The assault on Jack Grealish – is 14 weeks’ imprisonment the right sentence?

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.

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Don’t let the Jack Shepherd stories on legal aid distract you from the government’s cynical agenda

Jack Shepherd is a coward. A pathetic, mewling quisling of a man. He is also a convicted killer, having been found guilty of gross negligence manslaughter. He caused the death of 24 year-old Charlotte Brown by taking her out on the Thames in his defective speedboat – bought, he boasted, to “pull women” – and, fuelled by alcohol, allowing it to be driven at high speed until it fatefully struck a submerged object and capsized. The breathtaking self-regard displayed by Shepherd in the moments that followed – calling for help for himself alone, not the stricken Charlotte Brown – was matched only by his decision to abscond while on bail, meaning that the trial, conviction and imposition of a 6-year custodial sentence all took place in his absence. The police having not yet located him, Shepherd has not yet served a single day of the 6-year sentence. He is refusing to take a scintilla of responsibility for what he has done; the very least, one might have thought, he could do to begin to atone for the unbearable, irrevocable grief he has inflicted on Charlotte’s family.

In a final twist of the knife, as has been reported over the last two days, while on-the-run – presumably abroad – Shepherd has, through his lawyers, applied for permission to appeal against his conviction and sentence. And the Court of Appeal has granted permission, in relation to conviction at least. As Mr Shepherd qualifies for legal aid, which the Court has now granted for the appeal hearing, it means that, in the words of the Daily Mail, Shepherd can “milk taxpayers for cash while on the run”. MPs and tabloids have since lined up to condemn this state of affairs; a fugitive flipping the finger at justice while still benefitting from the largesse of the country whose laws he brazenly flouts. “If the legal aid rules permit a man on the run, who did not even attend his trial, to receive legal aid…then the rules need to be changed,” declared Lord Garnier QC, a former Solicitor General. Eager to soothe the Mail’s wrath, the Ministry of Justice has “ordered an urgent review” to see what can be done to close this “loophole”.

Jack Shepherd

I can perhaps help. To begin, I’d urge anyone with an interest in this case to read this response by Tuckers Solicitors,the firm instructed by Jack Shepherd, which was published in reply to the Mail’s article. It sets out a few essentials that you may not have gleaned from the breathless reporting. For one, the claim that Tuckers Solicitors received “nearly £100,000” in legal aid to represent Shepherd is untrue – it was less than £30,000, which for a complex 4-week trial involving a homicide and, no doubt, technical expert evidence (experts who are paid out of that gross, VAT-inclusive figure), is not an unusual gross fee. I emphasise “gross” because, as with all legal aid expenditure “gotchas”, the headline figures (where accurate) always represent gross payments, inclusive of VAT, and represent months of work in advance of the trial by numerous legal and medical professionals, as well as the trial itself.

But the Tuckers response also helpfully sets out the duties of defence lawyers in situations where defendants abscond. It is not as uncommon as you may think. The first thing to note is that a defendant failing to attend court on bail does not automatically forfeit his right to legal representation. Sometimes, where a defendant fails to engage entirely with his lawyers and disappears, the solicitors and barrister will have insufficient instructions to act, and so will have to withdraw before the trial. But where a defendant has given instructions as to what his case is, and then refuses to attend court, his solicitors and barrister are under a professional duty to represent his interests as effectively as they can. They can’t simply assume guilt and walk away in disgust at the cowardice of their client – to do so would fly in the face of the role of defence lawyers. We do not judge our clients; that is the court’s job.  In Shepherd’s case, Tuckers had prepared “95%” of the case for trial before Shepherd absconded, and so they, and the instructed barrister, were able to continue to act.

Where a defendant on bail doesn’t attend his trial, the court has two options. It can either adjourn so that he can be arrested and brought to court. Or it can proceed in his absence. All defendants are warned at their first hearing before the Crown Court that this can happen if they fail to attend. There is case law to guide judges on the situations where it will be appropriate to have a trial in absence, but in general terms, deliberately absconding will be viewed as you foregoing your right to attend your trial. The consequences of that are serious: you surrender your right to give evidence in your defence, or to hear any of the evidence against you. And, of course, because failing to surrender to bail is a criminal offence in its own right, you will be arrested and subsequently dealt with for that. This is a key point absent from most of the media commentary – whatever happens in this case, even if Shepherd wins his appeal, he still faces a custodial sentence for fleeing.

