Abstract
Nigel Stone, Senior Lecturer in Criminology in the School of Social Work and Psychology, University of East Anglia, reviews recent appeal judgments and other judicial developments that inform sentencing and early release.
Riotous disorder
August riots 2011: Guideline judgment
In dealing with a cluster of ten unrelated but thematically linked appeals, all arising from offending in the course of major disturbances around the country in August 2011, a Panel of the Court of Appeal in a judgment given by the Lord Chief Justice has provided general sentencing guidelines in respect of this heightened form of disorder. Noting that this level of ‘deeply disturbing’ lawlessness had been ‘utterly shocking and wholly inexcusable’, subjecting neighbourhoods to ‘ghastliness’, Lord Judge embarked by reiterating the duty of the courts to protect the public, whether in their homes, businesses or on the streets from being ravaged by riot: Those who deliberately participate in disturbances of this magnitude, causing injury and damage and fear to even the most stout-hearted of citizens, and who individually commit further crimes during the course of the riots are committing aggravated crimes. They must be punished accordingly, and the sentences should be designed to deter others from similar criminal activity. While that is factually correct, it provides no mitigation whatever for criminal activity which created or exacerbated the public disorder problem with which police and fire officers were dealing. The reality is that the offenders were deriving support and comfort and encouragement from being together with other offenders, and offering comfort, support and encouragement to the offenders around them. Perhaps, too, the sheer numbers involved may have led some of the offenders to believe that they were untouchable and would escape detection…. None of the offenders before us was ‘mindless’. Their actions were deliberate and each knew exactly what he (and in one case, she) was doing. … contemplated that the offences with which they are concerned would take place within the context of the nationwide public disorder.... Therefore sentences beyond the range in the guidelines for conventional offending (i.e. offending which lacked the aggravating features of widespread public disorder common to these appeals) were not only appropriate but inevitable.
Lord Judge noted that a senior circuit judge based at the Crown Court in Manchester had indicated, in consultation with his judicial colleagues at that court centre, the sentencing range that would be applied for riot-based offending in that area. However, he considered it ‘inappropriate for Crown Court judges to issue, or to appear to be issuing, sentencing guidelines’. Judges in other parts of the country ‘might form different views on these issues, not least because the rioting and disorder within the jurisdiction of their own courts might have been more, or for that matter less intense than those in Manchester and the aggravating or mitigating features may have been different’.
Having summarized the scale and extent of the rioting occurring in London, Manchester, Nottingham, Birmingham and other urban centres, Lord Judge proceeded to deal with the individual appeals:
Quite independently, S. aged 22 with no relevant prior conviction, had pursued a similar initiative in Warrington, later claiming that he had been intoxicated after drinking and could not remember clearly acting in this way. He had retracted his Facebook entry but only after being alerted to the police’s interest in and search for him. Fortunately, though 47 persons had indicated their interest, no one attended the invited meet.
On their appeals against four year terms of imprisonment following guilty pleas to intentionally encouraging or assisting the commission of a serious offence (under the Serious Crime Act 2007 s44), Lord Judge was not impressed by the suggestion that each had done no more than make a Facebook entry, noting that: … the abuse of modern technology for criminal purposes extends to and includes incitement of very many people by a single step. Indeed it is a sinister feature of these cases that modern technology almost certainly assisted rioters in other places to organise the rapid movement and congregation of disorderly groups in new and unpoliced areas.
Aged 25 and with no relevant record, V. had entered an already badly vandalized camera shop in Manchester, stealing a camera with a value of nearly £300. In his PSR interview he described himself as an observer who took advantage of the rioting, not a participant. Though a talented chef in a well-regarded restaurant, in the Court’s view he had not only chosen to be in the city centre knowing of the disturbances and thus adding to the difficulties but had compounded this by looting a shop. His sentence of 20 months imprisonment following guilty plea was upheld.
