A recurring theme of the coverage has been to blame the CPS, and Keir Starmer personally as DPP, for pursuing these cases. In short, prosecutions weren’t in the public interest and charges should not have been pressed.
But is it fair to lump all the blame on the CPS this way?
The public interest test is not as straightforward as commentators imagine. How it works is set out in detail in the Code for Crown Prosecutors. Specifically:
4.12 A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal (see section 7). The more serious the offence or the offender’s record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest.
The CPS is required to work from a presumption that prosecution is in the public interest, and only decide otherwise if there are specific factors pointing against that presumption (again, these can be found in the CCP). If someone has done something that meets the evidential test for criminal liability, then one has to assume prosecution is in the public interest absent any special factors. In this case, it’s hard to see what those factors could have been.
The CPS’s public interest test does not allow them to decide which laws they wish to enforce. It is there for exceptional circumstances that suggest prosecution should not occur. But it works upon the basis that behaviour attracting criminal liability should be prosecuted in the absence of those circumstances.
The real problem here isn’t with the DPP or the CPS. The problem is with the law. This is an area that is notoriously retrograde. Laws on ‘extreme pornography’ were criticised at the time for the potential to result in precisely such a prosecution as happened here. They remain deserving of that criticism. Section 63 CJIA ’08 is sloppy, poorly-defined, unjustified knee-jerk legislation.
Put simply, a prosecution such as that of Simon Walsh was simply waiting to happen. That the CPS were obliged to prosecute is not particularly their fault: faced with a straightforward contravention of the law and an absence of special factors, their discretion was seriously limited. They don’t get to choose which laws to enforce.
The real target of people’s attentions should not be the CPS, but the law they were required to enforce.
Edward Woolard is accused of receiving soft treatment from the authorities for his offence:
Instead of charging him with attempted murder, he was convicted of violent disorder and will likely serve a little over half of his thirty-two month sentence. It’s also unsurprising to note that Trade Union Congress supporters and the Socialist Worker Online are supporting Woollard, the latter referring to him as a “political prisoner” and insisting you send him a Christmas card.
This paragraph is utterly ignorant of the true legal position. It was never open to the CPS to charge him with attempted murder, nor was his sentence in any way unusual, as I blogged at the time. He got a textbook sentence for a textbook charge for a textbook offence. The CPS could not have charged him with attempted murder for three reasons. First, unlike full murder, attempted murder requires only an intention to kill. Intending GBH is insufficient. Second, even if the fire extinguisher had landed on someone and killed them, the more appropriate charge, as the authorities bear out, is unlawful act manslaughter. Third, you cannot present a case of “attempted unlawful act manslaughter”. It’s not open to you to do so. The CPS charged him with the appropriate offence, and he got the usual sentence. There was nothing remarkable about it.
So this isn’t an example of unequal treatment before the law.
The next plank of the article is Reading the Riots:
While harsher than usual sentences were doled out, following the initial shock and outrage thieves, looters and arsonists weren’t effectively condemned or shamed by society. Instead, we’ve been preposterously seeking out their rationale or intimating that “we are all to blame”– as one recent BBC Newsnight guest argued. The parents won’t take the blame and the Guardian and LSE insist that somehow it is anyone’s fault but the rioters.
There’s a sleight of hand here. The article is about equal treatment before the law. It notes that in fact rioters got ‘harsher than usual sentences’, which undermines its claim that we’ve somehow gone soft. Then it does a clever little bit of misdirection. Despite undermining their case, they argue that in truth it supports them because of the societal response.
But this is an article about the application of the law, isn’t it? What Guardian journalists and LSE researchers think about the underlying causes of the riots doesn’t have any relevance to whether the law is being applied equally, much though they might wish to think so.
So far, so bad.
This all builds up to the central theme of the article, that a group of attackers got off lightly because they claimed they were drunk Muslims. If that sounds like a caricature, please remember that I am only repeating the title of the article.
This is the offending (and offensive) part of the article:
Not content with calling care worker Rhea Page a “white bitch”, the Somalian women set upon her, leaving her “black and blue” and subsequently ushering her into unemployment due to the substantial mental trauma she suffered. Miss Page commented: “I honestly think they attacked me just because I was white. I can’t think of any other reason.”