But underpinning all of this is the right to a fair trial. The Mail attributes this right, with typical misplaced hostility, to the European Convention on Human Rights, but while the right to a fair trial is indeed guaranteed by the Convention in Article 6, it has been ingrained in English and Welsh law for centuries. It is the foundation of our criminal justice system. It is not a privilege, but a right. And rights are not something that we only give to people we like. Justice is not earned, it is not dependent on a person being “deserving”; the core of our civilisation is the notion that we deal with everybody, however reprehensible, by the same fair standards. Even the most despicable criminals have the right not to be wrongly convicted.

So it is that, even if a defendant flees before his trial – even if he is a repeat offender who has previously committed the most odious crimes against us – the justice system ensures that his right to a fair trial is upheld. It doesn’t simply tell a jury to convict him on the basis that he has done a runner; the usual rules of procedure and evidence, carefully designed over centuries to ensure, as best we can, that the guilty are convicted and the innocent acquitted, still apply.

What then, of appeals? Surely, the question is posed by the reporting, if you flee the country, you shouldn’t be allowed to appeal? Certainly not with taxpayers’ money?

At face value, I agree – this looks like a shocking and baffling state of affairs. But stripping it down to its principles, it makes a little more sense. A key element of the right to a fair trial – to not be wrongly convicted – is a mechanism to appeal where the trial court gets things wrong. This, when you think about it, stands to reason. The right to a fair trial is meaningless if there is no way to enforce it. That is what an appeals system offers – a check on the safety of a conviction. Because even people who are convicted of appalling offences and abscond are still entitled not to be wrongly convicted. And the duties of defence lawyers to ensure that their clients – even horrid clients who have absconded – are not unfairly convicted, still apply.

The right to appeal can mean different things in different jurisdictions. Some countries give an automatic right to a full retrial; others, like England and Wales, impose strict criteria. You firstly have to successfully obtain permission (or “leave”) to appeal against a Crown Court conviction or sentence. This is done by a written application by the lawyers, which sets out the grounds of appeal and argues why the conviction is unsafe. On the legal aid point – the barrister and solicitors do not receive a penny extra for advising on appeal or drafting the application and grounds. It is all done for free. In practical terms, it provides a disincentive to the lawyers to positively advise on appeal unless they really believe it has merit.

For a conviction to be found “unsafe” is a very high threshold. If a High Court judge reading the application considers that you have a good argument that deserves a full hearing before the Court of Appeal, they will grant permission. To put this in context, 90% of all applications for permission to appeal are refused.

Jack Shepherd has been granted permission to appeal against his conviction (but not, contrary to the Mail’s claim on its front page today, his sentence). The reasons are not yet publicly known; Tuckers refer in their statement to “legal errors made during the trial”, but the full picture will become clear when the appeal is heard. However, the numbers alone tell you that, in order for permission to have been granted, there will be merit in these arguments. There is a genuine concern that something at his trial went seriously wrong. This is not some speculative attempt by lawyers to drum up funds by launching spurious appeals; if there was no merit, the application would be in the bin with the other 90% of applications and no legal aid would be authorised at all.

Where permission to appeal is granted – as in this case – the Court of Appeal will issue a representation order (legal aid), usually for a barrister only, to prepare and present the appeal at a full hearing. If the solicitor is required to do work for a criminal appeal, most of the time it is expected that they do it for free. So the implicit suggestion that Tuckers will receive some 5-figure windfall from the appeal is a fantasy. They will in all likelihood receive nothing. The cost to the legal aid budget of this appeal will be minimal – the gross fee for a junior barrister defending an appeal at the Court of Appeal will usually run to a few hundred pounds. For a QC, the rate will be higher.

So if this case isn’t actually about money, what is it about? I’d suggest it’s about two things. Firstly, there’s unarguably a jarring feeling caused by this case. I understand the rage. It is raw and primal and exacerbated by frustration. We can’t get Shepherd – the police have so far proved unable to track him down – but we can lash out at the fallible system which gives rights to people who don’t deserve them; who offend and re-offend and then offend again. But we have to temper these urges with a sober reminder of our first principles: justice is not dependent on good behaviour. Equality before the law does not mean equality for people we like. Absconding to avoid prison is dreadful, pusillanimous behaviour, but it is not the worst we see in the courts. What about those who perjure themselves? Or those who, after being convicted, take revenge against witnesses? Or commit contempt of court by shouting out? Or who breach prison rules by smuggling in contraband? All of these, and many more offences, demonstrate a complete disrespect for the legal system and an arrogant lack of remorse. Do we remove the right of appeal to these people too? Or do we just remove the few hundred quid in legal aid payable to the lawyers, meaning that only absconders with the means to pay privately are able to appeal?

