Why was a homeless man jailed for pretending to run the London Marathon?

A homeless man who picked up a lost race number and “completed” the London Marathon has been jailed for 16 weeks.

Yesterday at Uxbridge magistrates’ court, Stanislaw Skupian (38) was sentenced by magistrates having pleaded guilty at an earlier hearing on 18 May to fraud, after he picked up a race card number dropped by runner Jake Halliday at the 23-mile mark and illicitly joined the race himself. He crossed the finish line and celebrated with the medal intended for Mr Halliday, who found himself removed from the race 300 metres from the Finish line when marshals spotted that he was not wearing a race number.

The Chair of the bench passing sentence told Skupian, a homeless father-of-one who had recently suffered a temporary breakdown in his mental health, “The offences are so serious [that] only a prison sentence will suffice”. 13 weeks’ imprisonment was passed, with three weeks’ imprisonment imposed consecutively for unrelated matters of theft.

The Chief Executive of the London Marathon, Nick Bitel, reportedly said that “justice has been done”. His apparent pleasure with the sentence was not matched by many people on social media, who expressed consternation at a mentally-unwell homeless man being squeezed into our bursting prisons for a non-violent offence.

So what the Dickens has gone on?

The offences

Stanislaw Skupian was charged with fraud by false representation, contrary to sections 1 and 2 of the Fraud Act 2006. The “false representation” being, presumably, the implied representation that he was the rightful owner of Mr Halliday’s race number and was entitled to complete the race and claim the finishers’ medal. This offence carries a maximum sentence of 10 years’ imprisonment in the Crown Court, or six months’ imprisonment in the magistrates’ court. He was sentenced to 13 weeks’ imprisonment.

He was also charged with three unrelated offences of theft. He was arrested at the multi-faith prayer room at Heathrow Airport, where he was found with items including a primary school worker’s identity card and a pink diary holding overtime hours worked by airline staff. It was said that Skupian viewed the airport as a temporary home and had picked up items discarded. This would amount to theft (referred to in court as “theft by finding”) under s.1 of the Theft Act 1968. He received three weeks’ imprisonment for these offences, to run consecutively to the 13 weeks imposed on the fraud (it is unclear whether this was one week consecutive for each of the three theft charges, or three weeks on each directed to run concurrently to each other, or some other mad configuration dreamed up by the magistrates).

He was further made subject to a Criminal Behaviour Order, which is the new replacement for the old-fashioned ASBO. These can be imposed where the court is satisfied that a defendant has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person, and where a Criminal Behaviour Order will help in preventing the defendant from acting in that way. In this case, the court deemed that banning the defendant from Heathrow Airport for three years, unless he has a pre-booked flight, was an appropriate use of that power.

 

The Sentencing Guidelines

To look at what sentence we might expect, we have to look at the Sentencing Guidelines, which are published by the Sentencing Council and which courts are required by law to follow. So let’s look at the Definitive Guideline for Fraud, Bribery and Money Laundering Offences. The seriousness of an offence is judged by considering the “culpability” of the offender and the “harm” caused by the offence.

On the Guideline for straightforward fraud, the first step is to assess culpability by reference to the below factors:

There are plainly no elements of “High culpability” in this case. It would appear, in the absence of any evidence to the contrary, that this was an opportunistic, one-off offence with very little planning, which points towards Lesser culpability.

Now we turn to the assessment of harm:

For fraud, you take as your starting point the financial loss to the victim. Here, it is very low indeed. The cost of entering the London Marathon ballot, at £39, is probably the closest financial value you can attach to this unusual offence (the value of the medal not being easily assessed due to it not being something purchasable on the open market). This puts us in the lowest category, Category 5.

But then we have to look at the impact upon the victim, to see whether it warrants the sentence being moved upwards. This is a slightly unusual case, because although (I expect) the charge would have been drafted with London Marathon as the nominal victim, the person most directly affected is arguably Jake Halliday. He was stopped 300 metres from the finishing line and told that he was not allowed to cross due to his number having fallen off. He had raised £49,000 for a charity, Bloodwise, and was prevented from completing the race, having run the best part of 26 miles, in the cruellest of circumstances. What was (one might expect) a lifetime ambition was snatched away. That no doubt had a considerable detrimental effect on him.

However. Can it really be suggested that Skupian was responsible for depriving Mr Halliday of his moment of glory? It was said in court (and seemingly not disputed) that he spied the discarded race identifier on the floor and saw an opportunity. He did not steal or otherwise remove the number from Mr Halliday. It does not appear that he watched it fall and swooped in. If, as the court apparently accepted, he had simply seen it on the ground, was the damage not already done? Perhaps he could have handed the card to an official, but it is unclear how it could have been reunited with Mr Halliday in order for him to have been able to complete the race. The London Marathon Final Instructions to runners emphasises the importance of taking care of the running number – “Duplicate numbers cannot be issued under any circumstances”. It is also stated that anybody taking part without a number will be removed from the race by marshals “before you cross the Finish line”. Once that number had fallen, it would appear (and I’ll be happily corrected if I’m mistaken) that the game was over for Jake Halliday.

Against this backdrop, it might realistically be argued that while Skupian exploited Mr Halliday’s misfortune, his criminal behaviour did not cause it. The anger and humiliation felt by Mr Halliday when he learned that somebody had claimed his number and completed the race in his stead may well be significant, but is it so great as to move the harm out of “Lesser impact”? I suppose it might. Just.

My assessment is that for these reasons, this case probably falls somewhere between, categories 4C and 5C:

We can see that the latter provides a starting point of a ‘Band B fine’, which equates to around 100% of somebody’s weekly income. The category range is a discharge – a slap on the wrist – up to a medium level community order. If the harm caused is deemed serious enough to lift it up to the next category, the starting point is a medium level community order. Still the category range does not extend to custody. In order to arrive at a category where a custodial term is available, the court would have to have assessed culpability as “B”. I find it tricky to see how this was done.

