I fired off a quick thread last night offering my rough take on yesterday’s conviction and sentence of Paul Mitchell, the Birmingham City supporter who ran onto the pitch during Sunday’s match between Birmingham and Aston Villa and assaulted Villa footballer Jack Grealish. Below are my provisional thoughts.
What were the charges?
Paul Mitchell was charged with battery, contrary to s39 Criminal Justice Act 1988. He was also charged with an offence of encroaching onto a football pitch (presumably s4 Football Offences Act 1991). He pleaded guilty to both offences at his first appearance today before Birmingham Magistrates’ Court, the offences having been committed yesterday. A good live account of today’s court proceedings can be found here.
Why was the case dealt with so quickly?
Many people have remarked on how quickly this case was processed – barely 24 hours between offence and sentence. But this is not unusual where a defendant is arrested, charged with a summary offence (one that can only be tried at the magistrates’ court) and refused police bail. The police have the power to charge this type of battery without needing the Crown Prosecution Service to authorise the charge (see the Director’s Guidance on Charging), so the process is quicker. A defendant charged and kept in police custody will be produced at the magistrates’ court the next day. If a defendant pleads guilty, the court will usually require a Pre-Sentence Report to be prepared by the Probation Service, to make recommendations as to how best deal with the offender. It’s now common for this to be done the same day. Given that the offence was captured from multiple angles by high-definition television cameras, there was little choice but to plead guilty.
What about the sentence? How did the court arrive at 14 weeks?
Mr Mitchell received 14 weeks’ imprisonment, as well as a 10-year football banning order. He was ordered to pay £100 in compensation to Mr Grealish, £135 in prosecution costs and a mandatory £150 Victim Surcharge.
When assessing sentence, the magistrates are required to follow the Sentencing Guideline for Assault. Here it is:
The maximum sentence for battery is 6 months’ imprisonment. (If injury had been caused, it would likely be charged as causing actual bodily harm, which carries a maximum sentence of 5 years). The maximum sentence for going onto the playing area is a fine.
A defendant who pleads guilty at the earliest opportunity – i.e. at his first appearance – is entitled to one third off his sentence. That applies to all defendants, even where, as in this case, the evidence is overwhelming.
This means that the maximum sentence the magistrates could have passed was 17 weeks.
14 weeks is therefore almost as high as they could go.
Looking at the Guidelines, in order to reach this sentence, the magistrates must have put this case in Category 1. This requires a finding of “Greater Harm” and “Higher Culpability”. On its face, it’s not easy to see how they did this (and without full sentencing remarks, we are somewhat in the dark).
There was no injury, and it was a single blow (rather than a sustained or repeated attack), so the only possible feature of Greater Harm was the particular vulnerability of the victim. It might be argued that as a man going about his job surrounded by tens of thousands of excitable spectators and relatively limited security, Mr Grealish qualifies as particularly vulnerable, although it’s a bit of a stretch.
Similarly, the features of “Higher Culpability” don’t immediately recommend themselves. Arguably there was an intention to cause greater harm than was in fact caused, but a single blow without a weapon makes this a tricky argument. Significant premeditation? Doesn’t look like it, unless Mitchell had told others in advance of his plans. Again, we may be left trying to characterise Mr Grealish as vulnerable to get this box ticked.
As for the other aggravating and mitigating features, there hasn’t been a lot of detail provided. The location and timing of the offence are aggravating features (the victim’s place of work in front of a national audience). We don’t know what the Pre-Sentence Report said about Mr Mitchell’s personal circumstances. We know that he had previous convictions for non-violent offences, but it’s not clear what they were and how relevant they were (whether, for example, they related to football). We know that his solicitor expressed remorse on his behalf, and that Mr Mitchell was a father of one with a second child on the way. How these were all balanced is unclear without knowing the magistrates’ full reasons.
I’m loath to draw any firm conclusions without knowing the magistrates’ reasoning, but on its face, it looks as if there would have had to be a fair bit of creative interpretation to get Mr Mitchell into Category 1 and towards the top end.
There is an alternative explanation. The magistrates made clear the need for deterrent sentencing for this kind of offence, and it may be that they held that, even though the offence would ordinarily fall within Category 2 or 3, the circumstances were such that it was in the interests of justice to move outside the category range on the Guideline and into Category 1. This, I’d guess, would be how they would justify the sentence.
The potential for widespread public disorder, as others have pointed out, may well have been a factor which the court treated as seriously aggravating. Context is everything. Those saying “he wouldn’t have got this for a punch in the street” miss the point. This wasn’t the street. It was a deliberate assault involving trespass onto a playing area, calculated to hurt and humiliate a man lawfully going about his job in front of a stadium of thousands and a television audience of millions. I have little doubt that Mr Mitchell has been treated particularly severely because this was a high profile assault; but he deliberately chose to make it high profile. He selected the location and the occasion. Those are aggravating features.
