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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Was the cricketer who forced his wife to drink bleach spared prison because his wife was “too intelligent”?

A quick one for tonight. Several tweeters have today wondered, queried and thundered about a news report hot out of Manchester Crown Court, which tells of an amateur local cricketer who assaulted his wife with a cricket bat and forced her to drink bleach, and who, in the typical tabloid argot, Walked Free From Court.

How, people have understandably wondered, can this be?

The case takes on an even more inscrutable pallor when one reads in national reports that the sentencing judge, HHJ Mansell Q.C., announced that the factor influencing his decision against gaoling the defendant was that the victim was university-educated, and was therefore not considered to be “vulnerable”.

What the heck is going on?

The offences

Reported facts in Crown Court sentence hearings are invariably incomplete, selective and, occasionally, simply plain wrong. I once read in a local newspaper, to my surprise, that I had invited a court to lock up my client for a non-imprisonable offence. Court reporting, with due acknowledgement to the many excellent journalists still plying this noble, dying trade, is not always entirely reliable. Nevertheless, taking as our best secondary source the local newspaper website, Manchester Evening News, we can identify the following facts.

Mustafa Bashir, aged 34, who played cricket in a local league in Oldham, pleaded guilty to assault occasioning actual bodily harm. The victim was his 33-year old wife. The offending reportedly arises out of two incidents, one in April 2014 and one on New Year’s Eve 2014, which occurred against the backdrop of a controlling and dominating relationship characterised by Bashir’s diktats as to how his wife dressed and spent her own money. The first incident in April 2014 was described as follows:

Manchester Crown Court was told the pair met in their native Pakistan and married in 2013. But Bashir was said to be a ‘controlling and dominating’ husband who told his wife what she could spend her money on and what she should wear, who she could see.

The couple had been on a day out to Rochdale Lake in April 2014 when an argument broke out about Bashir travelling to the Netherlands and he grabbed Ms Karim by her neck and was squeezing, until a member of the public threatened to go to the police.

Prosecutor Roger Brown said: “The parties went back home where the argument continued. He grabbed her neck again, so much that she said it was hurting a lot and at one point he picked up a knife and said that he would kill himself and she begged him not to.

“He took her into the bathroom where he grabbed a bottle of bleach and he made her drink the bleach so she would kill herself. She spat that out as she was unable to swallow it. Then he gave her tablets from the house and told her to take them. She did but again she was unable to swallow them.

“He said to her “I want you to kill yourself.” She left the bathroom and went into the living room where the defendant called her family to tell them they had an argument and that she was not obeying him. Her family urged her to obey him and told him that she would obey.

‘’She did take photos of her injuries to her neck and to her upper arm. When making her statement she said that he grabbed her neck very hard and she thought she was going to die. She was pulling at him trying to get him to stop but he was stronger and she couldn’t stop him. After that incident he left the house and she didn’t see him for some two days.’’

As for the incident at New Year, the MEN reports:

The marriage continued but on New Years Eve 2014 the couple were at home when a row broke out about Miss Karim speaking on the phone in their living room.

Mr Brown added: “She describes the defendant as becoming angry after she had been on the phone for just over half an hour, and after the conversation finished he took the phone off her and said she couldn’t have it back and he wanted to search it and look at the messages.

“She said her friends weren’t saying anything bad but he began insulting her father called him a ‘dog’ and she replied with “you don’t have a dad that’s why you don’t know how to respect mine”.

“He became more angry and slapped her, and grabbed her hands and started bending her fingers back trying to break them. He slapped her so hard again that she fell on the floor and lost consciousness. The next thing she remembers is waking up on her bed, she went to get her phone but he was there. She said to him: ‘it’s over please leave me alone’ but he called her a slag, and strangled her until she was struggling to breathe.

“He grabbed a cricket bat that was in the bedroom and hit her over the back with it. She recalls feeling a sharp pain.

‘’He said to her ‘If I hit you with this bat with my full power then you would be dead’. He went into the hall and she took the opportunity to call 999.’’

