I had the pleasure of a spot of lunch with Barney Thompson, legal correspondent at the Financial Times, for the “Lunch with the FT” feature in this weekend’s edition. Given the profile of interviewee normally invited (recent guests include Woody Harrelson, Anthony Scaramucci and Jacinda Ardern), this is an honour I most certainly don’t deserve, but the prospect of a free lunch trumped any sense of guilt or propriety.
The feature can be found here.
A homeless man who picked up a lost race number and “completed” the London Marathon has been jailed for 16 weeks.
Yesterday at Uxbridge magistrates’ court, Stanislaw Skupian (38) was sentenced by magistrates having pleaded guilty at an earlier hearing on 18 May to fraud, after he picked up a race card number dropped by runner Jake Halliday at the 23-mile mark and illicitly joined the race himself. He crossed the finish line and celebrated with the medal intended for Mr Halliday, who found himself removed from the race 300 metres from the Finish line when marshals spotted that he was not wearing a race number.
The Chair of the bench passing sentence told Skupian, a homeless father-of-one who had recently suffered a temporary breakdown in his mental health, “The offences are so serious [that] only a prison sentence will suffice”. 13 weeks’ imprisonment was passed, with three weeks’ imprisonment imposed consecutively for unrelated matters of theft.
The Chief Executive of the London Marathon, Nick Bitel, reportedly said that “justice has been done”. His apparent pleasure with the sentence was not matched by many people on social media, who expressed consternation at a mentally-unwell homeless man being squeezed into our bursting prisons for a non-violent offence.
So what the Dickens has gone on?
The offences
Stanislaw Skupian was charged with fraud by false representation, contrary to sections 1 and 2 of the Fraud Act 2006. The “false representation” being, presumably, the implied representation that he was the rightful owner of Mr Halliday’s race number and was entitled to complete the race and claim the finishers’ medal. This offence carries a maximum sentence of 10 years’ imprisonment in the Crown Court, or six months’ imprisonment in the magistrates’ court. He was sentenced to 13 weeks’ imprisonment.
He was also charged with three unrelated offences of theft. He was arrested at the multi-faith prayer room at Heathrow Airport, where he was found with items including a primary school worker’s identity card and a pink diary holding overtime hours worked by airline staff. It was said that Skupian viewed the airport as a temporary home and had picked up items discarded. This would amount to theft (referred to in court as “theft by finding”) under s.1 of the Theft Act 1968. He received three weeks’ imprisonment for these offences, to run consecutively to the 13 weeks imposed on the fraud (it is unclear whether this was one week consecutive for each of the three theft charges, or three weeks on each directed to run concurrently to each other, or some other mad configuration dreamed up by the magistrates).
He was further made subject to a Criminal Behaviour Order, which is the new replacement for the old-fashioned ASBO. These can be imposed where the court is satisfied that a defendant has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person, and where a Criminal Behaviour Order will help in preventing the defendant from acting in that way. In this case, the court deemed that banning the defendant from Heathrow Airport for three years, unless he has a pre-booked flight, was an appropriate use of that power.
The Sentencing Guidelines
To look at what sentence we might expect, we have to look at the Sentencing Guidelines, which are published by the Sentencing Council and which courts are required by law to follow. So let’s look at the Definitive Guideline for Fraud, Bribery and Money Laundering Offences. The seriousness of an offence is judged by considering the “culpability” of the offender and the “harm” caused by the offence.
On the Guideline for straightforward fraud, the first step is to assess culpability by reference to the below factors:
There are plainly no elements of “High culpability” in this case. It would appear, in the absence of any evidence to the contrary, that this was an opportunistic, one-off offence with very little planning, which points towards Lesser culpability.
Now we turn to the assessment of harm:
For fraud, you take as your starting point the financial loss to the victim. Here, it is very low indeed. The cost of entering the London Marathon ballot, at £39, is probably the closest financial value you can attach to this unusual offence (the value of the medal not being easily assessed due to it not being something purchasable on the open market). This puts us in the lowest category, Category 5.
But then we have to look at the impact upon the victim, to see whether it warrants the sentence being moved upwards. This is a slightly unusual case, because although (I expect) the charge would have been drafted with London Marathon as the nominal victim, the person most directly affected is arguably Jake Halliday. He was stopped 300 metres from the finishing line and told that he was not allowed to cross due to his number having fallen off. He had raised £49,000 for a charity, Bloodwise, and was prevented from completing the race, having run the best part of 26 miles, in the cruellest of circumstances. What was (one might expect) a lifetime ambition was snatched away. That no doubt had a considerable detrimental effect on him.
