An Oxford medical student stabbed her boyfriend with a bread knife. So why is she not going to prison?

Remember all the fun we had earlier this year with the Cricket Bat Case? You know the one – where the defendant, Mustafa Bashir, assaulted his wife with a cricket bat, forced her to drink bleach and was given a suspended sentence, partially because the judge took account of the defendant having been offered a professional cricketing contract? And everyone got terrifically angry about it, even though they clearly hadn’t taken the time to obtain the facts? And Diane Abbott and Harriet Harman traversed the airwaves and the plains of social media in furrowed unison to whip up the cries for the judge to be “sacked” for what he’d said, even though he hadn’t said it? And, even when, at the “slip rule” hearing where the defendant was sent to prison after it emerged that the cricketing contract was a fiction, the judge took the time to carefully explain his earlier, misreported remarks, no-one listened and wrapped themselves up in a cocoon of impervious self-righteousness? Remember all that? Yeah? What larks.

Well luckily for us, we may be about to go through it all again. Because once more, Mercury scoots in with a message of justice gone wrong, in the form of a case of domestic violence where the defendant stabbed the complainant with a bread knife, only to be assured by the judge that, when the time comes for sentence, she will most likely not be going to prison. The reason? Her “extraordinary” medical talent.

This post comes dangerously close to breaching one of my cardinal rules, vis not commenting on cases until they are concluded and the full facts (or as close to them as we can get) are known. But given that there has already been a steady buzz of interest in the case online, I thought it worth heading off some of the likely queries at the pass, not least as comparisons with the Bashir case are already circulating.

Facts

The published facts are limited. The Guardian offers us this:

“Aspiring heart surgeon Lavinia Woodward, 24, punched and stabbed her boyfriend during an alcohol-and-drug-fuelled row at Christ Church College. She admitted unlawfully wounding the Cambridge University student, who she met on the dating app Tinder. […] Woodward, who lives in Milan, Italy, with her mother, stabbed her then-boyfriend in the leg after punching him in the face. She then hurled a laptop, glass and jam jar at him during the attack on 30 September last year.”

According to Mail Online, the guilty plea was entered before Oxford Crown Court at an earlier hearing. At a hearing yesterday, sentence was deferred to 25 September 2017. In deferring, HHJ Pringle Q.C. noted that this was an “exceptional” course and indicated that come autumn she may avoid an immediate custodial sentence due to the impact such a sentence would have upon her future career:

 “It seems to me that if this was a one-off, a complete one-off, to prevent this extraordinary able young lady from not following her long-held desire to enter the profession she wishes to would be a sentence which would be too severe,” he said.

“What you did will never, I know, leave you, but it was pretty awful, and normally it would attract a custodial sentence, whether it is immediate or suspended,” he said.

It is further reported that Ms Woodward has had articles published in medical journals including the Annals of Thoracic Surgery, Hypertension, and The Journal of Physiology. The Telegraph quotes a source as saying that she finished top of her year in her third year pre-clinical tests at Oxford.

Finally, we are told are that her barrister informed the court that Ms Woodward had a “very troubled life”, struggled with drug addiction and had been abused by a former partner.

So what is going on here?

Deferred sentence

Deferring sentence is nowadays an unusual step to take. It is not to be mistaken for adjourning a sentence hearing, which happens all the time for various reasons – to obtain probation or psychological reports, for example. Rather a deferment is a specific statutory power (section 1 of the Powers of Criminal Courts (Sentencing) Act 2000, as you ask) which a court can use where it wants to observe the defendant’s conduct post-conviction before arriving at a final sentence. If a court is satisfied that it would be in the interests of justice, “having regard to the nature of the offence and the character and circumstances of the offender”, sentence will be deferred to a fixed later date.  Typically, we tend to see it in cases where a judge wants to see if a defendant can make a sustained effort at rehabilitation – say by holding down a job or undergoing voluntary drug or alcohol treatment. If a defendant agrees to a deferment, the court will impose “requirements” as it considers appropriate – in this case, it has been reported that the judge required that the defendant remain drug free and not re-offend.

When she comes back to court on 25 September, the judge will determine whether the defendant has substantially conformed or attempted to conform with the expectations of the court – i.e. by staying clean and keeping out of trouble – and, if she has, she can legitimately expect that she will not go immediately to prison.

