Sentencing

Principles - Sentence appeals - Sentencing in context of national public disorder

R v Blackshaw and other appeals: CA (Crim) (Lord Chief Justice Lord Judge, Sir John Thomas (president), Lord Justice Leveson): 18 October 2011

Section 125 of the Coroners and Justice Act 2009 provided: ‘(1) Every court (a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case and (b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the function, unless the court is satisfied that it would be contrary to the interests of justice to do so.’

Section 142 of the Criminal Justice Act 2003, so far as material, provides: ‘(1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing: (a) The punishment of offenders, (b) the reduction of crime, (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences.’

Following a fatal shooting by police of Mark Duggan a series of riots took place in London between 6 and 12 August 2011. Ten appeals against sentences, imposed on adult defendants involved in those riots, were heard together because they raised similar issues as to the applicable principles of sentencing in the context of widespread public disorder and rioting and on the issue of whether the sentences imposed on the defendants were manifestly excessive.

The premises which were attacked included a Comet store where £350,000 worth of damage was caused to those premises, and stock valued at £855,000 was stolen by a large number of individuals, including the defendant K. During the evening of 8 August, the defendant B created an event on the Facebook social networking site. The objective was a riot in Northwich. He posted a message of encouragement on the group page that read ‘we’ll need to get on this, kicking off all over’.

He also set up an event and encouraged rioters to meet at a specific location. B, aged 21 who had no relevant previous convictions, was arrested before the event could take place. He admitted to, and was convicted of, doing an act capable of encouraging the commission of riot, burglary and criminal damage, and doing so believing that what he did would encourage or assist the commission of one or more of the offences, and that one or more of the offences would in fact be committed. B was sentenced to four years’ detention.

ST, aged 22, and who had a previous conviction for possessing a class B drug, created a group on Facebook called ‘The Warrington Riots’. Using the site, he sent invitations to 400 contacts inviting them to meet him in connection with rioting, at a specific location. Some 47 people had agreed to attend. In the event no rioting occurred in the streets of Northwich or Warrington. ST pleaded guilty to intentionally encouraging or assisting the commission of an offence, contrary to section 44 of the Serious Crime Act 2007.

It was contended on his behalf that, after he entered his plea, he had sought to cancel the event on Facebook. ST was sentenced to four years’ imprisonment. In sentencing B and ST, the judge had noted that deterrent sentences was necessary. HH, aged 39, was seen directly participating in the rioting, orchestrating a group and throwing bricks at police officers on two separate occasions.

He had also burgled five separate premises, sharing out the proceeds of his crime with others who were involved in public disorder. HH pleaded guilty to one count of violent disorder and five counts of burglary and was sentenced to four years and eight months’ imprisonment. E, who was aged 25 and had no relevant previous convictions, pleaded guilty to burglary for which he was sentenced to 20 months’ imprisonment. G pleaded guilty to burglary and was sentenced to two years’ detention in a young offender institution. HK, who was 18 and had previous convictions for robbery and attempted robbery, pleaded guilty to burglary, for which he was sentenced to 12 months’ detention in the young offender institution.

L, the only female defendant, who was 19, pleaded guilty to burglary and was sentenced to three months’ detention in a young offender institution. S, who was 24 and had minor previous convictions, pleaded guilty to handling stolen goods and theft. He had been out on the streets, on his way home observing the riots when he agreed to hold a stolen television in his car for £20. He was sentenced to 12 months’ imprisonment for handling stolen goods and 1 month imprisonment for theft. D, 31, who had previous convictions but none for offences of dishonesty, pleaded guilty to handling stolen goods. He was sentenced to 18 months’ imprisonment. SC, 26, and who had previous convictions, pleaded guilty to handling stolen goods. He had been found with a bag containing some £500 of stolen clothes. He received a sentence of 16 months’ imprisonment. The defendants appealed against their sentences.

