Quick Q&A: The Supreme Court decision on John Worboys’ victims and police failings

My latest piece for iNews, on the Supreme Court decision concerning the victims of John Worboys and their fight for compensation for police failings in the investigation into Worboys’ crimes, is available to read here, should this sort of thing be of interest:

https://inews.co.uk/opinion/police-fight-compensation-awarded-victims-john-worboys/

 

Advertisements

An idiot’s guide to navigating pupillage interviews

The Times has today published a fine piece on applying for pupillage, reflecting the advice and experience of some survivors of the process, both applicants and interviewers. Having had the privilege of seeing life from both sides of the interview table, I thought I’d offer my own, largely worthless musings on the things I have learned.

A stock photo entitled “three women in suit sitting” which could also feasibly depict an interview.

  1. Have a good answer to the inevitable.

You will be asked why you want to be a barrister. You will be giving a variant of an answer the panel has heard a thousand times before. That is unavoidable. So don’t strain yourself stretching for originality; aim for simple honest sincerity. At my first ever interview, I span a fluffy cat story about how I was inspired by the story of somebody I met on a mini-pupillage, and how I aspired to tread in their footsteps. The disdain from the panel was palpable. For several interviews thereafter, I cleared my throat and proudly declared my thirst for justice, passion for advocacy and burning need to help the helpless, voice the voiceless and improve the unimprovable. Looking back, I was fortunate not to have a chair thrown at me. Forget cliché and invention and speak plainly. If I were transported back and asked once again why I want to be a barrister, my answer would be simple: because I want to do something exciting with my life. And at the criminal Bar, whatever brickbats we throw at the system and the punitive lifestyle the Bar engenders, life is never, ever dull.

 

  1. Why did you apply to this chambers in particular?

For the most part, the truthful answer will be: “Because you are a chambers, any chambers, and I would literally accept a pupillage in a chambers run by bees at this moment in time.” Again, it’s a nasty question that interviewers know is near-impossible to answer. If you’ve done a mini-pupillage at that chambers, that will help formulate a complimentary response. If not, scour the chambers website for self-congratulatory guff about “ethos” and “values” and try to pass those off as your own. Failing that, tickling the ego of your interviewers with a non-grovelly acknowledgment that the chambers is a “leading set” (all sets like to consider themselves leading) in the particular area of practice is a reasonably safe line.

This outstanding design is the talent of @teaforpterosaur

  1. Have something memorable or quirky on your CV or application

The blunt fact is that everybody being interviewed will have a good 2:1 or 1st class degree. Many will have Master’s degrees. All will have (or will shortly have) at least a Very Competent mark on the BPTC. All will have done debating, mooting and other forms of public speaking. Presidents of University Law Societies are ten-a-penny. The well-advised will also have squeezed some pro bono legal advisory work into their non-existent free time. These are all necessary but insufficient. None, I’m afraid, will stand you out in the memory of the panel. However, the fact that you are a decorated Morris dancer, or were thrashed by Daphne and co on Eggheads, or once interviewed Mike Tyson for your student newspaper with the opener (and closer), “For our readers who may not have heard of you, what do you do?” – these will remain with the panel afterwards. They show that you are human, intriguing and the kind of person that the interviewer actively wants to find out more about. And that is the very best impression you can leave.

 

  1. Have a non-legal topic in mind that you can talk about freestyle

Linked to the foregoing, make sure you have prepared to talk about something – anything – that is not law. There will be a lot of law chat. But there will almost always be a tangential diversion into matters of non-law, often preceded by a vicious, “Tell us more about yourself”. One interview I attended was even more brutal; we were given five minutes to think up a 2-minute presentation on a topic of your choice. Line up a few of these during your interview prep. Think of something non-legal (to demonstrate your glorious diversity) on which you have personal experience or strongly-held views, and have it wrapped up and ready to fire in the event it is called upon.