The charges

Bashir was charged with assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. The news reports do not make clear whether he was charged separately for the assaults (as I might expect given the break in time between them), or whether a single “rolled-up” count representing “the totality of the offending” (as lawyers would call it) was preferred, although it appears to have been the latter. In any case, assault occasioning actual bodily harm carries a maximum sentence of 5 years’ imprisonment. On the facts as reported, it strikes me as a somewhat generous charging decision by the CPS not to pursue a charge of attempting to inflict grievous bodily harm, which carries a maximum life sentence, in respect of the bleach incident at least. There is no suggestion that he pleaded guilty “on a basis”, where a defendant accepts certain factual elements of the prosecution case but not others, so we can infer that there is no dispute over what he did. It may be that this was a case where a more serious offence was initially charged, but where the prosecution agreed to accept a guilty plea to a lesser offence. This sometimes happens where the CPS is concerned over the strength of the evidence, or where a complainant expresses strong reservations about proceeding to trial. A lot of criminal cases end up “cracking” on the basis of convenient compromise.

He was sentenced to 18 months’ imprisonment suspended for two years. A requirement of his suspended sentence order was that he attend a Building Better Relationships course, administered by the Probation Service. He was ordered to pay £1,000 costs and barred from contacting the victim by the imposition of an indefinite restraining order.

Sentencing Guidelines

Courts are legally required to follow relevant Sentencing Guidelines, published by the Sentencing Council, when dealing with an offender, unless it is contrary to the interests of justice to do so. The relevant Guideline for our purposes is the Assault Definitive Guideline. The guideline for assault occasioning actual bodily harms specifies an “offence range” of a fine to three years’ custody. In other words, a sentence for this offence should be within that range unless it is contrary to the interests of justice not to do so. If you’re wondering why the range does not go up to the maximum of five years, that’s a darn fine question, and one which has long troubled me about Sentencing Guidelines, but is a debate for another day.

Within the range, the Guideline specifies three categories reflecting varying degrees of seriousness, which each category containing its own “starting point” and “category range”. The idea is that by identifying certain factors of the offence, the court can place it in a category and  move it up and down the range to reflect aggravating and mitigating features.

To identify the category, the court considers whether any “factors indicating greater harm” and “factors indicating higher culpability” are present. Included among the former is the situation where the “Victim is particularly vulnerable because of personal circumstances“. It appears that it is this criterion to which the judge was referring when he commented on the victim’s vulnerability. He is reported as having said:

“I am not convinced she was a vulnerable person. Sometimes women who moved her from their country become trapped in a relationship where they lose their support network of family and friends and cannot speak the language. This is not the case her. She is plainly an intelligent woman with a network of friends and did go on to graduate university with a 2:1 and a masters – although this has had an ongoing affect on her. She had difficult trusting people now, especially men.’”

This is the comment that has sparked outrage. One outlet reported, under the deck “Mustafar Bashir subjected his wife to devastating physical attacks, yet has been handed a suspended sentence because the victim was too “intelligent””, that:

“[D]espite his actions, Manchester Crown Court today has ruled that Bashir will not face jail because the judge has deemed the victim not to be “a vulnerable person”.”

Sandra Horley CBE, chief executive of the domestic abuse charity Refuge, has said:

“Judge Mansell’s comments – that he was not convinced of the victim’s ‘vulnerability’ – show a shocking ignorance around the impact of domestic violence on women. What a woman does for a job, her level of education or the number of friends she has makes no difference; for any woman, domestic violence is a devastating crime that has severe and long-lasting impacts.”

With respect, I think the criticisms miss the point. The Guidelines call for a specific assessment of whether a victim is “particularly vulnerable”; that is, above the inherent vulnerability of a victim of violence. It’s an odd exercise to ask a court to engage in, perhaps, but that’s what the Sentencing Council in its wisdom instructs judges to do: arrive at a hierarchy of vulnerability and pin the victim somewhere within. And, without for a moment seeking to minimise either the seriousness of the violence or the impact upon the victim, I’m afraid it is probably correct that, relative to the profile of domestic violence victim that recurringly appears before the criminal courts, Ms Karim is not among the most vulnerable, for the reasons noted by the judge. This criterion is usually met where the victim is elderly, or very young, or disabled, or socially excluded. There are in fact specific separate Domestic Violence Guidelines which inform the court’s assessment of “particular vulnerability” as follows:

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But in any event, it’s actually largely an academic point, because this is only one of three factors indicating greater harm, any one of which allows the court to tick that particular box. And the others – sustained or repeated assault upon the same victim, and serious injury in the context of the offence – are both present, and must have been accepted by the judge as substantiating “greater harm”, as the sentence of 18 months’ imprisonment falls within Category 1, the most serious category for this offence. This provides a starting point of 18 months’ imprisonment, and a range of 1 to 3 years. Assuming that credit was given to the defendant for his guilty plea (we are not told at which stage he pleaded guilty so cannot say how much credit, or discount, he was given off his sentence), the judge has apparently identified further aggravating features set out in the Guidelines, and adjusted the sentence upwards within that range before discounting for the guilty plea to arrive at a final figure of 18 months.

