Bashing burglars and the law of self-defence

The headlines and news bulletins over the past two days have focused on this story:

(Your attention is respectfully drawn to the headline, rather than the libido-boosting diet to beat the menopause (no HRT required.))

I make clear at the outset that I offer no comment whatsoever on this particular case. While the editorial slants of the tabloids may hint at two-fingered salutes to the law of “strict liability” contempt of court, I am going to play safe by disclaiming that, as criminal proceedings in this case are “live” within the meaning of Schedule 1 of the Contempt of Court Act 1981 (a suspect having been arrested without a warrant), what follows is intended as a contribution to a discussion in good faith of public affairs or other matters of general public interest.

What I want to look at briefly, therefore, is the law of self-defence in what lawyers euphemistically refer to as “householder cases” – where force is used by a householder against a trespasser in a dwelling. In dipping into this legalese, I do not for a moment seek to minimise or cloak the stark reality that confronting a burglar in your home is one of the most terrifying experiences imaginable. Burglary of somebody’s home is an offence which, in my view, is treated with relative disdain by the criminal justice system. Its ubiquity means that insufficient resources are made available to police to investigate (hence shocking reports of 9 out of 10 burglary investigations being closed without a suspect being identified). Its prevalence means it is considered by the CPS to be one of the least serious criminal offences for the purpose of instructing prosecuting barristers, attracting a miserly fee (£480 for a 2-day trial requiring on average 20 hours’ work (2 days at court plus a conservative 4 hours’ preparation), so around £24 gross an hour, of which I would take home about £12), and is therefore prosecuted often by the least experienced in our ranks. And, while I am not one predisposed towards longer sentences, I have a lot of sympathy with members of the public who feel that a Sentencing Guideline starting point of 1 year’s imprisonment, of which a defendant will serve a maximum of 6 months, does not adequately reflect the harm done by the violation that breaking into someone’s home represents. The after-effects can last forever. It is not a mere property offence; it is an encroachment into a person or a family’s safest space. And I think many of us in the system can become inured to that truth.

So there is my opening salvo: I hold no affection for burglars. Don’t allow the clinical nature of what follows to lead you to think otherwise.

But, since the tale of Tony Martin in 1997, elements of the press and the Conservative party have become fixated on the notion that an Englishman’s home is no more his castle; that, confronted by an intruder in the dead of night, the householder is required to deferentially hand over the code to the safe and ensure that the burglar is safely escorted from the premises with his bag of swag bulging and his bodily integrity intact. What followed, under the intellectual guidance of Chris Grayling, was a change to the law in 2012 seeking to persuade Middle England that, in the words of the prematurely-celebratory Sun headline, “It’s Official: You Can Batter a Burglar“. We’ll have a look below at what that means in practice.

 

The law of self-defence

It is a longstanding principle of English common law that a person is entitled to use reasonable force in self-defence, or in defence of another. There are also statutory defences of using reasonable force in defence of property or in the prevention of crime and arrest/apprehension of offenders.

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

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

Let’s break down what this means.

“A genuine belief that force is necessary”

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

 

“Reasonable force”

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

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

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

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

Simple, right? Well, not, sadly, in cases involving burglars. As we shall now see…

 

Householder self-defence

In 2011, Prime Minister David Cameron, having promised in his party’s manifesto to afford “greater protection” to householders who use force against burglars, said:

‘We’ll put beyond doubt that homeowners and small shopkeepers who use reasonable force to defend themselves or their properties will not be prosecuted.’

Quite how Mr Cameron intended to guarantee that fetter on the discretion of the independent Crown Prosecution Service was never explained, but the public was thereafter treated to Chris Grayling’s party piece at the Conservative party conference, which went someway beyond Mr Cameron’s hashed restatement of the existing law. And, as you might expect, Mr Grayling’s idea was as poor in execution as it was stupid in policy.