Secondly, this case, and the way it has been presented, fits with a popular narrative about legal aid. It’s for people who don’t deserve it. It’s a gravy train, cash cow or whatever culinary or zoological metaphor the chief sub-editor prefers. And this, again, fails completely to understand why we have legal aid in the first place. Legal aid – modest sums far below market rate paid to lawyers acting for the public – is central to access to justice. If you don’t have legal advice and representation, you can’t meaningfully enforce your legal rights. If the state comes to take your child, or wrongly accuse you of a criminal offence, or if your landlord unlawfully evicts you, or your boss sexually harasses you, you want to be able to assert your rights. If you can afford to pay privately for lawyers, good for you. If you can’t, then, like the NHS, legal aid offers the safety net. Without it, we have a two-tier justice system. Those who can afford to pay represented by lawyers, and you, who can’t, left by yourself standing in court fighting the legal professionals instructed by the state or corporate behemoths. To revert to the health analogy, you’d be left to operate on yourself. This is why legal aid matters.

The problem is that, for successive governments, legal aid has provided a giant political football, to be kicked and slashed at in the name of sport, political distraction and saving a tiny amount of money. The cost of the criminal legal aid budget, following 40% cuts to the criminal justice system, is £850m per year – around 0.1% of total public spending. Yet we are encouraged at every turn to believe it is a extortionate burden, filling the pockets of greedy lawyers (many of whom in reality often work on legal aid cases for hourly rates below minimum wage). It’s a lie.

And the effects of the lie are devastating. In 2012, the Legal Aid, Sentencing and Punishment of Offenders Act removed legal aid entirely from swathes of the country’s most vulnerable. The results have been catastrophic. Victims of sexual and domestic violence have been cross-examined by their abusers in family proceedings; penniless victims of rogue landlords and employers have been denied legal representation; people wrongly refused benefits by DWP cock-up have been left destitute and unable to challenge the decisions; and innocent people have been forced to pay privately for criminal defence lawyers and, upon being acquitted, have been unable to claim their costs back, effectively bankrupting them. All of this was predicated on lies told by the Ministry of Justice about our spending on legal aid (“we have the most expensive legal aid system in the world” being the headline whopper), and dutifully trumpeted by the tabloids.

The MoJ promised to publish a full review into the devastating impact of LASPO by the end of 2018. They broke their promise. Six years after implementation, we are still waiting. Within 24 hours of the Mail calling for legal aid to be stripped from unpopular criminals like Jack Shepherd, the Ministry pledged to hold an “urgent review”.

This is the real agenda of this flurry of media reporting. Calculated, cynical and dishonest fearmongering of what legal aid is, how much it costs and what it is for, with a clanging silence when it comes to explaining to confused readers why legal aid exists. If I were equally cynical, I’d suggest that this antagonising of the public against legal aid is a precursor the publication of the overdue LASPO report which will be damning of the damage done to people’s lives, in the hope that public rage will be diverted onto the Jack Shepherds and their lawyers, instead of the real villains in the legal aid scandal – the government.

Home Alone 2: Lost In The Live Tweet

Many if not most of you will have already seen this, but I decided to mark Festivus Eve (22nd December) by live-tweeting a festive favourite, Home Alone 2: Lost In New York, and doing my muddled best to analyse it through the lens of English and Welsh criminal law (a lens somewhat fuzzed by a few mulled wines). The first tweet is below; click to be taken to the full thread.

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From there things got a bit mad, as reporters desperate for copy and merry on leftover Asti from the Christmas party stumbled across the thread and mistook it for something newsworthy. By Christmas Day, the “story” had caught the attention of MailOnline:

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And some of their greatest below-the-line comments:

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Then the the Evening Standard got wind.

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The Metro wasn’t far behind.

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Yahoo Celebrity News got in on the act.

