The Conservative attorney-general, Dominic Grieve, had secured a hearing at the high court to ask the court to lengthen the prison sentence given to 20-year-old Jordan Sheard.
Sheard had pleaded guilty to manslaughter, but was sentenced to just three years and six months in prison by Judge Roger Keen in April.
The Crown Prosecution Service (CPS) had asked the judge to treat the killing of 18-year-old Steven Simpson as a disability hate crime and to increase the sentence under section 146 of the Criminal Justice Act, but he declined to do so.
The attorney-general’s decision to appeal the subsequent sentence on the grounds that it was “unduly lenient” was widely welcomed, but campaigners assumed the government would then push for the killing to be treated as a disability hate crime.
Instead, Crispin Aylett QC, representing the attorney-general, suggested to the appeal court today (6 June) that there had been homophobic bullying of Simpson, but he made no attempt to persuade the panel of three judges that the killing had also been a disability hate crime.
Aylett suggested instead that Sheard had “taken advantage” of Simpson’s “vulnerability”, a term that has been much-criticised by hate crime campaigners.
Aylett told the court: “However this might have begun, nonetheless there must have come a point at which the offender must have been aware of the victim’s vulnerability and that he was taking advantage of him.”
Simpson had been celebrating his 18th birthday in his flat in Cudworth, near Barnsley, in June 2012 when he was doused in tanning oil by a guest and then set alight by Sheard, who had crashed the party. He died later in hospital from his injuries.
The court heard that Judge Keen had described the events that led up to the incident as “good-natured horseplay”.
But Aylett told the court that Sheard and his friends had invited themselves to the party and then “took over”, began “poking fun” at Simpson, and over the course of five hours “coerced” him into taking off all his clothes, even though everyone else was fully clothed.
He said they had joked about the size of Simpson’s penis, subjected him to homophobic abuse, wrote abuse on his door and then sprayed tanning oil on his genitals, before Sheard set light to the oil.
Andrew Smith, representing Sheard, said his client had waived his right to attend the hearing.
He claimed that Sheard and his friends had simply been engaging in “boisterous behaviour at an 18-year-old’s birthday party”, which had got “out of hand” with “tragic consequences”.
Smith said that Judge Keen had not been satisfied that this behaviour was aimed at Simpson because of his sexuality, and claimed that despite the tragic consequences, Sheard had not set light to Simpson “out of any malice”.
He said that Simpson had a speech impairment, which “perhaps” would have been obvious, but that he also had epilepsy and Asperger’s syndrome, which probably were not.
The panel of judges, led by Lady Justice Rafferty, decided to reserve judgment on the sentence appeal to a later date.
A spokeswoman for the attorney-general’s office was unable to say why they had not called in the appeal for the killing to be treated as a disability hate crime.
The spokeswoman said: “I’m afraid we can’t make public comment until the judgment is given and the case has concluded.”
6 June 2013