Suspended sentence – a walkout?

First things first: a suspended sentence is not a walkout. It is a sentence of imprisonment. That has to be made clear, much as it pleases the Daily Mail to pretend otherwise. If you commit a further offence during the currency of a suspended sentence, the expectation is that you will go to prison for the specified period. Ditto if you breach the community requirements attached to the order.

Any sentence of up to two years’ imprisonment can be suspended. A shiny new Guideline, barely a month old, was released to elucidate the principles relevant to determining whether immediate custody, a suspended sentence or a community order should be imposed, but in short there is significant judicial discretion in this area. Something of which judges are acutely aware is how little practically can be achieved with offenders serving short prison sentences, as is suggested by the appalling recidivism rates for short-term prisoners. The short sharp shock may send a message and satiate our desire for punishment, but is unlikely to achieve much else. Sometimes, this is unavoidable. Some offences require punishment to overtake rehabilitation in the pecking order. Some people may justifiably feel that this kind of domestic violence is one such example. On the given facts, I would probably have been advising my client to expect an immediate prison sentence. However, we do not know what else was before the judge. There would have been a Pre-Sentence Report prepared by a Probation Officer, whose recommendation will have been taken seriously by the judge. There may have been psychiatric or psychological reports opining on the unsuitability of custody, or the potential benefits to the defendant’s new partner of an intensive rehabilitative course to divert him from inflicting similar misery upon her. The media reports say little about his previous convictions, but good character (if indeed he was) often sways a judge against immediate custody. Ultimately, without having been in the hearing, and without having sight of the judge’s full sentencing remarks, we simply can’t say for sure exactly how the decision to suspend the sentence was arrived at.

What I will say with confidence, however, is that it will have had nothing whatsoever to do with the assessment of vulnerability. That is a complete red herring.

So what next?

For what little it’s worth, my cautious view is that, on the reported facts, Mr Bashir appears to have escaped with a lenient sentence. While justifiable on the Guidelines, few people will read the facts and feel that the punishment matches the crime. However, assault occasioning ABH is not an offence the sentence for which can be referred to the Court of Appeal by the Attorney General as “unduly lenient” (despite rather embarrassing suggestions to the contrary by qualified lawyer and former Solicitor General Harriet Harman MP) so in the ordinary course of events that would be the end of the story.

But – an intriguing footnote has emerged. Bashir’s barrister relied in mitigation on his client’s budding cricket career, submitting:

“He has continued to play professionally in a local cricket league but of some importance certainly to him is if he is allowed to keep his liberty he will be employed by Leicestershire as a professional. He was about to sign the contract when he was arrested.”

When passing sentence, the judge was plainly influenced by this submission, remarking [my emphasis]:

“With regard to the mitigating factors I am not convinced of your remorse for her, but you are sorry for the position you find yourself in over the last two years. Your current partner is supporting you in court and she complains of no violence. You have employment prospects of being employed in cricket for Leicestershire Cricket Club. This court will not tolerate violence in a relationship of this nature. It is a very fine line between imprisonment and a suspended sentence.”

As the story whizzed across the internet, Leicestershire Cricket Club were quick to distance themselves from the defendant, publishing a press release stating:

“Leicestershire County Cricket Club are aware of stories that have been published this morning regarding Mustafa Bashir.

‘The club are bemused by these stories. Any references to Mustafa Bashir signing or being approached to sign for Leicestershire County Cricket Club are completely false. The club have never spoken to Mustafa Bashir or an agent, nor offered a contract to the player.”

If I were Mr Bashir, I would be worried. The judge has 56 days, starting with the date of sentence, in which to recall the case and alter the sentence under what is known as “the slip rule” (section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, as you ask). The Court of Appeal has made plain, as recently as last year, that it is proper for this to be exercised where subsequent to the sentence hearing something arises which casts doubt over the veracity of the basis on which the judge sentenced. In the widely reported case of the Sledden brothers, two drug dealers who received suspended sentences were hauled back into court after celebrating their near miss by inviting the judge on Facebook to, inter alia, “suck my cock”. The judge said that, had she known of the defendants’ true lack of remorse for their offending, she would have sent them straight to prison. Which is what, under the slip rule, she did. The Court of Appeal duly upheld her decision.