We then look at aggravating and mitigating factors:

 The defendant had a previous conviction for attempted theft. That was the only matter mentioned in court. So while it is a similar type of offence, this is hardly the kind of record which would seriously aggravate a defendant’s position to make the difference between custody and not-custody. No other aggravating features listed are relevant.

In mitigation, the court heard that the defendant has lived in the UK for 11 years. He suffered a neck injury in a serious car crash last year, forcing him to take sick leave from his catering job. His marriage broke down and he lost his home. Shortly before the race, he had suffered a “short, temporary breakdown in his mental state”. It was also submitted that he had committed the offence out of excitement, without fully appreciating that what he was doing was wrong.

Putting all this together, I’d say there’s more to mitigate his position than to aggravate it. This would mean moving below the starting point on the Guidelines.

We then have the issue of credit for guilty plea. He admitted the offence at the very first hearing, and so is entitled to one third off his sentence. This means that the magistrates must have taken a starting point of 20 weeks in order to arrive at a final sentence of 13 weeks for this offence.

[The thefts we shall put to one side as we do not know their value. What we can infer, however, is that they were considered significantly less serious than the fraud.]

 

Conclusion

Based on what we know, this appears to be a very harsh sentence. While this is not the type of fraud envisaged by those who drafted the Guidelines, it is difficult to see how a straightforward assessment of culpability and harm could lead a court to a starting point of 20 weeks for this single offence. The defendant has an automatic right to appeal his sentence to the Crown Court. I would not be surprised if he exercised it.

There are unknowns, of course. There would have been a Pre-Sentence Report prepared by the Probation Service, whose views would have informed the court’s. It may be that they were unable to offer any alternative to custody, although experience would dictate that a homeless man with a limited criminal record and mental health problems is the kind of person the Probation Service try to persuade the courts to let them help. It would be a sad day indeed if all that our justice system could offer to improve this man were two pointless months of incarceration.

I have written about magistrates before, including in my book, and one of my criticisms is that sometimes a sense of perspective is lacking when these non-legally qualified volunteers are sentencing offenders. Just because a power of imprisonment exists does not mean that it has to be used. This sentence, based on what we know, appears to be one such example. That it can be said that the offence was so serious that only a prison sentence can suffice is, with respect to the sentencing court, perverse. Courts often find ways to avoid immediate custody in cases which are far more serious, involving offenders with significantly worse records.

And I’ll seize on those words – “based on what we know” – to pirouette into a final flourish on my soapbox, if I may:

This case had received national media attention when Mr Skupian made his first appearance at court and pleaded guilty. It was plain to the court administration and to the magistrates that the outcome of this case would be widely reported. Yet still the magistrates did not see fit to publish written sentencing remarks explaining their decision.

This is a drum I have unapologetically beaten for some considerable time. Because while good court reporters should accurately reflect the full reasons given for a sentence passed, inevitably there will be occasions where something is missed in the hustle of a chaotic magistrates’ court list. Submissions and decisions as to where the case falls in the Sentencing Guidelines, for example, hold little interest to the average reader and may understandably not make it into the final copy, but to lawyers analysing and explaining the decision these can be critical.

Magistrates, judges and lawyers cannot complain that their remarks or decisions have been unfairly portrayed if they don’t bother to do the basics. It would have taken an extra ten minutes, one supposes, for the remarks to have been committed to paper, copied and distributed before being read out, and then everybody would be able to see how and why the decision was reached.

As it is, we are once again left groping in the dark, or at best the dusk, in trying to understand how our criminal justice system is – or in this case is apparently not – working.

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What on earth happened to poor Tommy Robinson? 10 Things You Should Know.

It can now be reported that Tommy Robinson, the former leader of the English Defence League, convicted fraudster, sometime-football hooligan and self-reinvented free speech advocate, was on Friday 25 May 2018 imprisoned for 13 months for contempt of court after livestreaming a broadcast, including footage of participants in a criminal trial, outside Leeds Crown Court.

Some people will have seen reference to this on social media; others may have had the plight of Stephen Yaxley-Lennon – to use his real name – drawn to their attention by the hordes of protestors storming London over the May bank holiday weekend. But there has not, until today, been mainstream coverage of the case due to a reporting restriction – what is known as a “postponement order” – that forbade publication of these facts until after the conclusion of the trial upon which he was purporting to “report”.

While, as we’ll see below, the reasons for the postponement order appear sound, the consequence of preventing fair and accurate reporting by responsible journalists was that there was no factual counterpoint to the selective and inaccurate details of Yaxley-Lennon’s situation that were inevitably flooded through social media by his knuckle-dragging cheerleaders, not least his racists-in-arms across the pond. Thus sprung a (largely unchallenged and unchallengeable) narrative of Tommy The Brave being arrested outside court for no reason and imprisoned in secret by the deep state, culminating in petitions for his release and a march on Downing Street.

On the day itself, I attempted a post aimed at shining a little light on what might have happened (having no knowledge of the proceedings myself), but having been alerted by a reporter to the terms of the reporting restrictions, took the post down out of an abundance of caution. Now, however, with the restrictions relaxed we can try to restore a little order.

The full judgment is still awaited (expected imminently). For now let’s take this story in pieces based on what we know. I shall update the blogpost regularly as further information arrives.

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1. Why was Tommy Robinson arrested?

Robinson was arrested outside Leeds Crown Court having video recorded a number of men – including defendants involved in a live trial – entering the court building, and livestreaming the footage on Facebook in what he claimed was an attempt at legitimate court reporting. West Yorkshire police, having been alerted to his activities, arrested Lennon at the scene. The initial reports suggested that he was arrested for a suspected breach of the peace, but what is now clear from the facts published today is that his actions in broadcasting details about the trial were in breach of reporting restrictions.

2. What are reporting restrictions?

The starting point of our criminal justice system is that justice must be seen to be done. However the law provides for exceptions to open justice, known generally as “reporting restrictions”. Reporting restrictions apply in a wide range of situations – from automatic restrictions preventing the identification of a complainant in a sexual allegation, to restrictions preventing reporting of Youth Court proceedings, to discretionary restrictions protecting the identity of child witnesses in the adult courts. Further details, if you are interested, can be found here.