However. Can it really be suggested that Skupian was responsible for depriving Mr Halliday of his moment of glory? It was said in court (and seemingly not disputed) that he spied the discarded race identifier on the floor and saw an opportunity. He did not steal or otherwise remove the number from Mr Halliday. It does not appear that he watched it fall and swooped in. If, as the court apparently accepted, he had simply seen it on the ground, was the damage not already done? Perhaps he could have handed the card to an official, but it is unclear how it could have been reunited with Mr Halliday in order for him to have been able to complete the race. The London Marathon Final Instructions to runners emphasises the importance of taking care of the running number – “Duplicate numbers cannot be issued under any circumstances”. It is also stated that anybody taking part without a number will be removed from the race by marshals “before you cross the Finish line”. Once that number had fallen, it would appear (and I’ll be happily corrected if I’m mistaken) that the game was over for Jake Halliday.
Against this backdrop, it might realistically be argued that while Skupian exploited Mr Halliday’s misfortune, his criminal behaviour did not cause it. The anger and humiliation felt by Mr Halliday when he learned that somebody had claimed his number and completed the race in his stead may well be significant, but is it so great as to move the harm out of “Lesser impact”? I suppose it might. Just.
My assessment is that for these reasons, this case probably falls somewhere between, categories 4C and 5C:
We can see that the latter provides a starting point of a ‘Band B fine’, which equates to around 100% of somebody’s weekly income. The category range is a discharge – a slap on the wrist – up to a medium level community order. If the harm caused is deemed serious enough to lift it up to the next category, the starting point is a medium level community order. Still the category range does not extend to custody. In order to arrive at a category where a custodial term is available, the court would have to have assessed culpability as “B”. I find it tricky to see how this was done.
We then look at aggravating and mitigating factors:
The defendant had a previous conviction for attempted theft. That was the only matter mentioned in court. So while it is a similar type of offence, this is hardly the kind of record which would seriously aggravate a defendant’s position to make the difference between custody and not-custody. No other aggravating features listed are relevant.
In mitigation, the court heard that the defendant has lived in the UK for 11 years. He suffered a neck injury in a serious car crash last year, forcing him to take sick leave from his catering job. His marriage broke down and he lost his home. Shortly before the race, he had suffered a “short, temporary breakdown in his mental state”. It was also submitted that he had committed the offence out of excitement, without fully appreciating that what he was doing was wrong.
Putting all this together, I’d say there’s more to mitigate his position than to aggravate it. This would mean moving below the starting point on the Guidelines.
We then have the issue of credit for guilty plea. He admitted the offence at the very first hearing, and so is entitled to one third off his sentence. This means that the magistrates must have taken a starting point of 20 weeks in order to arrive at a final sentence of 13 weeks for this offence.
[The thefts we shall put to one side as we do not know their value. What we can infer, however, is that they were considered significantly less serious than the fraud.]
Conclusion
Based on what we know, this appears to be a very harsh sentence. While this is not the type of fraud envisaged by those who drafted the Guidelines, it is difficult to see how a straightforward assessment of culpability and harm could lead a court to a starting point of 20 weeks for this single offence. The defendant has an automatic right to appeal his sentence to the Crown Court. I would not be surprised if he exercised it.
There are unknowns, of course. There would have been a Pre-Sentence Report prepared by the Probation Service, whose views would have informed the court’s. It may be that they were unable to offer any alternative to custody, although experience would dictate that a homeless man with a limited criminal record and mental health problems is the kind of person the Probation Service try to persuade the courts to let them help. It would be a sad day indeed if all that our justice system could offer to improve this man were two pointless months of incarceration.
I have written about magistrates before, including in my book, and one of my criticisms is that sometimes a sense of perspective is lacking when these non-legally qualified volunteers are sentencing offenders. Just because a power of imprisonment exists does not mean that it has to be used. This sentence, based on what we know, appears to be one such example. That it can be said that the offence was so serious that only a prison sentence can suffice is, with respect to the sentencing court, perverse. Courts often find ways to avoid immediate custody in cases which are far more serious, involving offenders with significantly worse records.
And I’ll seize on those words – “based on what we know” – to pirouette into a final flourish on my soapbox, if I may:
This case had received national media attention when Mr Skupian made his first appearance at court and pleaded guilty. It was plain to the court administration and to the magistrates that the outcome of this case would be widely reported. Yet still the magistrates did not see fit to publish written sentencing remarks explaining their decision.
This is a drum I have unapologetically beaten for some considerable time. Because while good court reporters should accurately reflect the full reasons given for a sentence passed, inevitably there will be occasions where something is missed in the hustle of a chaotic magistrates’ court list. Submissions and decisions as to where the case falls in the Sentencing Guidelines, for example, hold little interest to the average reader and may understandably not make it into the final copy, but to lawyers analysing and explaining the decision these can be critical.
Magistrates, judges and lawyers cannot complain that their remarks or decisions have been unfairly portrayed if they don’t bother to do the basics. It would have taken an extra ten minutes, one supposes, for the remarks to have been committed to paper, copied and distributed before being read out, and then everybody would be able to see how and why the decision was reached.
