Category Archives: Sentencing

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

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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

 

 

 

 

 

 

 

 

 

 
 

 

 

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

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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?

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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

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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

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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.

A reply to Lord Adonis on sentencing, prisons and judges

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I’ll be honest, out of all the ‘robust debates’ I’ve had online about criminal justice and sentencing of offenders, I would not have expected the most frustrating, fiery and ill-informed to be with someone advocating for less use of prison. It takes a special talent, I would suggest, to present an argument in such a way that you manage to alienate those who agree with your conclusion. Arise for your special badge, Lord Andrew Adonis, former Head of Policy at Number 10 Downing Street and erstwhile Transport Secretary.

The past few days have seen Lord Adonis stagger around Twitter swinging aimlessly at lawyers and judges like a punch-drunk case study on a late night police reality TV show. Every effort to gently usher him into the back of the van for some calm, reasonable, evidence-based discourse is met with another wild lunge towards camera – he has now blocked nearly every lawyer on Twitter – compounding the schadenfreude of rubbernecking passers-by. Unfortunately for Andrew, his identity is not pixellated to spare his embarrassment; rather emblazoned across each and every one of his (increasingly peculiar) assaults on the “cobwebbed judicial system”.

Let’s start with the common ground: Adonis believes that we have too many people in prison. I agree. As do, I would expect, most people who work in criminal justice. The statistics are trite, but no less shocking for that: England and Wales currently has around 85,500 people in prison. We imprison more people per capita than any other country in Western Europe (146 prisoners per 100,000 citizens). We have more prisoners serving indeterminate sentences – sentences for which there is no guaranteed release date – than the other 46 countries in the Council of Europe combined. Sixty-nine per cent of our prisons are overcrowded. Violence has soared by 68 per cent since 2006, with a 32% increase alone between 2015 and 2016 (a total of 25,000 assault incidents). Assaults on prison staff have risen by 40% in a decade. Deaths in custody have risen by 38% in between 2015 and 2016. The horror correlates with the £1bn cut to prison budgets by the last government and the 30% reduction in prison staff. And whatever else prison is supposedly achieving, stopping reoffending is not it: 44% of adults are reconvicted within one year of release. For those serving sentences of less than 12 months this increases to 59%.

And numbers have increased steeply over the past two decades. The prison population rose by 90 per cent from 1990 to 2016. This is a recent, and peculiarly English-and-Welsh, problem.

For Adonis, the prescription is simple. The problem is the judges, whacking their gavels and sending people to prison for longer:

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Why are judges doing this? “Fear of tabloids”, Adonis posits:

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Extracts cannot really do justice to the tirade of tweets that Adonis launched towards the judiciary on this theme, and I’d recommend reading his Twitter timeline (with a glass of something stiff) to get the full flavour, but this is the nub:

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Now some of us hacks did indeed offer a defence of judges (who, by constitutional convention, are not permitted to speak out publicly to defend themselves). And we did so not because, as Adonis suggests, we have a desire to become a judge (I think I have successfully set fire to that particular lifeboat for myself through this blog and my forthcoming book), or because we think all judges are wonderful (SPOILER: They’re not – most are excellent, but some are significantly less so), but because we see criminals being sentenced every single day, and have a certain experience in this field. And I struggle to think of many cases I’ve been in, either prosecuting or defending, where I have suspected that a sentence has been inflated because of an eye on reporters in the public gallery.

As for Adonis’ experience, I did ask how many judges he had seen passing excessive sentences out of fear of tabloid retribution, but received the following, less-than-full response:

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The thing is, while to a layperson Adonis’ criticism would seem to make sense – judges are the ones passing these sentences, after all – a little knowledge of the law teaches that, to a large extent, judges’ hands are often tied, or at least lightly bound with handkerchiefs. That is because sentencing is not, as many might imagine from pop culture, an exercise in plucking a figure out of the air, whacking a (non-existent) gavel and intoning, “Take him down”. Crown Court judges are instead required to apply a horrendously complex morass of sentencing law and guidelines, which severely limit their room for manoeuvre. While they have discretion to pass a sentence that meets the justice of an individual case, it is a fallacy to presume that this discretion is at large.

