A quick one for tonight. Several tweeters have today wondered, queried and thundered about a news report hot out of Manchester Crown Court, which tells of an amateur local cricketer who assaulted his wife with a cricket bat and forced her to drink bleach, and who, in the typical tabloid argot, Walked Free From Court.
How, people have understandably wondered, can this be?
The case takes on an even more inscrutable pallor when one reads in national reports that the sentencing judge, HHJ Mansell Q.C., announced that the factor influencing his decision against gaoling the defendant was that the victim was university-educated, and was therefore not considered to be “vulnerable”.
What the heck is going on?
Reported facts in Crown Court sentence hearings are invariably incomplete, selective and, occasionally, simply plain wrong. I once read in a local newspaper, to my surprise, that I had invited a court to lock up my client for a non-imprisonable offence. Court reporting, with due acknowledgement to the many excellent journalists still plying this noble, dying trade, is not always entirely reliable. Nevertheless, taking as our best secondary source the local newspaper website, Manchester Evening News, we can identify the following facts.
Mustafa Bashir, aged 34, who played cricket in a local league in Oldham, pleaded guilty to assault occasioning actual bodily harm. The victim was his 33-year old wife. The offending reportedly arises out of two incidents, one in April 2014 and one on New Year’s Eve 2014, which occurred against the backdrop of a controlling and dominating relationship characterised by Bashir’s diktats as to how his wife dressed and spent her own money. The first incident in April 2014 was described as follows:
Manchester Crown Court was told the pair met in their native Pakistan and married in 2013. But Bashir was said to be a ‘controlling and dominating’ husband who told his wife what she could spend her money on and what she should wear, who she could see.
The couple had been on a day out to Rochdale Lake in April 2014 when an argument broke out about Bashir travelling to the Netherlands and he grabbed Ms Karim by her neck and was squeezing, until a member of the public threatened to go to the police.
Prosecutor Roger Brown said: “The parties went back home where the argument continued. He grabbed her neck again, so much that she said it was hurting a lot and at one point he picked up a knife and said that he would kill himself and she begged him not to.
“He took her into the bathroom where he grabbed a bottle of bleach and he made her drink the bleach so she would kill herself. She spat that out as she was unable to swallow it. Then he gave her tablets from the house and told her to take them. She did but again she was unable to swallow them.
“He said to her “I want you to kill yourself.” She left the bathroom and went into the living room where the defendant called her family to tell them they had an argument and that she was not obeying him. Her family urged her to obey him and told him that she would obey.
‘’She did take photos of her injuries to her neck and to her upper arm. When making her statement she said that he grabbed her neck very hard and she thought she was going to die. She was pulling at him trying to get him to stop but he was stronger and she couldn’t stop him. After that incident he left the house and she didn’t see him for some two days.’’
As for the incident at New Year, the MEN reports:
The marriage continued but on New Years Eve 2014 the couple were at home when a row broke out about Miss Karim speaking on the phone in their living room.
Mr Brown added: “She describes the defendant as becoming angry after she had been on the phone for just over half an hour, and after the conversation finished he took the phone off her and said she couldn’t have it back and he wanted to search it and look at the messages.
“She said her friends weren’t saying anything bad but he began insulting her father called him a ‘dog’ and she replied with “you don’t have a dad that’s why you don’t know how to respect mine”.
“He became more angry and slapped her, and grabbed her hands and started bending her fingers back trying to break them. He slapped her so hard again that she fell on the floor and lost consciousness. The next thing she remembers is waking up on her bed, she went to get her phone but he was there. She said to him: ‘it’s over please leave me alone’ but he called her a slag, and strangled her until she was struggling to breathe.
“He grabbed a cricket bat that was in the bedroom and hit her over the back with it. She recalls feeling a sharp pain.
‘’He said to her ‘If I hit you with this bat with my full power then you would be dead’. He went into the hall and she took the opportunity to call 999.’’