 

  1. Immerse yourself in current affairs

 Again, an interview staple. Read the newspapers. Gobble up Times Law, Legal Cheek, Legal Twitter, and blogs by proper lawyers and academics for hot takes on vexed issues of law and politics. A common interview trick is to ask you to argue one side of a debate, before immediately inviting you to argue the opposite. Draw up a list of likely topics and think about your arguments in advance. Also be aware of industry-specific issues that are of no interest to anybody outside the Bar, but of enormous importance inside our bubble. If you’re interviewing for a criminal pupillage, be prepared to answer, “What are the biggest challenges facing the criminal Bar?” Be opinionated without being obnoxious; political without being partisan. Stand your ground under pressure from smug interviewers, but be prepared to make concessions if your argument is expertly blown apart.

 

  1. Don’t be intimidated by chambers profiles.

Looking at the profiles of other junior tenants on the chambers website can be a sobering experience. You will read how your contemporaries spent a year as an intern on an international human rights case, or have written starry and brilliant articles, theses or even books on esoteric and impressively complex aspects of your chosen legal field. Many will have impressive previous careers, either in law or outside, and as a twenty-something BPTC graduate, it is easy to be gripped by inferiority. Don’t be. Your CV counts for absolutely nothing when you’re sitting in a cell opposite a screaming heroin addict who has stabbed his cellmate in the eye and is threatening to exact upon you his frustration that his solicitor hasn’t been to visit him. Nor does it matter a jot when you’re in front of a judge or jury pleading the unwinnable case (or worse, the eminently winnable). Your judgment and powers of advocacy are the skills that can’t be reflected on pornographic CVs, and are the ones that matter most. Practise on demonstrating those in interview.

 

  1. Don’t gabble

It sounds obvious, but nerves in interview upend the most poised performers in your advocacy classes. Your interview is a chance for you to demonstrate advocacy under pressure. Deep breaths, slow and considered responses and substituting a brief pause for “umm” or “err” or, heaven forfend, “like”, are mandatory habits. Even if the topic is your Mastermind subject, you win no points for speed.

 

  1. Prepare for the unexpected

Some chambers do things the old-fashioned way. China tea-pot, warm smiles, civil conversation. Some take a sadistic pleasure in setting you Total Wipeout style obstacle courses at a second’s notice. Impromptu presentations on random subjects; a Dragon’s Den pitch on something I had two minutes to invent; idiotic Oxbridge-interview questions (“If you were a banana, what car would you drive?” etc); deliberately confusing written exercises and needlessly aggressive interview styles were, and probably still are, all common features. In reality, “prepare for the unexpected” is fairly useless advice; the best antidote for this kind of stuff is experience. But try not to be fazed.

 

  1. Do have a question at the end

You will hear competing theories over whether you do in fact need to have a prepared response to the final, dreaded, “Do you have anything you’d like to ask us?” My advice is to have at least three questions in your back pocket (just in case the panel unhelpfully answer one or two of them in the course of the interview). Even if it’s something as simple as, “Roughly how long does it take for your junior tenants to start appearing regularly in the Crown Court?” If you really can’t think of a good question, don’t ask a bad one. But it shouldn’t be beyond your wit to come up with a couple, just to keep the conversation flowing. Oh, and under no circumstances ask, “Did I get the job?! LOLZ!” You will deserve everything you get.

 

  1. It all comes down to dumb luck

This, I’m afraid, is the reality. The pupillage statistics speak for themselves. Your odds are slim, and unless you are particularly brilliant (and most of us aren’t), you are competing against hundreds of people of comparable ability, intellect and experience. What separates you from the herd in the eyes of the interviewers is often wholly arbitrary and unexpected. I was lucky enough that a flippant topic I’d picked up on was of enormous interest to a wonderfully fun and quirky member of chambers on the panel, who quickly turned the conversation round to 1980s power ballads. That, I was later told, was the clincher. Others will have friends or family in chambers, or relatives in the judiciary. Nepotism and inherited privilege shouldn’t have their place at the modern Bar, but they linger. There are a million variables that may influence your chances in any given interview. Ask for feedback from unsuccessful interviews, and use anything constructive, but don’t let a run of rejections cause you to lose heart. All it takes to break a losing streak is just one lucky win.