One breed of restriction order is something called a “postponement order”, under section 4(2) of the Contempt of Court Act 1981. Postponement orders are not unusual, particularly where there are a series of linked trials – for example, where allegations of drug networks involving 30 defendants are concerned, there will be several trials (it not being physically possible to accommodate 30 defendants in a single courtroom). To avoid jurors having their deliberations contaminated by what they might read or hear about the earlier linked trials, reporting of all of them is often postponed until the end. Where there is a separate-but-related issue, such as a contempt of court involving a third party, this can also be the subject of a section 4(2) order. The test is:

  1. Would a fair, accurate and contemporaneous report of the proceedings (or part thereof) published in good faith create a substantial risk of prejudice to the administration of justice in those or other proceedings?
  2. Is an order postponing the publication of such reports necessary and are its terms proportionate? Would such an order eliminate the risk of prejudice to the administration of justice? Could less restrictive measures achieve the objective?
  3. On the specific facts of this case, does the public interest in protecting the administration of justice outweigh the strong public interest in open justice?

This is what we had here. The judge had imposed a postponement order preventing the media from reporting on the ongoing trial until all linked trials had concluded.

Breaching a reporting restriction amounts to a contempt of court. Which is what Yaxley-Lennon admitted doing.

3. But I heard Tommy Robinson was arrested for a breach of the peace. What is a breach of the peace? How is a breach of the peace caused by someone simply filming?

Police officers have common law powers (i.e. powers not set out in statute) to arrest somebody where a breach of the peace is committed or where the officer reasonably believes it will be committed in the immediate future. As to what constitutes a breach of the peace, it is defined in case law as follows: “there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” (R v Howell [1982] Q.B. 416) As we can see, it’s a fairly broad definition.

The courts have confirmed that it covers situations where, for example, there are reasonable grounds to fear that a demonstrator or protestor is likely to incite violence, even violence against themselves. This appears to be applicable to the present case. Robinson provocatively filming defendants and streaming on Facebook for the edification of his cult, is the kind of thing which could, it might be argued, lead to a breach of the peace.

Once a person has been arrested for breaching the peace, the police have the power to detain that person where there is a real apprehension that if released they will renew the breach of the peace within a short time, and where the police believe that further detention is necessary to prevent this. Given Robinson’s history of interfering with criminal trials and his defiance towards court orders, one can see why the police may have genuinely feared that he would have simply returned to court if not detained. The power of detention is time-limited – the detainee must be released within 24 hours (if not charged), or for serious (indictable) offences, detention may be authorised up to 96 hours.

 4.  How can it be legal for somebody to be arrested for breach of the peace and then imprisoned for contempt?

It is perfectly common for a person to be arrested on suspicion of one offence, and then ultimately charged or dealt with for another. In this case, it appears that Yaxley-Lennon was arrested and detained for causing or threatening a breach of the peace, and that the court, upon being made aware of his activities, directed that he be brought to court to be dealt with for contempt of court. Even if his original arrest and detention had been unlawful (and there is nothing at all to suggest that it was), this would have absolutely no bearing on the contempt proceedings. The “breach of the peace” angle is a red herring.

5. So back up a step – what exactly is contempt of court?

Contempt of court is a broad, catch-all term for various offences against the administration of justice. The law(s) of contempt are designed to safeguard the fairness of legal proceedings and to maintain the authority and dignity of the court. Some contempts are set out in statute, including the aptly-named Contempt of Court Act 1981. This sets out what is referred to as “strict liability contempt” – the rule that it is a contempt to publish any matter which creates a substantial risk of serious prejudice or impediment to the course of justice in legal proceedings, irrespective of the intention behind the publication. There is a defence available to publishers (which includes newspapers, TV and social media users) who can show they were providing “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”, thus giving some latitude to the press and ensuring that the media do not shy away from accurate, factual reporting of criminal proceedings.

Other contempts are more eclectic, such as the prohibition on taking photographs or moving images inside a court building (or even drawing a picture – court sketch artists have to draw outside the court from memory – section 41 of the Criminal Justice Act 1925).

There is also a common law offence of “criminal contempt”, which is defined by the courts as “conduct that denotes wilful defiance of, or disrespect towards the court, or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself.” This might include refusing to answer questions in court, physically disrupting court proceedings, interfering with witnesses or jurors (where not charged as a distinct offence of witness intimidation or perverting the course of justice) or defying a judge’s order.

Which brings us back to Mr Yaxley-Lennon, and a sunny day in May last year at Canterbury Crown Court.

6. What happened at Canterbury Crown Court?

On 8 May 2017, during the course of a rape trial at Canterbury Crown Court involving four (Asian) defendants, Yaxley-Lennon attended court and attempted to film the defendants for an online broadcast entitled “Tommy Robinson in Canterbury exposing Muslim child rapists”. He was thwarted by the judge making arrangements for the defendants and jurors to leave court through alternative routes, and so settled for filming himself on camera, both on the court steps and inside the court building, preaching to his online followers about “Muslim paedophiles”. He was interrupted and told by court staff that recording was prohibited (section 41 of the Criminal Justice Act 1925, as we’ve discussed above), but continued to record, insisting that he had been told by a different court that he was entitled to film the defendants (notwithstanding that court buildings are plastered with signs reminding people not to do this). His video diatribe – in which he said that “the paedophiles are hiding”, that the police had asked him not to “expose” them as paedophiles (presumably on the basis that they were, at that time, defendants in a live trial) but that “we will”, and that he would be “going round to their house” to catch the defendants on camera – thus continued. The judge hearing the rape trial was made aware, and he was brought before court to be dealt with for contempt of court.

The judge, HHJ Norton, dealt with Yaxley-Lennon on 22 May 2017. She found that he was in contempt by having filmed inside the court building, contrary to section 41, but was also in common law contempt by having continued to film having been told to stop by the court staff. The judge considered the content of his broadcast, and the real risk of his actions derailing the trial, and committed him to prison for 3 months, suspended for a period of 18 months. In practical terms, a suspended sentence means that the prison sentence (3 months) hangs over you for the operational period (18 months). If you remain offence-free and comply with any requirements the court makes, you will never have to serve your sentence. If you reoffend, the presumption in law is that you will serve that prison sentence, additional to whatever sentence you receive for the new offence.