Bashir was charged with assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. The news reports do not make clear whether he was charged separately for the assaults (as I might expect given the break in time between them), or whether a single “rolled-up” count representing “the totality of the offending” (as lawyers would call it) was preferred, although it appears to have been the latter. In any case, assault occasioning actual bodily harm carries a maximum sentence of 5 years’ imprisonment. On the facts as reported, it strikes me as a somewhat generous charging decision by the CPS not to pursue a charge of attempting to inflict grievous bodily harm, which carries a maximum life sentence, in respect of the bleach incident at least. There is no suggestion that he pleaded guilty “on a basis”, where a defendant accepts certain factual elements of the prosecution case but not others, so we can infer that there is no dispute over what he did. It may be that this was a case where a more serious offence was initially charged, but where the prosecution agreed to accept a guilty plea to a lesser offence. This sometimes happens where the CPS is concerned over the strength of the evidence, or where a complainant expresses strong reservations about proceeding to trial. A lot of criminal cases end up “cracking” on the basis of convenient compromise.
He was sentenced to 18 months’ imprisonment suspended for two years. A requirement of his suspended sentence order was that he attend a Building Better Relationships course, administered by the Probation Service. He was ordered to pay £1,000 costs and barred from contacting the victim by the imposition of an indefinite restraining order.
Courts are legally required to follow relevant Sentencing Guidelines, published by the Sentencing Council, when dealing with an offender, unless it is contrary to the interests of justice to do so. The relevant Guideline for our purposes is the Assault Definitive Guideline. The guideline for assault occasioning actual bodily harms specifies an “offence range” of a fine to three years’ custody. In other words, a sentence for this offence should be within that range unless it is contrary to the interests of justice not to do so. If you’re wondering why the range does not go up to the maximum of five years, that’s a darn fine question, and one which has long troubled me about Sentencing Guidelines, but is a debate for another day.
Within the range, the Guideline specifies three categories reflecting varying degrees of seriousness, which each category containing its own “starting point” and “category range”. The idea is that by identifying certain factors of the offence, the court can place it in a category and move it up and down the range to reflect aggravating and mitigating features.
To identify the category, the court considers whether any “factors indicating greater harm” and “factors indicating higher culpability” are present. Included among the former is the situation where the “Victim is particularly vulnerable because of personal circumstances“. It appears that it is this criterion to which the judge was referring when he commented on the victim’s vulnerability. He is reported as having said:
“I am not convinced she was a vulnerable person. Sometimes women who moved her from their country become trapped in a relationship where they lose their support network of family and friends and cannot speak the language. This is not the case her. She is plainly an intelligent woman with a network of friends and did go on to graduate university with a 2:1 and a masters – although this has had an ongoing affect on her. She had difficult trusting people now, especially men.’”
This is the comment that has sparked outrage. One outlet reported, under the deck “Mustafar Bashir subjected his wife to devastating physical attacks, yet has been handed a suspended sentence because the victim was too “intelligent””, that:
“[D]espite his actions, Manchester Crown Court today has ruled that Bashir will not face jail because the judge has deemed the victim not to be “a vulnerable person”.”
Sandra Horley CBE, chief executive of the domestic abuse charity Refuge, has said:
“Judge Mansell’s comments – that he was not convinced of the victim’s ‘vulnerability’ – show a shocking ignorance around the impact of domestic violence on women. What a woman does for a job, her level of education or the number of friends she has makes no difference; for any woman, domestic violence is a devastating crime that has severe and long-lasting impacts.”
With respect, I think the criticisms miss the point. The Guidelines call for a specific assessment of whether a victim is “particularly vulnerable”; that is, above the inherent vulnerability of a victim of violence. It’s an odd exercise to ask a court to engage in, perhaps, but that’s what the Sentencing Council in its wisdom instructs judges to do: arrive at a hierarchy of vulnerability and pin the victim somewhere within. And, without for a moment seeking to minimise either the seriousness of the violence or the impact upon the victim, I’m afraid it is probably correct that, relative to the profile of domestic violence victim that recurringly appears before the criminal courts, Ms Karim is not among the most vulnerable, for the reasons noted by the judge. This criterion is usually met where the victim is elderly, or very young, or disabled, or socially excluded. There are in fact specific separate Domestic Violence Guidelines which inform the court’s assessment of “particular vulnerability” as follows:
But in any event, it’s actually largely an academic point, because this is only one of three factors indicating greater harm, any one of which allows the court to tick that particular box. And the others – sustained or repeated assault upon the same victim, and serious injury in the context of the offence – are both present, and must have been accepted by the judge as substantiating “greater harm”, as the sentence of 18 months’ imprisonment falls within Category 1, the most serious category for this offence. This provides a starting point of 18 months’ imprisonment, and a range of 1 to 3 years. Assuming that credit was given to the defendant for his guilty plea (we are not told at which stage he pleaded guilty so cannot say how much credit, or discount, he was given off his sentence), the judge has apparently identified further aggravating features set out in the Guidelines, and adjusted the sentence upwards within that range before discounting for the guilty plea to arrive at a final figure of 18 months.