But seventeen months later, Judge Robert Brown dismissed such claims and the women were not charged with racial aggravation. Judge Brown said, “I’m going to suspend the sentence” and that he accepted the attackers’ claims that they felt Miss Page’s partner used unreasonable force to defend her. In our estimation, from the video below, he was more restrained than we might have been.
Gary Short, who defended the attackers said: “They’re Somalian Muslims and alcohol or drugs isn’t something they’re used to.”
This is what qualifies as a legal defence in twenty-first century Britain. No need to worry about the law. No need to be concerned with the consequences of your actions. If you can find an excuse, especially if it is in a minority religion, then you’ll be free to go.
While it is an undoubtedly awful attack, the reporting here is truly dreadful.
Let’s start from the worst and work up: “This is what qualifies as a legal defence”. No, it doesn’t. The defendants all pleaded guilty to ABH. This is a plea in mitigation. It will not get you off, and you are not allowed to deny the facts of the offence. This is not hair-splitting, or jargon, as the Commentator suggested earlier on Twitter. It is completely misleading to call this a legal defence; it suggests (as was, I suspect, the author’s intent) that if you go to court and say “I’m a Muslim/Jew/Mormon etc.” you’ll be acquitted. That is not what happened. Drunkenness is a legal defence only in some very narrow and specific circumstances; the rest of the time, it is no excuse. What’s more, taking one sentence of a plea in mitigation out of context is extremely misleading: without the context you simply can’t know what the thrust of Mr Short’s submissions were. At an informed guess though, it is unlikely that he was saying “let them off because they belong to a minority group”.
Moreover, it’s not even clear that such mitigation really is about their religion. The central thrust of such an argument is not that they’re Muslims, but that they’re not used to drink. Presumably that’s to suggest that their behaviour was out of character, which is a normal piece of mitigation. Their being Muslim would only be evidence to support that proposition, in the same way that my being Jewish might be evidence that suggests I didn’t rob the local butcher for its finest pork chops. But the point here is that it is a matter of evidence, which is case-specific, rather than the law.
“You’ll be free to go” is no better. They weren’t free to go. They have all got suspended sentences. That is as harsh a penalty as the court can impose short of actually sending you to prison. You have to comply with strict conditions (including, here, 150 hours of community service each and curfews), and if you breach those conditions, or commit another offence, the sentence is activated and you will go straight to prison. This is not a soft option, and it isn’t unequal treatment.
“Judge Robert Brown dismissed such claims and the women were not charged with racial aggravation”. That sentence simply doesn’t work. Either the charges were dismissed by the judge, or they weren’t charged, but it can’t be both. The Telegraph suggests that they were never charged with it. That would be perfectly normal. Unlike in the USA, English prosecutors have to be economical with charging practices. You only charge for the minimum offence you need to prove to get the appropriate sentence. If the CPS felt that this was never going to get a sentence longer than five years, then there is no advantage in charging them with the harder-to-prove racially aggravated form of the offence. This approach would be taken in any other case, irrespective of racial issues. It certainly does not suggest the CPS went soft.
“Accepted the attackers’ claims that they felt Miss Page’s partner used unreasonable force to defend her.” No he didn’t. You have to look more closely at what the judge is actually reported to have said:
He said he accepted the women may have felt they were the victims of unreasonable force from Miss Page’s partner Lewis Moore, 23, who tried desperately to defend her from the attack.
That is like the non-apology you get from someone who’s said something offensive: “I’m sorry you feel that way”. The formulation is entirely subjective. The judge is saying that he accepts that the defendants themselves may have subjectively felt they were the victims; he does not say that they objectively were the victims. In fact, he rejected their claim that the victim’s boyfriend started the fight.
So all that leaves is the fact of the suspended sentence. Why did they get it? All we are told is that in the plea in mitigation their lawyer said they weren’t used to drink, and subsequently they got a suspended sentence. What we are not told is whether the one had any relation to the other, or, if it did, how significant that was. Again, without seeing the fuller plea in mitigation it’s not really possible to tell why they were given a suspended sentence.
Brown J said:
“This was ugly and reflects very badly on all four of you. Those who knock someone to the floor and kick them in the head can expect to go inside, but I’m going to suspend the sentence.”