Grayling, having dissembled to the crowd about what the existing law of self-defence said, insisted that a new law was needed which changed the test.  No longer was “reasonable self-defence” a sufficient litmus. Instead, householders should only be convicted where they had used “grossly disproportionate” force. Merely “disproportionate” force, it followed, was no more than burglars deserved. Section 76(5A) was duly inserted into the Act.

Inevitably, once reality bit, Grayling’s dreams came crashing down around him. He lost the support of the Mail once they saw guidance sent to judges and prosecutors “admitting that the provision does not give householders free rein to use disproportionate force in every case they are confronted by an intruder.” (You can just hear the disappointment jumping off the page). The exemption did not apply to the use of force to protect property, for example. Nor did it apply to “non-dwelling buildings”. So if you saw someone stealing your lawnmower from your shed, you could not use disproportionate force to stop them.

But worst of all, when the High Court was called upon to interpret section 76(5A), it confirmed that its drafting did not in fact have the effect that Grayling had desired. The CPS had interpreted s.76(5A) in accordance with the newspaper headlines – only where the prosecution could prove grossly disproportionate force would it be appropriate to prosecute. But the High Court said otherwise: all the new law did was to confirm (as if confirmation were needed) that anyone using “grossly disproportionate” force could not, by definition, be using reasonable force. Force which was “merely” disproportionate could be reasonable in householder cases, but would not always be. The test, as with all cases of self-defence, remained whether force was “reasonable” in the circumstances.

So, in conclusion, where a householder is confronted by a burglar, if they genuinely believe they need to use force in self-defence, they can use such force as is reasonable in the circumstances. If they use “grossly disproportionate” force, they cannot rely on self-defence. If they use merely “disproportionate” force, that may or may not be reasonable. Got it? If not, you can blame Grayling for the unnecessary confusion injected by the pointless test of “gross disproportionality”.

 

Arrest

Much has been made about the fact that the 78-year old householder in the present case has been arrested and (presumably) interviewed by the police, before being released. It is worth remembering that the police have a legal duty to investigate cases where there has been a loss of life. Part of the investigation may involve arresting a suspect so that they can be interviewed.

Whether an arrest is necessary in a given case – as opposed to inviting a suspect in for an interview – depends on whether certain statutory factors have been satisfied. But on its face, there is little unusual in the police arresting somebody suspected of killing another person. The police will usually have a reasonable suspicion that a crime has been committed – because somebody has died a non-natural death – and the arrest will usually be necessary to allow a prompt and effective investigation, the combination of which means that an arrest is permissible. It is no indication of whether a charge will follow; rather it is on its face the police complying with their legal duties. When a suspect is arrested and detained at a police station, they have a panoply of rights, including the right to independent legal advice. If they are interviewed under caution (as one would expect), they will have the opportunity to advance any account of self-defence, which will then form part of the file that is passed to the Crown Prosecution Service for a charging decision.

 

The charging decision

The Code for Crown Prosecutors provides that when a charging decision is being taken the test is two-fold – (i) is there a realistic prospect of conviction on the evidence? (ii) Is a prosecution in the public interest. If a suspect offers self-defence as an explanation in their police interview, the CPS will have to be satisfied that there is sufficient evidence to disprove this beyond reasonable doubt, applying the above test. Even if they are satisfied of the evidence, they must then consider the public interest. CPS Guidance says:

When reviewing cases involving assertions of self-defence or action in the prevention of crime/preservation of property, prosecutors should be aware of the balance to be struck:

  • the public interest in promoting a responsible contribution on the part of citizens in preserving law and order; and
  • in discouraging vigilantism and the use of violence generally.

There is often a degree of sensitivity to be observed in such cases; this is particularly important when the alleged victim of an offence was himself/herself engaged in criminal activity at the relevant time. For instance, a burglar who claims to have been assaulted by the occupier of the premises concerned.

 

Conclusion

Upon inspection of most of the tabloid’s causes celebres, one will often find a fairly sensible explanation for a decision to prosecute a householder who has injured or killed a burglar. Sometimes, as with Tony Martin, the homeowner will have used lethal force on a burglar fleeing the property, or will have chased him down the street and given him a sound thrashing. The bottom line, as has always been the bottom line notwithstanding the dishonesty of Chris Grayling, is that using reasonable force against a burglar will rarely result in a prosecution, much less a conviction.

