How can a 5-year prison sentence ever reflect the intentional taking of a life?

Yesterday, at Swansea Crown Court, 70-year-old Anthony Williams was imprisoned for 5 years for the manslaughter of his wife, Ruth. He had on Monday this week been acquitted by a jury of murder, having admitted manslaughter by reason of diminished responsibility at an earlier stage of proceedings.

The standard reporting clichés ring particularly hollow in a case like this. Ruth was aged 67 when the man whom she loved and trusted, in his own words “choked the living daylights” out of her after an argument on 28 March 2020. “Tragedy” – the old familiar of the court reporter and the lawyer alike – feels a particularly uncomfortable fit, with its undertones of unavoidability and absence of human fault, where a man has intentionally committed an act of violence that ended a woman’s life.

But if words fail the legal system, at the very least it should find itself on a firm footing delivering justice. Yet the sentence ultimately passed – 5 years, of which a maximum of two and a half will be served before automatic release on licence – has struck many as not merely insufficient but insulting; a bitter, grim reminder of the internalised misogyny of a legal system built by men, for men. An ignominious history of the courts, and the law, minimising, excusing and ignoring victims of domestic violence has, those of us working in the system would insist, been succeeded by a belated improvement in recent years, but the public rightly judges its justice system on actions, not smartly-drafted statements of intent. And this case, it has been suggested, is just one more in a centuries-old line of the legal system indulging violence by men at the expense of women’s lives.

For all that this may read as an exercise in telegraphing a clumsily-executed pirouette here at paragraph four, this is not, in fact, the part  where I spin round with the smug WELL ACTUALLY, because, well, actually, there isn’t one. All of the above is, I would suggest, factually indisputable. Scepticism of the law as having the means or the interest in safeguarding women’s lives is not speculative; it is borne out by the blood and the body count. Criminal justice has no right to demand public faith, not least when it has done so little in our history to earn it.

So this is not an explanation as to why five years, or two and a half, is a good and proper sentence. What I want to do is to try to put that sentence into some sort of legal context, so that if it is not defensible, we know where to look to make changes.

The starting point is to look at what Anthony Williams was convicted of.

Murder v Manslaughter

Murder, in the criminal law of England and Wales, is the unlawful killing of a person, with intent to kill or to cause grievous (really serious) bodily harm. It carries a mandatory life sentence, whereby the court imposes a “minimum term” (which itself can be “whole life”) after which the defendant is eligible to apply for parole. If a defendant satisfies the parole board that his confinement is no longer necessary for the protection of the public, he will be released on licence (and for the rest of his life is subject to recall if he breaches his licence conditions). If he does not satisfy the parole board, he will remain in prison potentially for the rest of his life.

Manslaughter is a lesser homicide offence. It can be committed in various ways – unlawful act manslaughter (where a defendant doesn’t intend to kill or cause really serious harm, but commits an unlawful and dangerous act which foreseeably causes death) and manslaughter by gross negligence (where death is caused by a grossly negligent act or omission) are two of the most common, but there are also “partial defences” to murder which, if successful, result in what would otherwise be a conviction for murder being manslaughter. Manslaughter can still carry a life sentence, but it is not mandatory, and usually the sentence is significantly lower.

One of these partial defences, Diminished Responsibility, was relevant in the case of Anthony Williams.

Diminished Responsibility

The defence of diminished responsibility is set out in statute – section 52 of the Coroners and Justice Act 2009.

The starting point is that the ingredients for murder are present. If they are, there is then a four-stage test to establish the defence. And, unlike many other defences, the burden of proof is on the defence – so the defence have to prove to the jury on the balance of probabilities (i.e. “is it more likely than not…?”) that each of the following is satisfied:

1. Was the defendant suffering from an abnormality of mental functioning?
2. If so, did this abnormality arise from a recognised medical condition?
3. If so, did it substantially impair the defendant’s ability to understand the nature of his conduct OR to form a rational judgement OR to exercise self-control (or any combination)?
4. If so, did this provide an explanation for the defendant’s conduct?