Suspended sentence – a walkout?
First things first: a suspended sentence is not a walkout. It is a sentence of imprisonment. That has to be made clear, much as it pleases the Daily Mail to pretend otherwise. If you commit a further offence during the currency of a suspended sentence, the expectation is that you will go to prison for the specified period. Ditto if you breach the community requirements attached to the order.
Any sentence of up to two years’ imprisonment can be suspended. A shiny new Guideline, barely a month old, was released to elucidate the principles relevant to determining whether immediate custody, a suspended sentence or a community order should be imposed, but in short there is significant judicial discretion in this area. Something of which judges are acutely aware is how little practically can be achieved with offenders serving short prison sentences, as is suggested by the appalling recidivism rates for short-term prisoners. The short sharp shock may send a message and satiate our desire for punishment, but is unlikely to achieve much else. Sometimes, this is unavoidable. Some offences require punishment to overtake rehabilitation in the pecking order. Some people may justifiably feel that this kind of domestic violence is one such example. On the given facts, I would probably have been advising my client to expect an immediate prison sentence. However, we do not know what else was before the judge. There would have been a Pre-Sentence Report prepared by a Probation Officer, whose recommendation will have been taken seriously by the judge. There may have been psychiatric or psychological reports opining on the unsuitability of custody, or the potential benefits to the defendant’s new partner of an intensive rehabilitative course to divert him from inflicting similar misery upon her. The media reports say little about his previous convictions, but good character (if indeed he was) often sways a judge against immediate custody. Ultimately, without having been in the hearing, and without having sight of the judge’s full sentencing remarks, we simply can’t say for sure exactly how the decision to suspend the sentence was arrived at.
What I will say with confidence, however, is that it will have had nothing whatsoever to do with the assessment of vulnerability. That is a complete red herring.
So what next?
For what little it’s worth, my cautious view is that, on the reported facts, Mr Bashir appears to have escaped with a lenient sentence. While justifiable on the Guidelines, few people will read the facts and feel that the punishment matches the crime. However, assault occasioning ABH is not an offence the sentence for which can be referred to the Court of Appeal by the Attorney General as “unduly lenient” (despite rather embarrassing suggestions to the contrary by qualified lawyer and former Solicitor General Harriet Harman MP) so in the ordinary course of events that would be the end of the story.
But – an intriguing footnote has emerged. Bashir’s barrister relied in mitigation on his client’s budding cricket career, submitting:
“He has continued to play professionally in a local cricket league but of some importance certainly to him is if he is allowed to keep his liberty he will be employed by Leicestershire as a professional. He was about to sign the contract when he was arrested.”
When passing sentence, the judge was plainly influenced by this submission, remarking [my emphasis]:
“With regard to the mitigating factors I am not convinced of your remorse for her, but you are sorry for the position you find yourself in over the last two years. Your current partner is supporting you in court and she complains of no violence. You have employment prospects of being employed in cricket for Leicestershire Cricket Club. This court will not tolerate violence in a relationship of this nature. It is a very fine line between imprisonment and a suspended sentence.”
As the story whizzed across the internet, Leicestershire Cricket Club were quick to distance themselves from the defendant, publishing a press release stating:
“Leicestershire County Cricket Club are aware of stories that have been published this morning regarding Mustafa Bashir.