HHJ Mansell Q.C., no slouch from what I’m told by Manchester practitioners, will be keenly aware of this. Do not be surprised if, when this is brought to his attention, Mr Bashir finds himself facing a further day in court, with a far less fortuitous outcome.

********UPDATE*********

I ought to have added for completeness that the consequences of Bashir giving false instructions to his barrister in mitigation, if indeed he did, could extend beyond an alteration to this sentence. He could well find himself charged with a fresh offence of doing an act tending and intended to pervert the course of justice. This story probably has a little way to run.

What would happen to Brock Turner in an English criminal court?

On 18 January 2015, Brock Allen Turner committed a series of serious sexual assaults against an unconscious woman on an American university campus. Two graduate students at Stanford University saw the 20-year old Turner lying on top of the motionless victim behind a dumpster. Her underwear and bra had been partially removed, and Turner was thrusting on top of her unresponsive body until disturbed by the grad students. When interrupted, Turner immediately ran from the scene, only to be fortuitously apprehended by the Good Samaritans. The police were called, and found the victim to be completely unresponsive and heavily intoxicated. When she awoke three hours later, she told police she had no memory of what had happened. Turner admitted “fingering” the victim’s vagina, but insisted that, although drunk, she was fully consenting.

In March of this year, Turner was unanimously convicted by a jury of  three felonies – assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object and sexually penetrating an unconscious person with a foreign object.

What followed has been internationally dispersed through news organisations and a livid social media commentariat. Because, on 2 June 2016, the now-21 year old Brock Turner was sentenced by Judge Aaron Persky for offences tantamount to attempted rape, to 6 months’ imprisonment in a county jail with probation.

Due to, Judge Perksy said, Mr Turner’s youth, his positive character references and the impact that prison would have on him, he would follow the Probation Officer’s recommendation and impose 6 months in a county jail. Of which, it is reported, Turner will (as would be the case here) serve half before being released.

3 months for the attempted rape of an unconscious human being.

Brock Turner

Brock Turner

The reaction has been audible across the Atlantic. We have seen published in full the haunting victim impact statement, searing unabridged, unapologetic primal human pain indelibly into the reader’s – and one can only hope Turner’s –  consciousness, its honesty and fluency justifying every one of its 7,000 words (and I speak as someone who has read many victim impact statements, to the point, I had thought, of becoming inured). We were then treated to the gawking lack of self-awareness, nay basic humanity, demonstrated by Mr Turner’s father – and, as released on Monday, his mother – writing pleas for clemency to the sentencing judge which hovered on the fringes of crassness, before filling the tank with a gallon of denial, hitting the accelerator and ploughing remorselessly into ugly victim-blaming. Why punish my son, Turner Senior innocently enquired, for “twenty minutes of action”? The fact, repeated ad nauseum in the character references and led in the opening stanza of every media report, that Turner was an accomplished swimmer from an apple pie family, appeared to vindicate long-held suspicions that judicial attitudes towards sentencing turn all too often on from which side of the tracks a defendant hails.

The case has been raised in the House of Representatives, where Republican Congressman Ted Poe has said:

“This judge got it wrong. There’s an archaic philosophy in some courts that sin ain’t sin as long as good folk do it. In this case, the court and the defendant’s father wanted a pass for the rapist because he was a big-shot swimmer. The judge should be removed.”

And, before long, 1.2 million people worldwide had signed a change.org petition to impeach the judge (not to recall him, as has been widely reported), and it is reported that he has since, appallingly, received death threats.

Publicly, the sentiment appears to be leaning one way. In legal circles, however, consensus crumbles. The Santa Clara County District Attorney’s office condemned the sentence, complaining, “The punishment does not fit the crime”, and bemoaning its impotence to challenge the sentence. By contrast, a representative from the Santa Clara County Public Defender’s Office published this defence online, applauding the Judge for his “holistic sentencing exercise” which prioritised rehabilitation over conforming to America’s “culture of mass incarceration”, and praising the judicial exercise of “discretion and mercy”.