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The Sun managed to misunderstand the point entirely:

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The story hit Ireland:

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We trended in New Zealand:

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Somehow Bangladesh found it worth reporting:

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and even Putin’s propaganda sheet Sputnik News were running the “story”.

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Perhaps most barking of all, when Home Alone 2 was screened on Channel 4 on Christmas Day, the continuity announcer referenced the live tweet.

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Overall, the thread has now apparently had over a million impressions on Twitter. I don’t know what this says, either about me or society. But nevertheless, Merry Christmas to you all, and thank you for your support. This has been a memorable one.

Why is the dangerous Anjem Choudary being released onto our streets?

Anjem Choudary, the Islamist preacher convicted in 2016 of inviting support for Islamic State, is to be released from prison next month, despite being described by prisons minister Rory Stewart as “genuinely dangerous”. How, it has been (not unreasonably) asked, can this be? And what, if anything, can be done about it?

The first rule of Law Club is that you do not talk about Law Club, or at least do not talk about law cases until you have read any available judgment. To this end, the sentencing remarks of Mr Justice Holroyde when passing the 66-month (5 and a half year) sentence on Choudary in September 2016 are essential. They tell you most of what you need to know about the facts and the way in which the judge approached the sentencing exercise. But to supplement them, some further legal background may help.

Any defendant sentenced to a “fixed-term” sentence is automatically released at the half-way point of their sentence. This is automatic (by virtue of s.244 Criminal Justice Act 2003). It doesn’t depend on good behaviour, or successful rehabilitation, or satisfaction of any other condition. Why? Well, this is something covered in some detail in my book, (Chapter 10: The Big Sentencing Con), but the justifications offered are two-fold. First, releasing a defendant on licence means that the authorities have a measure of control over an individual as they reintegrate into society. There are conditions attached to the licence, usually including supervision by the probation service, and if the defendant breaches those conditions or commits (or is even accused of) a further offence, they can be recalled to prison to serve the remainder of their sentence. The second, unspoken reason, is one of practicality and cost. Prison is expensive, and the budget was cut by 40% in 2010. Locking up all or most prisoners for the full terms of their sentence would push our already-overcrowded and ungovernable prisons beyond salvation. Automatic release operates as a valve to relieve pressure on the system. You may not like those reasons, you may consider the latter in particular a darn unsatisfactory justification (I certainly do), but unless and until there is a rush of popular support for vastly expanding the prison budget, or a radical reimagining of how often we reach for custody as a sentence, it’s easy to see the political appeal. Pretend hardened crims are being handed whopping sentences, then let them out early so we don’t actually have to pay for it. It is equally easy to see how the public often feel misled, as automatic release – although often explicitly stated by the sentencing judge – is rarely explained properly in news reporting.

Fixed-term sentences are the most common form of sentence. But they are not the only type. For offenders who are deemed “dangerous” by the courts (“dangerous” defined as posing a “significant risk to members of the public of serious harm” through the commission of further specified offences), other options are available. For the most serious offences, a life sentence is available; for other specified offences, an “Extended Determinate Sentence” (EDS) can be imposed. The effect of an EDS is that a prisoner is not automatically released at the half-way stage of their sentence; instead, at the two thirds point of the custodial term, their case is referred to the parole board. If they can satisfy the parole board that their incarceration is no longer necessary for public protection, they will be released on licence (and there is, after that, a further extended period of licence). So, to give a worked example, let’s say Jim commits a fairly nasty armed robbery and is sentenced to an EDS comprising a custodial term of 10 years and an extended period of licence of 5 years. He will be referred to the parole board at the 2/3 stage of his 10-year custodial term (so after 6.7 years). If he satisfies the parole board, he will be released on licence for the remaining 3.3 years plus the 5-year extended licence period. (Although potentially, following the groundbreaking challenge to a parole board decision to release in the case of John Worboys, such a decision to release may be capable of challenge by interested parties.)

If he doesn’t satisfy the parole board, Jim stays where he is, potentially until he has served the full 10 years, upon which point he will be released on licence for the 5-year licence.

Anyway, back to Anjem Choudary. The judge, when passing sentence, expressed his view that Choudary was dangerous. However, crucially, he also explained this:

Although I have expressed my view as to the likelihood of your continuing to spread your message, and as to your dangerousness, the offence under section 12 is not one to which the provisions of Chapter 5 of the Criminal Justice Act 2003 apply, and the court therefore has no power to impose an extended sentence.