The rationale for the existence of the defence is simple: it is not fair to hold someone whose functioning is limited by matters outside their control to be as equally culpable as somebody who acts unencumbered. Given the penalty for a murder conviction, fairness demands that there be an exception where strict criteria, agreed by Parliament, are met.

Medical evidence is required to advance this defence, and in a contested trial, where the prosecution challenges the defence and is seeking a conviction for murder, there is often conflicting expert evidence, and the jury are required to pick the bones out of it all. It is not an easy job.

In the Anthony Williams case, there was psychiatric evidence from the defence that he suffered from anxiety and depression, and that his condition had been exacerbated by the effects of lockdown. He was obsessing irrationally about trivial matters and had not been sleeping. The couple’s 40-year old daughter, Emma Williams, gave evidence that her parents spent “90 per cent of their time together”, were “not argumentative people”, and she had never heard either of them even “raise their voice” to each other. It was said that his condition resulted in an abnormality of functioning that substantially impaired his ability to understand the nature of his conduct, and to form a rational judgement and to exercise self-control, and that this had caused him to “flip” when his wife had told him to “get over” his worries.

The prosecution psychiatrist gave the jury an alternative expert view. He said that there was no documented history of depression or anxiety in Mr Williams’ records, and opined that Mr Williams knew what he was doing when he, as was not disputed, choked his wife in the bedroom, chased her downstairs and continued choking her until she lost life.

Ultimately, the jury accepted the evidence of the defence psychiatrist, because they returned a verdict of not guilty to murder. Whether this was the “right” verdict is not something it’s possible to comment on without hearing the evidence that the jury heard. It has been suggested by some commentators that Anthony Williams had feigned his illness; or that depression and anxiety are not serious enough to support a defence of diminished responsibility. All we know is that the jury heard the competing evidence of the psychiatrists – the distilled one-line press summaries above cannot hope to capture the hours and hours of live expert testimony and searching cross-examination that the jury witnessed. The jury then listened to the competing arguments of the experienced prosecutor and the defence, and were directed – properly, as far as we know – on the law by the judge. Can we rule out the possibility that the jury made a mistake, or brought their own internalised biases to bear on the decision-making process? Of course not, and this is one reason why I have argued for juries to provide reasons for their verdicts. But it is not fair to those twelve jurors to assume that to be the case without knowing the evidence on which their verdict is based.

Sentence

A judge passing sentence for manslaughter is required to follow the Sentencing Guidelines published by the Sentencing Council. There is a specific guideline for cases of manslaughter by diminished responsibility.

From the judge’s sentencing remarks, which have today been helpfully circulated by journalist Adam Hale, it is apparent that the prosecution, defence and judge all agreed that, on the basis of the jury’s verdict – and so accepting the defence psychiatric evidence – Anthony Williams’ retained responsibility was lower:

“Having heard the evidence of your state of mind in the year leading up to this awful event, and especially in the preceding few days, I am of the view that your mental state was severely affected at the time. That of course is in line with the verdict the jury returned in this case.

I have formed the view that you were suffering from largely irrational anxiety, exacerbated by, and in a vicious circle with, depression and lack of sleep. You were obsessing about coronavirus. But you were also obsessing about matters which had no rational basis.

For example, you were very concerned that you would lose your home. It was a home that you owned outright. You were concerned that you wouldn’t be able to afford shoes. But you have the best part of £150,000 pounds in the bank. You worried greatly that your daughter’s house insurance would be invalidated, despite the fact she repeatedly assured you to the contrary.

There is no logical explanation why a placid, non-aggressive, inoffensive man, happily married for 46 years, and with absolutely impeccable character, should out of the blue strangle his wife for such an innocuous comment as “get over it”.

Again, consistent with the jury’s verdict, I am left with the belief that something went severely wrong with your mental functioning, due to an underlying and substantial impairment of your mental functioning. You were unable to maintain your self control. You were unable to make rational decisions. You were unable, at that moment, to understand fully the nature of what you were doing.