Writing as an English lawyer with no formal training in California State Law, or U.S. Federal Law, my view on Judge Persky’s application of the law carries no authority. The (astonishing) lack of official data collated on California criminal sentencing prevents me from even assessing whether statistically this represents a major outlier.

But what I can offer, by way of (perhaps) interesting contrast, is a consideration of what would have happened to Brock Turner in an English court, had he been convicted of our equivalent offences. Could the same thing happen over here?

 

The offences

Turner faced sentence for three felonies (serious offences) – reported as assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object and sexually penetrating an unconscious person with a foreign object, carrying, it is said, a maximums sentence of 14 years’ imprisonment. The “foreign object” is not specified in any reports that I could find, and the police report and felony complaint (the equivalent to a Crown Court indictment setting out the charges) make no reference to penetration with an object other than the defendant’s fingers, so for these purposes I shall assume that the penetration was digital. Our law doesn’t distinguish, for charging purposes, between a conscious or unconscious complainant, and so, both penetrative acts would likely be charged as assault by penetration, contrary to section 2 of the Sexual Offences Act 2003, which carries a maximum sentence of life imprisonment. It is possible that repeated acts of digital penetration, committed initially while the complainant was conscious but incapable of consenting and continued once she had lost consciousness (as I interpret the charges to represent), would be charged here under a single count to represent the whole activity. (Either way, as below, it will make little difference to sentence).

As to “assault with intent to commit rape”, the act of removing a person’s underwear and thrusting on top of them while they are passed out would probably be charged as attempted rape (contrary to section 1(1) of the Criminal Attempts Act 1981), also carrying a maximum of life imprisonment.

Further details of the case, not widely reported, can be found in the original police report here. These have to be taken with caution, as initial police reports invariably reflect the preliminary view of the police officer author(s) rather than an objective assessment of the evidence that is before a jury at trial. But the report is nevertheless instructive.

 

The Sentencing Exercise

The court in Turner’s case was not required to follow any formal sentencing guidelines (save for the mandatory sentence that was waived, see below). By contrast, in the Crown Court judges are required, by section 125(1) of the Coroners and Justice Act 2009 to follow any “relevant sentencing guideline”. A number of such guidelines have been published by the Sentencing Council (formerly the Sentencing Guidelines Council), including the Sexual Offences Definitive Guideline. The operation of these guidelines is designed to be simple, although rarely is in practice. The principle is to assess the seriousness of the offence by reference to harm caused and the defendant’s culpability, and then to reflect the features that aggravate or mitigate the position. Thus, on the guidelines, one feeds the facts of the case into the given matrix to arrive at a category for “harm” and a category for “culpability”, which combined gives you a “category range” and a “starting point”. The Judge can then move the starting point up or down within  (or, exceptionally, outside) the range to reflect the aggravating and mitigating features of the offence as specified.

Where sentencing for multiple offences, judges are required to have regard to the principle of “totality” – i.e. to pass a proportionate sentence that reflects the whole of the offending, rather than simply aggregating individual sentences for each offence. Therefore, in a case like this, where all of the offences arose out of the same incident, the court would usually pass a higher sentence on the “lead” (most serious) offence, uplifted to reflect the other offences, and pass concurrent sentences on those other offences.

So, what’s Brock Turner looking at?

For assault by penetration, this to me looks like a Category 2 case for harm, due to the judge’s finding that the victim was particularly vulnerable due to her incapacitation. For culpability, none of the factors in Category A appear to apply, so giving Turner the benefit of the doubt he would fall within Category 2B. This provides a starting point, for a single offence, of 6 years’ imprisonment after a trial (which, incidentally, is what the prosecutor in California recommended), with a sentencing range of 4 to 9 years’ imprisonment.

For attempted rape, one considers the similar-looking rape guideline, and, again, we appear to be looking at a Category 2B offence. Rape is considered more serious than assault by penetration, and so the starting point for a 2B rape is higher – 8 years’ imprisonment after trial, with a range of 7 to 9 years. However, as this was an attempt, rather than a completed act, the court will reduce the starting point to reflect that fact. So we probably again end up with a starting point around the 6-year mark.

One then considers the presence of aggravating or mitigating features. And this is interesting, because what the judge considers to operate in Turner’s favour would be viewed very differently in a Crown Court.