As ever, this whole exercise involves a fair bit of guesswork, because our justice system still struggles to do basic things such as providing a copy of the sentencing remarks in cases of enormous public interest. But that’s my rough take. A stiff sentence, but probably justifiable.
How does this compare to other cases of football spectator violence?
It is difficult and somewhat artificial to compare sentences, but one I’ll mention (because I’ve commented on it before) is the racially aggravated assault on Raheem Sterling. While taking place outside the training ground rather than on the football pitch, this offence involved a much more serious assault, with repeated kicking (characterised by the Guidelines as using a weapon) which caused bruising, and the use of racist language. The offender was sentenced to 16 weeks’ imprisonment (the maximum sentence for racially aggravated battery is 2 years). I wrote at the time that I thought this sentence, based on the reported facts, was lenient, and this case arguably casts it into even starker relief.
Were there consecutive sentences?
Seems there is a justifiable argument for that.
I don’t know if going on the field is punishable with imprisonment.
Should a banning order have been imposed (irrespective of what his club will do)?
The explanation of the sentencing guidelines, with the reduction for a “guilty” plea, is valuable in that it shows how this sentence (described by various pundits and general observers as lenient) is actually towards the top of the range. Most amateur observers of this and other cases might shake their heads and say “That’s not much”, but without knowledge of the guidelines on which magistrates’ decisions are based; most people are just making up numbers when they suggest an ideal sentence. So the summary of guidelines will be very useful information next time any friends of mine lament the low penalty here.
That there was an “audience of millions” is quite correct. Many, many millions. I happened to come across the story while sitting in an airport lounge in Canada, where “soccer” is not hugely popular, but in a couple of hours of a sports new channel i saw this event replayed seven or eight times, from several angles each time. It really has had a massive impact. Interest in the punishment will therefore be correspondingly great.
I’m not sure I agree that the sentence was “particularly harsh” – it’s hardly transportation – and I rather agree with the final judgement that it is a stiff sentence but probably justifiable (emphasis on probably). Undoubtedly the “deterrence” argument is the main element in the upper grading of this sentence, and that is the main line of attack of most commentators and columnists. There is indeed good cause for concern in terms of copy-cat actions.
Which makes me wonder whether the prison sentence is the right punishment. Will 14 weeks prove to be more of a “lesson” to Mr Mitchell than, say, nine? Would the maximum of 17 weeks have been about 20% more effective as well as being 18% longer? I’m not saying he shouldn’t go to prison, but I’m not sure that the length of stay is meaningful, and not even sure that it really is a deterrent anyway. Basically, anyone daft enough to be doing this sort of thing might not be the most rational person to weigh up the consequences of actions. Perhaps the best deterrent would be outside the scope of the law – the threat of having to play matches in an empty stadium. This may seem unfair on clubs and the vast majority of spectators, but if that were the outcome one might safely imagine that no one would be blowing kisses at offenders in future. (Clubs would also be even keener to stop it.)
However, I shouldn’t try to introduce alternatives to the law or deflect from the argument of the original piece. I just want to suggest that even in reaching for the big stick marked “deterrence” the magistrates may not achieve their aim. They are in an unenviable position: the widely-mocked fines – £100 compensation for Mr Grealish sounds totally absurd to the layman – are presumably also determined in some way, but they have the immediate effect of making magistrates (or judges, etc) appear totally out of touch. All of which supports the Secret Barrister’s pleas for written reasons for decisions such as this, and – in another post – for more explanation of juries’ decisions.
It has been proposed that a prison sentence less than 6 months should be unlawful. The circumstances suggest that a mental health assessment may have been appropriate in this case. Community Orders lack the deterrent effect but the evidence base for ‘deterrent’ sentencing is unclear. In reality deterrence means satisfying public expectations.
How does this compare to other cases such as football player violence?
Is there deterrent sentencing for this kind of offence?
Especially given the potential for widespread public disorder as thousands, millions perhaps, of testosterone fuelled men emulating, as others have pointed out, their sporting and tribal heroes, who should always ,apparently, act as role models.
Given that a factor which the courts should treat as seriously aggravating, Context, “is everything”, and this isn’t in the street, but deliberate assaults, involving trespass against the rules of the game, on a sports playing area, calculated to hurt and humiliate a man lawfully going about his job, in front of a stadium of thousands, and a television audience of millions, in high profile assaults, deliberately chosen to make them high profile.
These “sportsmen” select the location and the occasion.
Those are aggravating features.
So how severe is their punishment, especially in light of recent events, where sportsmen have lost their careers, and so all their future income, for doing no more than pointing out the contents of a (so no longer “the”, which no doubt would have made a big difference) Holy Book, which apparently is a thought “crime” in the “liberal” 21st Century!
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