Firstly, there are Sentencing Guidelines for most criminal offences, which judges are required by law to follow. We’ve looked at these guidelines in previous posts dealing with specific cases, but in short, they provide judges with a mixture of flow-charts and grids, setting out sentence “starting points” and “ranges” depending on which factors are present in a particular case. There is ultimately discretion built in as to where on the guidelines a judge pitches a case, but you can see for yourself that there is often not a great deal of wiggle room. Guidelines are set by the Sentencing Council, whose members are drawn from the judiciary, magistracy, legal practitioners, academics, police and the Director of Public Prosecutions. Guidelines are subject to public consultation, and the Council is accountable to the Ministry of Justice and has a statutory duty to consult with Parliament. The Sentencing Council is not, lest you be confused by Adonis’ complaints, a gaggle of judges operating under a cloak of secrecy.

Now I make clear – I do not agree with all of the guidelines. I think, for example, the way in which drugs are sentenced is largely ludicrous. A starting point of 4.5 years’ imprisonment for someone selling a few wraps of crack cocaine to fund their own habit is, with respect, the hallmark of a society that doesn’t have a clue what it is doing with drug policy, although the malaise for that lies with political culture at large, not the Sentencing Council. But even if you accepted Adonis’ view that the Council was a bunch of industry insiders fixing oppressively long sentences out of a desire to placate the red tops, it does not explain how, as Adonis postulates, it is fair to level cowardice charges at the several hundred other judges who are required day-to-day to follow the guidelines.

And, more importantly, judges must follow the law. Sentencing legislation is made by Parliament, which includes among its members Lord Adonis, as a member of the House of Lords. And judges have to follow the law set by Parliament. There is no discretion here. That is the essence of the rule of law and our basic constitutional settlement. I say this, because Adonis has suggested that judges should have “argued against” the government’s “policy” – by which he can only mean that they should have revolted and refused to follow the law that the government enjoined Parliament to make. So let’s get that sixth-form concept straight: judges have to follow the law set by Parliament.

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Now, as for what the law says, we can see that over the past two decades, politicians have scrambled to salute Michael Howard’s prison works squawk and increase the ways in which they can force judges to pass longer sentences. This included “mandatory minimum” sentences for repeat offenders – such as the 3-year minimum sentence for repeat burglars and the 7-year minimum for repeat drug traffickers – brought in by the New Labour government of which Adonis was a part. This same legislation – the Powers of Criminal Courts (Sentencing) Act 2000 – also introduced mandatory life sentences for offenders committing a second serious offence (a provision later abolished, re-imagined and re-enacted).  And there are many, many others.

But for now, I want to look briefly at one area to which Lord Adonis refers in the above tweet – indeterminate sentences.

In 2003, when Adonis was ensconced in the bosom of Downing Street as Head of the Policy Unit, New Labour brought forth the Criminal Justice Act 2003, a huge, unwieldy piece of legislation which did many things, including introducing the notion of Imprisonment for Public Protection (IPPs). You may have heard of these – they have been in the news recently, as people given short “minimum terms” of as little as 10 months ended up serving over a decade under such sentences. The way that IPPs worked in theory was as follows: The judge would set a “minimum term”, after which the defendant would be eligible for release on licence, as long as he could satisfy the parole board that he was no longer dangerous. If he could’t satisfy the parole board, he would be detained until he could, potentially forever. As it happened, the government decided that they couldn’t afford to provide the rehabilitation courses that prisoners were required to pass in order to satisfy the parole board, meaning IPP prisoners were trapped in a Kafka-esque nightmare. For this reason, the Court of Appeal found that then-Justice Secretary Jack Straw had acted unlawfully in failing to provide the rehabilitation programmes, and in 2012 IPPs were repealed (although those passed before that date remained).

Now when IPPs were first introduced, if a defendant convicted of certain violent or sexual offences was found to be “dangerous” – the legal test for which was that he posed a significant risk of serious harm to the public – an IPP had to be passed. The judge had no discretion – the law was clear. If the offender met the risk threshold, the judge was not allowed to deal with him in any other way. This, unsurprisingly, led to an explosion in prison numbers – around 3,700 prisoners were serving IPPs by 2007.

