Why did a Britain First supporter who wanted to “kill a Muslim” and drove his van at a pedestrian only receive 33 weeks’ imprisonment?

This is a little later than planned, but recently I’ve been responding to a number of queries about legal issues on Twitter through threads, and it struck me that it might be of some use (possibly) to put them up here, for anyone interested who doesn’t catch them live.

Here, from a fortnight ago, I look at why a Britain First supporter who drove his van at the owner of an Indian restaurant, having earlier expressed a desire to “kill a Muslim”, received 33 weeks’ imprisonment upon his conviction.

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Marek Zakrocki

 

 

 

 

 

 

 

 

 

 
 

 

 

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

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

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

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Karl Anderson

So let’s break it down. We should start with some essentials.

What is “racially aggravated common assault”?

Common assault is the least serious form of assault on the criminal violence hierarchy, involving the infliction of minimal injury. (Technically, a “common assault” does not in fact require the use of any physical force at all; merely causing in another the apprehension of immediate unlawful force, say by squaring up to someone. “Assault by beating” involves the application of unlawful force – i.e. physical touching – but in practice the terms “common assault” and “assault by beating” are often (incorrectly) used interchangeably. It has little practical significance, as the two offences are created by the same statutory provision – section 39 of the Criminal Justice Act 1988 – and carry the same maximum sentence. But it’s a neat example of how no-one, including those of us who practise it, really understands the complexity and caprice of the criminal law.)

Anyway, common assault (or assault by beating) is a summary offence, meaning it can by itself only be tried in a magistrates’ court, and carries a maximum sentence of 6 months’ imprisonment. The racially aggravated version of this offence (which was created by section 29 of the Crime and Disorder Act 1998) is “triable-either-way”, meaning it can be tried either in a magistrates’ court or a Crown Court, and carries a maximum sentence of 2 years’ imprisonment. An offence is racially aggravated when one of two criteria is satisfied:

  1. At the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial group; or
  2. The offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.

So far, no problems in seeing how the offence was made out.

How should a court approach sentence for this offence?

The magistrates’ court was required to follow the relevant Sentencing Guidelines published by the Sentencing Council, in this case the Assault Definitive Guideline. Courts will also consider any relevant decisions by the Court of Appeal in similar cases.

The approach prescribed by the Guidelines (and by the Court of Appeal) is that courts should determine the appropriate sentence without the racial element, and then determine the appropriate “uplift” to reflect the racial aggravation. The level of the uplift will depend on the aggravating features which include the level of planning; the offence being part of a pattern of racist offending; membership of a group promoting racist activity; deliberately setting up the victim for humiliating him; the location of the offence; vulnerability of the victim; whether victim was providing a service to the public; whether timing or location of the offence maximised the distress caused; and whether the expressions of racial hostility were repeated or prolonged (R v Saunders [2000] 2 Cr App R (S) 71; R v Kelly and Donnelly [2001] EWCA Crim 170)

So let’s work this through. As ever, we have limited facts available to us, because the magistrates, notwithstanding that they were dealing with a case involving a high profile international footballer which was bound to attract national attention, did not see fit to publish their sentencing remarks online through the official judiciary.gov website. One wonders exactly how many storms there have to be over misreported sentencing decisions before the judiciary gets the message, but that’s a soapbox for another day.

But doing what we can with what we have, the Guardian reports:

“Magistrates were told Anderson pulled his white van alongside Sterling’s car as the forward waited to enter the training ground. CCTV showed both men get out of their vehicles and Anderson walking towards Sterling.

Miles said Anderson, who had been in the vehicle with his partner, started shouting racial abuse at Sterling and called him “you black scouse cunt”. He said Anderson also told the footballer: “I hope your mother and child wake up dead in the morning, you nigger.”

Miles added: “He approaches Mr Sterling and can be seen to be bouncing on the balls of his feet. He sets out kicking Mr Sterling to the legs on four occasions.” The court was told Sterling’s left hamstring was sore after the attack but he did not sustain serious injury. Miles said: “He is a professional footballer. His legs are important for his job.””

The Manchester Evening News adds that Sterling suffered bruising to his legs.

The Guideline requires that the court identify a category of offence by reference to the presence of features of harm and culpability. The category then provides a starting point, and a range through which the court can move as it considers the aggravating and mitigating features. You can have a go yourself:

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The assault, to my eye, falls clearly within Category 1, before we even consider the racial element. This involved repeated blows and the presence of bruising renders this a serious injury in the context of a common assault/assault by beating, so greater harm would appear to be established. Higher culpability is present by use of kicking (a shod foot is counted as a weapon equivalent in offences of violence). And the other aggravating features – this was an unprovoked attack on a man at his place of work, targeting the tools of his trade, his legs – would push this upwards in the range.