7. So what you’re saying is that Tommy Robinson was given a suspended sentence simply for trying to report on a case? Free speech is truly dead.

No, ye of little brain. He was found to be in contempt of court and given a suspended sentence because his actions put a serious criminal trial in jeopardy. Running around a court building shouting “paedophile” at defendants during a live trial, or live-streaming defendants and members of the public – potentially including jurors – entering and exiting a court building against a tub thumping narration of “Muslim paedophile gangs”, is hardly conducive to ensuring a fair trial. And if there can’t be a fair trial, nobody gets justice. Not the accused, not the complainants, not the public. This is not theoretical – serious criminal trials have nearly collapsed because of the actions of people like Yaxley-Lennon.

We have a quaint tradition in England and Wales that trial by media should be avoided, and that trial on evidence heard in court is the fairest way to determine a person’s guilt. Therefore while criminal courts are open to the public, and it is absolutely fine to report soberly and accurately about ongoing criminal trials, anything which might prejudice or intimidate the jury is strictly forbidden. And this makes sense. It would be a nonsense, for example, to have strict laws preventing individuals from walking up to a juror to say, “The defendant you are trying is plainly a dirty paedophile”, but to allow broadcasters or tabloid columnists to trumpet that message to jurors through the media. Self-defined “free-speech advocates”  – particularly a number on the other side of the Atlantic – have difficulty understanding this, so it’s worth pasting in full what HHJ Norton said:

“This contempt hearing is not about free speech. This is not about freedom of the press. This is not about legitimate journalism; this is not about political correctness; this is not about whether one political viewpoint is right or another. It is about justice, and it is about ensuring that a trial can be carried out justly and fairly. It is about ensuring that a jury are not in any way inhibited from carrying out their important function. It is about being innocent until proven guilty. It is not about people prejudging a situation and going round to that court and publishing material, whether in print or online, referring to defendants as “Muslim paedophile rapists”. A legitimate journalist would not be able to do that and under the strict liability rule there would be no defence to publication in those terms. It is pejorative language which prejudges the case, and it is language and reporting – if reporting indeed is what it is – that could have had the effect of substantially derailing the trial. As I have already indicated, because of what I knew was going on I had to take avoiding action to make sure that the integrity of this trial was preserved, that justice was preserved and that the trial could continue to completion without people being intimidated into reaching conclusions about it, or into being affected by “irresponsible and inaccurate reporting”. If something of the nature of that which you put out on social media had been put into the mainstream press I would have been faced with applications from the defence advocates concerned, I have no doubt, to either say something specific to the jury, or worse, to abandon the trial and to start again. That is the kind of thing that actions such as these can and do have, and that is why you have been dealt with in the way in which you have and why I am dealing with this case with the seriousness which I am.”

 

8. How is all that relevant to what took place on 25 May 2018?

It is relevant because, when passing the suspended sentence, HHJ Norton gave some fairly clear warnings to Yaxley-Lennon:

“[Y]ou should be under no illusions that if you commit any further offence of any kind, and that would include, I would have thought, a further contempt of court by similar actions, then that sentence of three months would be activated, and that would be on top of anything else that you were given by any other court.

In short, Mr Yaxley-Lennon, turn up at another court, refer to people as “Muslim paedophiles, Muslim rapists” and so and so forth while trials are ongoing and before there has been a finding by a jury that that is what they are, and you will find yourself inside. Do you understand?”

And what did Yaxley-Lennon go and do?

9. What did he go and do?

As we know now, he went and committed a contempt of court by reporting on court proceedings. He did so in a way that expressed his “views” on the guilt or otherwise of the defendants, creating a substantial risk of serious prejudice to the proceedings by jurors seeing or becoming aware of his ill-informed ramblings. If this wasn’t enough, he was also in breach of reporting restrictions which he accepted he knew about. He was therefore, it seems, in contempt twice over. This could have led to an application by the defence advocates to discharge the jury and start afresh, potentially meaning vulnerable complainants having to go through the trauma of a trial all over again, or even an application to “stay” (bring to an end) the proceedings altogether.

Importantly, Yaxley-Lennon admitted that he was in contempt of court.

And he was committed to prison for 10 months, with the suspended sentence of 3 months activated and directed to run consecutively. Exactly as he’d been warned.

10. He was tried in secret on the day he was arrested, with no lawyers and the media were banned from reporting what had happened. This is Kafka on steroids, surely?

Contempt proceedings do not attract a jury trial. The procedure for a court dealing with a criminal contempt is set out in the Criminal Procedure Rules. These allow for a “summary procedure”, where the court, having made its own enquiries and offered a contemnor (for that is the official term) the chance to seek legal advice, can deal with the offender straight away. The Crown Court can commit a contemnor to prison for up to two years. There is nothing unusual in him being dealt with on the day of the contempt. Courts are required to deal with contempts as swiftly as possible. There is no suggestion  of any prejudice;  Yaxley-Lennon was legally represented by an experienced barrister and would have received full legal advice.

He also wasn’t tried in secret; his contempt hearing was heard in public, with members of the press present. However, the judge imposed temporary reporting restrictions (under section 4(2) of the Contempt of Court Act 1981 again), postponing reporting of the details of Lennon’s contempt until the trial, and the subsequent related trial, had concluded. This, you may think, is for obvious reasons. A media circus and orchestrated attempt at martyrdom by Lennon and his followers – as was indeed attempted when the restrictions were defied by far-right blogs and foreign news outlets – would present exactly the sort of distraction that threatened to disrupt the very serious criminal proceedings that the judge was desperately seeking to keep on the rails.

In the event, the repeated breaches of the order by foreign news outlets and social media users meant that the judge’s intentions were thwarted. An application to discharge the reporting restriction was made on 29 May 2018 and the judge agreed that, in light of what had happened over the Bank Holiday weekend, restrictions should be lifted to allow publication of the facts.