Aged 19 and of previous good character, McG had been returning home when she saw a mob attacking an Argos store in South London. Having followed others inside she saw a man carry a television from the stock room and place it on the floor, prompting her to pick it up and walk out with it, being stopped immediately by the police. Having first tried to run away she sought to claim that the TV belonged to her, subsequently explaining that ‘everyone else was doing it’ and she had ‘got swept up in the hysteria’. Though she was a member of the Territorial Army with a positive reference and the Court accepted that she had not gone to the scene intent on trouble, involving herself only in a moment of spontaneity, her sentence of 13 months detention following early guilty plea was upheld, her criminality being considered intrinsic to the rioting and looting in progress.
… none of these cases… involves someone who handled stolen goods by way of encouragement of the commission of burglary and theft as part of the disorder. Rather each represents opportunistic involvement after the burglaries had occurred, and although in close proximity to the scenes of disorder, the appellants did not participate or contribute to them. The connection between the offences which they committed and the burglary and theft committed during the disorders takes them outside the ordinary guidelines for handling offences, but not every handling offence committed during the public disorder was as intrinsic to it as, say, the burglaries of shops which had been smashed and looted. The sentences must recognise these distinctions.
R v BLACKSHAW and OTHERS, October 2011 (not reported at time of writing).
Dangerousness
‘Bumping up’ determinate term unlawful
Having been released homeless from prison and staying at a Salvation Army hostel, H., aged 29 with ‘an appalling criminal record’, barricaded himself into his room at night and set fire to bedding. When police forced entry the fire was quickly extinguished, damage being minimal and estimated at £100. H. had self-harmed, protesting his innocence by writing in blood on the wall. Psychiatric reports indicated some mental illness at the time of the crime that had improved during his subsequent remand in custody, so that a hospital order was not appropriate. H. pleaded guilty to arson being reckless whether life would be endangered. The pre-sentence report recorded H.’s admission that he had wanted to burn down the hostel and everyone in it and that he was still talking about setting fires and harming himself and others. His 137 previous convictions included an earlier instance of arson. Concluding that H. posed a significant risk of serious harm by further fire-setting, the Crown Court imposed an IPP (indeterminate imprisonment for public protection) with a minimum term of 18 months (based on a notional determinate term of three years), from which days of custodial remand were deducted. When alerted to changes in the statutory provisions in respect of IPPs, specifying that the offending must be serious enough to attract a notional term of four years (unless an alternative test applies, namely that the offender’s record includes a prior conviction for an offence listed in Schedule 15A of CJA 2003 – not applicable in H.’s case), the judge remained of the belief that an IPP disposal was required and changed the minimum term to 24 months, based on a notional determinate sentence of four years.
On H.’s appeal against sentence, the Court of Appeal considered that the judge’s initial view of the notional determinate term had been correct and observed that he had ‘bumped up’ this term in order to meet the gateway test set by Parliament. The revised provisions require one of the threshold tests to be met before an IPP can be imposed, no matter how ‘dangerous’ the offender is considered to be. The judge had approached the sentencing decision the wrong way round, setting the notional determinate term to meet the IPP objective and had erred in principle. A determinate term of three years was substituted.
R v HARRIS, October 2011 (not reported at time of writing).
Firearm: Test not satisfied
On executing a search warrant at O’F’s brother’s home address, police found a loaded revolver and spare ammunition. Shortly after his arrest O’F presented herself at a police station, voluntarily admitting that the gun belonged to her and that she had hidden it at her brother’s home. She explained that she had obtained this weapon because of escalating tensions between her ex-partner’s family and her own over a vehicle that had been set alight, leading to fights, a friend being run down and a brick being thrown through her mother’s window. Deciding that ‘enough was enough’, she had armed herself with the intention of threatening anyone who caused further problems at her mother’s address. Aged 21, O’F had incurred ten sets of convictions in the preceding seven years, starting with arson at a school in response to being bullied, attracting a referral order, and including a wounding by glassing in the course of a nightclub fight with another young woman, attracting an eight month detention and training order. She had subsequently been subject of a community order imposed for fighting with another woman. Sketching her disrupted childhood – featuring sexual abuse at age 13 and early involvement in relationships with abusive men – the pre-sentence report concluded that O’F presented a high risk of harm to the public but considered this unlikely through the commission of further specified violent offences. The PSR writer considered that the present offence had been committed in specific circumstances unlikely to recur.