That suggests that this case had some particular factors that just pushed it below an immediate custodial sentence (though, like any suspended sentence, it passed the custody threshold). There could be several good reasons why that would be. First, they appear to be first-time offenders. Prison is generally not seen as appropriate for a first offence if it can be avoided, as the risks of exposure to hard drugs and more serious criminals risks producing someone more dangerous in the long run. If a non-custodial option can work, then it is generally more appropriate. If the defence’s submissions are what I think they are, i.e. that this was out of character, then the court would look favourably on an attempt to try and give them one last chance (though backed with serious sanctions if they mess up). Moreover, the defendants all entered early guilty pleas, which provides an automatic sentence discount. That may well have pushed them just below the immediate sentence line. Had they chosen to go to trial, and put the victim through the ordeal of re-living the event and the attendant uncertainty of getting a conviction, they would likely have gone straight to prison for a longer sentence. Finally, and more interestingly, there seems to be a particular personal circumstance at play:
As well as the suspended sentence, Hibo Maxamed, who needs dialysis three times a week for a kidney complaint, received a four-month curfew between 9pm and 6am.
That could easily sway the court in favour of avoiding a prison sentence. The prison service would have significant difficulties giving him the appropriate treatment. If a sentence could be found that would avoid that, it could be looked on favourably. The other defendants may have had connected carer roles that made the court reluctant to send them to prison. None of those factors, however, would count in any way as special treatment. They are ordinary sentencing considerations and can be found in the guidelines. There is nothing to suggest that there was any unequal treatment here.
There are, of course, aspects of the law that are open to criticism. One can argue that the conditions of suspended sentences aren’t strong enough; that an inflexible sentence discount leads to practical injustice; and so on. I’m not a bleeding-heart liberal in terms of sentencing. But the debate has to be done on the basis of everyone sharing the same basic facts about things. Commentary on and criticism of the law is necessary in a healthy society. It must, however, be based on a sound understanding of how the law works, not a load of dismissive hand-waving.
This may also explain why law bloggers have been largely dismayed by the attitudes about the trial in the media.
Hindsight is a wonderful thing. It also doesn’t work well for a justice system. Much of the uproar has been on the basis that ‘Bellfield shouldn’t have been entitled to a defence because he was obviously guilty‘. Such firmness of conviction comes from the verdict rather than the indictment.
Bellfield may have been “obviously guilty” (though I disagree). But then so was Colin Stagg. So too were the Guildford Four, the Birmingham Six and so on. So too Craig Charles, and a whole load of people whose convictions appeared damning.
The suggestion is that the defence should pull their punches to save everyone some discomfort. That may well make for a more sanitised trial, but it will, as sure as night follows day, result in innocent people being sent to prison.
If you are innocent, it means at least one person has been mistaken, negligent or dishonest. You cannot tiptoe around the issue. It has to come out and it has to be put directly to the person. This is, believe it or not, for the benefit of the witness: cross examination is the chance they have to refute any such accusation.
You may say that that’s all well and good in theory, but it doesn’t detract from the fact that the Dowler family went through a traumatic experience in the witness box. Of course it doesn’t.
But let’s turn it around. As you will see from the link above, the police at one point suspected Mr Dowler of being involved in his daughter’s disappearance and death. They had reason to be suspicious. This was the reason the defence was pursued as it was. Suppose, as is known to happen, the police got over-excited or sloppy, and it was Mr Dowler in the dock rather than Mr Bellfield. Would you honestly say that his innocence should be compromised to spare the feelings of others? Would you be happy with a conviction that resulted from such misplaced goodwill?
“The jury was just leaving when the defendant jumped up and ran across the clerk’s bench to get to the judge’s door. As he went through the door his honour Judge Marks Moore grabbed him round the throat to try to bring him down. Together they went down three steps and then Mr Reid broke free and ran down the judge’s corridor. The judge gave chase.
“Just as Mr Reid was about to open a push-handle fire door, HHJ Marks Moore rugby-tackled him around the throat and waist and brought him crashing to the ground, landing on top of him. He held him there, struggling and protesting, until the prison officers managed to catch up, secure him and return him to custody.”