As it is, we are once again left groping in the dark, or at best the dusk, in trying to understand how our criminal justice system is – or in this case is apparently not – working.
I am delighted to host a guest blog by James Chalmers, Regius Professor of Law at the University of Glasgow, and Ryan Whelan, an Associate at Gibson, Dunn and Crutcher LLP.
Readers may be aware of the events of recent days in relation to the campaign by Gina Martin to create a specific criminal offence to address “upskirting” (about which I wrote here). Last Friday saw the second reading in the House of Commons of the Private Member’s Bill introduced by Wera Hobhouse MP, and an objection to the Bill by Sir Christopher Chope.
The Spectator published a comment piece by Melanie McDonagh in which she wrote in support of Sir Christopher and against the merits of the proposed law. Here, two partners in Gina Martin’s campaign respond to that article.
Upskirting is on the political agenda because of the tireless campaigning of Gina Martin, a 26 year old woman who was upskirted at the British Summer Time Festival last July. On Friday, to the shock of Parliament, Sir Christopher Chope blocked Wera Hobhouse’s Private Member’s Bill in support of Gina’s campaign.
After months of work by Gina’s campaign, Wera’s Voyeurism (Offences) Bill had earlier in the day been supported by the Government. With the Government on board it was widely expected that it would pass through the House and progress to committee stage, where details would be examined and amendments possibly made.
Sir Christopher put a spanner in the works by objecting to the Bill’s progress, a decision met with calls of “shame” from his Conservative colleagues. The disappointment and anger across the House – particularly among the Tory benches – was clear to see (and has been underlined by numerous subsequent tweets, and the Spectator’s own leak of Whatsapp messages between Tory MPs).
While the optics are poor, it is not fair to characterise Sir Christopher’s objection as being a defence of perverts. As he confirmed in conversation outside the chamber, Sir Christopher had not looked at the detail of the Bill and was not even familiar with upskirting. Sir Christopher’s objection is neither personal nor related to the Bill’s content. He objected because he feels that Private Members’ Bills should not be passed without debate.
Given the basis for this objection, a point of principle on the scrutiny of Bills in Parliament, we were perplexed to read Melanie McDonagh’s Spectator article “In defence of Christopher Chope’s ‘upskirting’ objection”. McDonagh’s article (which is the most read on the Spectator website as at the time of writing) does Sir Christopher a disservice by associating him with a view that is utterly confused about both the current law and the proposed reform.
On the current law McDonagh states that “bad behaviour of this kind” – her euphemism for upskirting – is “dealt with under the offence of outraging public decency, as voyeurism”. This is legally illiterate. Outraging public decency and voyeurism are two entirely separate offences. To conflate the two is to miss the point.
Upskirting often takes place in populated public places. Outraging public decency, a common law offence which requires two or more people (other than the defendant) to be capable of seeing the act, is therefore available to prosecute most upskirting. But it is neither an adequate nor appropriate solution.
First, the offence does not provide full protection to women. If the prosecution cannot prove that two persons other than the defendant could have seen him take the “upskirt” photo, the offence cannot be used. So, for example, that if upskirting takes place when a woman is on a street or in another public place alone, no prosecution is possible. That is not acceptable.
Second, the offence does not reflect the wrongdoing. Upskirting is a sexual offence with a victim. The public are rightly outraged by upskirting but this outrage is secondary to the harm it causes. A charge of outraging public decency fails to acknowledge the harm to the victim, and fails also to recognise upskirters for what they are – sexual offenders.
The more appropriate offence of voyeurism is, in contrast, not generally available to prosecute upskirters. The reason: to prosecute for voyeurism the upskirting victim needs to have been observed doing a “private act”, which is not normally the case. This is why the Scottish Parliament modelled the Scottish offence of voyeurism on the English one but added extra provisions to that offence in 2010 to ensure it would cover upskirting.
As to the proposed reform as contained in the Bill, McDonagh says in her article that dealing with upskirting as voyeurism “sounds about right”. It might therefore have been expected that McDonagh would welcome the bill, that being not only the effect but the title. Not so. Instead, for reasons that are hard to fathom, McDonagh considers the bill to be a “preposterous exercise” that has been heroically “seen off” by Sir Christopher. You couldn’t make it up: McDonagh thinks (without realising it) that the bill is “about right” but characterises it as “preposterous”.
Continuing the theme in her views on sentencing, McDonagh inexplicably thinks upskirting does not “warrant” an individual being put on the sex offenders register (really?!). Consistent with her suggestion that upskirting is a minor irritation rather than the violation that it is, McDonagh also takes exception to the proposed two year maximum sentence, describing it as “excessive”. These points, she seems to suggest – with no basis – may have factored into Sir Christopher’s thinking. But we know that not to be the case (from Sir Christopher) and her points are again ill-informed: the bill makes no provision for sex offender registration (albeit that the Government had proposed to make this amendment at a later stage) and while voyeurism carries a maximum two year sentence, an offender prosecuted for outraging public decency could theoretically face a life sentence.
