Crowdfunding a rape prosecution: a quick guide to private prosecutions

Following reports of a private prosecution for rape being brought with the aid of crowdfunding, my brief explainer on private prosecutions is available in the iPaper here. (For the accompanying image of a gavel, I can only apologise.)

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

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

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

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

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

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

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

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

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

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

A reply to Lord Adonis on sentencing, prisons and judges

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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POSTSCRIPT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some thoughts on Charlie Alliston and death on the roads

I have been asked by several people what my views are on the tragic case of Charlie Alliston, the 20-year old cyclist who was this week sentenced to 18 months’ detention in a Young Offender Institution for causing the death of a pedestrian, Kim Briggs.

And to be honest, I’m not sure what I think. Or at least, I think a number of things, not all necessarily consistent and not all easily reducible to a pithy, logically argued conclusion. I recognise that this is far from ideal for a blog which pretends to self-righteous polemic and strident self-assurance as its hallmarks. But difficult criminal cases often fall between the cracks in our neatly-defined worldview, pinching our assumptions and stretching out our contemplations on our understanding of criminal justice.

And plainly this is a difficult case. A brief flick through the media coverage of this case, or, if you can bear, a hashtag search for “Alliston” on Twitter, offers but a snapshot of the ferociously contested issues arising out of his trial and sentence.

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There has been much said about the perceived “gap in the law” that meant that Alliston, as a cyclist, could not be prosecuted under the legislation covering causing death by careless or dangerous driving – such statutes requiring the use of a “mechanically-propelled vehicle”, which a bicycle is plainly not – and instead faced a rarely-used charge of doing bodily harm by “wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect”. This offence is set out in s.35 of the Offences Against the Person Act 1861, a Victorian statute presented by the media as hilariously rare and antiquated, notwithstanding that every offence of violence causing injury (short of death) is still prosecuted under it. Section 35, which admittedly is seldom used, requires only that a person be in charge of a “carriage or vehicle”, broad enough to include cyclists. In practical terms, this meant that Alliston faced a much lower maximum sentence – two years’ imprisonment – than that available for a motorist convicted of causing death by dangerous driving (14 years) or careless driving (5 years).

A further apparent anomaly is that the offence of dangerous cycling (without causing death or injury) covers only the manner of the cycling, whereas the offence of dangerous driving covers both the manner of the driving and the roadworthiness of the vehicle. In other words, if you drive a vehicle that is dangerously defective, that is caught by dangerous driving. In Alliston, much focus of the prosecution case was on the fact that his bicycle had a fixed rear hub but no front-wheel brake; it was a bike designed for the racing track rather than the road. The absence of a front-wheel brake was unlawful, but would not, under the current law, have of itself amounted to “dangerous cycling”.

It is worth remembering that Alliston did however face an alternative, more serious charge of which he was acquitted by the jury – manslaughter, which carries up to life imprisonment. Without digressing into legal complexity, it can be said that manslaughter is a difficult offence to prove in relation to road traffic collisions; hence the standard practice of charging causing death by dangerous or careless driving in most cases involving a fatality arising out of bad driving, with manslaughter reserved by the Crown Prosecution Service largely for cases where a vehicle is used as a weapon. We are in some difficulty in analysing the jury verdict given the lack of clear and accurate legal reporting on this trial, and in particular how the jury were directed to approach manslaughter (which can be charged in different ways), but some help might be gleaned from the assessment of Martin Porter QC, a campaigning cyclist who did not attend the trial but has offered his own summary of the applicable law here. Mr Porter’s conclusion is that the jury’s verdicts – not guilty of manslaughter but guilty of the lesser offence of furious or wanton etc – suggest that “[Alliston’s] conduct was not so self-evidently dangerous as to amount to manslaughter but that he had been a person having charge of a vehicle whose wilful misconduct had caused death”. The average non-lawyer may find this margin so fine as to be barely discernible, but it is by such fine borders that much criminal law is delineated. [As a point of disclosure, it should be noted that Mr Porter (about whom I have written before) has campaigned for more vigorous prosecutions of motorists, for the removal of juries from motoring cases to facilitate a higher conviction rate, and has offered a sympathetic treatment of Charlie Alliston often absent from his proclamations over motorists involved in fatalities, and so his commentary, while helpful, may perhaps not be entirely disinterested.]