A comprehensive list of intimidatory acts that are illegal offline but legal online

Today on Radio 4, Home Secretary Amber Rudd was the latest government minister calling for an overhaul of the criminal law in the name of tackling “intimidation and aggression” on the internet. Her premise is that “what is illegal offline should also be illegal online”. This was repeated by Theresa May in a speech today in Manchester. The thrust of the complaint did not appear to be that existing laws are being poorly interpreted and enforced by police and prosecutors; nor that certain social media companies are famously reticent in providing information to prosecuting authorities; nor that the existing law is piecemeal and mishmash and could do with a jolly good refreshing and consolidating (all of which are undoubtedly true). Rather it was that there is a special quality to the law that means that certain threats or abuse made over the internet simply do not amount to a criminal offence, and that new laws are required pursuant to the Something Must Be Done Act.

Photo by Samuel Zeller

To help, I’ve cobbled together a comprehensive list of intimidatory acts that are illegal offline, but not illegal when committed over the internet:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[ENDS]


Footnote: The Law Commission has been asked to conduct a review into the existing law that will cover, among other things, this very issue. I am fully prepared to bow to the Commission’s wisdom if I’m wrong and made to look like a bit of a wally.

Some thoughts on Dr Bawa-Garba and our faith in the jury system

I’m loath to tread onto terrain that I do not usually cover in my modest knockabout criminal practice, but the case of Dr Hadiza Bawa-Garba has caused such tremors in the medical profession that I thought, vainly, that I might throw my two pence in.

_92884735_mediaitem92884733

Misery is so ubiquitous in the criminal law that it feels trite if not otiose to start with the observation that this – as inevitably with any that makes the news – is a very sad case, but there is something about the cumulation of tragedies spinning out from Bawa-Garba that stands it out as particularly upsetting. A seriously ill six year-old child, Jack Adcock, died in hospital on 18 February 2011 after what were alleged to be  – and accepted by a jury as being – serious failings in diagnosis and treatment by Dr Bawa-Garba, the responsible doctor.

On 4 November 2015, she was convicted of gross negligence manslaughter and sentenced to a suspended sentence of imprisonment, having been initially informed by the CPS in 2012 that she would not be prosecuted at all. Her fitness to practise was found to be impaired by the Medical Practitioners Tribunal in June 2017, and she was suspended for a period of 12 months. Last week, the High Court ruled, following an appeal by the General Medical Council, that this sanction was insufficient, and substituted the sanction of erasure from the medical register – effectively ending Dr Bawa-Garba’s career.

I shan’t rehearse the complex medical evidence and arguments advanced at Dr Bawa-Garba’s original trial; a summary of the arguments can be found in last week’s judgment here (and in the judgment from the Court of Appeal dismissing her application for leave to appeal against conviction, here). But, reducing the arguments down to a digestible core, the prosecution, relying on the testimony of medical experts, argued that the decisions and omissions of Dr Bawa-Garba were so serious, and her conduct fell so far below the standard of care expected by competent professionals – “truly exceptionally bad” being the test set for the jury – that she was guilty of manslaughter by gross negligence, it being said that these failings caused Jack to die significantly sooner than he would otherwise have done. Dr Bawa-Garba, for her part, denied gross negligence, arguing (also with the support of expert evidence) that Jack’s case was complicated, and that excessive demands placed upon her by a multiplicity of systemic and (other) individual failings meant that she had done her clinical best in difficult circumstances.

The jury returned a guilty verdict, and professional disciplinary proceedings followed. The decision by the High Court last week to allow the GMC’s appeal has caused widespread upset among the profession (see this excellent blog by Dr Rachel Clarke for an explanation).