In defending Sir Christopher, McDonagh inexplicably seeks to ride two horses: insinuating on the one hand that upskirting is too trivial to warrant the attention of the criminal law, while on the other suggesting that prosecutors should target it with an offence allowing for life imprisonment. Which is it?
The Bill is on no view the “preoposterous waste of time” that McDonagh alleges. It is an unobjectionable, necessary and proportionate response to a problem that is inadequately and inappropriately addressed in the current law. Those who have engaged on the detail and know the relevant law agree: upskirting is a gap in the law and that gap needs to be filled with legislation that will allow upskirters to be prosecuted appropriately in all circumstances.
Any proposal to modify the criminal law requires careful scrutiny. While we think that Sir Christopher should have allowed the Bill to progress and receive that further scrutiny in due course, we understand his position. McDonagh, however, in seeking to defend that decision, does Sir Christopher a disservice by associating him with a series of ill-informed claims that he has never himself made.
—
James Chalmers is Regius Professor of Law at the University of Glasgow.
Ryan Whelan is an Associate at Gibson, Dunn & Crutcher LLP. Mr. Whelan has been advising Gina Martin on her campaign (pro bono) since August 2017.
Today marked a milestone in the magnificent campaign by Gina Martin to persuade Parliament to legislate against “upskirting”, the intrusive practice of taking photographs of a person under clothing (usually their skirt) without permission. A Private Member’s Bill to create a specific criminal offence of upskirting was introduced by Wera Hobhouse MP, before being blocked by Sir Christopher Chope, and aimed to eliminate an existing loophole in the law which means that some instances of this behaviour cannot be prosecuted. This, it seems, was not welcomed by the man who brands himself ‘Mr Loophole’, solicitor Nick Freeman. Mr Freeman, channelling his best Aunt Lydia, tweeted:
Whilst this is totally unacceptable conduct, if women
assumed some responsibility for their attire, they would not be in jeopardy. Prosecutions will only utilise valuable police and CPS
resources that should be prioritised elsewhere. #upskirting https://t.co/dkUGnIVCpV— Nick Freeman (@TheMrLoophole) June 15, 2018
The response was critical, to put it mildly. And I confess to being one to initially reproach Mr Freeman for his comment. However upon reflection, it might be that he has hit on something. After all, there are ways in which women – indeed all victims of criminal offences – might better help themselves, which are well-known to us legal beagles, but perhaps not to the general public. So in the spirit of public service, herewith some tips on how, by taking responsibility, we might all keep ourselves a bit safer:
This post was first published in the i paper, here.
It can now be reported that Tommy Robinson, the former leader of the English Defence League, convicted fraudster, sometime-football hooligan and self-reinvented free speech advocate, was on Friday 25 May 2018 imprisoned for 13 months for contempt of court after livestreaming a broadcast, including footage of participants in a criminal trial, outside Leeds Crown Court.
Some people will have seen reference to this on social media; others may have had the plight of Stephen Yaxley-Lennon – to use his real name – drawn to their attention by the hordes of protestors storming London over the May bank holiday weekend. But there has not, until today, been mainstream coverage of the case due to a reporting restriction – what is known as a “postponement order” – that forbade publication of these facts until after the conclusion of the trial upon which he was purporting to “report”.
While, as we’ll see below, the reasons for the postponement order appear sound, the consequence of preventing fair and accurate reporting by responsible journalists was that there was no factual counterpoint to the selective and inaccurate details of Yaxley-Lennon’s situation that were inevitably flooded through social media by his knuckle-dragging cheerleaders, not least his racists-in-arms across the pond. Thus sprung a (largely unchallenged and unchallengeable) narrative of Tommy The Brave being arrested outside court for no reason and imprisoned in secret by the deep state, culminating in petitions for his release and a march on Downing Street.
On the day itself, I attempted a post aimed at shining a little light on what might have happened (having no knowledge of the proceedings myself), but having been alerted by a reporter to the terms of the reporting restrictions, took the post down out of an abundance of caution. Now, however, with the restrictions relaxed we can try to restore a little order.
The full judgment is still awaited (expected imminently). For now let’s take this story in pieces based on what we know. I shall update the blogpost regularly as further information arrives.
1. Why was Tommy Robinson arrested?
Robinson was arrested outside Leeds Crown Court having video recorded a number of men – including defendants involved in a live trial – entering the court building, and livestreaming the footage on Facebook in what he claimed was an attempt at legitimate court reporting. West Yorkshire police, having been alerted to his activities, arrested Lennon at the scene. The initial reports suggested that he was arrested for a suspected breach of the peace, but what is now clear from the facts published today is that his actions in broadcasting details about the trial were in breach of reporting restrictions.