And then we come to Anderson’s previous convictions. The Guardian reports that Anderson had 25 previous convictions for 37 offences, including throwing a flare at a police officer during a football match. The MEN gives further colour:

Among his offences, Anderson was jailed for 18 months in July 2016 for violent disorder; convicted of common assault in April 2016; failed to comply with an international football banning order in January 2016 and November 2015; and a racially aggravated public order offence July 2014.

He was among a group of eleven Manchester United fans who were handed three and five year bans in January this year.

There is little reported by way of mitigation. There was, it seems from the Manchester Evening News’ live-feed of the hearing, no Pre-Sentence Report before the court. The expectation is that a court will seek a report, prepared by the Probation Service, if it is considering imposing custody, unless a report is considered not necessary. Its absence suggests that there were no matters of particular mitigation – such as mental or physical health – that would have been relevant to sentence. The defendant expressed remorse through his solicitor, and his early guilty plea is by far the strongest point in his favour.

Against this backdrop, I would have expected a standard assault by beating to be sentenced towards the top of the sentencing range, close to 6 months’ imprisonment (before reduction for guilty plea). Reducing by one third to reflect the guilty plea (all guilty pleas entered at the first hearing are rewarded with 1/3 off the sentence) would give us just over 17 weeks, which is close to the 16 weeks received.

But we haven’t yet moved to the uplift for racial aggravation, which can be substantial, and, as the Guidelines state, can move the sentence beyond the range for an ordinary common assault. Although the court is required to explicitly state publicly what uplift is being applied to reflect racial aggravation, there is no report of the magistrates having done so in this case. Quantifying the uplift is difficult; the Court of Appeal once suggested that up to 2 years would be a reasonable uplift for racially aggravated offences, but given that 2 years is the maximum sentence for this offence, some proportion is required. Cases are always fact-specific, so drawing assistance from earlier cases is always tricky. Nevertheless, to offer a little context:

  • In R v Fitzgerald [2003] EWCA Crim 2875, the Court of Appeal imposed 10 months’ imprisonment for racially aggravated harassment, alarm or distress with intent (which carries the same statutory maximum as racially aggravated common assault). The Defendant had shouted racist abuse at people in the street, and had unleashed a torrent of racial abuse and threats towards a police officer as he was arrested and taken to custody.
  • In R v Rayon [2010] EWCA Crim 78, the Court of Appeal imposed 10 months’ imprisonment (including a 5 month uplift) for racially aggravated common assault where the Defendant punched the victim to the face, threw him to the floor and kicked him. He used racist abuse, although the judge found that racism was not the primary motivation for the attack (it was against the background of an ongoing court case).
  • In R v Bell [2001] Cr App R (S) 81, the Court of Appeal imposed 12 months’ imprisonment, including a 6 month uplift, for racially aggravated common assault where the defendant attacked a 65 year-old black man in the street, calling him a “black fucker”, knocking him to the floor and telling him he should be “in a concentration camp and shot”.
  • In R v Higgins [2009] EWCA 788, the Court of Appeal approved 18 months’ detention, including a 12 month uplift, for racially aggravated common assault where the defendant was part of a group that pursued the victim through a park, making racist comments and threats, and punched him in the face and attempted to choke him.

An important point is that all of these were decided before the introduction of the Assault Sentencing Guidelines, and so are further limited in their utility. Nevertheless, allowing that sentencing is an art, not a science, and that no doubt other lawyers would reach a different conclusion, my view is that, in Anderson’s case, a starting point of 5 months with an uplift of 4 months would not have been unreasonable in the circumstances. That would result in a sentence of 9 months, reduced to 6 months (or 26 weeks) to reflect his guilty plea.

Where does that leave us?

It means that, in the context of racially aggravated offences, Anderson was in my view sentenced leniently, although the sentence is perhaps not as surprising as it first appears when one considers the example sentences above. What might certainly be said, however, is that the sentences for this type of pernicious, low-level racialised violence are probably lower than most lay people would expect. And, momentarily mounting my high horse, the man on the street would be entitled to demand exactly what a 16-week sentence (of which the defendant will serve a maximum of 8 weeks) is intended to achieve in the case of this repeat racist offender. Precisely zilch rehabilitation will be achieved during that period. It punishes to a degree, although Anderson has served significantly longer periods in custody, and may feel able to do 8 weeks with relative ease. It can hardly be said to be a deterrent sentence. And, adding those together, it’s difficult to see how the public are any safer for this sentence. None of the statutory purposes of sentencing appear to be satisfied.