The rather implausible defence given was that he thought the judge had said he could go home for the day. Perhaps sensibly, the defendant changed his plea to guilty.
“There is only one reason why a crown court judge would rugby-tackle a defendant to the ground – because he is trying to escape and the judge is the only person in any position to prevent that escape.”
A particularly damning accusation was that Bjorn Hurtig, Assange’s Swedish lawyer, had engaged in ‘a deliberate attempt to mislead the court’ and several of their own witnesses. This is about as serious an accusation as you can level at a lawyer. For example, the Bar Code of Conduct states:
A barrister has an overriding duty to the Court to act with independence in the interests of justice: he must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court.
It’s drilled into you in the first week of Bar school. For all the bluster that has surrounded the case, this is something far more serious.
The judgment is going to be later today so it makes essential reading/listening. Of particular interest is his view on the merits of Assange’s submissions:
He dismissed two preliminary arguments raised by Assange’s defence team: that the Swedish prosecutor Marianne Ny had no power to issue aEuropean arrest warrant and that the WikiLeaks founder was wanted merely for questioning rather than to face trial.
“There is no doubt that a Swedish prosecutor does have the power to issue warrants,” said Knowles. “And the Swedish prosecutor has made it clear that Mr Assange is wanted for trial if he goes back. Unless he can demonstrate his innocence before trial, he will be tried.”
Another argument put forward by Assange was that the allegations of rape and sexual assault against him did not amount to offences for which he could be extradited. Again, though, Knowles was unimpressed. If what’s alleged against Assange had taken place in the UK, the barrister explained, it would “obviously” constitute sexual assault.
As for the claim that there might be a breach of Assange’s right to a fair trial because some of the evidence against him would be heard behind closed doors, Knowles said that the threshold of unfairness was a very high one: “You have to show there would be no meaningful trial at all.”
And the barrister was scathing about defence arguments that Assange might be re-extradited from Sweden to the US, where he might be held at Guantánamo Bay or face the death penalty. “That is, frankly, a hopeless argument,” Knowles said
Taken at face value this does no more than impose a general duty on states to hold effective elections. However, in Mathieu-Mohin and Clerfayt v Belgium (1988) 10 EHRR 1 the European Court decided that certain individual rights were necessarily implied in Article 3 – i.e. a right to vote in elections and a right to stand for election. Later cases have added that, if elected, the person has a right to sit in the legislature.
On Friday the Commons voted to ignore judgments of the European Court of Human Rights, from Hirst v UK (No 2)  ECHR 681 onwards, and deny prisoners the vote in any form. Lawbreakers should not be allowed to vote, said the lawmakers.
Parliament did not pass an Act that would challenge the legal status of the judgment in Hirst. It remains legally binding. All that was passed was a resolution of the House of Commons. Such resolutions have zero legal effect (Stockdale v Hansard (1839) 9 Ad & El 1). The legal status of the Human Rights Act 1998, the European Convention on Human Rights and the decision in Hirst thus remain unchanged. Parliamentarians therefore simply voted for the government to disregard these.
In other words, the parliamentarians felt so strongly that lawbreakers should not be allowed to vote that they voted in favour of breaking the law.
On the same day Eric Illsley, until recently the MP for Barnsley Central, was sentenced to 12 months imprisonment for fiddling his expenses. In line with domestic law he will, of course, not be allowed to vote while he is in prison. But he would, had he not resigned, have been able to stay on as an MP under section 1 of the Representation of the People Act 1981. Lawbreakers can’t vote for the lawmakers, but they can themselves be one.
In a similar vein, if you were to breach a court order, or otherwise act in contempt of court, you could face a sentence of up to two years’ imprisonment. Even though you have arguably demonstrated more disregard for the law and society than other prisoners, you would not be deprived of your right to vote.
This might suggest that the position is a little contradictory.
Much of what has passed for a debate on this issue has been depressing. In many quarters it has been massively ill-informed.
The right to vote is absolutely fundamental to being a democracy. To suggest that there should be no judicial oversight of this right, while maintaining judicial protection of others, would be to leave a glaring omission in the law protecting fundamental rights. The right to vote is too important to not have it subject to any legal protection.