The reason for the High Court’s decision was that it found that the Tribunal had, in imposing a suspension instead of erasure, attached significant weight to the aforementioned “multiple systemic failures” at the hospital at the time, which included

“failings on the part of the nurses and consultants, medical and nursing staff shortages, failings by nurses and consultants, IT system failures which led to abnormal laboratory test results not being highlighted, deficiencies in handover, accessibility of the data at the bedside, and the absence of a mechanism for an automatic consultant review.”

What is the problem with this? Well, the High Court ruled that these systemic failures had already been considered by the jury at the criminal trial, and that the jury’s guilty verdict represented their finding that Dr Bawa-Garba’s mistakes were “truly exceptionally bad”, even taking into account the conditions in which she was forced to work. Therefore, the High Court concluded, the Tribunal fell into legal error in effectively disregarding the verdict of the jury and reaching its own views as to the level of culpability. If a jury has found Dr Bawa-Garba’s actions to be truly exceptionally bad notwithstanding the systemic conditions, it’s not for a professional disciplinary tribunal to try to form its own opinion based on the systemic failings and downgrade the doctor’s actions to only ‘really quite bad’, in other words.

Doctors who are plunged regularly, if not daily, into the type of systemic chaos that prevailed on that fateful day are now understandably panicked about the ramifications in the event of an avoidable tragedy. Not only, it seems to them, is there a risk of criminal sanction, but the professional regulator – the GMC – will seek to have doctors struck off for what are partially – if not mainly – failings caused by understaffing, lack of resources and defective working practices. What, it has been asked, is a doctor to do upon arriving at work to find themselves in Dr Bawa-Garba’s position? Do one’s best to help patients and risk the same fate? Or down tools citing unsafe working conditions?

For what little it’s worth, I understand the anxiety entirely. But I do wonder whether the consternation in fact burrows deeper than last week’s decision. Because there’s an undeniable logic to the High Court’s judgment: If a criminal court has found, beyond reasonable doubt, that someone’s actions are truly exceptionally bad, it’s a bit off for a different legal tribunal to decide that, actually, the actions were simply honest mistakes. And while anger at the lack of sympathy displayed by the GMC is natural, the ultimate “fault” lies a few stages back – with the verdict of the jury.

It was after all the jury that heard all the evidence of the systemic failures, the clinical decisions taken and not taken, and the errors on the ground, and was still sure of Dr Bawa-Garba’s extremely high personal culpability. It was the jury that weighed the competing expert evidence as to best clinical practice and concluded that these were not simple honest errors but something far, far more serious. And while I don’t seek to second-guess the verdict, nor the competence of the twelve men and women who tried what was no doubt an extremely difficult case to the best of their ability, this case provokes difficult questions as to the suitability of a lay jury to determine complex matters of professional competence.

Trial by a jury of one’s peers is one of the most proudly-hugged rudiments of our criminal justice system – Magna Carta and all that jazz – predicated as it is partially on the notion that disputes of facts falling within the experience of everyday folk should be settled by everyday folk. But where criminal liability hinges on competing interpretations of professional standards, we can see a tension rippling across the surface of our definition of “peers”.

There has been online debate among medics as to whether, based on the evidence summarised in the publicly-available judgments, Dr Bawa-Garba’s conduct was correctly determined to be grossly negligent. Clinical opinions have clashed and war stories of identical climates and narrowly-averted tragedies have been traded as doctors re-litigate the nub of the criminal trial, and in particular the question over whether the jury did, or could, fully appreciate and understand the reality on the ground. While I ordinarily fall into reproachful tutting at armchair juries, there is something about all of this that resonates, louder and more violently than I expected.