‘The club are bemused by these stories. Any references to Mustafa Bashir signing or being approached to sign for Leicestershire County Cricket Club are completely false. The club have never spoken to Mustafa Bashir or an agent, nor offered a contract to the player.”
If I were Mr Bashir, I would be worried. The judge has 56 days, starting with the date of sentence, in which to recall the case and alter the sentence under what is known as “the slip rule” (section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, as you ask). The Court of Appeal has made plain, as recently as last year, that it is proper for this to be exercised where subsequent to the sentence hearing something arises which casts doubt over the veracity of the basis on which the judge sentenced. In the widely reported case of the Sledden brothers, two drug dealers who received suspended sentences were hauled back into court after celebrating their near miss by inviting the judge on Facebook to, inter alia, “suck my cock”. The judge said that, had she known of the defendants’ true lack of remorse for their offending, she would have sent them straight to prison. Which is what, under the slip rule, she did. The Court of Appeal duly upheld her decision.
HHJ Mansell Q.C., no slouch from what I’m told by Manchester practitioners, will be keenly aware of this. Do not be surprised if, when this is brought to his attention, Mr Bashir finds himself facing a further day in court, with a far less fortuitous outcome.
I ought to have added for completeness that the consequences of Bashir giving false instructions to his barrister in mitigation, if indeed he did, could extend beyond an alteration to this sentence. He could well find himself charged with a fresh offence of doing an act tending and intended to pervert the course of justice. This story probably has a little way to run.
The defendant has a history of violence and intimidation. He is not likely to adhere to the restraining order. The law should not allow such criminals to be given a suspended sentence and expose the victim to risk of suffering from more violence and intimidation. Remember a purpose of prisons is not only to (supposedly) enable offenders to rehabilitate but to protect innocent and vulnerable people from being targeted and/or attacked by such offenders, for me this is an imperative moral duty of society. And it really shouldn’t matter whether the victim is well-educated and has a social network, they are still vulnerable. Being well educated and well connected didn’t prevent the victim from being subjected to appalling domestic violence, intimidation and emotional abuse in this instance, (and being in a toxic and abusive relationship in general) and it never has mattered when it comes to domestic violence. The risk factor is the behaviour of the perpetrator, and the fact that the perpetrator has an absolutely unacceptable and disgusting and abhorrent mentality of thinking that he is entitled to treat an intimate partner like property, like she was a fricking slave. As long as the perpetrator as that mentality, that kind of perverted and completely unacceptable moral sense the victim is vulnerable to continually be subjected to violence, to intimidation.
I don’t think the legal system is adequately dealing with situations of domestic violence, and it is no living up to its moral imperative to protect victims.
To be honest though, the broader issue isn’t just the legal system, the issue is why men think it is ok to treat women in this manner, and a lot of it has to do with disrespect of women in general. Unequal power in relationships and control and abuse and coercion always always begin with sexist attitudes and a misguided sense of entitlement. It isn’t just one or two incidents, it is consistent pattern of controlling behaviour, often escalating, repeating itself and cyclical, no matter how many times the perpetrator claims to ‘love’ the victim or promise to change, or to supposedly show remorse. The fact is many abusers do not change their behaviour, and fundamentally do not respect the victim’s right to autonomy, to person boundaries, independence, to emotional and physical security and safety. This mentality makes them utterly unlikely to respect any sort of court order to stay away from the victim, and thus restraining orders are wholly ineffective in ensuring the safety of the victim/abused person.
I can’t help but think that you’ve missed the entire point of this article. As the author points out, the question of vulnerability has a specific set of questions to be asked and answered, and following these guidelines, this victim is not specially vulnerable. That does not mean she was not vulnerable, nor that the victim should have someone got herself out of the situation. Instead, it just means that bit of the guideline is not applied.
As for the second paragraph, “men” do not believe it is ok to treat women in this manner, and to tar all men with the same brush as the offender, is itself a “sexist attitude” that you so rightly rail against. I do not appreciate being told what I believe about how women should be treated.
Hi, I’m not sure if it was clear to you or not my point was that the guidelines show that the legal system has a flawed way of protecting victims of domestic violence, and that vulnerability should be assessed on the extent of access the perpetrator has to the victim and the fact that the perpetrator is highly likely to reoffend due to factors such as past behaviour, etc. I believe the circumstances of the victim and the particular characteristics of the victim have little correlation with their vulnerability to being subject to abuse, violence, intimidation.