I agree with submissions of both prosecution and defence that you retained, at the time of the killing, only low responsibility for your actions. I have read with care the letter your daughter, your mutual daughter, has written to the court. It is a very moving document. Despite her plea therein, I’m afraid that my wider public duty means that I have to send you to prison.”

Having concluded that the retained responsibility was lower, the judge then moved to Step 2 of the Guideline:

The starting point sentence for a lower responsibility case is 7 years’ custody, with a range of between 3 and 12 years. To identify where in that range the sentence should fall, the judge must look at aggravating and mitigating features, some of which are set out at Step 3:

In this case, the judge found that the “prolonged nature of the attack” was an aggravating feature. A factor not present in this Guideline, but which would normally aggravate an offence, is the domestic context, as made clear in the Overarching Principles: Domestic Abuse Definitive Guideline. The sentencing remarks are unsatisfactorily silent on this point.

The judge arrived at a starting point of 7 1/2 years. He then, as he is required to do by the Reduction in Sentence for Guilty Plea Guideline, reduced that by one third to reflect the fact that Anthony Williams had pleaded guilty to manslaughter at the earliest opportunity:

“In assessing the length of that, it is accepted by both the prosecution and the defence here that the starting point is one of seven years imprisonment.

In my view it is appropriate here to slightly increase the starting point, had there been a trial on manslaughter, to deal with the aggravating factor of the prolonged nature of the attack on her. You could’ve desisted in the bedroom, but you continued at the front door.

Had you pleaded not guilty to manslaughter, the post-sentence level would have been seven and a half years. I have, however, to discount that by one third to reflect your guilty plea at the first opportunity. The sentence that I pass upon you is one of five years in prison. You will serve two and a half years of that, however that will be less the time that you’ve already spent on remand.

At the halfway point you will be released and you will not have to return to custody as long as you commit no offence whilst on the five years of licence and you comply with the conditions of any such licence. Finally, there will be a surcharge payable upon your release.”

[N.B. Automatic release from custody at the halfway point of the sentence is the law as enacted by Parliament – the judge has no say over this]

Reflections

So that is how the sentence was reached. The sentencing remarks, it might be thought, are somewhat brief – I’d like to know, for instance, what on the evidence caused the judge to find this a case of “lower responsibility”, and what account was taken of the principles in the Domestic Abuse Guideline. Regrettably, such brevity is encouraged by the Court of Appeal, which has criticised Crown Court judges for overly detailed sentencing remarks. For my part, I think a full exposition of the judge’s findings of facts and his or her analysis of the Guidelines and relevant case law is important to helping the public understand how a sentence is reached, but that’s not the view of the senior judiciary. The difficulty, of course, is that when sentencing remarks are brief, particularly in a complex case, it is difficult for somebody who didn’t hear the evidence to assess whether the judge’s interpretation of the jury’s verdict is correct. As with the correctness of the verdict itself, it is almost impossible to divine unless you are privy to the full picture.

What is notable, however, is that, according to the judge, the prosecution agreed with the categorisation of this as a lower responsibility case. And, while that doesn’t mean that the prosecution were correct – sometimes prosecutors make overly generous concessions – as a general rule of thumb, if the opposing lawyers and the judge all agree on a point of law, it is more likely (although of course not certain) to be broadly right than if the judge has had to make a ruling following contested submissions from the parties.

So based on a plain reading of the Guidelines and the sentencing remarks, and assuming there has been no failure to take into account relevant information that would affect the categorisation of the offence or the starting point, the sentence appears to be justifiable in law. The immediate calls by a number of MPs for the Attorney General to refer this sentence to the Court of Appeal as “unduly lenient” – launched before any sentencing remarks were made available and based apparently on little more than a Daily Mail précis of the case – appear hasty, at best. For the Court of Appeal to find a sentence to be “unduly lenient” and to increase it, there will need to have been some sort of error in the sentencing process. As the Attorney General was recently reminded by the Court of Appeal after she attempted to exploit another manslaughter case for political gain, public sentiment is not the litmus test for appealing a sentence. There is a regrettable absence of understanding behind some of the comments, including inflammatory and false claims by Harriet Harman that diminished responsibility is a “loophole” that wouldn’t apply “if he went out onto the street and killed a neighbour”, and that “you get a discount if you kill your wife”. Another Labour MP, Alex Davies-Jones, declared herself “stunned to see Mr Williams be cleared of murder”, although does not appear to have sat through the evidence in court. Again, the court can only pass sentence based on the jury’s verdict. A sentence is not unduly lenient because somebody disagrees with the jury’s verdict; especially when that disagreement is reached without knowing the evidence in the case. It is disappointing to see MPs exacerbating public misunderstanding of the law in this way.