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Legally Blonde: The Live Tweet

In the final (for now) instalment in my relentless flogging of pop culture, Friday night was spent Live-Tweeting the legal cinematic classic, Legally Blonde. If you want to find out how it went, click on the Tweets below.

 

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Love In The First Degree: Analysing the legal misconceptions of Bananarama

This weekend’s Twitter thread, which has received a surprisingly warm reception (even from Bananarama themselves), is as below. It is important, it struck me as I sat stationary on a snow-stranded train, that we always hold (girl) power to account and challenge legal myths wherever they arise, however difficult that may be.

🎵And the judge and the jury, they all put the blame on me

They wouldn’t go for my story, they wouldn’t hear my plea…

Only you can set me free, coz I’m guilty, guilty as a girl can be

Come on baby, can’t you see, I stand accuuuused of love in the first degree🎵

[THREAD]

There are many legal inaccuracies and errors that Bananarama fall into here. I think it’s important that we address them.

 

Firstly, Bananarama erroneously assume that the judge AND the jury are judging the merits of the defence. This is simply not true. Judges in Crown Courts, even Courts of Love, are judges of law alone. The verdict is for the jury.

 

The ONLY way this would stand up to scrutiny is if the judge had ruled, as a matter of law, that a particular defence was not available, and directed the jury in such terms. Absent further detail, we cannot assume that this happened.

 

Secondly, the existence of a jury indicates that there is a contested trial to determine guilt. HOWEVER…

 

…Bananarama confess – openly – that they are not only guilty, but guilty as a girl can be (by which they are presumably accepting a degree of culpability placing them at the top of the range of the highest category on the relevant Sentencing Guideline).

 

In such circumstances, it is nonsensical for them to express surprise or complaint at the jury rejecting their “plea” (by which they presumably mean defence). They are to blame for admitting guilt in front of the jury and for wasting scarce court resources on a needless trial.

 

If Bananarama simply wanted to contest the *factual basis* of their admitted guilt, then they should be having a trial of issue (“Newton hearing”) in front of a judge alone. Their advocate should have advised them as such. This is plainly negligent.

 

In any event, there are live criminal proceedings and Bananarama are imploring the key witness (“only you can set me free”) to intervene to prevent the consequences of their admitted criminality. Bananarama are shamelessly attempting to pervert the course of justice.

 

In these circumstances, it is frankly unsurprising that, at the start of the song, Bananarama are “locked in a prison cell”. The judge was clearly right to withhold bail given the substantial grounds for believing that Bananarama would interfere with witnesses if granted bail.

 

In practical terms, Bananarama would be properly advised to spend less time imploring the complainant to help them, and seek advice on the merits of an appeal against conviction. That they haven’t is almost certainly down to savage legal aid cuts depriving them of representation.

 

My view, for what it’s worth, is that such an appeal would have merit. Because, and I have reread ALL my law books to make sure I’m right on this, there is NO criminal offence in England and Wales of “love in the first degree.” This is simply a common tabloid misconception.

 

That the CPS charged this case at all is a damning indictment on its chronic lack of resources and obsession with targets above all else. Far better, I would advise, to concede the appeal and bring new charges for the perverting the course of justice (above).

 

In conclusion, nothing about this Bananarama trial sits right with me. While we must be calm and not jump to conclusions without knowing the full facts, I am deeply troubled that something has gone badly wrong. Or that Bananarama’s legal research is not what it should be.

[ENDS]

 

Next Friday (assuming the trains are still not moving): “Was Meatloaf being incited to commit a criminal offence, and therefore well within his rights to refuse to do *that*?”

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.

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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.

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Marek Zakrocki

 

 

 

 

 

 

 

 

 

 
 

 

 

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

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

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

My piece is available for iNews here.

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

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

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

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:

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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.