2. What are reporting restrictions?
The starting point of our criminal justice system is that justice must be seen to be done. However the law provides for exceptions to open justice, known generally as “reporting restrictions”. Reporting restrictions apply in a wide range of situations – from automatic restrictions preventing the identification of a complainant in a sexual allegation, to restrictions preventing reporting of Youth Court proceedings, to discretionary restrictions protecting the identity of child witnesses in the adult courts. Further details, if you are interested, can be found here.
One breed of restriction order is something called a “postponement order”, under section 4(2) of the Contempt of Court Act 1981. Postponement orders are not unusual, particularly where there are a series of linked trials – for example, where allegations of drug networks involving 30 defendants are concerned, there will be several trials (it not being physically possible to accommodate 30 defendants in a single courtroom). To avoid jurors having their deliberations contaminated by what they might read or hear about the earlier linked trials, reporting of all of them is often postponed until the end. Where there is a separate-but-related issue, such as a contempt of court involving a third party, this can also be the subject of a section 4(2) order. The test is:
This is what we had here. The judge had imposed a postponement order preventing the media from reporting on the ongoing trial until all linked trials had concluded.
Breaching a reporting restriction amounts to a contempt of court. Which is what Yaxley-Lennon admitted doing.
3. But I heard Tommy Robinson was arrested for a breach of the peace. What is a breach of the peace? How is a breach of the peace caused by someone simply filming?
Police officers have common law powers (i.e. powers not set out in statute) to arrest somebody where a breach of the peace is committed or where the officer reasonably believes it will be committed in the immediate future. As to what constitutes a breach of the peace, it is defined in case law as follows: “there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” (R v Howell [1982] Q.B. 416) As we can see, it’s a fairly broad definition.
The courts have confirmed that it covers situations where, for example, there are reasonable grounds to fear that a demonstrator or protestor is likely to incite violence, even violence against themselves. This appears to be applicable to the present case. Robinson provocatively filming defendants and streaming on Facebook for the edification of his cult, is the kind of thing which could, it might be argued, lead to a breach of the peace.
Once a person has been arrested for breaching the peace, the police have the power to detain that person where there is a real apprehension that if released they will renew the breach of the peace within a short time, and where the police believe that further detention is necessary to prevent this. Given Robinson’s history of interfering with criminal trials and his defiance towards court orders, one can see why the police may have genuinely feared that he would have simply returned to court if not detained. The power of detention is time-limited – the detainee must be released within 24 hours (if not charged), or for serious (indictable) offences, detention may be authorised up to 96 hours.
It is perfectly common for a person to be arrested on suspicion of one offence, and then ultimately charged or dealt with for another. In this case, it appears that Yaxley-Lennon was arrested and detained for causing or threatening a breach of the peace, and that the court, upon being made aware of his activities, directed that he be brought to court to be dealt with for contempt of court. Even if his original arrest and detention had been unlawful (and there is nothing at all to suggest that it was), this would have absolutely no bearing on the contempt proceedings. The “breach of the peace” angle is a red herring.
5. So back up a step – what exactly is contempt of court?
Contempt of court is a broad, catch-all term for various offences against the administration of justice. The law(s) of contempt are designed to safeguard the fairness of legal proceedings and to maintain the authority and dignity of the court. Some contempts are set out in statute, including the aptly-named Contempt of Court Act 1981. This sets out what is referred to as “strict liability contempt” – the rule that it is a contempt to publish any matter which creates a substantial risk of serious prejudice or impediment to the course of justice in legal proceedings, irrespective of the intention behind the publication. There is a defence available to publishers (which includes newspapers, TV and social media users) who can show they were providing “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”, thus giving some latitude to the press and ensuring that the media do not shy away from accurate, factual reporting of criminal proceedings.
Other contempts are more eclectic, such as the prohibition on taking photographs or moving images inside a court building (or even drawing a picture – court sketch artists have to draw outside the court from memory – section 41 of the Criminal Justice Act 1925).
There is also a common law offence of “criminal contempt”, which is defined by the courts as “conduct that denotes wilful defiance of, or disrespect towards the court, or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself.” This might include refusing to answer questions in court, physically disrupting court proceedings, interfering with witnesses or jurors (where not charged as a distinct offence of witness intimidation or perverting the course of justice) or defying a judge’s order.
Which brings us back to Mr Yaxley-Lennon, and a sunny day in May last year at Canterbury Crown Court.