They submitted that the sentences imposed were disproportionately severe and inconsistent with existing sentencing guidelines. The sentencing judge, who had heard many of the instant appeals and who had noted that the offences, committed in the context of a national public disorder, fell completely outside the usual context of criminality, had, it was submitted, improperly departed from the guidelines of the Sentencing Guidelines Council.

It fell to be considered whether the Crown courts, in sentencing defendants in the context of widespread public disorder, had been entitled to depart from the relevant sentencing guidelines or whether those courts and the Court of Appeal were constrained by the sentencing legislation and the sentencing guidelines. Consideration was given to section 125(1) of the Coroners and Justice Act 2009 (the 2009 act), which applied to offences committed after 6 April 2010, and to section 142 of the Criminal Justice Act 2003 (the 2003 act). B submitted that disproportionate weight to the necessity to deter others had been given by the judge to what was a spontaneous but monumentally foolish act. Similarly, ST criticised the judge for emphasising too heavily the reduction of crime which followed from the attention he paid to the potential for harm rather then the actual harm which had followed. The appeals in the cases of B, ST, HH, HK, E, G and L would be dismissed. The appeals in the cases of S, SC and D would be allowed.

(1)(i) The sentencing legislation did not constrain the proper exercise (by sentencing judges) of individual judgement on the specific facts of the case and the provision in section 125(1)(a) of the 1999 act, that the court ‘must follow… any sentencing guidelines’, did not require slavish adherence to them. That followed not only from the latitude given by the legislation to sentence anywhere within the offence range (section 125(3) and (4)) but, more generally, because of the specific provisions of section 125(1), which expressly removed any obligation to follow the guidelines where ‘the court was satisfied that it would be contrary to the interests of justice to do so’.

When formulating guidelines, one feature to which the Sentencing Council had to have regard was the ‘need to promote consistency in sentencing’. The effect of current legislation was simple: the court should approach the sentencing decision by reference to any relevant guidelines, which effectively applied the legislative requirement to consider culpability and harm even when not necessarily expressed in those terms.

That provided the starting point and it produced the desirable consistency of approach to sentencing decisions up and down the country without sacrificing the obligation to do justice in the individual and specific case. Nothing in the 2009 act diminished the jurisdiction of the Court of Appeal, where necessary, to promulgate judgments relating to the principles and approach to be taken to sentencing decisions. They bind sentencing courts. The relationship between the Court of Appeal and the Sentencing Council proceeded on the basis of mutual respect and comity.

None of the relevant guidelines contemplated offences taking place within the context of nationwide public disorder. Therefore sentences beyond the range in the sentencing guidelines for conventional offending, namely offending which lacked the aggravating features of widespread public disorder, were not only appropriate, but inevitable (see [13]-[14], [16] of the judgment). (ii) It was entirely appropriate for a judge, sentencing in the context of national public disorder, to make clear that any offence committed in the context of a riot was different in kind from a similar offence committed in isolated circumstances, and for that reason to indicate his intention to depart from the sentencing guidelines provided for specific offences in what he described as the ‘usual context of criminality’.

It was however inappropriate for Crown court judges to issue, or appear to be issuing, sentencing guidelines. Much the same applied to magistrates’ courts. Legal advisers to magistrates were legal advisers. It was clearly appropriate for them to advise magistrates that the magistrates’ courts sentencing guidelines were not drafted with offences committed in the context of riot and public disorder, and that it was open to courts, if they thought appropriate in the individual cases, to impose sentences outside the range suggested by those guidelines (see [20]-[21] of the judgment).

In the instant case, the Court of Appeal endorsed the observations of the sentencing judge that the context in which the offences had been committed took them completely outside the usual context of criminality. It was elementary that sentencing courts could not ignore the context in which the crime or crimes for which a sentence was to be passed was committed. It was an essential feature in the assessment of culpability. In some cases, the context would provide the most powerful mitigation, for example, a genuine mercy killing as a final act of love and devotion. In other cases, including the instant appeals, the context hugely aggravated the seriousness of each individual offence (see [17] of the judgment).