It is also worth noting that there is a Practice Direction dealing with situations where defendants are imprisoned for contempt of court. This requires that full judgments be published online and handed to the media where a person is committed to prison for contempt. As we can expect imminently.

As for the suggestion (by UKIP among others) that nobody has ever before been found in contempt of court and a postponement order made preventing the media from immediately reporting it, a handy example can be found on 22 May 2017, where one Stephen Yaxley-Lennon was found to be in contempt at Canterbury, and a postponement order was made restricting publication until the end of the substantive trial.

 

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UPDATE:

In light of the (frankly ingenious) conspiracy theories that are now doing the rounds after the rather mundane truth above was revealed, some bonus Q&As are required:

11. I heard that Tommy Robinson was denied his own lawyer, and had to have a duty lawyer who was in fact a PROSECUTION lawyer and who didn’t properly defend him.

The barrister previously instructed by Yaxley-Lennon has confirmed that she was not present at court for these proceedings. She is understandably declining to comment further unless or until authorised to do so. But in any case, Yaxley-Lennon was defended by an experienced member of the independent criminal Bar. He may have been offered the duty solicitor at the police station if his chosen solicitor was not available, but in the Crown Court hearing he was advised and represented by a specialist criminal barrister with over 16 years of experience of cases including murder, people-trafficking, serious violence and serious sexual offences. As an independent barrister, this professional prosecutes as well as defends (most of us do), but his website profile in fact emphasises his experience as a defence advocate. In other words, Yaxley-Lennon had a top-notch defence barrister fighting his corner.

12. No trial has ever taken place on the same day as a suspect’s arrest, oh FAKE LAWYER. This was special treatment dished out to a man who is a thorn in the side of the establishment. What do you say about that?

If we were talking about jury trials, I’d agree with you. But Yaxley-Lennon was not “tried”. The contempt proceedings were held on the same day, as is entirely standard (see details of the summary procedure for contempt above), and he admitted that he was in contempt of court. There is no special treatment here whatsoever. Anyone, infamous far-right totem or otherwise, would have been subject to the exact same process for contempt in breaching a reporting restriction. Not everyone would have been sent straight to prison; but then not everyone has a suspended sentence hanging over them for a near-identical offence.

13. I’ve seen a photo of the judge who sentenced Tommy watching his arrest from inside the court building. This judge was biased.

Even supposing the photograph shows what it is said to show, this is entirely irrelevant. If, as has happened in one of my cases, a member of the public starts shouting out at a judge mid-proceedings, the judge may direct the arrest of that person, and deal with them immediately for the contempt. Witnessing the arrest of an individual does not preclude a judge from dealing with that individual in these circumstances. This is, again, a complaint devoid of argument.

14. But the BBC reported on the same trial that Tommy did, and they’re not in prison. Why not?

Because any BBC reports, which as far as I have seen relate entirely to the outset of proceedings before the judge made the reporting restriction, were not in contempt of court. They were fair and accurate, rather than propagandist rants seeking to disseminate information that a judge had specifically ordered should not be in the public domain (such as details of charges against the defendants that had been dropped), and were not in breach of reporting restrictions.

15. Do you have to be so snarky in your lawsplaining? Aren’t you just turning off people who you need to convince?

This is a fair question. Ordinarily, I do my best in these posts to embrace rather than alienate in an effort to explain or persuade. But cases like this, involving co-ordinated transnational campaigns disseminating blatant falsehoods about our legal system and gaslighting the public are, I feel, different. And call for a different approach. As I see it, there are two types of people currently propagating the Free Tommy Robinson myths: far-right sympathisers deliberately sowing discord and falsehoods, whose concern for due process is a cipher for hero-worship; and good people confused and worried about what they’ve heard about the “threat to free speech” posed by the overbearing English and Welsh justice system. The first category are never going to be swayed by facts or rational argument. That is plain from their every interaction on social media, and their every appearance on Fox News. Their motives are clear, their integrity irretrievable and they are not only beyond reach but, frankly, not worth the effort. The second group will, I hope, realise from this explanation that the toga party they have wandered into is in fact a Klan meeting, and will understand the urgency and frustration that underpins the argument.

However the reality is that most people out in the world are probably paying little attention to the ballad of St Tommy, but may form partial views based on what snippets they read and hear. I want this – the truth – to be that snippet. If the key to turning up the online volume is a snappy tone and uncompromising beatdown of idiots and liars, then that’s the game I’ll play.

Why did a Britain First supporter who wanted to “kill a Muslim” and drove his van at a pedestrian only receive 33 weeks’ imprisonment?

This is a little later than planned, but recently I’ve been responding to a number of queries about legal issues on Twitter through threads, and it struck me that it might be of some use (possibly) to put them up here, for anyone interested who doesn’t catch them live.

Here, from a fortnight ago, I look at why a Britain First supporter who drove his van at the owner of an Indian restaurant, having earlier expressed a desire to “kill a Muslim”, received 33 weeks’ imprisonment upon his conviction.

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Marek Zakrocki

 

 

 

 

 

 

 

 

 

 
 

 

 

Why is a man who raped “hundreds of women” being released from prison after only 9 years?

Storm clouds are gathering over the news that former taxi driver John Worboys, the convicted rapist who police believe may have drugged and attacked hundreds of female passengers, is to be released from prison after reportedly serving nine years of an indeterminate sentence of imprisonment.

How, it is being asked, can one of Britain’s most prolific rapists be back on the streets less than a decade after his conviction for multiple sexual offences against vulnerable women? Is this another example of soft sentencing by out-of-touch liberal judges (©Andrew Pierce)? Or might it just possibly be a little more complicated than that?

My piece is available for iNews here.

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Was 16 weeks’ imprisonment for Raheem Sterling’s racist attacker a soft sentence?

Yesterday, 29 year-old Karl Anderson pleaded guilty to a racially-aggravated common assault on Manchester City and England footballer Raheem Sterling, and was jailed at Manchester City Magistrates’ Court for 16 weeks. He was also ordered to pay £100 compensation and a mandatory Victim Surcharge of £115.