To suggest that “when you break the law, you lose your rights” is patently false. If that simplistic formulation were true, there would be no need to bother with a right to a fair trial, prohibitions on inhuman punishment, the right to counsel and so forth. The concept of ‘civic death’ is outdated, and nobody seriously suggests a return to the old sentence of outlawry. When you break the law, you forfeit some rights. Which, and to what extent, are decided by society and overseen by the law.
The logic advanced is that denying prisoners the vote should be considered part of the punishment runs into problems because it becomes a punishment that is inconsistently applied, and not just given the examples I mentioned at the beginning. Sentencing is based on the specific factors affecting that offence and the offender himself. The principle is that two (let’s say) identical crimes and offenders should receive the same punishment. A blanket ban on voting runs into difficulties here.
The shortest possible prison sentence a court can impose is seven days. On the assumption that a general election were to be held at regular 5-year intervals, that would mean that, roughly speaking, only one in 260 people sentenced to a 7 day sentence would be punished by disenfranchisement. That is for no reason other than the date the trial and/or sentencing hearing is held. It bears no relation to the facts of the offence or the circumstances of the offender. An additional punishment is being imposed on an entirely chance-basis. That goes against the idea of consistent sentences.
Moreover, is it really right to say that someone sentenced to seven days in prison has transgressed so badly that he should be deprived of the vote? If so, why should he be disenfranchised while the offender given a two-year suspended sentence (indicating greater harm and culpability) remains free to vote? And why should someone sentenced to two years for contempt of court be allowed to vote over them?
The ban is, as the ECtHR said, ‘a general, automatic and indiscriminate restriction on a vitally important Convention right’.
Contrary to what other commentators have suggested, this is the thrust of the judgment in Hirst. It is not suggesting that the Peter Sutcliffe’s of this world should be allowed to vote, nor anyone convicted of a serious offence. There is legitimate scope to ban those convicted of certain offences or in certain circumstances from voting.
This, however, is where the crux of the reaction to the judgment is. People don’t like the idea that human rights laws protect people we don’t like. People like John Hirst, whose background and appearances in the media are, to say the least, inflammatory, are used as examples of why the franchise should not be extended. Human rights are fine, so the argument goes, so long as they are only extended to the people with whom society sympathises. To suggest this, however, is to misunderstand how human rights, and in particular human rights laws, work.
Human rights laws are not really there to protect those the mainstream of society likes. They can generally stand on their own two feet in a democracy in the knowledge that mainstream opinion supports them and can apply pressure to change the law. They are there to protect those that are shunned and hated. Although anyone can say today that the historic (and in some cases recent and ongoing) denial of the human rights of, for example, Jews, Gays and Black people were bad things and that human rights laws protecting them are a good thing, this ignores that at the time when they were most needed such a view would very much be in the minority. The mainstream view would have been that jews and homosexuals were deviants who had placed themselves outside of society, and that granting them the same rights of civilised people would make one ‘sick to the stomach’. Human rights are there precisely to protect those people society shuns, for they are the very people whose rights are most likely to be violated. You don’t persecute people you like.
And at any rate, John Hirst will be able to vote regardless of the outcome here. He’s no longer in prison. He’s not actually that relevant to the issue.
It is, of course, open for Parliament to withdraw from the European Convention of Human Rights, legal minefield though it may be. To do so would in my view, however, be a massively retrograde step.
A British pull-out from the ECHR, or a British decision to reject a ruling by the court, would give great comfort to just those governments cited by Mr Davis above ['Bulgaria for police brutality, Moldova for torture and Russia for atrocities committed in Chechnya']. The ECHR is attacked in this country for having a huge backlog of thousands of unheard cases. Much of that backlog involves Russian cases, because the ECHR has become—in the words of one old Moscow hand—the “unofficial supreme court of Russia”. Look at the list of countries that have flouted ECHR rulings in the recent past. Russia is there, as is Azerbaijan (a country with a noted enthusiasm for jailing journalists, among other things).
Pulling out of the ECHR wouldn’t just “repatriate our rights”, it would strike a serious blow to the authority of the ECtHR. Having Britain in the system provides us with significantly more moral and practical authority on the human rights of countries on the periphery of Europe than we would have if we went it alone. Is it really worth sacrificing that for the sake of giving the vote to a few thousand people?