6. What happened at Canterbury Crown Court?
On 8 May 2017, during the course of a rape trial at Canterbury Crown Court involving four (Asian) defendants, Yaxley-Lennon attended court and attempted to film the defendants for an online broadcast entitled “Tommy Robinson in Canterbury exposing Muslim child rapists”. He was thwarted by the judge making arrangements for the defendants and jurors to leave court through alternative routes, and so settled for filming himself on camera, both on the court steps and inside the court building, preaching to his online followers about “Muslim paedophiles”. He was interrupted and told by court staff that recording was prohibited (section 41 of the Criminal Justice Act 1925, as we’ve discussed above), but continued to record, insisting that he had been told by a different court that he was entitled to film the defendants (notwithstanding that court buildings are plastered with signs reminding people not to do this). His video diatribe – in which he said that “the paedophiles are hiding”, that the police had asked him not to “expose” them as paedophiles (presumably on the basis that they were, at that time, defendants in a live trial) but that “we will”, and that he would be “going round to their house” to catch the defendants on camera – thus continued. The judge hearing the rape trial was made aware, and he was brought before court to be dealt with for contempt of court.
The judge, HHJ Norton, dealt with Yaxley-Lennon on 22 May 2017. She found that he was in contempt by having filmed inside the court building, contrary to section 41, but was also in common law contempt by having continued to film having been told to stop by the court staff. The judge considered the content of his broadcast, and the real risk of his actions derailing the trial, and committed him to prison for 3 months, suspended for a period of 18 months. In practical terms, a suspended sentence means that the prison sentence (3 months) hangs over you for the operational period (18 months). If you remain offence-free and comply with any requirements the court makes, you will never have to serve your sentence. If you reoffend, the presumption in law is that you will serve that prison sentence, additional to whatever sentence you receive for the new offence.
7. So what you’re saying is that Tommy Robinson was given a suspended sentence simply for trying to report on a case? Free speech is truly dead.
No, ye of little brain. He was found to be in contempt of court and given a suspended sentence because his actions put a serious criminal trial in jeopardy. Running around a court building shouting “paedophile” at defendants during a live trial, or live-streaming defendants and members of the public – potentially including jurors – entering and exiting a court building against a tub thumping narration of “Muslim paedophile gangs”, is hardly conducive to ensuring a fair trial. And if there can’t be a fair trial, nobody gets justice. Not the accused, not the complainants, not the public. This is not theoretical – serious criminal trials have nearly collapsed because of the actions of people like Yaxley-Lennon.
We have a quaint tradition in England and Wales that trial by media should be avoided, and that trial on evidence heard in court is the fairest way to determine a person’s guilt. Therefore while criminal courts are open to the public, and it is absolutely fine to report soberly and accurately about ongoing criminal trials, anything which might prejudice or intimidate the jury is strictly forbidden. And this makes sense. It would be a nonsense, for example, to have strict laws preventing individuals from walking up to a juror to say, “The defendant you are trying is plainly a dirty paedophile”, but to allow broadcasters or tabloid columnists to trumpet that message to jurors through the media. Self-defined “free-speech advocates” – particularly a number on the other side of the Atlantic – have difficulty understanding this, so it’s worth pasting in full what HHJ Norton said:
“This contempt hearing is not about free speech. This is not about freedom of the press. This is not about legitimate journalism; this is not about political correctness; this is not about whether one political viewpoint is right or another. It is about justice, and it is about ensuring that a trial can be carried out justly and fairly. It is about ensuring that a jury are not in any way inhibited from carrying out their important function. It is about being innocent until proven guilty. It is not about people prejudging a situation and going round to that court and publishing material, whether in print or online, referring to defendants as “Muslim paedophile rapists”. A legitimate journalist would not be able to do that and under the strict liability rule there would be no defence to publication in those terms. It is pejorative language which prejudges the case, and it is language and reporting – if reporting indeed is what it is – that could have had the effect of substantially derailing the trial. As I have already indicated, because of what I knew was going on I had to take avoiding action to make sure that the integrity of this trial was preserved, that justice was preserved and that the trial could continue to completion without people being intimidated into reaching conclusions about it, or into being affected by “irresponsible and inaccurate reporting”. If something of the nature of that which you put out on social media had been put into the mainstream press I would have been faced with applications from the defence advocates concerned, I have no doubt, to either say something specific to the jury, or worse, to abandon the trial and to start again. That is the kind of thing that actions such as these can and do have, and that is why you have been dealt with in the way in which you have and why I am dealing with this case with the seriousness which I am.”
8. How is all that relevant to what took place on 25 May 2018?
It is relevant because, when passing the suspended sentence, HHJ Norton gave some fairly clear warnings to Yaxley-Lennon:
“[Y]ou should be under no illusions that if you commit any further offence of any kind, and that would include, I would have thought, a further contempt of court by similar actions, then that sentence of three months would be activated, and that would be on top of anything else that you were given by any other court.
In short, Mr Yaxley-Lennon, turn up at another court, refer to people as “Muslim paedophiles, Muslim rapists” and so and so forth while trials are ongoing and before there has been a finding by a jury that that is what they are, and you will find yourself inside. Do you understand?”
And what did Yaxley-Lennon go and do?