On O’F.’s appeal against an indeterminate sentence for public protection following guilty pleas to possessing both a firearm with intent to cause fear of violence and prohibited ammunition, the Court of Appeal observed that her possession of a loaded gun was deeply worrying, given too her acknowledged threat to use it, made in police interview. However, she had not made threats to any of the intended victims and had done nothing to implement that threat. The Court concluded that these circumstances ‘fell somewhat short of establishing the requisite degree of risk for dangerousness’. Given insufficient evidence that that threshold had been crossed a determinate term of six years was substituted.
R v O’FLAHERTY, September 2011 (not yet reported at time of writing).
Mental disorder and disability
Restriction direction justified
Encountering an elderly woman, unknown to him, in the street, A. hit her and squeezed her breast before approaching another elderly victim and kicking her arm. On arrest he attempted to head-butt a police officer. A.’s prior convictions included exposure, disorderly behaviour, two common assaults and an attempted robbery incurring three years imprisonment four years before this offending episode. Psychiatric evidence referred to A.’s long history of mental illness, exacerbated by habitual excessive consumption of alcohol and khat, though he did not recognize the impact of his substance misuse on his behaviour. Diagnosing undifferentiated schizophrenia and paranoid schizophrenia respectively, both reporting psychiatrists concluded that A. met the criteria for a s37 hospital order under MHA 1983 but neither considered that an associated s41 restriction direction was justified, one consultant opining that this kind of order could inhibit treatment and the benefits of flexibility in medical management.
On A.’s appeal against imposition of a hospital order with a restriction direction for sexual assault and two instances of ‘assault by beating’, it was argued on his behalf that the Crown Court had failed to have proper regard to the statutory test for a restriction order – that it is necessary for the protection of the public from serious harm. The Court of Appeal noted the sentencing judge’s acknowledgment that A.’s offending to date could be considered to indicate that he was ‘an anti-social pest’. However, he posed a risk of uninhibited behaviour against vulnerable victims that extended to sexual harm and the judge concluded that if a s41 order was not imposed A. would be located in low security accommodation with greater ease of access to alcohol. He had considered that it would be preferable for a review tribunal to decide when to discharge A. rather than his medical advisers. Observing that it would have been helpful for the judge to have had clearer explicit reference to the basis for a s41 direction, the Court of Appeal identified that A. appeared to target vulnerable persons, that the relatively minor nature of his current offending could be considered a ‘matter of good luck’ and that the injuries to his second victim could have been significantly more serious. The Appeal Court concluded in light of A.’s antecedent offending, the nature of his mental disorder and his resistance to recognizing the impact of substance abuse on his condition that a s41 order had been justified and was not manifestly excessive.
R v ABDI, September 2011 (not reported at time of writing).
Hospital order or imprisonment?
Having first come to the UK from Somalia at age 11 a youth had been excluded from school following an incident of violent disorder that attracted a detention and training order, thereafter pursuing a criminal mode of life, primarily centring on Class A drugs supply, he being a heavy user of cannabis. Aged just 18 he had been sent by a senior associate to seek out a rival dealer, armed with a shotgun. On confronting this competitor the offender had fired the gun into the air but the target, known to have been a violent man who was himself armed with a blade, had chased him and had not been deterred by the offender turning to point the gun at him, threatening to shoot. A fight ensued and in the course of that struggle the firearm was discharged, killing the rival. Though not mentally ill at the time of this crime, the offender developed a paranoid psychosis while on remand awaiting trial for murder and was transferred to a high security hospital. He was nevertheless deemed fit to plead and by point of trial he was responding well to medication and treatment and was conforming to the medical regime. Though acquitted of murder he was convicted of manslaughter. His consultant indicated that he needed to continue his medication and treatment for a prolonged period, being assessed to manifest conduct disorder in addition to his mental illness, and it was anticipated that he should remain at Broadmoor for a further four years, followed by some two years in a medium secure unit. Accordingly, his psychiatrist recommended imposition of a hospital order with an accompanying restriction direction. In contrast the psychiatrist instructed by the prosecution proposed a custodial sentence but in the anticipation that his continuing hospital treatment could be achieved by the making of a transfer direction under MHA 1983 s47.
