting point, there were very substantial aggravating factors compelling a very substantial uplift, before consideration of mitigating factors.
99. Again, the judge was wrong to treat the absence of remorse as an aggravating factor, but in the overall context of this case, this would have made no material difference to the result.
100. As for mitigating factors, we do not consider it arguable that the judge wrongly undermined his acknowledgement that Batool was not the prime mover in the assaults on Sara. The fact is that she did not play a purely secondary role in the sense that, in addition to her main role of encouragement and assistance to Sharif, she herself took direct part in inflicting some horrible injuries on Sara. She was involved in the two-person assault in burning Sara's buttocks with an iron. She was involved in the biting. She was also involved in the tying up and the hooding.
101. We would add that the written criticism that the judge somehow stated that Batool had participated in acts of extreme cruelty over a long period is a misreading of the sentencing remarks. A reading of them shows that the judge in fact stated only that Batool should have taken steps to stop the torture of a small child, instead of encouraging and assisting, and sometimes participating in acts of extreme cruelty over a long period. That statement contains no error.
102. As to the personal mitigation, the judge identified and took account, including in the context of the relevant guidelines and the Equal Treatment Bench Book, of all the matters relied upon on this application. He was in the best position to assess the weight to be given to those factors.
103. In summary, we see no arguable basis to conclude that the judge made any material error in the task of weighing up the aggravating and mitigating factors, nor, therefore, any basis on which to contend that the minimum term imposed was manifestly excessive. Again, Batool's application for leave to appeal against the sentence is refused.

Malik

104. The first, second and third grounds advanced for Malik are linked and can be addressed together. As set out above, it is submitted that because it could not be proved that he was aware of all that was happening to Sara and that he did not himself assault her, his sentence should have been based on a category 1B level of offending, or at its highest at the low end of the 1A range of sentences.
105. We do not agree. Here there was the extreme nature of the category B factor, namely, the extreme character of Malik's failure to take any steps to protect Sara. Further, there was a combination of category B factors. All but two of the seven high culpability factors identified in the relevant guideline applied to the offending allowed by Malik. The judge's clear finding on the evidence was that Malik was aware of what was happening, even if he did not know of each act of violence, cruelty or torture. That raised his culpability. He did nothing to prevent it or seek help. As the judge found, he must have realised from what he did see and did hear that he was witnessing only part of it. By doing nothing, he allowed it all to continue until Sara died. In short, the judge was unarguably correct to sentence Malik on the basis of a category 1A offence.
106. The fourth ground is similarly based on the contention that because it was not proved that Malik himself carried out the acts upon Sara, most of the aggravating factors of seriousness did not apply to him. Effectively, the criticism is that the judge applied the same factors in his case as he did when sentencing Sharif and Batool who had been convicted of murder. This contention ignores the obvious, that Malik was convicted of allowing the death of Sara, as well as her serious injuries. How they were inflicted, as represented in the factors of seriousness, were properly taken into account in his sentence because he allowed them to happen during the time he lived in close proximity to Sara on a day-to-day basis.
107. The fifth ground is that the judge failed to draw a distinction between having allowed the death of Sara, rather than having caused it. It is suggested that the sentence should have been discounted to reflect this and that in failing to do so the sentence was excessive.
108. The offence of causing or allowing the death of a child, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004, makes no distinction between those who allow or cause the death. Similarly, no distinction is drawn within the relevant guideline.
109. As this court stated in Lennon at [19], the facts and circumstances of individual cases of course differ, but the guideline does not assume or presuppose that an offence of permitting the death will always and necessarily be less than an offence of causing the death. It all turns on the facts of the specific case. Here, the judge was, as we have indicated, entitled to place the applicant's offending within category 1A of the guideline. His sentencing exercise was faithful to the guideline and to his findings of fact giving rise to the multiple and serious aggravating factors which we have identified.
110. Contrary to the applicant's contentions, the judge did properly sentence Malik on the basis of the facts, namely that he allowed, as opposed to caused, Sara's death. The allowing here was extreme. It took place, amongst other things, over a period of months.
111. The final ground of appeal falls away in the light of our conclusions on the applications of Sharif and Batool.
112. In all the circumstances, we are not persuaded that any of the grounds of appeal against sentence in the case of Malik is arguable. The custodial term of 16 years imposed upon him was within the relevant sentencing range and fully justified on the facts. We refuse his application for leave to appeal against sentence.

Conclusion

113. For these reasons, we grant leave to the Solicitor General to refer the sentence on Sharif to this court, but we dismiss the Reference.
114. We refuse the applications by Sharif, Batool and Malik for leave to appeal against their sentences.
115. We thank all counsel for their written and oral submissions in this very difficult and tragic case.