Putting this all together, is a new law required? Possibly. It is right to say that Alliston’s is a rare case, hence the media excitement, and the truism that hard cases make bad law is no less true for its triteness. We should be careful not to reflexively legislate in response to high profile cases. But sometimes gaps are exposed – as I argued recently in relation to upskirting – and the law requires adjusting to move with the times. I do not know the ubiquity or otherwise of the Youtube phenomenon of “alley-catting” – driving fixed-wheel bicycles through city streets, contravening red lights and weaving in and out of traffic and pedestrians – which was found by the judge to have inspired Alliston. But no bespoke offence exists to prosecute the death or serious injury caused by bad cycling, and the introduction of corresponding offences that exist for vehicles – causing death or serious injury by dangerous driving – may be appropriate to ensure that such offences are fairly labelled and prosecuted.

As for the question of whether Alliston’s sentence – 18 months’ detention (detention being the equivalent to imprisonment for defendants aged between 18 and 20) – was too long or too short (a question I dislike for reasons I’ll come to) I suppose it depends on your viewpoint. The sentencing remarks, in which HHJ Wendy Joseph QC considers the few Court of Appeal authorities dealing with similar offending, appear comprehensive and well-reasoned. As a matter of law, based on the available information there appears little “wrong” with the sentence.

The remarks are also worth reading in full as a rebuttal to misinformation that abounds online about exactly what the evidence showed that Alliston did. There is something unedifying about the way in which Alliston has been adopted as a cause celebre by certain cycling campaigners, who have presented his case as an example of prosecutorial persecution betraying a disparity in treatment between this and cases where cyclists fall victim to drivers of motor vehicles.

For the avoidance of doubt, as Alliston was told by the judge: “It was not merely the absence of a front brake but your whole manner of riding that caused this accident”. He was not a conscientious cyclist afflicted by a momentary lapse of concentration or judgment. This was, in the judge’s words, a course of cycling amounting to “callous disregard for the safety of others”.

Alliston, a cycling enthusiast who had watched a number of “alley cat” videos on Youtube, had since 2014 deliberately chosen to ride a bicycle without a front-wheel brake, which increased the stopping distance by four times. Alliston knew the dangers, as he admitted in evidence that he would fit a front-wheel brake when weather conditions made him conscious of his own safety. He chose to ride without “for the thrill”. In January 2016, he upgraded to a bike that didn’t even have the facility to fit a front-wheel brake. He had no bell to warn other road users. He was, in the judge’s words, “an accident waiting to happen”.

When he came across Mrs Briggs on 12 February 2016, she having stepped out into the road as he travelled at 18 mph, he had no means of stopping. He shouted at her twice to “get out of the fucking way” and slowed to 14mph, but kept going, of the view that she should move. Other traffic meant that she could not. He struck her, she hit the ground and she suffered catastrophic, fatal brain injury.  A husband lost his wife. Two children lost their mother. Had Alliston’s bike been legal, he would have been able to stop.

His response was to post messages on line falsely claiming that Mrs Briggs was using her mobile phone at the time. He continued to criticise her decision to cross the road in front of him.

Transposing similar circumstances onto an offence of causing death by dangerous driving – an imperfect exercise, granted – it is possible to arrive at the conclusion that Alliston was fortunate that no equivalent offence and sentencing regime exist for cycling.

The (then) Sentencing Guidelines Council (now Sentencing Council) published Guidelines in 2008 for offences of causing death by driving. The very lowest category, into which this conduct arguably falls, provides a starting point sentence of 3 years’ imprisonment.

And this no doubt lends support to the argument for reform. It is arbitrary that if you are dangerously driving or riding a vehicle which has the capacity to and does cause death, your sentence depends on the precise vehicle being driven. To reach for a clumsy analogy, if you beat someone over the head with a weapon causing injury, your maximum sentence isn’t affected depending on whether you use a metal bar or a cricket bat.

But, finally, what this case evokes, and what it is perhaps easy to forget, is how blunt a tool the criminal law is in dealing with so many cases of deaths on the road. Alliston is, in this narrow respect at least, an easy case. His culpability was high. He was a deliberately bad road user. He may not have meant to kill, but his overall conduct is blameworthy and deserving of criminal sanction.

But many road users involved in accidents are not. Even those involved in serious, life-changing, life-ending collisions. Feeding back into the complaint of cyclists, this is the most common reason for a lack of criminal charges. Causing death alone is not enough to found a prosecution. There has to be culpability – for motorists, they have to be either careless – driving below the standard of a competent and careful driver – or dangerous – driving far below the standard of a competent and careful driver.