But of course, whether a sentence is “unduly lenient” as the law deploys the term is not the end of the discussion. Even if the Sentencing Guidelines have been applied flawlessly in this case, the question will properly be asked: Can five years – or even three years, the bottom end of the lower range – ever be a sufficient sentence for a case where death is unlawfully caused? The starting point for selling a few wraps of cocaine is 4 and a half years; fraud or money laundering in the six-figure range will tip you into similar sentencing territory. Is a person’s life worth so relatively little to the justice system?

Sentencing Guidelines are tricky animals. They are intended to produce consistency, while catering for all the nuances in human behaviour and circumstance that come before the criminal courts. They are drafted after public consultation (here was the consultation for the manslaughter guideline) but find themselves anchored in large part to historic sentencing practices; hence the punitive sentences envisaged for drug and property offences, and the mismatch between those and sentences for violence. So they are far from perfect.

They also have to have regard to the fact that sentencing seeks to achieve many things – punishment, rehabilitation, compensation, public protection and reduction of crime (including through deterrence). In politics, those who speak loudest rarely get beyond the first. They look at the harm caused, and seek punishment to match. Whereas the courts assess both harm and culpability, and weigh the competing aims of criminal justice to reach a result that meets the justice of the case. Justice plainly must encompass justice for a victim, but, although it is politically toxic to ever say out loud, it also means justice for a defendant. He must be dealt with not only for the harm he has caused, but for his responsibility, as proved by the evidence before the court, not based on assumptions about what happens in certain types of case. And, while rare, there will be cases of manslaughter where culpability is so low – only just bordering on the criminal – that justice can be satisfied by a sentence of barely a few years; in even more exceptional cases, perhaps less.

Whether Anthony Williams is properly judged as being such an exceptional case is not for this blog to say, for the reasons exhausted above. There is much to give serious cause for concern: this was a case of domestic abuse in which a man intentionally killed his wife in an act of unprovoked violence. But criminal cases are rarely as monochrome as politicians and the media like to pretend. This was also a case in which a seriously psychiatrically unwell pensioner, with a long and happy marriage and no history of violence, did a terrible act while his judgement was substantially impaired by his illness, and in which his distraught daughter begged the judge not to send her father to prison. Both of those narratives are, on the jury’s verdict, true. Grappling with what “justice” entails in such cases is a decision that many of us might count ourselves fortunate not to have to make.

None of that is intended as a rebuke to those who are perplexed about this sentence. Even when all those factors are weighed into the balance, an argument can still convincingly be made that the sentence remains too low; that the Guidelines need uplifting or tightening. I’d urge the caveat that wholesale change as a result of one case is rarely a good idea, but debate over the operation of sentencing is vital. The justice system belongs to us all, not simply the players.

But where there is plainly fault is in the system’s continued reluctance to engage meaningfully with the public about the complexity of these decisions. Notwithstanding the intense media and public interest in this case, no effort was made by the justice system to publish the judge’s sentencing remarks on judiciary.uk, a practice restricted to an apparently random handful of high-profile cases. This, as I have complained countless times before, is untenable. The public will rightly – for all the reasons set out at the top of this piece – have immediate concerns when they hear the soundbite headline summary of this case and the sentence that the court has passed. If the justice system expects to command any confidence, it must treat the public as, to use the ghastly civil service-speak, stakeholders; rather than inconvenient outsiders forced to make sense of inscrutable legal decisions with their noses pressed up against the court windows.