The reported facts are that, shortly before Manchester City’s match with Tottenham Hotspur last Saturday, Anderson approached Mr Sterling outside City’s training ground, kicked him four times to the legs and called him a “black scouse cunt” and “nigger”. A nasty assault, albeit one which fortunately did not cause any serious injury. And some commentators have questioned whether 16 weeks’ custody is a sufficiently robust sentence for a racially-motivated assault by a man with a history of football-related violence.

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Karl Anderson

So let’s break it down. We should start with some essentials.

What is “racially aggravated common assault”?

Common assault is the least serious form of assault on the criminal violence hierarchy, involving the infliction of minimal injury. (Technically, a “common assault” does not in fact require the use of any physical force at all; merely causing in another the apprehension of immediate unlawful force, say by squaring up to someone. “Assault by beating” involves the application of unlawful force – i.e. physical touching – but in practice the terms “common assault” and “assault by beating” are often (incorrectly) used interchangeably. It has little practical significance, as the two offences are created by the same statutory provision – section 39 of the Criminal Justice Act 1988 – and carry the same maximum sentence. But it’s a neat example of how no-one, including those of us who practise it, really understands the complexity and caprice of the criminal law.)

Anyway, common assault (or assault by beating) is a summary offence, meaning it can by itself only be tried in a magistrates’ court, and carries a maximum sentence of 6 months’ imprisonment. The racially aggravated version of this offence (which was created by section 29 of the Crime and Disorder Act 1998) is “triable-either-way”, meaning it can be tried either in a magistrates’ court or a Crown Court, and carries a maximum sentence of 2 years’ imprisonment. An offence is racially aggravated when one of two criteria is satisfied:

  1. At the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial group; or
  2. The offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.

So far, no problems in seeing how the offence was made out.

How should a court approach sentence for this offence?

The magistrates’ court was required to follow the relevant Sentencing Guidelines published by the Sentencing Council, in this case the Assault Definitive Guideline. Courts will also consider any relevant decisions by the Court of Appeal in similar cases.

The approach prescribed by the Guidelines (and by the Court of Appeal) is that courts should determine the appropriate sentence without the racial element, and then determine the appropriate “uplift” to reflect the racial aggravation. The level of the uplift will depend on the aggravating features which include the level of planning; the offence being part of a pattern of racist offending; membership of a group promoting racist activity; deliberately setting up the victim for humiliating him; the location of the offence; vulnerability of the victim; whether victim was providing a service to the public; whether timing or location of the offence maximised the distress caused; and whether the expressions of racial hostility were repeated or prolonged (R v Saunders [2000] 2 Cr App R (S) 71; R v Kelly and Donnelly [2001] EWCA Crim 170)

So let’s work this through. As ever, we have limited facts available to us, because the magistrates, notwithstanding that they were dealing with a case involving a high profile international footballer which was bound to attract national attention, did not see fit to publish their sentencing remarks online through the official judiciary.gov website. One wonders exactly how many storms there have to be over misreported sentencing decisions before the judiciary gets the message, but that’s a soapbox for another day.

But doing what we can with what we have, the Guardian reports:

“Magistrates were told Anderson pulled his white van alongside Sterling’s car as the forward waited to enter the training ground. CCTV showed both men get out of their vehicles and Anderson walking towards Sterling.

Miles said Anderson, who had been in the vehicle with his partner, started shouting racial abuse at Sterling and called him “you black scouse cunt”. He said Anderson also told the footballer: “I hope your mother and child wake up dead in the morning, you nigger.”

Miles added: “He approaches Mr Sterling and can be seen to be bouncing on the balls of his feet. He sets out kicking Mr Sterling to the legs on four occasions.” The court was told Sterling’s left hamstring was sore after the attack but he did not sustain serious injury. Miles said: “He is a professional footballer. His legs are important for his job.””

The Manchester Evening News adds that Sterling suffered bruising to his legs.

The Guideline requires that the court identify a category of offence by reference to the presence of features of harm and culpability. The category then provides a starting point, and a range through which the court can move as it considers the aggravating and mitigating features. You can have a go yourself:

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The assault, to my eye, falls clearly within Category 1, before we even consider the racial element. This involved repeated blows and the presence of bruising renders this a serious injury in the context of a common assault/assault by beating, so greater harm would appear to be established. Higher culpability is present by use of kicking (a shod foot is counted as a weapon equivalent in offences of violence). And the other aggravating features – this was an unprovoked attack on a man at his place of work, targeting the tools of his trade, his legs – would push this upwards in the range.

And then we come to Anderson’s previous convictions. The Guardian reports that Anderson had 25 previous convictions for 37 offences, including throwing a flare at a police officer during a football match. The MEN gives further colour:

Among his offences, Anderson was jailed for 18 months in July 2016 for violent disorder; convicted of common assault in April 2016; failed to comply with an international football banning order in January 2016 and November 2015; and a racially aggravated public order offence July 2014.

He was among a group of eleven Manchester United fans who were handed three and five year bans in January this year.

There is little reported by way of mitigation. There was, it seems from the Manchester Evening News’ live-feed of the hearing, no Pre-Sentence Report before the court. The expectation is that a court will seek a report, prepared by the Probation Service, if it is considering imposing custody, unless a report is considered not necessary. Its absence suggests that there were no matters of particular mitigation – such as mental or physical health – that would have been relevant to sentence. The defendant expressed remorse through his solicitor, and his early guilty plea is by far the strongest point in his favour.

Against this backdrop, I would have expected a standard assault by beating to be sentenced towards the top of the sentencing range, close to 6 months’ imprisonment (before reduction for guilty plea). Reducing by one third to reflect the guilty plea (all guilty pleas entered at the first hearing are rewarded with 1/3 off the sentence) would give us just over 17 weeks, which is close to the 16 weeks received.