And also my second paragraph was pointing out that what causes such behaviour and toxic relationships can be attributed to the mentality of the perpetrator, which is often influenced by the social context in which he (or she) is surrounded by. I am not making any presumptions about what every single man’s attitude towards women and how women should be treated are, I was pointing out that domestic violence is caused by very pernicious underlying problems
Your final para is absolutely typical of all that is wrong with the “right on ” feminist approach. If a man had made a similarly sweeping and disparaging statement about women, this comment stream would have seen a never ending stream of vilification against the perpetrator. Even the word “some” in front of “men” would have made the comment acceptable. An apology such as you made in your response to Chris (oh, sorry you didn’t apologise did you, you just told him he had not understood) would have been brushed aside as meaningless.
i do not have to apologise for ANYTHING. You are the one who is distorting and smearing my words in an attempt to disparage and undermine me (and other feminists). You have completely distracted from the main point I was making: which was that domestic violence is caused by pernicious underlying problems, which the law is wholly inadequate in acknowledging and addressing. Men perpetrate this kind of abuse in a wider social context which facilitates disrespect for women and their right to independence and autonomy. It is absolutely absolutely so blatantly obvious that not all men are perpetrators of domestic violence, and this is not a debate about the prevalence of domestic abuse or whether men or women are more likely to perpetrate domestic abuse. My point was about SOCIAL CONTEXT, not about whether there was something inherent within all men that made them more prone to violence. It is beyond dispute that the vast majority of violent crimes are committed by men, however I never claimed that this is caused by something inherent within the nature of men or that all men were violent. And yes, before you blurt out more unhelpful and pointless comments, I am aware that women can perpetrator abuse as well. However, this cannot be caused or influenced by a social context which encourages male aggression and female emotional sensitivity. Yes, on an interpersonal level, a woman can show disrespect to a male partner, and vice versa, but this kind of disrespect is not facilitated by centuries of patriarchal notions that men should have the power in the relationship (whilst the female partner, on the other hand, was expected to be passive). Hence, domestic violence against women is far far more insidious than other forms of domestic abuse because of the social context and attitudes which have facilitated violence against women.
That you have criticized me for ‘smearing men’ goes to show that you are categorically unwilling or unable to engage in the actual point I was making, and your pathetic attempts to clutch at straws in an attempt to undermine me really is shows that people like you refused to engage meaningfully in a deeper discussion about the causes of violence committed by men and think about solutions, including how the legal system can improve the way it treats such cases so that no one has to suffer from such appalling behaviour any more. You therefore either lack the ability to think about issues independently from your own preconceptions and biases or show a dangerous and foolish unwillingness to do so.
I think it is you missing the point! As Chris and I both pointed out, you have used the all embracing “men” not “some men”, not abusive men”, just “men”. Despite the fact that this has been pointed out, you again did it in your reply to me and then use the excuse that I am undermining you. Do you deny that if a similar generalisation had been made about “women” the man who wrote it would have been forced to retract? http://www.telegraph.co.uk/news/science/space/11231320/Rosetta-mission-scientist-Dr-Matt-Taylor-cries-during-apology-over-offensive-shirt.html or https://www.theguardian.com/education/2015/jun/11/nobel-laureate-sir-tim-hunt-resigns-trouble-with-girls-comments.
Funny isn’t it. You and I are on a completely different ballpark. I refer you to my previous comment: . My point was about SOCIAL CONTEXT, not about whether there was something inherent within all men that made them more prone to violence. It is beyond dispute that the vast majority of violent crimes are committed by men, however I never claimed that this is caused by something inherent within the nature of men or that all men were violent. And yes, before you blurt out more unhelpful and pointless comments, I am aware that women can perpetrator abuse as well. However, this cannot be caused or influenced by a social context which encourages male aggression and female emotional sensitivity. Yes, on an interpersonal level, a woman can show disrespect to a male partner, and vice versa, but this kind of disrespect is not facilitated by centuries of patriarchal notions that men should have the power in the relationship (whilst the female partner, on the other hand, was expected to be passive). Hence, domestic violence against women is far far more insidious than other forms of domestic abuse because of the social context and attitudes which have facilitated violence against women
If u really really understood my point, you wouldn’t accusing me of generalising about men. And besides, complaining about all men being smeared with the same brush is pretty much a red herring anyway. At least in the context of domestic violence.