This was the law until 2008. Parliament, realising its error, then amended the legislation to give judges discretion as to whether to impose IPPs where certain criteria were met. The word “must” was changed to “may”, and the threshold for imposing IPPs was heightened, to remove the scenario of tiny minimum terms (one as low as 28 days) resulting in years being spent behind bars. And, given discretion, judges stopped imprisoning as many people under IPPs.

Why do I focus on IPPs? It’s because they are the prime factor responsible for the increased use of prison. As the Parliamentary statistics that Adonis himself cites shows (thanks to @ProfChalmers), the length of sentence for all offenders has remained relatively stable across the 11 year period (2005 – 2016) except for a notable increase in indeterminate sentences.

That is not to say that all IPPs imposed were rightly so. Judges after 2008 did have discretion, and no doubt there will have been instances where it can be argued that an IPP was imposed where it need not have been (and many such cases will have been argued successfully before the Court of Appeal).

But what this incontrovertibly shows is that far from judges imposing increasingly lengthy sentences “out of fear of tabloids”, it was in fact politicians – Lord Adonis and his colleagues – forcing judges to impose certain types and lengths of sentence that was the greatest contributing factor to the increased use of prison. As for why politicians felt compelled to act in this way, you would have to ask them. But it may be there that “tabloid fear” finds its rightful resting place.

As for other factors of note that we can identify, we can see from the chart above an increase in determinate sentences of over 4 years. We can also see over the past 16 years a surge in prisoners convicted of violent and sexual offences:

Partly, this will be because of the increase in violent crime. Partly this will be attributable to the fact that the CPS are prosecuting more sex offences than ever, particularly allegations of historic (or “non-recent”) sexual abuse. Neither of these factors have anything to do with the judges. And, faced with serious sexual or violent offending, the guidelines and the legislation make clear what judges are required to do.

Conclusion

Ultimately, this is a silly argument, given the broad area of agreement between Lord Adonis and most lawyers. But I waste my Sunday afternoon to unpick Adonis’ complaints, even though I think we are on the same side, because there is no point embarking upon a remedy if you have mis-diagnosed the illness. And what is increasingly clear from Adonis’ tweets is that he lacks some fairly rudimentary understanding of the legal system.

For example, he suggests that Lady Hale, as the new President of the Supreme Court should “call out the trend to ever longer sentences”, apparently oblivious to how the Supreme Court operates.

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Sentencing policy has nothing to do with the Supreme Court. The Supreme Court’s only role in criminal sentencing is to rule on the infinitesimal number of criminal sentence appeals that make it to the Supreme Court from the Court of Appeal. Why are so few criminal sentence cases heard at the Supreme Court? It’s because in order to appeal upwards from the Court of Appeal to the Supreme Court, either the Court of Appeal or the Supreme Court has to certify that “a point of law of general public importance is involved in the decision”. This is a high threshold, and excludes the vast majority of sentence appeals (which tend to turn on their individual facts, rather than wider points of public importance). If you think that this threshold is too high, and that more criminal sentence cases should be capable of being litigated before the Supreme Court, you know who you can blame? Either the Parliament which enacted s.33 of the Criminal Appeal Act 1968. Or the Parliament which created the Supreme Court and defined its jurisdiction under the Constitutional Reform Act 2005. Head of Policy Unit at Number 10 Downing Street when the Supreme Court was created in 2005? Andrew Adonis.

Nor, regrettably, can the Lord Chief Justice, who is head of the judiciary and president of the Court of Appeal (Criminal Division), which hears sentence appeals from the Crown Court, decide of his own motion to “cut most sentences”. What on earth does this mean? That every sentence appeal he sits on must be allowed, irrespective of merits, in order to achieve an overall reduction? That the current legal test that the Court of Appeal applies, allowing appeals against sentence where sentences are “wrong in law or principle” or “manifestly excessive” be lowered to something less? If so, that is not within the gift of the Lord Chief Justice alone.