But we haven’t yet moved to the uplift for racial aggravation, which can be substantial, and, as the Guidelines state, can move the sentence beyond the range for an ordinary common assault. Although the court is required to explicitly state publicly what uplift is being applied to reflect racial aggravation, there is no report of the magistrates having done so in this case. Quantifying the uplift is difficult; the Court of Appeal once suggested that up to 2 years would be a reasonable uplift for racially aggravated offences, but given that 2 years is the maximum sentence for this offence, some proportion is required. Cases are always fact-specific, so drawing assistance from earlier cases is always tricky. Nevertheless, to offer a little context:

  • In R v Fitzgerald [2003] EWCA Crim 2875, the Court of Appeal imposed 10 months’ imprisonment for racially aggravated harassment, alarm or distress with intent (which carries the same statutory maximum as racially aggravated common assault). The Defendant had shouted racist abuse at people in the street, and had unleashed a torrent of racial abuse and threats towards a police officer as he was arrested and taken to custody.
  • In R v Rayon [2010] EWCA Crim 78, the Court of Appeal imposed 10 months’ imprisonment (including a 5 month uplift) for racially aggravated common assault where the Defendant punched the victim to the face, threw him to the floor and kicked him. He used racist abuse, although the judge found that racism was not the primary motivation for the attack (it was against the background of an ongoing court case).
  • In R v Bell [2001] Cr App R (S) 81, the Court of Appeal imposed 12 months’ imprisonment, including a 6 month uplift, for racially aggravated common assault where the defendant attacked a 65 year-old black man in the street, calling him a “black fucker”, knocking him to the floor and telling him he should be “in a concentration camp and shot”.
  • In R v Higgins [2009] EWCA 788, the Court of Appeal approved 18 months’ detention, including a 12 month uplift, for racially aggravated common assault where the defendant was part of a group that pursued the victim through a park, making racist comments and threats, and punched him in the face and attempted to choke him.

An important point is that all of these were decided before the introduction of the Assault Sentencing Guidelines, and so are further limited in their utility. Nevertheless, allowing that sentencing is an art, not a science, and that no doubt other lawyers would reach a different conclusion, my view is that, in Anderson’s case, a starting point of 5 months with an uplift of 4 months would not have been unreasonable in the circumstances. That would result in a sentence of 9 months, reduced to 6 months (or 26 weeks) to reflect his guilty plea.

Where does that leave us?

It means that, in the context of racially aggravated offences, Anderson was in my view sentenced leniently, although the sentence is perhaps not as surprising as it first appears when one considers the example sentences above. What might certainly be said, however, is that the sentences for this type of pernicious, low-level racialised violence are probably lower than most lay people would expect. And, momentarily mounting my high horse, the man on the street would be entitled to demand exactly what a 16-week sentence (of which the defendant will serve a maximum of 8 weeks) is intended to achieve in the case of this repeat racist offender. Precisely zilch rehabilitation will be achieved during that period. It punishes to a degree, although Anderson has served significantly longer periods in custody, and may feel able to do 8 weeks with relative ease. It can hardly be said to be a deterrent sentence. And, adding those together, it’s difficult to see how the public are any safer for this sentence. None of the statutory purposes of sentencing appear to be satisfied.

It is, in many ways, what I would call a typical “magistrates’ sentence”: A short period of custody likely to achieve diddly squat, at enormous public expense. I don’t put the blame solely on the shoulders of the sentencing court; they operate in a culture where this type of sentence for this type of offence is considered appropriate. But, frankly, if we have racist hooligans repeatedly inflicting racially-aggravated violence on members of the public, my preference would be that we either aggressively rehabilitate them under a lengthy and intensive community order, or, if we have exhausted all options and punishment has to be king, lock them up for a period of time that appears commensurate with the seriousness of the offence.

It is of course possible that my criticism is misguided, and that there were beautifully set-out sentencing remarks, including a full explanation for the length of sentence and an exposition of the uplift, which render my take unfair. If so, I would welcome corrections and a copy of the sentencing remarks.

Bad law reporting and a public dangerously disconnected from criminal justice

The criminal law has long had an image problem.

Partly, the fault is internal: the ridiculous costume; the alienating hybrid of legalese and obsequious formality that renders court hearings nonsensical to anyone in the public gallery; the impenetrability and inaccessibility of updated statute and case law; the historic failure of those of us in the system to lawsplain to those outside how justice works and why our founding principles are so important.

But part of the problem is broader: the refusal of successive governments to provide any meaningful legal education in schools; irresponsible and inaccurate news reporting; and legal illiteracy indulged and expounded by politicians using the law as a cheap crop to beat their hobby horse of choice.

The result has been inevitable. Centuries of compounded negligence have culminated in a disconnect between the criminal justice system and those it purports to serve. And most days it feels as if it’s getting worse. No longer are rabble-rousing mis-reports of legal stories confined to a day’s news cycle before being scrunched around tomorrow’s cod-and-chips; the rags are now frequently doused in the kerosene of social media and sizzle with white hot rage for days, weeks and even months on end.

While I don’t pretend that this is a problem confined to criminal law, it is often the tales of “soft sentences” and “putting criminals’ rights ahead of the victim” that burn the brightest. The formula is predictable: there will be a headline attack on an “out of touch” judge (pictured, for enhanced ludicrousness, in their ceremonial wig), with a decontextualised snippet of the judicial remarks and a gaping absence of informed fact or sober analysis.

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And over the past twelve months, we’ve suffered 365 Groundhog Days of these. The case of Ched Evans kicked things off, with outlets eager to report the outright untruths of politicians suggesting that this case set a dangerous precedent allowing complainants in sex cases to be gratuitously humiliated in court over their sexual history. A campaign to not just reform section 41 of the Youth Justice and Criminal Evidence Act 1999, but to issue a blanket ban on any questions about sexual behaviour, is still being propelled by several MPs. It matters not that to do so would result, inevitably, in vital defence questions being prohibited and innocent people being convicted. A straw man effigy of section 41 has been hoisted onto the bonfire along with the presumption of innocence, with Harriet Harman proudly holding aloft the matchbox.

A run of sentencing “outrages” has followed.