Having already indicated to the authorities that an advance s47 transfer order should be provisionally made so that this could be effected in the event of a murder conviction, the trial judge now had to determine whether to opt for a mental health or a custodial disposal. He was satisfied that the defendant met the test for ‘dangerousness’ but, being anxious to avoid a hiatus that could disrupt the offender’s treatment at Broadmoor while a transfer was effected, the judge opted for a s37/s41 disposal. This was challenged by the Attorney General.
Though expressing admiration for the efforts the judge had made to achieve both the offender’s treatment and the safety of the public and acknowledging the features in common between detention for public protection on the one hand and a hospital order with restriction on the other, neither affording any absolute right to release and both providing for recall post-release, the Court of Appeal nevertheless had regard to ‘an absolutely crucial difference between the two forms of regime’, not explored before the Crown Court: Under an order for detention for public protection release is dependent upon the responsible authority being satisfied that the defendant is no longer a danger to the public for any reason and principally not at risk of relapsing into dangerous crime. Under the hospital order regime release is dependent upon the responsible authority being satisfied that the defendant no longer presents any danger which arises from his medical condition. Similarly, and critically, release under the detention for public protection regime is on licence and the licence can be revoked if the defendant shows that he remains a danger to the public from crime. It is possible and indeed inevitable that the licence conditions will be designed, among other things, to prevent association with dangerous criminals. Under the hospital order regime, recall is available but only if the defendant's medical condition relapses. Simple crime does not trigger a recall under the hospital order regime.
It was also argued that licence under a custodial sentence would involve less intensive case management than would apply on conditional discharge from hospital. The Court considered that while this may be true ‘the intensity of supervision is no substitute for the test for release and the test for recall to which the supervision has to be directed’. Accordingly, there was ‘only one possible answer’, namely the substitution of a sentence of detention for public protection. As the Court fully recognized that interruption of Broadmoor treatment would be highly undesirable it delayed making formal substitution of sentence until satisfied that a s47 order was in place, thus allowing the offender’s continuity of stay in that environment.
Though the option of a ‘limitation direction’ under MHA 1983 s45A was not available in this instance because this measure pertains only to sentences of imprisonment for which the offender was ineligible because he was aged under-21, the Appeal Court observed that that disposal would have met this case ‘perfectly’ and expressed the hope that the relevant legislation could be amended to bring young adults aged 18 to 20 within that provision.
ATTORNEY GENERAL’S REFERENCE No. 54 of 2011,
October 2011 (not reported at time of writing).
Psychological needs: Knife crime too serious for deferment
In the aftermath of a party when intoxicated after drinking J. aged 18 involved himself in a dispute with other young persons, getting into a fight with the victim R. aged 17. Though they were separated and R. walked away, J. collected a knife and approached the victim once more to renew their fight, in the course of which he stabbed R. twice, causing the blade to break from the handle. When police officers intervened J. claimed that he had been defending his girlfriend. On being taken to hospital R. required two and four stitches to his injuries to his arm and shoulder blade respectively. J.’s antecedents included a reprimand and a conviction for assault, the latter attracting a fine. Following his guilty plea to s18 wounding with intent, the Crown Court had the benefit of an assessment by a clinical psychologist that identified that J. had ‘early attachment problems, together with the trauma of witnessing violence between his parents at a young age’. As a result he was emotionally insecure, suffered from anxiety and depression and had consumed alcohol and drugs as a way of coping. He was considered to evidence an emerging personality disorder. He had already received a considerable amount of psychological therapy during his adolescence but his problems with anger management had not been solved and the reporter considered that he required long-term psychological therapy lasting up to 12 months.