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I fear that Adonis has a rather childlike conception of the interaction between our various courts. If the Big Judge at the top says something, then all the other little judges will do it, seems to be the gist. It is alas not that simple. Sentences will not become shorter across the board simply because Lady Hale decrees, a propos of nothing, that it should be so. It is the same simplistic view of the world that claims, with a straight face, that the judges should, somehow, have stopped Adonis’ government from doing the reckless and damaging things it did:

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The solution, unfortunately for Lord Adonis, lies closer to home. Politicians, who are paid to make the arguments, need to change the tone of public debate on criminal sentencing. The corrosive tabloid culture that Adonis rightly decries is not going away. Parliamentarians need to be brave, and confront the toxic narrative of longer sentences and prison holiday camps that has informed Ministry of Justice policy for the past decade. Constituents should be told about the realities of prison and its proven limitations in reducing crime. The Dutch model that Adonis has held up as an example should be advocated by mainstream politicians on prime time interviews, not relegated to social media spats between ex-policy wonks and lawyers. The statutory manacles forcing judges to impose long sentences for certain offences should be re-examined and, where appropriate, released. The Justice Secretary could consider using s.128 of the Legal Aid Sentencing and Punishment of Offenders Act 2012, which would allow him to change the test for releasing the 4,000-odd remaining IPP prisoners who have served beyond their minimum terms. The plan to double the powers of magistrates – non-legally trained volunteers – to imprison people, allowing them to lock defendants up for a year for a single offence, could be snuffed out. If short prison sentences don’t work, why not consider a presumption against their use, as proposed by the Lib Dems at the last election? The increasingly popular trend for the Attorney General to “refer” (appeal) sentences as “unduly lenient” to the Court of Appeal – and to feed the prison works narrative by boasting about its successes – could be challenged. There has been a 108 per cent increase in AG References since 2010, no doubt attributable in part to media campaigns whipping up anger at perceived “soft sentences”, opinions often formed in wholesale ignorance of the facts.

There is a lot that could be considered as part of a remodelling of criminal sentencing. And no doubt judicial inclinations will form part of it. I don’t deny that some judges use prison too readily; of course they do. They are subject to the same human frailties and cognitive biases as the rest of us. But it is Adonis’ eagerness to pin the bulk of the blame on the judiciary, and the unsubstantiated assertion that they habitually falter out of genuflection to the tabloids, that I consider to be unfair. Because as we can see, that is not where the real problem lies.

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POSTSCRIPT

In case anyone saw, listed amongst his various grievances with the legal system, the following tweet by Lord Adonis, I should like to make two brief points.

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  1. The Law Commission is a statutory independent body that conducts detailed research and consultations and makes recommendations, usually accompanied by weighty published reports, for changes in the law “to ensure the law is as fair, modern, simple and as cost-effective as possible.” The decision on whether to implement a recommendation by the Law Commission is for Parliament alone. Parliament. Which includes Lord Adonis. If “nothing changes”, the fault is entirely with the politicians.
  2. But it’s not right to say that “nothing changes”. Two thirds of the Law Commission’s recommendations have been implemented. For a look at exactly what recommendations have been accepted, implemented and are pending, there is a handy list here, with which Lord Adonis may wish to familiarise himself. A subsequent apology to the Law Commission for his ill-informed and intemperate tweet as a senior Parliamentarian would, he might feel, be the very least he can do.

UPDATE: An Oxford medical student stabbed her boyfriend with a bread knife. So why did she not go to prison?

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Lavinia Woodward, the 24-year old Oxford student who pleaded guilty to stabbing her boyfriend with a bread knife, was sentenced yesterday at Oxford Crown Court for unlawful wounding. The case caused a splash back in May when, having entered her plea, the defendant was told by the judge that she was unlikely to receive an immediate custodial sentence, in part due to her promising medical career. Thus was born the tale of the rich, blonde, white Oxford student who was “too clever” to be sent to prison. “Too clever” appears in all headlines in quotation marks, notwithstanding that no-one in court, not least the judge, ever used these words; rather this is one of the those splendid auto-generated media myths, where one tabloid shorthand was adopted by all until everyone came to accept that these words must have been said.

What actually happened, as far as we can tell from the limited press reports, I dealt with at the time here. In short, the judge was impressed by various features of personal mitigation and deferred sentence, in essence giving the defendant an opportunity to show why she shouldn’t go immediately to prison. HHJ Pringle QC explained yesterday his reasons for deferring:

“[F]irstly, to allow you to continue with your counselling; secondly, for you to demonstrate over a lengthier period of time that you had truly rid yourself of your alcohol and class A drug addiction.”