Sentencing Guidelines

It appears from reports that the defendant pleaded guilty to unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861. While a serious offence, it is of note that it in fact carries the same maximum sentence – 5 years’ imprisonment – as assault occasioning actual bodily harm, which was the offence in the Bashir case. It is also of note that section 20 covers two different offences – inflicting grievous bodily harm, and unlawful wounding. It is one of the many (unjustified) quirks of the law that these two offences are treated equally even though the injury caused in a wounding can be relatively minor (it merely requires a break of the skin), whereas GBH by definition entails really serious harm. Here, we know nothing about the level of injury.

As with all sentence hearings, a court is required by law to follow relevant Sentencing Guidelines published by the Sentencing Council. In this case, we look to the Assault Definitive Guideline. By plugging the facts of the offence into the grid, we theoretically arrive at a category of offence, which gives a starting point for sentence, and a range which the court can move between depending on the aggravating and mitigating factors at play. The Guideline is here:

Now, we have little idea, absent further facts, what category the judge will put this case into. We know nothing about the level of injury, the ongoing effect on the victim, and the circumstances leading up to the assault. But even if the judge were to conclude that the offence was so serious as to fall within the highest category – Category 1 – (which on the given facts I think is unlikely) this would provide a starting point of 3 years, the relevance of which is that once you take off the 1/3 credit that is awarded for a timely guilty plea (assuming that it was), you arrive at something around the 2 year mark. And the relevance of the magic 2 years is that any sentence of 2 years or under can be suspended.

This is a long-winded way of saying, simply, that on the Guidelines, the judge will not have to struggle to arrive at a sentence capable of being suspended, if, as I suspect, this is what he envisages proposing at the next hearing.

Whether he should suspend it is, of course, another matter. And it is here that we find ourselves back in Bashir territory. The parallels are striking: A defendant with no previous convictions; a serious offence of domestic violence using a weapon; and personal mitigation including a promising career. Ms Woodward’s offence is more serious in the statutory hierarchy of violent offences; however she has what appears to be powerful mitigation relating to her reported issues with substance misuse and history as a victim of domestic violence.

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

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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.

And, 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 neuroscience 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.

Conclusion

It is too early to draw any conclusions. That is really the beginning and end of it. But if we must go a little further, I would observe that, although understandably surprising to the non-lawyer, there is nothing on the reported facts of this case to suggest yet that anything is amiss. We will wait and see what September brings (and hope that, given the pre-emptive press rumblings, the judge takes the step of formally publishing his sentencing remarks in full), and reassess then. But it is entirely plausible that this is a sad and difficult case where a talented young woman bearing pains that few of us can imagine acted out in an uncharacteristically raw and violent fashion, in a manner that demands condemnation, but the punishment for which the court will temper with mercy, avoiding the compounded tragedy of extinguishing a bright life in the squalid pits of our rotting prisons.

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POSTSCRIPT: In the event that the judge imposes a suspended sentence on 25 September, there will be calls, as with the Bashir case, for the Attorney General to apply to refer the sentence to the Court of Appeal as unduly lenient, in the hope that the Court of Appeal will increase the sentence. Offences of unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861 are not included in the lists of offences that can be the subject of such an application. So if you know of, or are, a politician champing at the bit to call for the sentence to be increased, screenshot this paragraph and have it in your back pocket for September: It can’t be done.

 

Do we really need a law telling people not to assault NHS staff?

Today’s PMQs offered a public airing to a campaign which struck a chord with me, but which may have been overlooked by others amidst the farce of Jeremy Corbyn mistakenly offering “condolences” to the family of a dead police officer who was in fact very much alive and trying to excruciatingly lie his way out of his error. The campaign in question was mentioned by Oliver Dowden MP, and seeks to offer protection to NHS workers at risk of violence from patients.

 

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Although not explicitly stated, it appears that Mr Dowden is linking arms with a petition, currently running at over 110,000 signatures, which calls for Parliament to create a specific criminal offence of assaulting any member of NHS medical staff. The creator of the petition is Nick Ferrari, the LBC radio host, who demonstrated his grasp of sensitive and complex legal matters when he last month waded straight into the brouhaha over Marine A being refused bail without bothering to acquaint himself with the basics, echoing the lament of the ignorant – “Our courts grant bail to paedos but not to war heroes” – over his airwaves. [For an explainer of this affair, see here.] But the petition still deserves a fair hearing, as indeed it will get in Parliament now that it has hit the 100,000 mark. Its premise and purpose are to the point:

“There are 193 attacks on NHS staff a day in England. LBC’s Nick Ferrari thinks this is unacceptable. Support his ‘Guard Our Emergency Medical Services’ campaign to better protect our doctors and nurses by making it a specific legal offence to attack them.