The offence of which Choudary was convicted did not carry an extended sentence. Nearly all terrorism-related offences do, but this rarely-deployed offence contrary to s.12 of the Terrorism Act 2000 is not on the list. Parliament, for whatever reason, did not see fit to do so. This meant that the only option open to the court was a determinate (fixed-term) sentence. The outcome was therefore inevitable from the moment Choudary was charged. There was never any prospect of him receiving anything other than a standard determinate sentence which would see him automatically released at the half-way stage, irrespective of whether he was reformed or, as the case may well be, even more of a danger to the public.

If this sounds highly undesirable, some comfort may be found in this: the government is alert to the gap in the law. The Counter-Terrorism and Border Security Bill proposes adding section 12 (among other terror-related offences) to the list of specified offences which carry extended sentences (H/T @leeofthebailey). But at present, we will have to rely upon the (one would imagine latex-trouser-tight) licence conditions and Choudary’s oversight by the security services to provide sufficient public protection.

Finally, to those wondering why, if Choudary was given a 66-month sentence in September 2016, he is being released now only 2 years later, instead of 33 months later, the answer is again in the sentencing remarks. Choudary had spent some time in custody awaiting trial, and some time on bail on an electronically monitored curfew. A day spent in custody on remand counts as a day towards sentence. A day spent on an electronically-monitored “qualifying curfew” (of at least 9 hours a day) counts as half a day in custody. Again, this is automatic.

The Ben Stokes trial: what went wrong?

This is one of those posts carrying a title which I genuinely had no intention nor desire to write. It is also, I make plain at the outset, rampant clickbait, as I, like 7 billion other people who were not present for the duration of the court proceedings, am in no position at all to say what (if anything) “went wrong” in the Ben Stokes trial. However, given the ongoing social and tabloid media commentary and speculation, it seems that some general pointers on the law in this area would assist. I’ve done my best to piece together the facts from various outlets, but the standard caveat applies throughout: this analysis is based on the inevitably limited picture available.

 

What is the case about?

England cricketer Ben Stokes was on Tuesday 14 August 2018 acquitted by a jury of affray following a week-long trial at Bristol Crown Court. A co-accused, Ryan Ali, was also acquitted of affray. A third defendant, Ryan Hale, was acquitted of affray last week at the end of the prosecution case when the judge ruled that there was “no case to answer” against him.

The facts, put simply, are that in the early hours of 25 September 2017, violence broke out outside a nightclub in Bristol. Video footage captures part of what took place, and shows a male said to be Ben Stokes throwing punches at two other males. In the course of the incident, Ryan Ali was knocked unconscious and suffered a fractured eye socket, fractured tooth, cut eyebrow and bruising. Ryan Hale was also rendered unconscious and suffered concussion.

The prosecution case was that Ben Stokes was the aggressor and was “enraged” after a doorman refused to allow Mr Stokes and his teammate Alex Hales into a club. Ben Stokes was said to have homophobically mocked two men, Kai Barry and William O’Connor, immediately before the violence broke out.

Ben Stokes’ case was that he was in fact standing up for Mr Barry and Mr O’Connor after they were verbally abused by others. He said that Ryan Ali had then threatened him with a bottle, and that his actions thereafter amounted to lawful self-defence.

The prosecution conceded that Ben Stokes may have been acting defensively initially when threatened by Ryan Ali, but asserted that he “quickly became aggressor”.

Ben Stokes’ teammate, Alex Hales, was also present, and it was said by Stokes’ barrister that Hales could be seen on the CCTV kicking and stamping on Ryan Ali during the melee. Alex Hales was not charged with any offence.

The prosecution relied upon the evidence of a doorman and an off-duty police community support officer (PCSO), as well as video footage.

Mr Barry and Mr O’Connor were not called to give evidence by either side at trial.

 

What is affray?

Affray is a public order offence, contrary to section 3 of the Public Order Act 1986:

Affray.

(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

(2) Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

(3) For the purposes of this section a threat cannot be made by the use of words alone.

(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5) Affray may be committed in private as well as in public places.

Affray is an “either-way” offence, meaning it can be tried either in the magistrates’ court or the Crown Court before a jury. In the Crown Court, the maximum sentence upon conviction is 3 years’ imprisonment.