Almost always, causing death by dangerous driving will lead to prison. But devastation caused by careless driving – which often arises during momentary lapses in concentration or judgment behind the wheel – presents the hardest cases. The harm caused can be the greatest in the criminal spectrum. But culpability can be among the very lowest; barely criminal. A sharp intake of there but for grace of God breath.

In such cases, what do we do? For many of us, the default, culturally-ingrained response is to call for prison. But if we pause and ask what we are trying to achieve by so doing, we may get back an echo rather than an answer. Often in these awful cases, the standard ‘purposes’ of criminal sentencing won’t apply. The guilty driver may not need rehabilitation; or at least certainly not that which is available behind the prison gates. Deterrence, even if prison sentences were shown to achieve this, is difficult to impose on momentary lapses in concentration. There is little meaningful restitution that can be realistically made to the victim or their family. Public safety rarely demands the individual’s immediate incarceration.

Which leaves us only with retribution. And how on earth do you quantify it in such cases, where culpability is so low, and harm is so high, and we are often dancing on the margins?

Presently the law tries to accommodate this by compromising. And the essence of a good compromise, to channel Larry David, is that both parties are left unhappy. Short prison sentences or community orders – the usual sentence for causing death by careless driving – must sometimes feel to the bereaved almost worse than no sentence at all. But there is no way of even beginning to reflect the harm caused where life is lost without disproportionately punishing the culpability.

Nevertheless, in cases where minor culpability leads to devastating harm, it can feel as if this is all the system is trying to do; bluntly punish, in the hope that in some, intangible way it will satisfy our collective need for something to mark the pain.

As I said at the outset, I can’t offer any solution. I doubt many can. Perhaps that is the unsatisfactory pseudo-conclusion for which I grasp as I close; that any claim to draw easy fixes in the wake of difficult cases should be regarded with a measure of suspicion. There are rarely easy answers in criminal justice; no more so than in tragedies where we are desperate to find someone to blame.

Why was this “child sex gang leader” released from prison 17 years early?

A quick one to start the week. I was asked about this last night, and rather hoped that it was obvious on its face that this tale has more to it than the headlines in the local press would have the reader believe. However some of the nationals are now this morning plugging the story of the “child sex gang leader released from prison 17 years early”, so a brief explainer might help.

The story started smouldering last Wednesday at Prime Minister’s Questions, when MP for Telford, Lucy Allan, raised the case in the House of Commons. And in fairness to Ms Allan, her primary concern, entirely properly, was that the victims of serious sexual offending did not appear to have been informed of the perpetrator’s release on licence and his impending return to the local area.

But the story has quickly become, certainly in the national media, another tale of Barmy Soft Sentences, helpfully allied in The Independent to the recently-announced statistics on Attorney General’s References of Unduly Lenient Sentences (see my tweets here for more on this topic). The Shropshire Star yesterday reported, under the headline “Telford sex gang ringleader Mubarek Ali set to be freed early”,  that “Telford sex gang ringleader Mubarak Ali was today…preparing to be released just five years into a 22-year jail sentence.” A petition, naturally, has now been launched to “make Ali serve his full sentence”.

Ali, aged 29, was one a number of men convicted in 2012 of offences of child trafficking in the UK and controlling child prostitution in the Telford area. The facts, briefly, relate to the sexual exploitation of four girls aged as young as 13. When sentenced alongside his brother, Ali, then aged 29, was told by the judge that he was “cold hearted and cynical”, presented “significant danger to the public”, and had shown “no remorse or regret”. The total term reportedly handed down was 22 years.

Yet, only 5 years on, Ali is reportedly set to be released.

So what has gone on?

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Mubarek Ali

Was 22 years’ imprisonment imposed?

This is the first question to ask – what sentence was actually passed on Ali? The Mirror and The Independent both reported, with no further explanation, that Ali was “sentenced to 22 years in prison”. Which on its face, would appear to make a shocking story. However,  had the nationals bothered to read The Shropshire Star’s article before hoovering it up and spitting it out as their own scoop, they would have discovered the all-important context:

Mubarek Ali, 34, known as Max, was given 22 years, 14 years’ immediate custody and eight years on licence, for seven offences – four of controlling child prostitution and two offences of trafficking in the UK for the purpose of prostitution…Both [Ali and a co-defendant] were made the subject of lifelong Sexual Offences Prevention Orders.”