9. What did he go and do?
As we know now, he went and committed a contempt of court by reporting on court proceedings. He did so in a way that expressed his “views” on the guilt or otherwise of the defendants, creating a substantial risk of serious prejudice to the proceedings by jurors seeing or becoming aware of his ill-informed ramblings. If this wasn’t enough, he was also in breach of reporting restrictions which he accepted he knew about. He was therefore, it seems, in contempt twice over. This could have led to an application by the defence advocates to discharge the jury and start afresh, potentially meaning vulnerable complainants having to go through the trauma of a trial all over again, or even an application to “stay” (bring to an end) the proceedings altogether.
Importantly, Yaxley-Lennon admitted that he was in contempt of court.
And he was committed to prison for 10 months, with the suspended sentence of 3 months activated and directed to run consecutively. Exactly as he’d been warned.
10. He was tried in secret on the day he was arrested, with no lawyers and the media were banned from reporting what had happened. This is Kafka on steroids, surely?
Contempt proceedings do not attract a jury trial. The procedure for a court dealing with a criminal contempt is set out in the Criminal Procedure Rules. These allow for a “summary procedure”, where the court, having made its own enquiries and offered a contemnor (for that is the official term) the chance to seek legal advice, can deal with the offender straight away. The Crown Court can commit a contemnor to prison for up to two years. There is nothing unusual in him being dealt with on the day of the contempt. Courts are required to deal with contempts as swiftly as possible. There is no suggestion of any prejudice; Yaxley-Lennon was legally represented by an experienced barrister and would have received full legal advice.
He also wasn’t tried in secret; his contempt hearing was heard in public, with members of the press present. However, the judge imposed temporary reporting restrictions (under section 4(2) of the Contempt of Court Act 1981 again), postponing reporting of the details of Lennon’s contempt until the trial, and the subsequent related trial, had concluded. This, you may think, is for obvious reasons. A media circus and orchestrated attempt at martyrdom by Lennon and his followers – as was indeed attempted when the restrictions were defied by far-right blogs and foreign news outlets – would present exactly the sort of distraction that threatened to disrupt the very serious criminal proceedings that the judge was desperately seeking to keep on the rails.
In the event, the repeated breaches of the order by foreign news outlets and social media users meant that the judge’s intentions were thwarted. An application to discharge the reporting restriction was made on 29 May 2018 and the judge agreed that, in light of what had happened over the Bank Holiday weekend, restrictions should be lifted to allow publication of the facts.
It is also worth noting that there is a Practice Direction dealing with situations where defendants are imprisoned for contempt of court. This requires that full judgments be published online and handed to the media where a person is committed to prison for contempt. As we can expect imminently.
As for the suggestion (by UKIP among others) that nobody has ever before been found in contempt of court and a postponement order made preventing the media from immediately reporting it, a handy example can be found on 22 May 2017, where one Stephen Yaxley-Lennon was found to be in contempt at Canterbury, and a postponement order was made restricting publication until the end of the substantive trial.
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UPDATE:
In light of the (frankly ingenious) conspiracy theories that are now doing the rounds after the rather mundane truth above was revealed, some bonus Q&As are required:
11. I heard that Tommy Robinson was denied his own lawyer, and had to have a duty lawyer who was in fact a PROSECUTION lawyer and who didn’t properly defend him.
The barrister previously instructed by Yaxley-Lennon has confirmed that she was not present at court for these proceedings. She is understandably declining to comment further unless or until authorised to do so. But in any case, Yaxley-Lennon was defended by an experienced member of the independent criminal Bar. He may have been offered the duty solicitor at the police station if his chosen solicitor was not available, but in the Crown Court hearing he was advised and represented by a specialist criminal barrister with over 16 years of experience of cases including murder, people-trafficking, serious violence and serious sexual offences. As an independent barrister, this professional prosecutes as well as defends (most of us do), but his website profile in fact emphasises his experience as a defence advocate. In other words, Yaxley-Lennon had a top-notch defence barrister fighting his corner.
12. No trial has ever taken place on the same day as a suspect’s arrest, oh FAKE LAWYER. This was special treatment dished out to a man who is a thorn in the side of the establishment. What do you say about that?
If we were talking about jury trials, I’d agree with you. But Yaxley-Lennon was not “tried”. The contempt proceedings were held on the same day, as is entirely standard (see details of the summary procedure for contempt above), and he admitted that he was in contempt of court. There is no special treatment here whatsoever. Anyone, infamous far-right totem or otherwise, would have been subject to the exact same process for contempt in breaching a reporting restriction. Not everyone would have been sent straight to prison; but then not everyone has a suspended sentence hanging over them for a near-identical offence.
13. I’ve seen a photo of the judge who sentenced Tommy watching his arrest from inside the court building. This judge was biased.
Even supposing the photograph shows what it is said to show, this is entirely irrelevant. If, as has happened in one of my cases, a member of the public starts shouting out at a judge mid-proceedings, the judge may direct the arrest of that person, and deal with them immediately for the contempt. Witnessing the arrest of an individual does not preclude a judge from dealing with that individual in these circumstances. This is, again, a complaint devoid of argument.