Though the Crown Court judge had regard to the relevant Sentencing Council guidelines and commented that a custodial sentence was inevitable, given this episode of knife crime, the judge was persuaded by the psychologist’s assessment that a long period of custody could prove harmful for J., opting instead to defer sentence for six months, subject to conditions that he ‘continue with your present therapy and attend the psychiatrist, and of course no further offending’. On reference by the Attorney General on grounds of undue leniency the Court of Appeal was informed that in the intervening two months J. had kept four out of five appointments as a Centre for Counselling and Psychotherapy, had attended upon a psychiatrist and was continuing with the anticipated course of treatment. Though acknowledging concerns that J. might struggle to avoid negative attitudes in custody, the pre-sentence report writer advised that he participate in a CALM (anger management) programme in custody or on licence.
Reiterating that the effect of deferment of sentence, in the absence of some express indication by the deferring court, is ‘to convey to the offender that if he complies with the requirements he has undertaken to perform and commits no further offence during the period of deferment, he will receive a non-custodial sentence’, the Appeal Court credited J. for the progress he had made but concluded, in light of the seriousness of his crime and the interests of both victim and public, that deferment was ‘manifestly not in the interests of justice’. Though alert to the mitigation arising from J.’s age, plea, adverse life experiences and efforts to seek help with his problems prior to the wounding and thereafter, the Court considered that a sentence of at least three years would be required following contested trial. A term of 18 months YOI detention was substituted for the deferment order.
ATTORNEY GENERAL’s REFERENCE No. 62 of 2011 (R v JOHNSON),
September 2011 (not reported at time of writing).
Disability: Powerful mitigation
Having spent a considerable period of time voluntarily in the company of a man aged 22 in the course of a night out during which she consumed a large amount of alcohol, a young woman aged 20 was subjected to a sustained sexual attack by him, involving substantial and gratuitous violence. He pinned her against a wall, bit her face, head-butted her, struck and kicked her repeatedly, including to the head, penetrated her mouth with his penis and her vagina digitally, finally rummaging through her handbag and removing her wallet and phone, returning to kick her as she lay on the ground. Besides her physical injuries she suffered longer term emotional and psychological harm. He had a considerable criminal record that included assault, robbery of a young woman and an ABH for which he had been subject to a suspended sentence order at the time of this crime episode. Following guilty pleas to rape, sexual assault by penetration and robbery, he incurred an extended sentence for public protection comprising six years imprisonment with six years’ licence extension.
On reference by the Attorney General on grounds of undue leniency the Court of Appeal readily acknowledged the serious aggravating features of this case. However, the Court accorded great significance to ‘powerful mitigation’ arising from the offender’s history and circumstances. Profoundly deaf and unable to communicate easily he had been placed in local authority care at age 14, experiencing frequent moves between placements. His father having ceased any role in his life soon after his birth, he had been left homeless and very vulnerable following his mother’s death, being groomed and sexually abused. A charity working for homeless young people had encountered him in the red light zone of a major city, depressed and devastated by the loss of his mother. In these circumstances the Appeal Court considered that the Attorney General had ‘targeted quite the wrong offender’ to make his point regarding the appropriate level of sentencing for grave offending of this nature. Given ‘this quite exceptional and significant mitigation’, the Court considered that the judge’s approach was to be commended and was not unduly lenient. (It should be noted that this judgment makes no reference to ‘dangerousness’ or to the possibility of indeterminate sentencing for public protection, or to any advice provided by the probation service.)
ATTORNEY GENERAL’s REFERENCE No. 35 of 2011,
July 2011 (not reported at time of writing).