The sentence of Woollard for Violent Disorder to 32 months in a Young Offenders’ Institution has come as a surprise to some. The idea that a man of otherwise good character, who turned himself in and pleaded guilty, viewed as getting caught up in the excitement of the Millbank rioting, could get a significant custodial sentence for a moment of madness seems odd. There is a suggestion by some lawyers on Twitter that this sentence is appealable for being too harsh.
This view doesn’t appear to have the weight of authority behind it. The criticisms so far have focused either on the nature of Mr Woollard, or his precise actions. That is not the gravamen of Violent Disorder. The offence does not focus on the conduct of one offender, ‘but the nature of the offending as a whole.’ The court has to take into account the wider events of that day, involving substantial criminal damage and injury, and sentence in the light of both that and the public interest in deterring such behaviour in the future.
This is where comparing news articles falls down (and there are plenty of other reasons why it isn’t a worthwhile activity for judging the severity of a sentence). Many of those now going round Twitter have vastly different circumstances. The individual violence may have been greater from a specific defendant, but it’s hard to argue that such cases can offer much guidance in relation to an offence in the context of a large demonstration and significant criminal acts by a substantial minority.
The key authority on this particular point is R v Rees and Others  1 Cr.App.R.(S.) 20. It is authority for the principle that violent disorder is about the nature of the offending as a whole rather than just the offender. It is also a useful case to compare to this one. In it the defendants received sentences ranging from 27 months to 4 and a half years. The offences were, broadly speaking, sustained acts of criminal damage and violence, including missiles being thrown at police officers. Several of the defendants were otherwise of good character, like Mr. Woolard. Though in Rees the defendants were drunk, it is probably not a distinguishing feature but rather a useful comparison for people in high spirits like some of the demonstrators.
Lord Woolf CJ’s judgment in particular is of note. He describes the events of the day as follows:
The group surrounded a stationary tram and engaged in chants and gestures towards its occupants. They pulled off the wipers and tried to damage the tram. Thereafter, there were attacks on police officers and members of the public. There were indiscriminate acts of criminal damage against various premises over approximately a one hour period. Substantial damage was caused to business premises. Fifteen police officers were injured. A number of police vehicles were damaged. The public were undoubtedly put in fear. Missiles were thrown at police officers. Many of the officers were struck. Shields and batons were issued. Controlled advances were made. The violence continued until about 23.00
The important part, however, is when Woolf comes to discuss the nature of Violent Disorder as an offence:
Offences of violent disorder often involve young men who otherwise have been of exemplary character, like some of the young men who find themselves before this Court on this appeal. The court must have regard to their personal characteristics. However, the court must also have regard to the effect of offences of violent disorder on the public who may be caused real anxiety and distress. A feature of the offence is that it is not the individual conduct of one offender that is of importance, but the nature of the offending as a whole. An individual offender will want to be punished only for precisely what he has done. However, from the point of view of the public it is the collective effect of the violent disorder which is of significance. When it is the habit of young men (and young women) to… behave out of character, it is important that the courts send a message that there are very real dangers… While the courts wish to be sympathetic towards offenders, they must bear in mind the consequences of the offence as a whole on the public. The problem is that when … what starts as an exhibition of high spirits descends into conduct which is criminal.
This Court has been helped by looking at the video-recordings of what occurred on both of these occasions. The evidence against these young men depends upon those videos. It is clear from the videos that on some occasions the young men involved are doing no more than indulging in high spirits. As long as high spirits are controlled, no criminal offence is committed. But there was episode after episode on both occasions when the conduct became criminal. It descended into the sort of conduct which collectively caused great alarm to those who were present. It was conduct which was very difficult for the police to control. It no doubt alarmed and put at risk police officers. These are aspects which this Court must not ignore; nor must any court who is engaged in sentencing in relation to offences of this nature.
I edited out the references to drinking there to emphasise the point. The above could equally have been said in sentencing Woolard. The court appears to have viewed his offending in light of the wider rioting that day and decided to send out a message to warn others that there are consequences to a moment of madness that could easily have resulted in someone getting seriously hurt.