Figures show that attacks on NHS staff are rising. With stretched resources, higher demand and rising waiting times the NHS can ill afford this violence.

For twenty years it has been a specific offence to attack a Police officer conducting their duties. (Section 89(1) of the Police Act 1996).

We the undersigned believe it is time to extend this higher legal provision and protection to NHS medical staff and make it a specific offence to assault them.”

 

 

 

The methodology behind his numbers is not clear, but if we accept for now the premise that attacks on NHS workers are rising, is a new law criminalising this particularly despicable type of violence – giving doctors and nurses the same protection that we offer to police officers – not a self-evidently good thing? Should the cries from the British Medical Association and Royal College of Nursing not be acted upon? Particularly when, as Mr Dowden pointed out to the House today, specific laws also exist to criminalise assaults on prison officers and immigration officers?

I’m afraid not.

For a start, extending section 89(1) of the Police Act 1996 as the petition demands (and as is achieved in the case of prison officers by s.8 of the Prison Act 1952), would have next to no practical effect. Because the offence of assaulting a police officer presently has next to no practical effect. The maximum sentence for assaulting a police constable under s.89 (or a prison or immigration officer) is six months’ imprisonment, which is the same maximum sentence that a court can impose for common assault or battery under s.39 Criminal Justice Act 1988, the Act under which less serious assaults against NHS workers – indeed, against anyone – are currently charged. More serious assaults causing injury, whomever they are against, will be charged as assault occasioning actual bodily harm or inflicting grievous bodily harm, which carry significantly higher maximum sentences.

Furthermore, under the Sentencing Guidelines which courts are required to follow, if an offence of assault was committed “against those working in the public sector or providing a service to the public”, the court must already treat that as an aggravating factor when arriving at the sentence.

It is difficult to see therefore how what the petition seeks would in any way offer the “higher legal protection” sought, assuming that by “higher legal protection” Ferrari means “tougher sentences”. It would create a new shiny offence with an exciting new name, that would tie up Parliamentary time and add yet further pages to our diarrhoeaic criminal law, but would not result in a jot of practical difference when it came to sentencing these crimes. Unless Ferrari envisages a higher maximum sentence for this new offence, in which case we can look forward to the immediate uproar from police officers wanting to know why someone punching them in the groin can only get 6 months while someone performing the same manoeuvre on a dentist can get up to a year.

Which leads us to the broader problem with laws of this type – What About Me? If NHS medical staff are to be regarded as comprising a vulnerable, public-facing group against whom an offence is ipso facto more serious, no doubt other interests would wish to be considered. Teachers, for instance. Or firefighters. MPs have a pretty good claim. The Armed Services have been pushing for such a law for some time. Bus drivers are common targets of unhinged violence. Court staff put themselves face-to-face with the very worst people in society on a daily basis. So in fact do we lawyers. And our staff. All of us are performing a public service. All of us deserve protection. Can we have a law named after us too?

The greatest objection though is that this approach just does not work. The petition plays to the legislator’s fallacy, beloved of those like Ferrari who think that the panacea to the social maladie du jour is just one law away. If we say X is an offence, and the punishment sounds tough enough, X will stop. Reality does not bear this out. The fact is that the people we see in court every day who roll into A&E smashed and abusive, spitting at nurses and headbutting doctors, are not going to be deterred by the knowledge that Ferrari’s Law means they might now be charged with Assaulting a NHS Worker instead of common assault. The problems isn’t that there’s not a law to prohibit what they’re doing. It’s that law alone is not enough. Simply adding further legislation to existing legislation in the hope that enough reams of the stuff will somehow resolve deeply embedded social, cultural and behavioural problems is the theory of the madhouse.

I appreciate from first hand experience that medical staff risk their personal safety daily in what are usually intolerable and at times highly dangerous conditions, and my scepticism for this initiative should not be read as a lack of sympathy. If there were a practical law that could achieve the desired result of fewer assaults on medical staff, I would mount my hobby horse and back it to the highlands. But this petition’s promise of “higher protection” bestowed by a special, targeted offence is a chimera. Well-intentioned, no doubt. But wrong.

If I were a shock jock riffing on an ill-thought out prescription for an immediately better society, I’d speculate that the solution lies somewhere between spending more money on staff, decreasing the time that these violent thugs can spend winding themselves up in the waiting area, spending more money on mental health services so that those offenders are properly diverted, and spending more money on security at hospitals. But I’ll settle for saying, more authoritatively, that whatever the answer may be, Ferrari’s Law isn’t it.

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