A court soft on burglars, or an MP missing the facts?

It would be nice to usher in 2017 with an exciting fresh take on a vibrant, buzzing legal issue of the day. As it is, the first post of the New Year is to be spent – and I fear this will be a recurring theme – reminding an elected Member of Parliament how the law works. That this has to be done in any case is depressing enough, but today’s is particularly disquieting given that the MP in question, Will Quince (Con, Colchester), is a qualified solicitor.

His LinkedIn profile states that he spent just under two years post-qualification working  in the Business Services department of a firm of solicitors in Colchester before being elected to Parliament in May 2015. It is unclear whether he has ever practised in crime. Nevertheless, he has this weekend made it his business to write, on Parliamentary letterhead, to the Lord Chancellor Liz Truss about “far too lenient” sentences that were passed last week on two local burglars, inviting her to join him in his condemnation.

Mr Quince was not actually at Ipswich Crown Court for the sentence of Raymond Tauchert (55) and Carlton Ho-Ten-Pow (36) following their guilty pleas to a single count of burglary. But he read a report in his local newspaper about how the two men broke the window of the Colchester branch of Ernest Jones jewellers with a hammer in the early hours of October 20th last year and grabbed £8,200 worth of jewels, and how a two-year suspended sentence was imposed in each defendant’s case, and he is jolly cross about it. And Mr Quince wants the Lord Chancellor, the press and his Facebook fans and Twitter followers (to whom he has retweeted the press coverage of his campaign) to know.

It is a shame, I would respectfully observe, that he didn’t acquaint himself with the facts before doing so.

Because had he done so, he would have learned several things. Firstly, he would know that there is no such offence as “armed burglary”. Secondly, that there is in any event an important distinction between being armed for the purpose of threatening violence, and having a tool with you to break a window. Thirdly, and more pertinently, he would have been alerted to the existence of Sentencing Guidelines. These are the guidelines, produced by the Sentencing Council, which courts are legally required (section 125 of the Coroners and Justice Act 2009) to follow when passing sentence on a defendant. Specific guidelines exist for burglary. And at page 12 we see how a court is required to approach offences of non-dwelling burglary, step by step.

As the tenor of Mr Quince’s complaint – soft judges passing soft sentences – is a familiar refrain among politicians, it might assist to play through the sentencing exercise that courts are required, by legislation passed by those same politicians, to follow.

Step 1 is reproduced below. The court must first identify which category the burglary falls into, to arrive at a sentencing range. This is done by looking at a list of factors indicating “greater harm” and a separate list indicating “greater culpability”, and seeing which apply to the facts of the case.

Immediately, you may spot a problem – how do we know the exact facts of the case? Well, we don’t. We know about as much as Mr Quince. Which is what a journalist has chosen to selectively report from what the prosecuting and defending advocates have said over the course of a twenty to thirty minute hearing. We haven’t seen a transcript of the prosecution opening of facts, nor of the mitigation advanced, nor the judge’s sentencing remarks. We haven’t read the detailed Pre-Sentence Reports prepared by the Probation Service. And we haven’t seen the prosecution papers containing all the evidence. So we are going to have to follow Mr Quince’s lead in arriving at conclusions based on partially-glimpsed fragments of the full picture.

But let’s have a go.

Goods to a value in excess of £8,000 were stolen, and even to a large jewellery company, that would still amount to a “significant loss”, and for that reason this is a case of “greater harm”. None of the other factors indicating greater harm appear to be present. There was no suggestion that anyone was at work – this was after all the middle of the night – nor that there was any ransacking or vandalism beyond the damage caused to the window. Nor are there any factors indicating lower harm. Higher culpability is also present – this was a group (it is suggested that three men were involved, the third remaining at large) and they had a hammer to effect the break-in. So this is comfortably a Category 1 offence.

What does that mean? We turn the page:

It means a starting point of 2 years’ imprisonment. With a range of 1 to 5 years’ custody. We then see a range of factors that increase and decrease seriousness, which the judge applies to move the sentence up and down that range. It’s worth interposing here the (perhaps rather obvious) point that each defendant is treated separately. You don’t, as Mr Quince’s letter seems to imply, add up the combined convictions of both defendants and punish each for the other’s previous misdeeds.

What we are told about Tauchert is:

• He has 18 convictions for 52 offences;
• He was on licence at the time of the burglary having been jailed for nine years in 2010 for conspiracy to supply class A drugs and handling stolen goods having been part of a gang raiding warehouses;
• He was released in March 2013 and had not committed an offence in over three years;
• His mother died in the summer from cancer and he returned to taking heroin. He took 100 morphine tablets and was committed to hospital.

His convictions are plainly an aggravating feature, as is the fact that he committed this offence while on licence. We also know the offence was committed at night, although not, it seems, when anyone was likely to be present at the store. In his favour, a 3-year period of non-offending is notable for someone of his criminal history, and he appears to have taken steps to address a longstanding addiction. Importantly, there was, the court appeared to accept, a genuine trigger for his recent tumble back into old ways. It does not excuse his criminality, but it mitigates it. And will give a court cause to pause to consider whether a return to prison is likely to do more harm than good to his long-term rehabilitation.

Of Ho-Ten-Pow, we know only that:

• He has six convictions for 22 offences, including an offence for drug trafficking;
• He was the subject of a community order at the time of the burglary;
• He has expressed remorse;
• He was in a bad relationship, had lost 4 1/2 stone and had fallen back into drug use.

Similar considerations apply, albeit his sob story may not pack the same punch. It’s worth noting that we know nothing about his existing community order. The court will have had all that information as its fingertips. The Probation Service will have reported on his progress on this order and whether, in its professional view, this is a defendant worth persevering with.