14. But the BBC reported on the same trial that Tommy did, and they’re not in prison. Why not?
Because any BBC reports, which as far as I have seen relate entirely to the outset of proceedings before the judge made the reporting restriction, were not in contempt of court. They were fair and accurate, rather than propagandist rants seeking to disseminate information that a judge had specifically ordered should not be in the public domain (such as details of charges against the defendants that had been dropped), and were not in breach of reporting restrictions.
15. Do you have to be so snarky in your lawsplaining? Aren’t you just turning off people who you need to convince?
This is a fair question. Ordinarily, I do my best in these posts to embrace rather than alienate in an effort to explain or persuade. But cases like this, involving co-ordinated transnational campaigns disseminating blatant falsehoods about our legal system and gaslighting the public are, I feel, different. And call for a different approach. As I see it, there are two types of people currently propagating the Free Tommy Robinson myths: far-right sympathisers deliberately sowing discord and falsehoods, whose concern for due process is a cipher for hero-worship; and good people confused and worried about what they’ve heard about the “threat to free speech” posed by the overbearing English and Welsh justice system. The first category are never going to be swayed by facts or rational argument. That is plain from their every interaction on social media, and their every appearance on Fox News. Their motives are clear, their integrity irretrievable and they are not only beyond reach but, frankly, not worth the effort. The second group will, I hope, realise from this explanation that the toga party they have wandered into is in fact a Klan meeting, and will understand the urgency and frustration that underpins the argument.
However the reality is that most people out in the world are probably paying little attention to the ballad of St Tommy, but may form partial views based on what snippets they read and hear. I want this – the truth – to be that snippet. If the key to turning up the online volume is a snappy tone and uncompromising beatdown of idiots and liars, then that’s the game I’ll play.
I am informed that one of the liberties you can take as a writer with a (undeserved and long-suffering) loyal following is to indulge in a little creative sleight of hand. One might, for example, in an effort to gain wider attention for a mundane-sounding issue, attach a ludicrous and unrelated clickbait headline to draw in the unwary – possibly including a shareable photo – with quiet confidence that you’ll be forgiven once the Greater Good of your evil plan becomes apparent.
Let’s put that theory to the test.
Because, and this will surprise you, there is no kitten conducting criminal trials (or at least not winning them). The cat in the photo is not a registered practitioner. Instead, now that you’re three paragraphs in, we’re going to talk about the Ministry of Justice Single Department Plan.
Stay with me – we’ll be quick. Anger is conducive to brevity. This is the document published today setting out the MoJ’s “priorities” for the year ahead. The four key objectives are identified as:
- Provide a prison and probation service that reforms offenders
- Deliver a modern courts and justice system
- Promote a global Britain and the rule of law
- Transform the department
Of themselves, these objectives are inoffensive enough. Indeed, what the plan says about prisons has much to recommend it, particularly the emphasis on tackling reoffending through a focus on education and employment opportunities for prisoners. We’ll overlook for now whether bold solutions to improving prisons such as “preventing and disrupting serious and organised crime in prisons” are really solutions as much as vaguely-defined objectives. And whether any strategy to “ensure a sustainable prison population” can sensibly say nothing whatsoever about the steady increase in the average length of custodial sentences imposed by the courts. Those are quibbles for another day.
Because the silence that rings the loudest is that surrounding the dismal state of the criminal justice system. While, true to form, the MoJ trumpets its digital court modernisation programme at every turn (a counterpoint to which was provided the other week by the early progress report of the National Audit Office pointing out that said programme is already behind schedule, has “unresolved funding gaps” and will not deliver the benefits that the MoJ has claimed), much less is said about the problems that have forced criminal barristers to take urgent action and caused the entire system to grind to a halt. Below are just a selection, with the “Single Department Plan” response in bold.
All of these share a common diagnosis: they are the result of the unparalleled cuts that the Ministry of Justice budget has suffered since 2010 – 40% will have been slashed by the end of the decade.
What does the MoJ’s Grand Plan for 2018/19 say about this? Does it acknowledge the problem? Does it vow to fight the Treasury for the funds that the system desperately needs if it is not to collapse altogether?
Not quite. The MoJ promises instead to:
Maintain a continued tight grip on departmental finances
Which really says it all. This is not a department with an interest in improving the quality of justice. It is a cabal of ideologues playing financial chicken, tossing vulnerable people onto the motorways of fate with little care for the outcome, as long as they can boast to their betters about the tightness of their fiscal grip.
As of Friday, the criminal Bar will be withdrawing the goodwill on which the justice system runs. Documents such as this from the MoJ, making quite plain how utterly unimportant they consider our criminal justice system to be, make me seriously consider just walking away entirely.
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:
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:
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.
