A quick apology – I’m coming to this story a little late. That is partially my fault, and partially the fault of Lord Ashcroft and his delicious third-hand allegations of porcine impropriety. It has been a distracting few days.
This ground was stomped upon a little by various commentators at the end of last week, but, like a custodial sentence of over 4 years, some stupidity is never spent. Accordingly I grant myself leave to dig around a little in the Daily Mail story sitting below the headline:
Judge rules it is right that child molester who abused ethnic minority girls got longer sentence because Asian sex crime victims suffer more than whites
The judge in question is Mr Justice Walker, giving the Court of Appeal’s judgment in an appeal against a sentence imposed by HHJ Cahill Q.C. at Leeds Crown Court, relating to sexual offences committed by the Appellant against two girls aged 13 and 9. In dismissing the application for leave to appeal, the Court of Appeal approved the sentencing principles applied by HHJ Cahill, and it is this facet of the judgment that has attracted the media’s attention, and, taking the media reporting on trust, the opprobrium of various charities and victims’ rights groups.
Now it is not my job to act as spin doctor for the Court of Appeal. Nor do I hold any particular affection for the recent legal fetish (endemic at the Crown Prosecution Service) for hierarchies of victimhood predicated on race, religion or other “protected characteristics”. If correct, this is quite properly splash-worthy news.
But is this what the Court of Appeal said? Really?
The facts of the offence can be gleaned from the Court of Appeal judgment. The victims were Asian, as was the Appellant, and the key passage of the judgment reads as follows:
“8. The remaining point taken by Mr Shafi is that the judge had, he submitted, regarded the offending as aggravated because of the victims’ ethnic and religious origin. This point is, with great respect to Mr Shafi, a misconception. In her sentencing remarks the judge observed that J was finding it difficult at school because her friends knew what had happened, leading to problems and shame for her. In relation to G, the judge observed that she had had difficulty as a result of what the applicant had done to her. This had caused G to behave completely out of character: she had previously been a young girl doing well at school, and now was not doing as well as expected. For the family as a whole there had been enormous implications. The father had said that he and their mother were struggling and felt socially isolated because, within their particular community, it brought great shame on the whole family when things like this happened. He was also concerned about the future marriage prospects for his daughters. The applicant, coming from this community, knew only too well the effect upon the children and their family and this was an aggravating feature.
9. In this regard Her Honour Judge Cahill was, entirely properly, having regard to the particular harm caused to the victims by this offending. As it happened, that harm was aggravated by the impact on the victims and their family within this particular community.”
For what little it is worth, I fail to see how, being faithful to the careful wording of the judgment, it is possible to sincerely arrive at the Mail’s interpretation.
When passing sentence for a criminal offence, the court is required to conduct an assessment culpability and of harm. For sexual offences, the Sexual Offences Definitive Guideline applies, and offers assistance in this exercise, but as a general principle of sentencing, the impact of an offence upon a victim is relevant to the court’s assessment of harm.
The excitement appears to have been generated by the reference to the buzzwords “shame”, “marriage prospects” and “community”. Clearly, the contention runs, the court is embracing a dangerous relativism and finding that, by virtue of the racial background of the victims and their cultural attitudes towards offences of this type, an offence against them automatically warrants a stiffer sentence. But less attention has been paid to the rather important use of the word “particular”, and the rather crucial phrase “as it happened”.
The assessment of harm was not based on the Judge’s own assumptions as to the likely or theoretical impact upon a child from a certain racial background; it was based upon evidence provided by the victims and their parents in Victim Personal Statements. In this particular case, the impact upon the victims was that described by the parents in their evidential statements. There is no general statement of principle, either by HHJ Cahill Q.C. or by the Court of Appeal.
Crucially, and most damaging for the story that the Mail wishes it had, there was no direct comparator. There was no white victim of this defendant, assaulted in identical circtumstances, in respect of whom a lesser sentence was imposed. The hypothetical comparator (if there was one) would have been an Asian child victim in identical circumstances save that the impact upon her and her family had not been as severe.
Let’s say the victim had been a white child to atheist parents in a small, close-knit Cotswold village, and the parents had provided a Victim Personal Statement in which they expressed distress at the impact of the offence upon the family’s place within the community, and voiced their fear that, due to the norms and mores at play in that community, their daughter’s social functioning would be irredeemably harmed. If the judge, in passing sentence, commented that in this particular case this particular harm was an aggravating feature, adding that it further aggravated the position that the defendant knew at the time of committing the offences of this likely impact upon his particular victim, it would take some distortion to paint this as a judgment devaluing the worth of Asian children.
There has been a wealth of academic and jurisprudential endeavour splurged on the morality of the “eggshell skull” principle that lies at the heart of the criminal assessment of harm, and that is a legitimate debate. But that’s not the debate the Mail wanted to have.
The headline stated – and people were invited to believe – that a court had set a general principle that raping Asian girls was worse than raping white girls.
This is simply not true.