 

Intoxication

Judge Persky held that, “there is less moral culpability attached to the defendant who is legally intoxicated” than a sober defendant committing the same offence. Our Sentencing Guidelines explicitly provide that, by contrast, committing an offence under the influence of alcohol or drugs is an aggravating feature, public policy militating against crediting people who willingly get tanked up and commit unlawful acts. Far from limiting his culpability, Turner’s drunkeness would aggravate his position.

 

Severe psychological or physical harm

Judge Persky found this to be present, having regard to the Victim Impact Statement, and I would be inclined to agree.

 

Specific targeting of a vulnerable victim

The police report, and comments attributed to the prosecutor, suggest that Turner made persistent efforts to kiss the plainly uninterested victim and her companions throughout the night. This, I would submit as a prosecutor, represents specific targeting of a (already established to be) vulnerable victim. Aggravating feature ticked.

 

Attempts to dispose of or conceal evidence

It is arguable (although I probably wouldn’t submit it with much vigour) that Turner’s fleeing the scene ticks this box. But many defendants run to evade capture, and it is rarely factored into a judge’s final sentence.

 

No previous convictions

This is a big one in Turner’s favour. No previous for any similar offences will usually go a long way.

 

Positive good character

The best mitigation you can hope for as a defence lawyer is good character and a guilty plea. Turner doesn’t qualify for the latter, but a judge over here would be entitled to, in most cases, afford some weight to a defendant’s positive character. BUT, the Sexual Offences Guideline is different to many others, in that it provides that “in the context of this offence, previous good character should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence“. So being a golden boy champion swimmer, while possibly contributing, to a limited extent, in projecting the image of a good chap who acted entirely out of character, is going to go much less further on these shores.

And what about the tone of those references? In particular Dad’s? Is that likely to help? Plainly Judge Persky was not affronted by Turner’s dad solemnly reporting that the stress of proceedings had put Brock off his favourite ribeye steak , but would this help or hinder Brock’s break for freedom?

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Personally, I would not in a sqwazillion years have submitted those references to an actual judge with eyes. I can’t think of any who would have subconsciously treated them as anything other than an aggravating factor. The musings of a father who, when confronted with the finding that his son penetrated an unconscious woman’s vagina and took steps towards raping her, suggests that what is really needed is for this woman to learn about “the dangerous of promiscuity”, are unlikely to inspire sympathy in any judge I have ever appeared before. Characterising an offence of near-rape as “20 minutes of action” is similarly an attitude I, as a defence lawyer, would wish to distance from my client. In practical terms, this letter would demolish all mitigation I had carefully laid before the court during my heartfelt plea for leniency. You want references to say how nice your boy is, how sorry he is for what he’s done to the victim and how you, as his parent, recognise he needs to be severely punished for a serious offence. Then you stick in your paragraph pleading to give him a light sentence.

 

Age or lack of maturity where it affects the responsibility of the offender

Another feature afforded much weight by Judge Persky was Turner’s youth. And he would receive similar latitude from a Crown Court. But not much. And the suggestion that he is merely a victim of accepted “campus culture” is unlikely to assist him.

 

Remorse

Judge Persky, in a feat of reasoning that I still don’t understand at the fifth time of reading, found that Turner was remorseful, even though he maintained his version of events rejected by the jury at trial. The judicial attitude can be summed up as, “Well, he said sorry today, even though it appears it’s a politician’s “I’m sorry for any offence caused” rather than a “I’m sorry for sexually attacking you” and, well, kids will be kids and the two of them are probably never going to agree on what happened, so, y’know, let’s say he’s sorry and I can justify the sentence I’m about to hand down.” Seriously. Read it and tell me if you come to any other interpretation. Nil points in my court, sunshine.

 

Media attention

This was listed by Judge Persky as pertinent to his decision; however it is a bold advocate over here who argues that their high-profile client warrants special dispensation by virtue of his infamy. Turner’s case can be distinguished, possibly, from most “celebs” in that he did not invite media attention prior to the trial, but committing a serious offence and having the press hound you for it would be considered, by most English judges, as par for the course. And certainly not reason for special treatment.

 

Impact of imprisonment

Not a specific consideration on our Guidelines, but this would be addressed in an English Pre-Sentence Report (say below), and particular difficulties in adjusting to prison may influence a borderline decision. But this usually applies where a defendant has extreme physical or medical requirements, or where they are a plain suicide risk, or have vulnerable dependents on the outside world. The fact that you’re used to the Good Life will not usually be prayed in your aid.