It is, in many ways, what I would call a typical “magistrates’ sentence”: A short period of custody likely to achieve diddly squat, at enormous public expense. I don’t put the blame solely on the shoulders of the sentencing court; they operate in a culture where this type of sentence for this type of offence is considered appropriate. But, frankly, if we have racist hooligans repeatedly inflicting racially-aggravated violence on members of the public, my preference would be that we either aggressively rehabilitate them under a lengthy and intensive community order, or, if we have exhausted all options and punishment has to be king, lock them up for a period of time that appears commensurate with the seriousness of the offence.

It is of course possible that my criticism is misguided, and that there were beautifully set-out sentencing remarks, including a full explanation for the length of sentence and an exposition of the uplift, which render my take unfair. If so, I would welcome corrections and a copy of the sentencing remarks.

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.

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.

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

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

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

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

Facts

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

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

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

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

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

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

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

So what is going on here?

Deferred sentence

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

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

Sentencing Guidelines

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

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

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

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

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

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

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

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

Conclusion

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

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

 

Post-script: Mustafa Bashir, a non-existent cricket career and victim vulnerability

As predicted in my last post, Mustafa Bashir, the wife-beating amateur cricketer who received a suspended sentence of 18 months’ imprisonment after hitting his wife with a cricket bat and forcing her to drink bleach, was today recalled to court and re-sentenced under the “slip rule” (section 155 of the Powers of Criminal Courts (Sentencing) Act 2000). HHJ Mansell Q.C. exercised this power after it emerged that, contrary to claims made on Bashir’s behalf in his barrister’s plea in mitigation, he was not in fact on the verge of signing a professional cricketing contract with Leicestershire County Cricket Club. Re-sentencing on the true factual basis as has now emerged, the judge passed a sentence of 18 months’ imprisonment straight.

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The sentencing remarks are reproduced in full below, and I urge all of the people – in particular politicians like Diane Abbott who ran to the radio stations to bleat in clear and wilful ignorance of the subject matter – to read them, and to circulate them with the same vigour as they did their original criticism. Key points, briefly, are as follows:

  • Despite wildly misleading headlines from the BBC (and no doubt others to follow), the sentence has not been reviewed because of “public outcry”. It is solely because important information put before the court on the last occasion has transpired to be untrue. If you take away nothing else from this post, please at least remember that.
  • Bashir was afforded the opportunity to gather evidence to support the claims made at his sentence hearing. He managed a few emails suggesting he had attended a couple of “net sessions”, but nothing to suggest he was anywhere close to the professional contract that was claimed was awaiting him. The Judge said that there “was not a shred of evidence that you had received an offer of a full-time contract from Leicestershire CCC”.
  • Bashir, instructing a new barrister, admitted that there was no professional contract, but claimed that there had been a misunderstanding, in which both his previous barrister and the probation officer had been confused by what he was trying to tell them, and had mistakenly overstated the true position. He said that he didn’t correct his barrister when the untrue assertions were made on his behalf in open court as he was too emotional to pay attention to what was being said. The judge rejected this entirely, pointing out that Bashir had submitted a letter, purportedly from an agent, in which false claims to have played cricket for Pakistan Under-19s were repeated.
  • The Judge concluded that this was a “false claim” and “deliberately made”.
  • On the last occasion, the Judge explained that the decision not to send him to prison immediately was finely balanced, and that the offer of employment was a material factor in tipping the scales in Bashir’s favour. Today, the Judge said that now that the true situation was known, the grounds for suspending the sentence no longer existed. You may of course feel that the offer of a job should not of itself have amounted to a reason to suspend the sentence in the first place; this is an entirely legitimate view, although as I explain in my last post, it is not uncommon for judges to attach significant weight to the impact of a sentence upon a defendant’s employment.
  • HHJ Mansell Q.C. explained that in passing a sentence of immediate imprisonment, he was not punishing Bashir for lying to the court. This is important on two fronts: Firstly, it refutes the social media meme that “domestic violence doesn’t get you jail, but lying to a judge does”. The defendant has not been punished for lying to the judge. He has been sentenced as if the lie had never been told. Which brings us to the second point: as Bashir has not been punished for the lie by the judge, I’d venture that it makes it more likely that the Crown Prosecution Service will consider a prosecution for attempting to pervert the course of justice to be in the public interest. Given the publicity that has followed, the CPS might wish to fire a warning shot across the bows of any defendant tempted to advance false mitigation by making an example of Bashir.
  • The Judge went on to expand upon the assessment of “particular vulnerability” that he conducted on the last occasion. At the risk of sounding immodest, it is pretty much as I tried to explain in my last post; namely, the Judge was simply assessing the criteria required of him by the Sentencing Guidelines. Anger at the judge for his approach in this regard ought properly to be directed at the Guidelines that he was required by law to follow. And to the media outlets who selectively reported his comments (including omitting the key word “particularly”).
  • That all said, none of this detracts from my original assessment in the last post, vis the length of the sentence. On the reported facts, 18 months’ imprisonment still appears a generous result for the defendant.