The man who beat his wife with a cricket bat and was spared jail, because the judge deemed that the victim was “not vulnerable” (except the judge didn’t say those words, and it wasn’t the reason for the custodial sentence being (initially) suspended). The paedophile released only five years into a 22-year prison sentence (except it wasn’t a 22-year prison sentence, and he served longer than five years). Lavinia Woodward, the Oxford undergrad whose gratuitous bikini shots accompanied the squeals of horror that this rich white girl had been spared prison for stabbing her boyfriend, just because the rich white judge thought she was “too intelligent” to be locked up. Was that the reason she was spared jail? Did the judge ever say those words? Are any more rhetorical questions needed?

Rarely, if ever, is the reader informed of the Sentencing Guidelines and case law that constrain judges as to their approach in these cases, and which explain certain terms deployed in the sentencing remarks. Rarely are those remarks published in full — a flaw in the channels of official judicial communications for sure, but also the responsibility of those trained in shorthand in the press gallery. And rarely is there any voice of expertise explaining the apparently inexplicable, or offering a counterpoint to the incitement to fulminate.

Sometimes, of course, decisions will be made in court which do horrify, and for which there is no sensible justification. But most often, a straightforward, prosaic explanation exists. It’s just not reported. Neither editor nor politician will deal in full facts, whether through ignorance or malice.

The greatest tragedy is that if, instead of scything the low-hanging, rotten fruit the reporters reached a little higher, they would find that there is so much in criminal justice for their readership and Twitter followers to get angry about.

There’s the obliteration of legal aid, cutting the middle-classes out of publicly-funded legal assistance if they are wrongly accused of a criminal offence. There’s the ‘innocence tax’, which means that if, having been refused legal aid, you pay privately for your defence, you are not allowed to reclaim your full fees even if acquitted. Everyone in the system can speak for hours about the stack-em-high, sell-em-cheap model of warehouse justice in the magistrates’ courts, which is being rolled out in the crown courts under the euphemism of glorious efficiency. Disclosure — the means by which most innocent people secure the key to their escape — is found by report after report to be an abomination due to a hybrid of poor training and insufficient resources at the cut-to-the-bone police and Crown Prosecution Service.

But these problems evade meaningful public scrutiny, perhaps through ignorance, or perhaps because it’s simply far easier to report, and get angry about, a pervert getting help in the community rather than rotting in our violent, suicide-ridden prisons.

Public legal education is needed now more than ever. The Solicitor General, to his credit, appears to recognise this. His new Public Legal Education Panel is a start. Something needs to change if the public are going to have a hope of recognising where the real problems in justice lie; and who, in reality, poses the greatest threat to their rights. The thing about criminal justice is that, for all too many people, the realisation of how far basic protections have been eroded only dawns when it’s too late.

This article first appeared on Legal Cheek, and is available here.

Why those of us in the system must share the blame for the lack of public faith in criminal sentencing

Good news breaks from Newcastle Crown Court, where four men have been convicted and sentenced for serious offences involving child sexual exploitation. Soran Azizi, Palla Pour, Ribas Asad and Saman Faiaq Obaid each received sentences of imprisonment for crimes including trafficking for sexual exploitation, sexual activity with children and supplying controlled drugs, the latter a grimly familiar tool used by abusers to achieve the former.

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As I say, good news, and a good job by the Crown Prosecution Service. So why does it sound as if I’m taking a run-up to go off on a peevish tangent? Well, it’s because – and I accept that it sounds like a little thing, but bear with me – it’s because of this tweet from the official CPS account:

For now, let’s put to one side the question of whether this feeds into an increasing, Americanised tendency by the CPS to publicly cheer “tougher” sentences (this traditionally not being the role of the prosecutor in England and Wales, in stark contrast to the US system). I instead want to look briefly at that number – 32 years – because I think it’s an example of a deeply unhelpful trend in modern reporting.

The figure of 32 years is arrived at by aggregating the sentences of the four defendants. Azizi got 6 years, Pour got 12 years, Asad got 9 ½ years and Obaid received 4 years 9 months. And this aggregation, when you think about it, is an entirely pointless exercise. It tells us nothing about the seriousness of the offences committed. It tells us nothing about the sentence imposed in respect of each man. It tells us nothing about how long they will serve, and – importantly to many people – when they will be released.

Its only purpose appears to be to present an eye-catching headline figure to draw the reader in to the story. In a tabloid newspaper, this is one thing. But by the CPS?

The problem is not just that this headline does little to educate the casual reader who doesn’t study the press release down to the Notes to Editors. It’s that it contributes to a serious disconnect we have in criminal sentencing between the system and the general public. One of the most common complaints we hear from non-lawyers is that sentences frequently don’t mean what people think they mean. Part of this is because of the inherent complexity of sentencing legislation and early release provisions, which even judges struggle to interpret (Lord Philips in the Supreme Court famously said that “hell is a fair description” of this legislation). But part of the issue is because even in straightforward sentencing cases, the basics are not reported in their full context.

Anyone scanning the CPS Twitter account and seeing the words “32 years” would be forgiven for thinking that the men convicted in Newcastle were likely to be serving at least the best part of a decade in prison. In the case of Obaid, he will serve a maximum of 2 years and 4 ½ months, minus any time he has served on remand awaiting his sentence. None of the defendants will serve anything even close to half of 32 years. The most any one of them will serve is 6 years (Pour). Nowhere in the press release, or even in the notes to editors, is this spelt out. One can only hope that the vulnerable young victims of this predatory offending have had the real position fully explained to them.

I appreciate that the CPS tweeter was no doubt aiming for snappy, 140-character brevity, and that the main takeaway is that serious criminal behaviour has been successfully prosecuted and justly dealt with; but I do think this is a problem. This kind of headline inflation of sentences is how we end up with ridiculous red-top myths about serious sex offenders being released only a couple of years into a 22-year sentence, which in turn serves only to feed a toxic circular narrative of “soft sentences” and “joke justice”. We can’t possibly expect the public to have faith in criminal sentencing if the system adopts the same clickbait tropes.

I devote a lot of words on this blog to chiding journalists about accurate reporting of criminal cases. It’s regrettably evident that some need to be directed at those of us in the system as well.