I think it’s because, for me, the thought of 12 non-lawyers being called upon to make judgments on my professional standards fills me with horror. Working in the criminal justice system on any given day is, I have no doubt, akin to working in the climate of systemic failure suffered by Dr Bawa-Garba and her colleagues. There is insufficient everything, both material and temporal. What there is, doesn’t work. It is often a miracle that anything resembling justice is fired out at the end of the production line of disorder that comprises many criminal cases. I worry about every single case I have – not simply because of the high stakes or the complexity, but because I cannot trust a single other element of the system to work as it should. Disaster is a heartbeat away at every turn. If I avoid its icy grasp, it’s been a brilliant day. When mistakes happen – and they do, for all of us – it is our individual responsibility of course, but I would plead that they usually arise against that backdrop. And if I found myself in a court of law, trying to convey that reality to twelve laypeople, I know for a fact that I could not even begin to make them understand. Neither could any expert, nor any other witness, no matter how eloquent.

I couldn’t do justice in words to the panic of having several hundred pages of tardy disclosure dumped on you by the indolent prosecution on the morning of a trial where your client is facing a possible life sentence, and having to take full impromptu instructions in the court cells as your violent, psychiatrically unwell client screams and smashes his head against the cell door, while the unsympathetic judge, conscious of the need to “get things started”, tannoys every ten minutes for you to return to court. I cannot paint an adequate portrait of the problems posed when the Crown Prosecution Service instructs you the night before on a trial that they have hitherto kept in-house, and which has not even been looked at by the CPS advocate, and the thudding pressure of arriving at court with a shopping list of urgent missing evidence, disclosure and legal applications, to find that the court WiFi is down, the CPS caseworker assisting you is covering two other courtrooms, the court forgot to book an interpreter for your witness  and your police officer in charge of the case has phoned in sick and sent a replacement bobby who knows nothing about the trial. I cannot convey to a layperson the sheer madness of the magistrates’ “list” system, where the most junior lawyers are dumped at a few hours’ notice with half a dozen badly prepared trials, all listed in the same courtroom before a bench of three non-legally qualified magistrates, and expected to prepare the trials, plug the gaps, chase the missing witnesses, advise and take instructions from overwrought CPS lawyers over the crackling phone lines, soothe the impatient bench and somehow run a series of seamless, effective, just trials.

 Unless you’ve been there, you simply can’t understand.

It is no different, I expect, for NHS staff. Unless you have been there, unless you know, you cannot absorb the experience vicariously. And if you don’t understand the reality, how can you properly, fairly, judge standards of competence exercised by someone ragged in the winds of unpredictability and chaos?

I make clear-  I am in no way doubting or otherwise seeking to undermine the verdict in this case. I was not present at trial, I was not privy to the evidence that went before the jury, and my personal knowledge of matters medical is at best below average. I am confident that the complexities of the evidence and the conflict between the competing experts was clearly explained and made intelligible to the jury by the highly experienced counsel and judge. Furthermore, Dr Bawa-Garba’s conviction has been considered by far better informed and brighter lawyers and judges than me, and has been upheld as safe. Nor am I calling for an immediate revolution in jury trials on the back of this single emotive case. But I do think this raises provocative questions that we in the system perhaps do not pause to examine.

Maybe it’s simply special pleading. Maybe I’m guilty of rank arrogance in assuming that mere members of the public can’t begin to understand the pressures upon us in the ‘traditional professions‘, and am dismissively oblivious to the extraordinary strains placed upon all manner of people outside of law and medicine, and the ability of juries to digest and empathise. I may well be – subconsciously or otherwise – simply writing out my mitigation, or my excuses, to be relied upon at a later date when my professional competence is held up to scrutiny and found wanting. I don’t know. It’s difficult to write objectively about these things.

But what I think I do know is that, while the virtues of jury trial are drummed home from first-year law school, we shouldn’t be afraid to re-examine our shibboleths, particularly when the underlying concepts – juries of our peers – are stretched and strained. I like to think that the expert presentation of complex criminal cases is sufficient to ensure that juries have all the tools to arrive at informed and just verdicts. But I do have sympathy for the anxiety of those who feel that explanation and experience are too different, too far apart, for the former to be a proper substitute for the latter.

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.

b47nh8einhao7qk0rckt

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.

John-Worboys-003

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.

karl-anderson

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:

IMG_2383IMG_2384IMG_2385

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.