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Sentencing Remarks of HHJ Mansell Q.C., Manchester Crown Court

Mustafa Bashir, on 21st March, I sentenced you to concurrent terms of imprisonment of 18 months on two counts of Assault ABH.

I suspended those sentences of imprisonment for a period of 2 years on condition that you undergo a supervision requirement and a programme requirement.

I have listed your case today for a review of that sentence pursuant to s155 of the Powers of Criminal Courts (Sentencing) Act 2000, following reports in the media suggesting that you may have misled the court as to your future career prospects.

I directed that you should produce evidence to support the claims you made that you had previously been offered a contract to play cricket for Leicestershire and that such offer remained open to you if you kept your liberty.

You have failed to produce any evidence to support those claims.

All that you have produced today is a handful of emails showing that you may have attended an indoor net session at Grace Road in December 2014, and an outdoor net session in April 2015.

There is a further email from you in December 2015 in which you enquire about the outcome of a trial you had attended at the club.

There is no evidence as to what team you were trying out for or what the outcome of such trial was.

The coach at Leicestershire with whom you were in email communication has made a statement to the effect that he does not recall you, which you would think he would, in light of the fact that you were considerably older than the majority of cricketers he was seeking to recruit for the club at that time.

Your name does not feature in the list of attendees at the trials held in 2015.

Therefore, in summary, there is not a shred of evidence that you were ever chosen to play for Leicestershire CCC, let alone that you had received an offer of a full-time professional contract.

It has been suggested by your counsel Mr Sastry, who has appeared today and acts on your instructions, that this is all an unfortunate series of misunderstandings, and that your past career achievements and future career prospects were accidentally over-stated.

I reject this submission.

You were interviewed by a probation officer, Michael Whalley, in advance of the hearing and told him you had played cricket for Pakistan Under 19’s.

You now submit that he misunderstood this and you only played for Islamabad in a national competition.

You also say he misunderstood you when he reported you had played “semi-professional cricket for Leicestershire

Finally, you explain that when he reported that you were “due to sign a contract with a team shortly before your arrest” this was not with Leicestershire but with Methley CC in a Yorkshire-based league.

In his plea in mitigation, Mr McKee, acting no doubt on your instructions, submitted that if you were permitted to keep your liberty, you would be “employed by Leicestershire as a professional”. 

He referred to the pre-sentence report and added that you had been “about to sign a contract when you were arrested”.

He is an experienced counsel and would not have made such a bold submission had you not instructed him that this was the case.

You claim that he has misunderstood the position but if that was the case, it begs the question why you did not speak up at the time and correct his mistake.

Your response is that you were emotional and not listening carefully to what was said in court and so did not hear what he said.

The evidence that gives the lie to your explanation advanced by you today is a letter that was submitted to the court on your behalf by your solicitors from a man named Abid Riaz, said to be a sports agent with the Pro Elite Sports Agency in Bolton.

He wrote that he had been your agent for several years and that you had played cricket for Pakistan at Under 19’s. Unlike the Probation Officer, it is hard to see how an experienced Pakistani cricket agent could have made such an error.

He also claimed he had arranged your trial at Leicestershire, of which there is no evidence.

He concluded his letter by saying that you had a “very bright future ahead of you as you had been selected to play for Leicestershire County Cricket Club”. 

There was no misunderstanding here on the part of the probation officer, or Mr Riaz, or your counsel.

You were clearly making a claim to the court that you had a career in professional cricket ahead of you which was false.