As we can see, an offence of affray involves the use or threat of unlawful violence, but is concerned not so much with the impact of the violence upon the individual concerned, but with the impact upon the passing public. The gravamen is the fear that this type of violence causes to bystanders. It is therefore quite different to an assault.

The Crown Prosecution Service guidance on affray provides a handy summary of the relevant law. There are quite a few interesting features. For example, the requirement that a notional “person of reasonable firmness” be put in fear for their personal safety means that not all violence will qualify as an affray. It’s possible for someone to assault another person in such a way as would not cause a bystander to fear for his own personal safety. Affray tends to apply in cases, such as this, where there is a brawl or outbreak of (often drunken) violence that members of the public might reasonably fear could spiral.

 

What is self-defence?

Self-defence is a complete defence to affray. I’ve written about self-defence in some detail before, here. For now, I’m going to copy and paste the relevant bit:

In 2008, the common law defence of self-defence was put on a statutory footing in section 76 of the Criminal Justice and Immigration Act 2008. What it means in practice is as follows:

  • A person acting in genuine self-defence is entitled to use such force as is reasonable in the circumstances as he believes them to be. This provides a defence to any charge of violence, up to and including the use of lethal force;
  • The first question that a jury must ask is Did the defendant believe or may he have believed that it was necessary to use force to defend himself from an attack or imminent attack on himself or others or to protect property or prevent crime?
  • The second question is Was the amount of force D used reasonable in the circumstances, including the dangers as D believed them to be?
  • The burden is on the prosecution to disprove self-defence. It is not for a defendant to prove that he was acting in self-defence. The prosecution have to prove beyond reasonable doubt (so that a jury is sure) that the defendant was not acting in reasonable self-defence.

Let’s break down what this means.

“A genuine belief that force is necessary”

The question here is subjective – i.e. did the defendant genuinely believe he needed to use force in self-defence? It does not matter if the defendant was in fact mistaken, as long as he believed that at the time. So if a 6-foot man wearing a terrifying bear costume runs towards you brandishing what looks like a machete, and you genuinely believe he is about to attack you, the fact that you later realise the “machete” is a hunnypot and that you’ve KO’d Winnie The Pooh in front of a distraught crowd of Disneyland toddlers does not matter. The fact that your belief in the need for force was, by objective standards, unreasonable – who would mistake a hunnypot for a machete, for Lord’s sake? – does not matter at this stage. It might make the jury less likely to accept your insistence that your belief was genuine; however the bottom line is that a mistaken, unreasonable but genuinely-held belief in the need for force is enough. (The only exception is if your mistaken belief is due to your voluntary intoxication. Because, frankly, getting tanked on Stella and raining fury on Winnie The Pooh in a fountain is not something the courts can condone).

“Reasonable force”

Whether force is reasonable has to be judged by the circumstances as the defendant believed them to be, even if, as above, he was in fact mistaken. So if you genuinely believe that a machete attack is imminent, what is reasonable has to be assessed by reference to that belief. What is reasonable will obviously depend on the individual case, but section 76 reflects the famous words of Lord Morris in the case of Palmer v R 1971 AC 814, which are distilled in some form to juries when they are given their directions of law by the trial judge:

“If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken …”

Further pointers in section 76 include the provision that if force is “disproportionate”, it cannot by its nature be “reasonable”. Which sounds self-evident, one might think, but we’ll come to this more in a second. It is also made explicit that, while the possibility of a defendant having been able to retreat is a factor to consider when assessing reasonableness, there is no “duty to retreat”. It is also long-established that a person may strike pre-emptively – you do not need to wait to be hit.

So in a nutshell, the law of self-defence means that the prosecution must make a jury sure that either a defendant didn’t really believe he needed to use force, or that he did but used unreasonable force – for example killing someone with a gun in response to a slap to the face – bearing in mind the broad scope of appreciation allowed in these cases.

 

How was Ben Stokes acquitted? The CCTV shows he was clearly being violent

That may well be so. But the question for the jury wasn’t “Does the CCTV show that he was throwing punches?” The question was whether the offence in law was proved.

To this end, the court has published the “route to verdict” provided to the jury. These are now produced by judges in most Crown Court trials, and are exceptionally useful. Frankly, I have no idea how juries of bygone years were supposed to decide complex cases without them. They usually take the form of flow charts or numbered questions, and are tailored to the issues in the particular case. Judges usually show them to the advocates before the document is given to the jury, so that the parties can offer observations.