(2) In the case of B and ST, it had to be noted that, in the end, no actual harm in the streets of Northwich and Warrington had actually occurred. It was not however accurate to suggest that neither crime had any adverse consequences. The reality was that, armed with information from members of the public who were disturbed at the prospect, the police were able to interfere and bring the possibility of riot to an end.

While it was true that neither defendant had gone door to door looking for friends or like-minded people to join up with him in the riot, modern technology had done away with the need for such direct personal communication. It could all be done through Facebook or other social media. The abuse of modern technology for criminal purposes extended to and included incitement of very many people by a single step.

It was a sinister feature of the instant 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. What both defendants had intended was to cause very serious crime: in the case of B, rioting, burglary or criminal damage, each in the context of serious public disorder; and in relation to S, rioting, in the context of serious public disorder.

All that had been incited at a time of sustained countrywide mayhem. The defendants had been caught red-handed. In those circumstances, the judge had been fully justified in concluding that deterrent sentences were appropriate. In respect of HH, a deterrent sentence of four years and eight months’ imprisonment for an individual who had attacked the police on two separate occasions in the course of rioting, and had burgled five separate premises, sharing out the proceeds of his crime with others who were also participating in the disorder was not manifestly excessive. The sentences imposed in respect of E, G, HK and L were within the appropriate ranges (see [72]-[75], [86], [92], [99], [107] and [114] of the judgment).

(3) In the case of S, given that he had not intended to and had not actually participated in any public disorder, but had genuinely been walking home when the events occurred, the deterrent element in the sentence could be tempered. A sentence of 6 months’ imprisonment would be sufficient. In respect of D, on the available facts, he fell to be sentenced for handling stolen goods on behalf of someone else. He had not himself played a direct part in the public disorder. It followed that sentence of nine months’ imprisonment was appropriate. SC’s crime had stemmed from the public disturbance, but it had not been intrinsic to it. The appropriate sentence in his case was eight months’ imprisonment (see [125]-[126], [132] and [140] of the judgment).

The sentence of 12 months’ imprisonment in the case of S would be quashed and substituted by a sentence of six months’ imprisonment. In respect of D, the sentence of 18 months’ imprisonment would be quashed and substituted by a sentence of 9 months’ imprisonment. The sentence of 16 months’ imprisonment in the case of SC would be reduced to eight months’ imprisonment (see [126], [132] and [140] of the judgment).

Per curiam: Those who deliberately participate in disturbances of the instant magnitude, causing injury, damage and fear to even the most stout-hearted of citizens, and who individually commit further crimes during the course of the riots were committing aggravated crimes. They have to be punished accordingly, and the sentences should be designed to deter others from similar criminal activity.

The imposition of severe sentences, intended to provide both punishment and deterrence, had to follow. None of these appeals involves children or young offenders (where different sentencing considerations arise), nor did they involve offenders with significant mental health problems. None of the offenders before us was ‘mindless’.

The actions had been deliberate, and each had known exactly what he, and in one case, she, was doing. None of the instant crimes was committed in isolation. Eight of them were intrinsic to, or arose from, the widespread lawlessness and two more were intended to contribute to or aggravate it at a time when the disorders were at their most disruptive and alarming (see [4] of the judgment).

Gemma Roberts (assigned by the Registrar of Criminal Appeals) for B; Rebecca Tanner, solicitor advocate (assigned by the Registrar of Criminal Appeals) for ST; Dan Gaskell, solicitor advocate (assigned by the Registrar of Criminal Appeals) for HH; Matthew Stanbury (assigned by the Registrar of Criminal Appeals) for E; Rebecca Tanner, solicitor advocate (assigned by the Registrar of Criminal Appeals) for G; Giles Newell (assigned by the Registrar of Criminal Appeals) for L; Claire Palmer (assigned by the Registrar of Criminal Appeals) for HK; Richard English (assigned by the Registrar of Criminal Appeals) for S and D; Helen Richardson, solicitor advocate (assigned by the Registrar of Criminal Appeals) for SC; Duncan Penny (instructed by the Crown Prosecution Service) for the Crown.