You made that claim quite deliberately in the hope that you would avoid a prison sentence.

As I made clear when sentencing you, the appropriate sentence for these offences was 18 months’ imprisonment.

I then said the following –

“The only issue for me to grapple with today is whether your good character; the delay since these offences; and your current situation – namely in a settled relationship with a partner who complains of no violence and who is supportive of you; your employment, which you have been in since April last year; as well as your prospective employment, which is offered in cricket for Leicestershire County Cricket Club; whether all those factors taken together can save you from serving that sentence today. I have to tell you that it is a very finely balanced decision, because the court simply will not tolerate violence in a relationship of this nature.”

It was only because of the combination of all those mitigating factors I referred to – but particularly your new relationship and your future career prospects – that I took the exceptional course I did.

Therefore, now that it has come to light that a fundamental aspect of your plea in mitigation was false, I have no hesitation in varying the sentence and imposing immediate sentences of imprisonment, which I would have passed had I known the true position.

I stress that I am not altering my sentence to punish you for lying to the court. You may well face investigation into whether you have committed quite separate offences of perverting the course of justice.

I am altering my sentence because I was fundamentally misled by you as to your personal circumstances.

The sentence on each count on the indictment is therefore an immediate term of imprisonment of 18 months concurrent on each count.

You will serve half the 18 months in prison, then will be released on licence.

You are liable to be recalled at any time if you breach the terms of your licence or reoffend.

All other aspects of the sentence stand, including the restraining order which will apply indefinitely, as well as the order for costs.

VULNERABILITY 

I now intend to revisit the comments I made on the last occasion concerning the vulnerability of the victim in this case, Fakhara Karim.

I do so because there has been widespread misreporting of my remarks and widespread misunderstanding of why I made them.

Having set out in some detail the facts of the case, all of which I accepted as truthful and accurate from the victim’s witness statements, I turned to sentence and said the following –

“These were two very serious offences of violence against your former partner. I am not convinced on the guidelines that she was particularly vulnerable due to her personal circumstances”

The words “particularly vulnerable due to her personal circumstances” are taken from the Sentencing Guidelines Council definitive guideline for offences of Assault, which I was bound to and did follow.

This is one of three factors that the court is required to consider in determining the harm caused by the offence.

Particularly vulnerable means especially vulnerable, exceptionally vulnerable or unusually vulnerable

There is a second guideline for sentencing in cases of domestic violence to assist judges with what this means in practice.

Victims who are very young or old, who are physically or mentally disabled, and female victims who are pregnant, are all to be treated as particularly vulnerable.

The guideline also contains the following paragraph:

For cultural, religious, language, financial or other reasons, some victims of domestic violence may be more vulnerable than others, not least because these issues may make it almost impossible for the victim to leave a violent relationship”

It was to this passage that I was referring when I gave the example of a woman who comes to the UK from a foreign country to live with her husband or partner, leaves her friends and family behind, makes few if any friends here and struggles with the language, with the result that she becomes effectively trapped in a violent relationship.

In referring to the fact that Miss Karim was an intelligent woman, who had worked as a receptionist and studied at university, and who had a network of friends, I was simply highlighting the fact that she had a degree of independence and support that some victims, whose circumstances are different, do not.

I was doing no more and no less than making a finding, in accordance with the sentencing guidelines, that she was not particularly vulnerable as compared with other victims whose personal circumstances are different.

She was, however, plainly vulnerable, as my sentencing remarks made perfectly clear.

She was vulnerable before the assaults started, because of the controlling behaviour of the defendant, which had distanced her from her family and friends, and which had undermined her confidence.

She was vulnerable after the assaults due to the ongoing psychological effects on her of the defendant’s violence.

I stated clearly that this was an aggravating factor and increased the starting point for sentence.

I referred in detail to her Victim Personal Statement, in which she described how she had been confident, active, humorous and positive about the future before the assaults.

I observed how, following the assaults, her confidence went down, she started to hide away from friends and family and her studies were affected.

I also noted that the most significant effect on her was that she now had issues with trusting people, and particularly men, and that she believed she would find it very difficult to trust another man in future.

I am concerned that the misreporting and misunderstanding of my remarks may have given Miss Karim the impression that I did not believe her account as to the effect these offences have had on her, or that I did not consider her to be vulnerable.

I trust that she will be given a copy of the transcript of my sentencing remarks on the last occasion and a copy of the remarks I have made today, copies of which are also available for the Press.

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