Here is the route to verdict:

As can be seen, there were many theoretical routes by which a jury might have acquitted. We have no way of knowing why the jury in this case did.

 

Why wasn’t Ben Stokes charged with assault?

Many, including this honkingly poor Daily Mail piece, have been asking this question. It emerged that, on the first day of trial, prosecuting counsel Nicholas Corsellis applied to amend the indictment against Ben Stokes to add two counts of assault occasioning actual bodily harm (contrary to section 47 of the Offences Against the Person Act 1861), in relation to the injuries suffered by Ryan Ali and Ryan Hale. The judge refused, commenting on the “very late” nature of the application and the fact that Treasury Counsel (the most senior barristers instructed by the Attorney General) had been specifically asked to advise on the appropriate charge at the beginning of proceedings and had alighted upon a single count of affray against Ben Stokes as sufficient. The judge did say that, had the prosecution applied to add the counts to the indictment at an earlier stage, there would have been little problem; however, leaving it to the day of trial was not right. The judge also said that in his view such an amendment was “not necessary”.

Should Ben Stokes have been charged with assault occasioning actual bodily harm? Certainly Mr Corsellis thought so, even if Treasury Counsel (named by the Mail as Alison Morgan) initially instructed to advise on charges at the outset of the case thought otherwise.

The Crown Prosecution Service charging standards would appear to support Mr Corsellis. These specifically address the issue of when a public order offence and an offence against the person should be charged:

Charges Relating to Violence Against the Person

Charges of Assault that are appropriate to link to those of Public Order are set out below.

[…]

If there is sufficient evidence to justify a charge under sections 2 or 3 of the Public Order Act and an assault contrary to:

  • section 18 OAPA; or
  • section 20 OAPA; or
  • section 47 OAPA

It will usually be appropriate to charge both. It will not normally be appropriate to charge common assault (section 39 of the CJA 1988) together with an offence contrary to sections 2 or 3 of the Act.

Sometimes, prosecutors will charge tactically. It may be easier to prove affray, or the view may be taken that a conviction for assault is unlikely to add materially to the sentence for an affray, and the Crown may reasonably consider that adding a charge of assault would unnecessarily complicate the trial.

Without knowing the advice offered to the CPS, we cannot say why the decision not to charge s.47 assault was taken. But the expectation in such cases is that it usually should be charged. The CPS has released a brief statement saying:

“The CPS keeps cases under continual review. We selected the charge of affray at the outset in accordance with the code for crown prosecutors. Upon further review we considered that additional assault charges would also be appropriate. The judge decided not to permit us to add these further charges. The original charge of affray adequately reflected the criminality of the case and we proceeded on that.”

It may be – we don’t know – that the evidential position shifted in some way that meant that a charge of assault occasioning actual bodily harm was suddenly viable in a way it was previously not. By way of example, if the CPS suddenly come into possession of medical evidence proving injury, they might properly say that they are only at a late stage in a position to support a charge of ABH. But the reports of the judge’s ruling suggest that it was simply that the new prosecution barrister formed a different view to his predecessor. This is in itself not an an uncommon occurrence – because of the unpredictability of criminal court listings, trials overrunning etc, cases are often “returned” to a new barrister the night before trial, who may then advise the CPS in completely different terms.

 

Would a charge of assault have resulted in a conviction?

We don’t know. The newspapers have largely assumed this as a given, but if the tenor of the defence to the affray was self-defence, then my educated guess would be that a similar defence would have been run in relation to any assault charge. And while we don’t know how and why the jury acquitted, there’s a reasonable inference that if they couldn’t be sure that the prosecution had disproved self-defence on the affray, there would be no difference to the verdict on an assault charge.

It’s also worth noting that despite excitable commentary from the Telegraph that charging two counts of s.47 assault would have left Mr Stokes facing thirteen years in prison, this would require the judge upon conviction passing the maximum sentence for each charge (5 years for each ABH and 3 years for the affray) and directing them to run consecutively to each other, something which has never happened in the history of English and Welsh criminal law. Convictions for assaults on top of affray would have added a little by way of sentence, but not lots. The maximum sentence for ABH may be 5 years, but the range set by the Sentencing Guidelines (which judges are required by law to follow) is up to 3 years, and judges do not simply pile sentences on top of each other. They apply what is referred to as “totality”, and ask themselves “what is the overall sentence that justly reflects the total offending in this case?” In this case, the all-round sentence would, in my experience, be unlikely to be much more for the presence of two assault charges.