Four months passed, and Ms Woodward returned to court yesterday to be sentenced to 10 months’ imprisonment suspended for 18 months. After a little delay, the full sentencing remarks were published this morning here. They are mandatory reading for anyone expressing a view about the case, but to assist, let’s look briefly at how the sentencing exercise was carried out.

The facts, as summarised by the judge, were as follows:

“Having met a few months before, in October 2016 you [the Defendant] began a relationship with a student from Cambridge University. Sadly, you were still suffering from the effects of a very damaging previous relationship with another who had introduced you to class a drugs. You clearly had both drug and alcohol addictions. On 30 December 2016, your partner paid you a visit in your accommodation in Christchurch College in Oxford. It rapidly became clear to him that you had been drinking. He tried to discourage you from continuing your drinking without success. As the evening progressed, you became increasingly volatile. At one stage your partner contacted your mother over Skype in order to seek her assistance over what to do about you. When you discovered this, you became extremely angry, starting to throw objects around. It is clear from the transcript of the 999 call that your partner summoned the help of the police before you picked up a bread knife which was in the room and struck a blow with it to his lower leg. In the course of the incident two of his fingers also received cuts. Your partner managed to partly restrain you, albeit you then started to turn the knife on yourself and he had to further disarm you to prevent further self-harm. When the emergency services arrived it was abundantly clear that you were intoxicated, deeply distraught and mentally disturbed. You were taken to a police station in a very distressed state.”

Fortunately, the wounds that your partner received were relatively minor. The two 1 cm cuts to the fingers were treated at the scene with steri-strips and the cut to the leg was closed with three stitches.

The offence was unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861, which carries a maximum sentence of 5 years. When sentencing, courts are required to follow the Sentencing Guidelines for assault, produced by the Sentencing Council (unless it would be contrary to the interests of justice to do so). So let’s turn to the pages dealing with unlawful wounding and feed these facts into the matrix:

First, the court works out what Category the case falls into, by looking at what specified features of harm and culpability are present. The judge formed the view that this was a Category 2 offence. There was lower harm due to the relatively minor nature of the injuries in the context of this type of offence – note that no-one is saying that wounds caused by a knife are not serious; but it’s all relative. An offence of unlawful wounding covers a wide range of injuries, from small breaks of the skin right up to life-threatening, body-scarring lacerations. A 3cm cut to the leg, closed by three stitches, and minor cuts to fingers treated with steri-strips, while undoubtedly horrible for the victim, are minor in the context of wounding offences. Looking at culpability, there was higher culpability by virtue of use of a knife.

Category 2 provides a starting point of 18 months’ imprisonment, with a range of 12 months’ imprisonment up to 3 years. In order to work out where a defendant falls in this range, the court looks at and applies appropriate weight to other features of aggravation and mitigation, listed here:

What do we know about the mitigation and aggravation in this case?

As far as aggravating features are concerned, the judge said:

[T]here is one non-statutory aggravating feature, namely that at the time of the offence you were heavily under the influence of alcohol. Whilst that in part was as a result of a previous and highly damaging relationship, you were old enough and intelligent enough to realise that over-indulgence would severely affect your behaviour.

But it is regarding the mitigating features that the judge had the most to say:

When I turn to look, however, for mitigating features the picture is very different. There are many mitigating features in your case. Principally, at the age of 24 you have no previous convictions of any nature whatsoever. Secondly, I find that you were genuinely remorseful following this event and, indeed, although it was against your bail conditions you contacted your partner to fully confess your guilt and your deep sorrow for what happened. Thirdly, whilst you are clearly a highly intelligent individual, you had an immaturity about you which was not commensurate for someone of your age. Fourthly, as the reports from the experts make clear, you suffer from an emotionally unstable personality disorder, a severe eating disorder and alcohol drug dependence. Finally, and most significantly, you have demonstrated over the last nine months that you are determined to rid yourself of your alcohol/drug addiction and have undergone extensive treatment including counselling to address the many issues that you face. In particular, you have demonstrated to me since I adjourned this matter in May a strong and unwavering determination so to do despite the enormous pressure under which you were put and which has been referred to by your learned counsel.