 

The Probation Report

The Probation Report by the county probation officer recommended the sentence that Turner ultimately got, and this has been cited in support of the Judge’s ruling. Over here, most defendants, particularly sex offenders, will have a Pre-Sentence Report prepared by a probation officer. And Judges will pay careful attention to, and often follow, the recommendation as to sentence (i.e. should it be immediate custody or should it be a rehabilitative community order/suspended sentence?) However. While most reports are excellent, some, whether through authorial inexperience, or being provided with scant details of the offence, or through plain misjudgment, do occasionally propose sentencing disposals for serious cases that, as a barrister pleading mitigation, you have to acknowledge at the outset are batshit cray cray, lest the judge transfer his apoplexy at the recommendation on to your client. “Your Honour, I recognise that the recommendation in the Pre-Sentence Report is unrealistic in this case…” is a phrase I’ve had to gabble more times than I can remember. The fact that there is a recommendation would not, in the Crown Court, save you if, as a barrister, you submitted that the Court should adopt a plainly unduly lenient sentence. And it of course does not absolve the Judge of his or her duty to impose an appropriate sentence. Some cases are so serious that only immediate custody will suffice. Rape and kindred offences, as per the Sentencing Guidelines, tend to fall within that bracket. I have seen, in exceptional cases, recommendations for alternatives to immediate custody in cases of this type, but they are in the tiny, tiny minority, and usually arise where there are truly incredible features to the case. Nothing that is listed in Judge Persky’s judgment would, in my experience, persuade a judge that the probation recommendation was realistic.

Exceptional Circumstances

Weighing everything into the balance, I would expect Turner to be looking at between 5 and 6 years, all in. But could a Crown Court judge take an exceptional course? Judge Persky was required to impose a minimum of 2 years’ imprisonment and prohibited, under Penal  Code section 220, from imposing probation except in unusual cases where the interests of justice would best be served (Penal Code section 1203.065). That interests of justice test is expanded upon in Court Rule 4.413(c) and applied by Persky, and he relies in particular upon Rule 4.413(c)(2)(C), which provides that the interests of justice may permit a departure from the mandatory prohibition on a light sentence followed by probation “where a defendant is youthful and has no significant record of prior criminal offences”. And it is on that feature, primarily, that Persky hangs his hat (before listing the various other features of mitigation that he feels assist Mr Turner). Would that be enough, in English courts, to get the sentence down to the 6 month mark? It’s difficult to compare, as we don’t have the concept of a short sentence in a county jail (rather than the state prison reserved for lengthier sentences) followed by lengthy probation conditions determined by the Judge; rather we impose a sentence (of whatever length) in a prison and the defendant, when released (usually at the halfway point) remains on licence until the expiry of the sentence (if over two years), or for 12 months after his release (if the sentence is less than two years). But my opinion, for what it is worth, is that a short custodial sentence would be the least likely outcome in our courts. The very best Mr Turner could pray for is a suspended sentence of two years’ imprisonment (the maximum for a suspended sentence), and that, on the facts reported, would appear wholly unlikely.

Notification

Judge Persky paid significant regard to the fact that Turner would, as a convicted sex offender, be required by Penal Code 290 to register with the authorities as such. This, he considered, represented a further punishment that was relevant to his consideration of sentence. Over here, “notification requirements” (or “being put on the sex offenders register” as the media have it, notwithstanding that no such register exists) automatically apply to these offences by virtue of section 82 of the Sexual Offences Act 2003, and, assuming a sentence of around 6 years, those requirements would also last indefinitely. It would not be considered at all relevant to sentence, although the position in California may differ due to the public availability of information about registered sex offenders (through, for example, Megan’s Law).

 

Prosecution Appeal

The District Attorney, while professing incredulity at the sentence, has declared itself unable to challenge a sentence unless wrong in law. By contrast, our Attorney General can refer sentences in such cases to the Court of Appeal if he considers that they are unduly lenient and, if the Court of Appeal agrees, the sentence can be increased. I would, as a prosecutor, be drafting my advice to the Attorney General before I’d left court had that been my case, and I’d wager that it would take something extraordinary for the Court of Appeal to find that a 6-month sentence was not unduly lenient for offences of this type.