 

What about the missing witnesses? Why didn’t the prosecution call them?

Barry Kai and William O’Connor were speaking to the media in support of Ben Stokes immediately after the acquittal, raising the reasonable question of why they weren’t witnesses in the trial. The CPS has said:

“The evidence of Mr O’Connor and Mr Barry was disclosed to the defence but it was not deemed necessary to call them as witnesses in the case.”

Reading between the lines, it appears that whatever these two witnesses told the police, it did not help the prosecution case. This is why their “evidence” (by which the prosecution presumably means their witness statements or other informal accounts given to the police at the scene) was disclosed to the defence, rather than relied upon as prosecution evidence. This is far from unusual in affray cases, especially where most witnesses and participants have been drinking. Prosecuting an affray trial can be fiendish, as you have to pick out the bones from a pack of incoherent and inconsistent witness statements and decide how the prosecution puts its case. Usually you will rely upon the account of the most sober and independent witnesses, and disclose the remainder to the defence as “unused”. We know that the prosecution had two such ostensibly reliable and sober witnesses – the doorman and the PCSO – and if their evidence contradicted Messers O’Connor and Barry, the latter two may well have been considered unreliable.

It is notable that, despite their warm words for Mr Stokes, the defence did not choose to call them as defence witnesses. Plainly whatever they had to say was not considered sufficiently reliable or helpful to Ben Stokes’ case for them to say it on oath before the jury.

 

Why wasn’t Alex Hales prosecuted?

Based on what has been reported, this is a reasonable question. The defence told the court – and the police officer in charge of the case agreed in evidence – that the video footage showed Alex Hales kicking and stamping on Ryan Hale and Ryan Ali. Mr Hales was interviewed under caution by police but ultimately not charged. He apparently told attending police officers that he had only arrived at the scene after the police had, which does not sit easily with the footage. There is no explanation for the decision not to charge him beyond a bare statement from the police that “Early investigative advice was sought from the Crown Prosecution Service in relation to Alex Hales’ involvement in the incident and a decision was subsequently made at a senior level to take no further action against him.” 

 

Was the Ben Stokes verdict right? 

I don’t know. I didn’t hear all the evidence. And, unless you are a juror, reporter or member of the public who attended every day of trial and absorbed all the evidence, you don’t know either. You have an incomplete picture and should not be commenting.

 

So the verdict means that Ben Stokes is innocent, right?

He is presumed innocent, yes. Proven innocent, no. A “not guilty” verdict means only that the jury was not sure of guilt. This is what juries are told up and down the land ever day – if you are not sure of guilt, you must acquit. Look back at that route to verdict for the many ways in which a jury could have reached a not-guilty verdict. They may well have all agreed that Mr Stokes’ actions were most definitely reasonable self-defence. Or they may have found themselves almost sure – but not quite – that he was the aggressor and/or had gone way over the top. That is the spectrum of an acquittal  – sure of innocence right through to very nearly sure of guilt. That is why we say that an acquittal should never, by itself, be heralded as “proof” of innocence. The presumption of innocence remains intact – no criminal legal consequences now flow – but anyone relying on an acquittal as proof of innocence is reaching for a meaning that the verdict does not carry.

 

This case is a shambles, right? Heads should roll

Some of the criticism has been completely unfounded and misdirected. It was not, for example, a “blunder” for the Crown not to call Mr Barry and Mr O’Connor; unless it can be shown that their evidence was reliable and would have supported the prosecution case, it would be entirely right and proper for the Crown not to rely upon them.

However, there are understandable questions over Alex Hales’ role, and why he was not charged. Some detail from the CPS beyond the usual rote “The evidence did not support a charge” would help in cases such as this.

It is also arguable that charges of assault should have been preferred at an early stage as well as a charge of affray; although there is no evidence that this would have made a difference to the verdict.

Furthermore, and significantly, a not guilty verdict, we must remember, is not a conclusion that a case should never have been brought.

The test for prosecuting is: Is there a realistic prospect of conviction? If there had been no case to answer against Ben Stokes, the judge would have made the same ruling at the close of the prosecution case as he did in respect of Ryan Hale: he would have directed the jury to immediately acquit.