This is confirmed in the Court of Appeal judgment dismissing Ali’s appeal against conviction in 2014 (H/T James Turner Q.C.) Ali was convicted at Stafford Crown Court on 8 August 2012 of four charges of controlling child prostitution, two charges of trafficking in the UK for sexual exploitation and a charge of causing child prostitution. He was sentenced on 5 October 2012. And the key in the above paragraph is that the total sentence passed was not 22 years’ imprisonment, but what is known as an extended sentence of imprisonment. Where an offender is convicted of a serious violent or sexual offence and is assessed by the court as “dangerous” – the legal test for which is that they present a significant risk of serious harm to the public – one of the sentences available is an extended sentence. This is a sentence made of two parts – it carries the usual custodial term that would be passed, plus an extended period of licence, of up to 8 years (or 5 years in cases of non-sexual violence). The rationale is that this extended licence period gives the Probation Service a lengthier hold over the offender, to ensure he stays on the straight and narrow upon release. If he breaches the terms of his licence, he can be recalled to serve the rest of his sentence, including the licence period. So Ali’s sentence was an extended sentence which totalled 22 years, but, critically, the custodial term is 14 years, not 22 years. If Ali behaves himself, he will never serve the 8-year licence period in custody. This vital context has been entirely omitted from the national reports.

Ok, so it’s 14 years. Why is he out after only 5?

Under the Criminal Justice Act 2003, all offenders sentenced to a standard determinate sentence (e.g. 5 years’ imprisonment) are automatically released at the halfway stage of their sentence. The reason is, again, that it gives the authorities power over defendants and assists reintegration into normal life. It also, on a practical level, acts as a pressure valve to release people from our hideously overcrowded prisons. You may disagree with this approach- a lot of people do – but it is the law that applies to everyone; there’s no special treatment going on.

With extended sentences, it is more complicated. The scheme of “extended sentences” is changed every few years, tweaked by governments and Parliaments vying to show how tough they are on criminals, resulting in a morass of confusing and overlapping laws, with different release provisions applying to different offenders serving effectively the same sentences. As with sentencing in general, it’s a complete legislative mess. But the bottom line is that, at the time that Ali was sentenced in October 2012, his type of extended sentence meant that he was also eligible for automatic release at the halfway stage of his custodial term – so after 7 years. By comparison, had he been sentenced to an actual determinate 22 years’ imprisonment, he would be automatically released at the 11-year mark.

Ok, so it’s 7 years. Why is he out after 5?

As ever, the facts are regrettably not fully reported, but reading between the lines, this was a complicated investigation that took a long time to prosecute and bring to trial. The offences occurred between March 2008 and December 2009. We’ve already seen that Ali was not sentenced until October 2012. It is not clear when he was charged, but there was an initial, aborted trial in September 2011. Cases of this type take at least 6 months, and usually longer, to come to trial.

Why does this matter? Because, buried in the Shropshire Star’s report (and at the end of the Court of Appeal judgment), is a hint that Ali was remanded in custody prior to his trial. And time spent by a defendant in custody awaiting trial counts towards the overall sentence. (This is now automatic; in 2012, the judge would have had to have made an order that the time on remand counted towards sentence, but there appears no reason in this case why the judge would not have done so.) And so, putting our figures together, if there was over a year between the aborted trial in 2011 and the sentence in 2012, and a period of between 6 months and a year between being charged and the first trial in 2011, and Ali was remanded for that entire period, that would give us the roughly 2-years to count towards the 7 year custodial term and bring us down, in effect, to 5 years post-sentence.

So what next?

For those upset that dangerous sex offenders can be released automatically halfway into their sentence, it’s worth noting that the law has since 2012 changed significantly. If Ali were being sentenced to an extended sentence today, he would not be automatically released at any stage. Instead, once he had served two thirds of the custodial term – i.e. just short of 10 years – his case would be referred to the Parole Board, who would have to be satisfied that it was no longer necessary for the protection of the public that he be confined before they directed his release.

For the media, a salutary, but no doubt entirely disregarded, lesson to verify the context of legal stories, either with the lawyers employed in your offices to check these things, or even by approaching some of us grubby legal hacks lurking in the social media gutter. If a story on sentencing appears too ludicrous to be true, it almost certainly is.

As a postscript, the Ministry of Justice has thus far refused to comment. I hope this changes. When misleading reports about criminal justice are bandied about as fact, and when 17,500 members of the public believe that petitions can and should influence independent judicial processes, it should not be left to bloggers to provide a correction.