 

Conclusion

On the information available, including Judge Persky’s sentencing remarks, the victim impact statement and the character references published, I would be astounded if a defendant in Brock Turner’s circumstances appeared before an English Crown Court and received the sentence that he did. Sexual offending, while occasionally (in my personal opinion) dealt with leniently in our  courts, is still usually recognised as comprising the most degrading violations that one person can inflict upon another. That Judge Persky appears, notwithstanding the victim impact statement, to have overlooked the public policy imperative in imposing condign sentences for acts involving the deliberate, brutal, callous and humiliating sexual exploitation of a vulnerable victim, is a failing unlikely to be repeated in the English Criminal Justice System, and, to that extent, Turner should be eternally thankful to be an American.

 

Note: This blogpost has been compiled by an English barrister with no formal training in California State or U.S. federal law. Apologies at the outset for any error in my interpretation or explanation of the relevant law; any proposed corrections are welcomed.

The Metro should be ashamed of this blatant dishonesty

Another Thursday, another news outlet seemingly heck bent on grabbing my dander and yanking it to attention. Today is the turn of the Metro to use its front page to demonstrate how to merrily defecate on the quaint outmoded journalistic principles of “fairness” and “accuracy”. Although, extending to the Metro the fairness that it has denied its duped readers, some sort of prize – the Trump Award for Incorrigible Spaffwaddery, perhaps – is due for the audacity in slamming (to adopt the journalese) a judge as “soft” for imposing the maximum sentence the law allows. We are through the looking glass now, my friends.

Some very shoddy journalism

Some very shoddy journalism

The author of this mess has either not read or not understood the sentencing remarks of HHJ Kinch Q.C. yesterday when dealing with the £14m Hatton Garden burglary, in which he carefully explained how he had arrived at the sentences imposed. Top tip for you – if you’re going to report on a legal story, just have a gander at, y’know, what the Judge actually said. It’s even easier, I’d suggest, when the Judge takes the time to type, publish and make his remarks publicly available to the press. Frankly, I don’t blame the Learned Judge for waking up this morning, seeing the newspapers and wondering why the jiminy he even bothers.

So, a quick primer for the Metro. The defendants John Collins, Daniel Jones and Terence Perkins were charged with conspiracy to burgle. The maximum sentence for any burglary, other than a dwelling, is 10 years’ imprisonment. That’s not a judicial folly of a crim-hugging judge. That’s section 9(3) of the Theft Act 1968, the law, as enacted by Parliament.

At the hearing, the prosecution submitted that an offence of this type called for the maximum sentence available – i.e. 10 years. The defence argued that this should be reserved for even worse cases. You don’t have to have been at the hearing to know this – the Judge sets this out in plain English at para 17.

The Judge agreed with the prosecution. In fact, he said, at para 20:

“I am satisfied that nothing other than the maximum sentence permitted by law would be appropriate as a starting point for anyone convicted of conspiring to take part in this exceptional case.”

For each of the principal offenders – Collins, Jones and Perkins – the Judge, applying credit for their guilty pleas, as he is required to do by the Sentencing Guidelines and the Court of Appeal authority of R v Caley [2012] EWCA Crim 2821 – again, legal mandates, these, not some soft old bugger dishing out freebies like Werther’s Originals – arrived at the maximum sentence the law allowed – 7 years’ imprisonment.

So, how did the Metro reporter interpret the proceedings?

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“[The Judge] showed leniency after prosecutors suggested ten years should be the ‘starting point’ for sentencing”.

Leniency? LENIENCY? HE GAVE THEM THE MAXIMUM SENTENCE THE LAW ALLOWED. WHAT MORE DO YOU WANT, YOU PUSTULATING TWIT?

By all means, criticise – as I often do – the law that tied the Judge’s hands. Throw your weight behind the Law Commission’s valiant efforts to inject some sense and consistency into the sentencing morass that has resulted from decades of on-the-hoof populist legislating by idiot politicians.

But don’t blame the Judge.

I don’t particularly enjoy taking personalised pot shots at journalists, because I recognise that it’s a damn difficult job, and often the story you want to write doesn’t fit with what those above impel you to write. And inevitably there’s a compromise. I know the industry.

But stories like this – lacking even a resemblance to the truth – cannot be left unchallenged. This was not a case of soft sentencing. It was the polar freaking opposite. And either you, Mr Reporter, know that, and are lying to your readers. Or you and/or your subs haven’t bothered to do the most basic research before filing copy. Either way, you should be deeply embarrassed.