We also know that both defendants pleaded guilty and were entitled to one third credit for an early guilty plea. This is standard across all courts. Guilty pleas save everyone – court and witnesses – time, expense and worry, and so defendants are given a discount on their sentence if they admit their guilt early on.

Additionally, and importantly, both defendants had been remanded in custody since their arrests in October. So they had already served around 3 months in prison (the equivalent of a 6 month sentence), which would by law count towards any sentence of imprisonment.

Putting that all together, the Gazette reports that the judge adjusted the sentence up from 2 years to 3 1/2 years to reflect the aggravating features. Given what we know, this appears entirely sound. This is not the most serious Category 1 offence – as far as “diamond heists” go, this was hardly Hatton Garden territory, and, crucially, there was no confrontation with any individual, which is the usual trigger for a sharp tilt towards the top of the range. 3 1/2 years is around what I would advise a client to expect after a trial for this offence.

There then appears to have been a downward adjustment to 3 years – perhaps for the personal mitigation – before the judge (or Recorder, as he was) applied the one third credit to arrive at 2 years’ imprisonment.

Any sentence of 2 years or under can be suspended. We do not know for sure why the judge suspended it in this case, but the history of drug use, rehabilitation and relapse may well have led the judge to conclude that it was worth taking a chance on these defendants and giving them a suspended sentence with drug treatment and rehabilitation requirements. If they foul up, they’ll go straight to prison. If not – if they get clean and stop committing crimes – everybody, in particular the good and law abiding folk of Colchester, wins. Pre-Sentence Reports are often persuasive in these cases.

So considering what little we know about the offences, there does not, to my professional eye, appear to be anything outrageous about these sentences. The men were fortunate, perhaps. Some judges may not have taken the chance, and may have sent them straight down for two years. Possibly a little more. But nothing about this case suggests that the judge has done anything that he was not fully entitled to do on the guidelines.

And this would have all been plain to Mr Quince had he taken the time to to research the law and the facts, or to ask a criminal lawyer for help, or to seek a source of information beyond a 640-word news article, before firing off his letter to Liz Truss.

Most disappointingly of all, the letter is entirely misdirected. The Lord Chancellor is not in the business of joining excitable MPs in breaching the separation of powers and criticising judges for “soft sentencing” on the basis of inchoate media reports. The Lord Chancellor’s statutory duty is to uphold the independence of the judiciary. Liz Truss does not do this very well, but even she in her resplendent incompetence is not going to endorse Mr Quince tutting how “gobsmacked” he is at the judge’s conduct, nor whatever point this sentence is supposed to express:

“It flies in the face of members of the public who went to collect evidence, to the police officers who investigated and who made the arrests and to costs of the court.”

A more appropriate addressee for Mr Quince’s letter would have been the Attorney General, who superintends the Crown Prosecution Service and has the power to refer unduly lenient sentences to the Court of Appeal; but even then, it would have been to nil effect, burglary not being one of the offences that can be referred. If, having soberly reflected, Mr Quince genuinely believed that there had been a serious judicial error requiring disciplinary intervention, his recourse would lie with the Judicial Conduct and Investigations Office, assuming they stopped laughing long enough to formally process and reject his complaint.

The conclusion that one is regrettably driven to is that Mr Quince does not really know what he is saying or what he is doing. Which is a pity, because as a Parliamentarian and a lawyer, he is one of the people his constituents might reasonably expect to accurately and sensibly guide them on this type of issue, rather than firing up the torches and leading the villagers blindly towards the courthouse. When Liz Truss responds to Mr Quince, I hope that she reminds him of this in terms. And that he publicly circulates her reply with the same vigour as he has his original letter.

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UPDATE: The advantage of blogging is that if, upon reflection, you realise that an argument you had made, or the way in which you have expressed a point, is wrong, you have the power to correct it. In the original text of this post, I think that I made such a mistake. Mr Quince politely responded on Twitter and engaged in a very civil exchange in which he indicated that, in light of the observations I had made, he would send a follow up letter to the Lord Chancellor. He also opined that he found my blogpost to be “unnecessarily rude”, referring in particular to the original title of the blog, in which I (rather weakly, in search of a rhetorical device) suggested he was “soft in the head”. Regular readers will know that deference to public figures who deliberately or recklessly mislead the public on the law is not the style of this blog. And certain people (I think in particular of Philip Davies MP, Katie Hopkins and other repeat offenders), who have been given countless opportunities to reform their ways and plough on in their pig-headed ignorance, deserve a dose of unapologetic and colourful impoliteness. I make no apology to them and their kind. But with Mr Quince I think I may have prematurely, and unfairly, crossed the faint line between stridency and rudeness in the way I sought to make my point. A number of people whom I respect took issue with the tone and style, which distracted from the thrust of what I maintain is a solid argument. And that  – having a good point lost because of the manner of its expression – is bad advocacy. As well as poor form in general.

With that in mind, I have moderated the text of the original post, I hope to no less effect, and possibly to greater. There is a balance to be struck between being punchy and strident, and being snarky and rude. I certainly did not intend the latter over the former, but if that was the effect of my words and style, I apologise to Mr Quince. For his part, I still urge him to consider the broader danger posed by MPs attacking court decisions without knowing the law. He may well, as a representative of the people, have strong views of his own and of his constituents concerning matters of local criminal justice. And it is of course proper for him to address such concerns through the appropriate channels. But in doing so, little is achieved (and much damage is done) if careful and sober reflection give way to knee-jerk reaction and a clamour to politically capitalise in the media without learning the full facts. Mr Quince has indicated that, notwithstanding the analysis above (which he accepts), he still considers the sentences to be unduly lenient, and I have offered him a right of reply on this blog for him to set out his position. I shall post any response below.