Out-of-character violence
Aged in his late-70s, married for over 50 years and of ‘impeccable good character’, C. had unwisely invested a substantial sum intended for his retirement but had kept the resulting loss and ensuing debt from his wife. The worry preyed on his mind, particularly the fear that they could lose their much loved retirement bungalow, and he reached a point of desperation where the only solution appeared to him that they should both die. He planned to stun her and smother her before killing himself but having struck her with a rolling pin in her sleep, causing her to wake and call for his help, he had not felt able to proceed and had summonsed an ambulance instead. She sustained lacerations to the head and a fractured cheekbone and finger. She subsequently told the police that C. had never been violent but always loving towards her, that her marriage was happy and that she still loved him and wanted to be reunited with him. C. made frank admissions, pleading guilty to s18 GBH with intent. The financial problems were resolved thereafter by their son.
Psychiatric assessment indicated that C.’s uncharacteristic violence might have arisen when his mind was affected by post-epileptic activity, coupled with mild cognitive impairment and possible mood disorder. He was transferred to a medium secure unit for assessment under MHA 1983 s35. Subsequently his psychiatrist reported that C. did not appear at high risk of further violence, though the risk of self-harming could be considered more significant. He did not need management in a secure unit. Given his current inability to cope with the same level of demand as he could manage in his pre-morbid functioning, he would require ongoing professional care to monitor risk and also his epilepsy, anxiety disorder and possible further cognitive decline. That care would need to be sensitive to C.’s potential for concealing and minimizing but ruminating on problems. Accordingly, the psychiatrist recommended imposition of a community order with a requirement of medical treatment that would also facilitate couple therapy to support C. and his wife in their changed relationship in living together once more. In light of this assessment the pre-sentence report proposed a suspended sentence order with a two year supervision requirement.
On C.’s appeal against 56 months imprisonment, the Court of Appeal agreed that this case had posed a very difficult sentencing exercise and considered that it was not in the interests of justice to apply the relevant sentencing guidelines which could never have been intended for an exceptional case of this nature. Accordingly, having regard to C.’s age, the length of his marriage, the circumstances in which he struck his victim and his wife’s continuing support and her upset arising from his sentence, the Court substituted what it termed ‘a probation order’, in the confident expectation that both C. and his wife would cooperate with their local mental health unit and the probation service.
R v CLARK, October 2011 (not reported at time of writing).
Comprehensive vulnerability
Having been introduced to a girl aged 12 by her swimming coach, H., aged 18, without prior convictions and with ‘a gentle, quiet nature’, pursued a mutual friendship with her by phone, chatline and periodic meetings that culminated in protected intercourse, she being sexually experienced and initially reluctant but eventually agreeing. When her mother learned of this by checking the child’s mobile phone, H. claimed that he thought she was aged 16, though her swimming coach was firm that he had advised H. of her true age. Following H.’s guilty plea to rape of a child aged under-13 a Newton trial was conducted to determine his true awareness of her age, the Crown Court finding that he had known she was only 12 but had gone on regardless ‘with his eyes open’. The judge also received evidence from a consultant psychologist about H.’s level of intelligence and understanding which indicated that he had significant and unusual learning and developmental difficulties and comprehensive vulnerabilities. As later summarized by the Court of Appeal: He appeared not to need others in the same way as his age peers. He focused more on adults as peers. Without external reference points, he was easily ‘lost’. Little in the way of successful or normal social communication was automatic to him. He had a range of ticks and habits, and often talked in disorganised ways that further indicated his unusual nature. He was a generally passive individual, with a tendency to isolation in his own world, making him more of an observer, albeit an unreliable one. His rigid perceptions and dependency on adult guidance had protected him from behaving antisocially. The recent death of his grandfather had been the loss of more than a companion; it meant for him that a whole set of routines and references had gone and he was genuinely bereft. In the absence of a steady girlfriend, he was readier to see things as he hoped they were, and to allow the circumstances to develop as they did. In the view of the consultant psychologist, it was credible that he would not have made ‘the appropriate connections’ around the complainant's age.
On H.’s appeal against a three year custodial sentence (a penalty below the guideline brackets), the Court of Appeal received prison reports that indicated that he was polite and conforming but was evidencing low mood and was not coping, being prescribed anti-depressants. The Court was nevertheless satisfied that due allowance had been made for all the difficult factors involved in this case and upheld the sentence.
R v HOLMES, October 2011 (not reported at time of writing).