He may yet face a charge of doing an act tending and intended to pervert the course of justice if he lied about his prospects of employment. It says something about the courts’ priorities to say (as is the case) that he almost certainly would go to prison for that.
You mention recidivism after short custodial sentences, which I’m sure is true for most property and drug crime. But is there any information available about what effect short prison sentences have on people like this, who would get called “upstanding members of the community” by some, when they’ve committed interpersonal crimes.
My feeling is that the situation is very different, and the deterrent and corrective effect will be much stronger here.
Making the guy tread exceedingly carefully for the next two years with 18 months hanging over him is likely more effective than a week in prison.
“With respect, I think the criticisms miss the point. The Guidelines call for a specific assessment of whether a victim is “particularly vulnerable”;”
With respect, I think you miss the point. If the judge were merely applying the Guidelines, he would have used the word “particularly”. He didn’t, according to the report, he said he didn’t think the victim was vulnerable.
Your argument assumes that Manchester Evening News quoted the judge absolutely verbatim (and didn’t miss out any important context that might have meant listeners knew he was referring to the guidelines “particular” vulnerability without having to repeat the word “particular”). Perhaps they did but, if you have ever compared press reports of a case with actual court records, you would realise how big an assumption it is. Sometimes the difference between the case that happened and the case that was reported is much broader than the omission of a single word!
Minor point but looking at section 155 the period of 56 days only appears to be mentioned in subsection 2 which relates to joint trials.
For other purposes it seems to be 28 days.
Excellent article on the finer points of the story. It helps a lay person, such as myself, to understand some of the inner workings of these cases. One thing that has not been discussed is the potential incidence of this falling within the remit of “honour based violence” – given the comments by the defendant around the victim not obeying him, what she is allowed to wear etc and the comments by her family, with seemingly no regard for her own welfare. Can you add any further comment about this please?
With regard to comments made by defence re job prospects etc, presumably on instruction from the accused. Is it the responsibility of council to “fact check” these claims or would they take it on trust?
Given the relevant importance of Bashir’s claimed prospective employment with Leicestershire in determining the sentence, I am shocked the court never sought to verify this claim before passing sentence. I wonder how many non high-profile cases have been corrupted with a tactic seemingly readily available to the convicted.
Since he is 35 anyway, any importance ascribed by the court about his “career” in top flight cricket seems quite laughable. It seems to me that this aspect may be a complete invention of the press.
If anything stands out from your excellent analysis, it’s the need for a complete review of the sentencing guidelines (and probably something about looking at the role of the CPS).
In reality, we’re likely to get neither sadly.
I am not going to argue the assertion that custodial sentences are not effective at preventing re-offending, but how effective is it as a deterrent against the first offence? I speak here regarding suspended sentences in a general context, not specifically relating to domestic violence.
There are a great many things in life that are much easier to do a second time, having already overcome the relevant mental hurdles required to do them. For some there is some thrill or excitement, which can be addictive.
I cannot believe that crime is not one of these kind of things: surely there is considerable benefit to preventing potential criminals from becoming actual.
Consider the risk assessment of a chap considering a crime for the first time: if many of those caught doing similar crimes are getting suspended sentences then that will reflect in the risk assessment. On my analysis, that risk looks unhelpfully low…
Reblogged this on Cambridge Aromatherapy and Massage and commented:
Interesting to see this dissected by someone who understands the legal facts rather better than I do. The bottom line is that he still got off lightly and given that it seems he lied in court about having an offer from Leicestershire County Cricket Club, he may well be recalled for re-sentencing and or charged with attempting to pervert the course of Justice.
for anyone reading this entry… the cricket lie WAS exposed in court and he was in the end sentenced to 18 months custodial not suspended.
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