A further matter advanced in mitigation by the defendant’s counsel (as reported by the  BBC) was that she had suffered domestic violence in a previous relationship, which contributed to her substance misuse.

Taking these strands of mitigation together, it would appear that the judge considered that the starting point should be adjusted downwards from 18 months to 15 months. I say that because it seems that the defendant pleaded guilty at an early stage of proceedings, which would attract “credit” or a discount on her sentence of up to one third. Judges like starting point sentences that are easily divisible by three, so it stands to reason that, although he does not explicitly state as such in the published remarks, he took 15 months and reduced a third to arrive at his final sentence of 10 months’ imprisonment.

As for the decision to suspend the sentence, we dealt with this last time, but I’ll repeat here:

While there is no strict test for suspending a sentence of imprisonment, the Guideline offers the following pointers:

We do not know enough to say whether any of the left hand column is made out; but it could be argued that at least two of the factors on the right apply. The court must have regard to the statutory five purposes of sentencing – punishment, reduction of crime (including by deterrence), reform and rehabilitation of offenders; protection of the public; and making reparations – and will need to assess the appropriate emphasis in any given case. While stabbing with a bread knife is plainly serious, if the injury is not particularly grave, and if the court is of the view that more can constructively be achieved by avoiding sending a promising young defendant to prison and shattering their future life prospects, instead offering in the first instance a sentence focussing on rehabilitation to address deep-rooted problems laying behind the offending, then it is arguably in service of those five principles that a suspended sentence of imprisonment, with punitive and rehabilitative requirements attached, might be imposed.

The features of mitigation identified – the mental health difficulties, the efforts to address drug and alcohol abuse, the good character, the genuine remorse – would all further support the decision to afford a defendant a chance on a suspended sentence.

Indeed, this further colour, in particular the mental health dimension, shifts the perspective significantly. It’s not just a rich white girl getting a let-off; it’s also a victim of domestic violence with severe mental health and substance misuse problems being given a chance to rebuild her life. You may not care for that latter interpretation, but it’s no less valid than the former preferred by today’s front page “Toff Justice” tabloid headlines, implicitly recycling the nasty myth that money confers mental health immunity.

So that’s the post-script. In summary, there doesn’t appear to be anything unusual in this sentence. You may disagree with its merits; you may think that all violent knife offences should result in immediate prison regardless of circumstances or personal mitigation. You may think there should be more women with mental health problems clogging up our prisons rather than receiving treatment in the outside world and trying to forge careers for themselves. But from a legal point of view, there’s little out of the ordinary. Not based on what we see in the courts in practice, with defendants of all races and social backgrounds. And I’ll close by repeating the conclusion from the earlier post:

Lest anyone be seduced by the reflexive narrative that such merciful sentences are only afforded to white, middle class defendants, let me assure you: this course (as I said in the Bashir posts) is not unusual. Where a defendant who has never been in trouble is facing a custodial sentence of  2 years or under, and where they have the prospect of employment, education or caring responsibilities, judges will often strive to avoid passing a sentence of immediate imprisonment. That is not to deny that unconscious social or racial bias plays a part in judicial decisions; basic psychology teaches us that it does, to some degree at least. But the suggestion that this exceptional course is only ever reserved for the Prom Queens (or whatever our British equivalent is) is tired and lazy. The reason you don’t hear about the suspended sentences handed down for less photogenic defendants – for the 19 year-old lad starting his apprenticeship, or the 48 year-old mobile hairdresser – is mainly because the media tends not to report on them.

As a final observation, the Telegraph reports that Ms Woodward’s QC invited the court to consider imposing a conditional discharge – the lowest form of sanction that a court can impose. The judge refused, clearly of the view that a sentence of imprisonment was required. Had the judge acceded to that invitation, the complaints that the sentence was inexplicably lenient would carry more force. As it is, for the reasons above, there appears nothing unusual, and indeed much humane, about the approach taken in this case.

Note: This post has been updated following the publication of HHJ Pringle QC’s sentencing remarks this morning.