Do you have a link to the sentencing guidelines? Even not imposing a custodial sentence, this kind of assault would appear to warrant more than 150 hours community work. They could knock that off in a month.
I’m also confused as to how this wasn’t “racially aggravated”. The article doesn’t really explain that particularly well.
Well there is your first problem, the guidelines you gave are from 2004, almost 8 years ago. There has been a raft of new guidelines and legislation, including most importantly the Criminal Justice and Immigration Act 2008 which are relevant. Secondly, even if we ignore the out of dateness of your post, it should be pointed out that your weightage of the various aggravating and mitigating factors is incorrectly applied, you seem to have assumed that all things were equal, which they are not, and your casual disregard of the guilty plea (which automatically reduces any sentence by 1/3) has also coloured your approach. Thirdly, you have considered the guidelines simpliciter without reference to the particular crime the girls were charged with, they were charged with Section 47 OAPA 1861, Actual Bodily Harm, which is less serious then Section 18 or Section 20 OAPA 1861, Greivious Bodily Harm and which does not usually result in prison sentences and finally you have not considered case law on the subject, there is a plethora of case law on this issue, all of which generally discourages prison sentences for your average bar fight unless the damage is really serious.
Full disclosure time, I was called to the Bar of England and Wales, however I have not been there since September 2009.
The sentencing guideline itself is from 2004, true. Yet this is referenced on both the CPS website and the Sentencing Guidelines Council website as being current.
The relevant page on the CPS website was itself officially updated in March 2010 and “applies to offenders sentenced on or after 3 March 2008.” This was my starting out point that led me to the other documents linked above.
This page declares "The primary factor is the seriousness of the offence committed; that is determined by assessing the culpability of the offender and the harm caused, intended or reasonably foreseeable. Consider the SGC guideline ‘Overarching Principles: Seriousness’”
So the CPS in 2010 uphold this document as being the primary first step.
The Seriousness documentitself on the Sentencing Guidelines Council website states "“The Sentencing Guidelines Council issues this guideline as a definitive guideline. By virtue of section 172 of the Act, every court must have regard to a relevant guideline.”
So as an admittedly lay person interested in the truth your assertion that this earlier document is redundant seems highly questionable.
I will have a look at the CJ&IA this evening though. In regards to your own position stated here where in this act does it mitigate or amend the seriousness of this particular type of offence?
I have not assumed that. Of course in different cases there will be different factors involved that come into play in different degrees. Every case will not be a carbon copy of a previous case or else we could do away with judges completely..
But this document states: “The custody threshold is normally passed where two or more aggravating factors indicating higher culpability are present”
From the section - “1.22 Factors indicating higher culpability” from the long list that it inclues:
[ol]
[li]Offence was racially or religiously aggravated[/li][li]Offenders operating in groups or gangs[/li][li]Commission of an offence while under the influence of alcohol or drugs[/li][/ol]
These elements though clearly apply. Going by its own state methodology, this is a checklist, not a measurement of degree. It does not suggest 5 grams of racially aggravated, plus one gram of alcohol = non-custodial sentence. But an extra gram of alcohol = custody. So I fail to see the substance of your criticism here either.
Additionally the “Sentencing Guidelines Council section 1.23 Factors indicating a more than usually serious degree of harm” shows that these elements also apply to the seriousne of the offence:
[ol]
[li]An especially serious physical or psychological effect on the victim, even if unintended[/li][li]A sustained assault or repeated assaults on the same victim[/li][/ol]
I am not sure that it has coloured my approach, though perhaps. I just see this as a serious offence (speaking here as the man on the Clapham Omnibus rather than making an assertion regarding the position of the law) who cannot undertand how a judge can decided that this is a non-cutodial case.
No, as shown above my starting point was this document which relates to ABH.
Perhaps, that would fall under case law which I have no aggregate access to and so cannot confidently say.
What I can say, is that the sentencing guidelines that judges are expected to take account of states at the lowest degree that the lowest level of ABH falls within a range that includes custodial sentence even from the bottom rung of seriousness.
“Other assault resulting in minor, non-permanent injury: Starting Point: Community Order (HIGH), Sentencing Range: Community Order (MEDIUM) - 26 weeks custody”
I do not know the level at which the crime has to be agreed beforehand to get to the more serious pre-meditated level but the nature of gang attacks, particulalrly when this woman was followed down the street, would infer some degree of group decision making before the attack occured.
I o not know what Community Orer High means but 150 hours of Community Service does not sound like it.
Again, unlike yourself (and perhaps like most people outside of the criminal justice system) I have not ha ready access to enough cases to balance this out against others but I would submit this in far from an “average bar fight” and nor is it considered so by the majority of people who view the details.
I would be interested to know how this is viewe by a wider section of the legal community altough I notice there are few online resources where they gather.
Apologies for a few missing letters here and there in the above. I answered this on a spare (ageing) laptop while my regular one is in for repair.
What also should be asked about this case is why the CPS appear not to have fully pursued the racial aggravation element.
To usefully reverse the racial / ethnic aspects for objectivity, it is inconceivable that in a case where the attacking female gang shouted “P@ki slag” as they maliciously beat a girl on the ground two things are certain:
The case would tried (and if need be retried) so that the perpetrators were imprisoned for the full extent of the law.
The case would not become a footnote in the media a day after the attacks with ‘comments off’ it would be a lead news story for weeks afterwards and all sorts of declarations wouldd be expected from the most senior members of the government and others.
Astonishingly, it seems that this might be a case of somewhat sloppy reporting of a reasonably complex legal decision.
Full Fact are a UK based fact-checking organisation, who try to get to the bottom of sensational stories such as this. They’ve looked into the original judgement and reporting here. It seems that reports that “unfamiliarity with alcohol” was a major influence on sentencing are somewhat inaccurate.
I suppose it is just a sad coincidence that this accidental and regrettable misreporting happened to fit so neatly with the existing worldview of the Telegraph’s readership. (I.e. that “PC” has gone mad.)
Stanislaus, thank you for the link to FullFact.
I would consider them more likely on the liberal left rather than independent after looking at their main funding and trustees, but there you are. Still it is an interesting body, so thanks for bringing it to my attention.
On which note to evaluate the criticism that these media reports were unbalanced due to right wing coverage, we should perhaps notice that The Guardian, The Independent and The Mirror all refused to cover this case, no doubt this was just a coincidence. They all seem quite capable of covering the Emma West case and the new Stephen Lawrence case even 13 plus years after his death and producing opinion piece about these trials (or trials to be.)
I wonder regarding the judge’s oral decision. I would be interested to hear from someone with experience of such things how often judges give their judgment solely in this way?
If an appeal in part relies on the correct application of the law then it would seem the summary outline by the judge on how he came to the conclusions he did is vital for our system of justice to work effectively? Is it a normal circumstance for an oral decision to be given and it not be recorded by the court stenographer or any other?
Anyway the Leicester Mercury article that FullFact was told was a true representation only states “He said he accepted the women may have felt they were the victims of unreasonable force from the victim’s partner.”
The judge accepts that the accused feel this. Does that translate as the court takes account of this as a mitigating factor?
The video shows a shower of blows before the boyfriend defends his partner, it is not sustained like the attack. He delivers a blow, pushe another away and then stops and looks to retrieve his girlfriend and the attack continues. In fact if it was sustained then he would clearly have prevented the serious injuries that she received.
Finally, this alleged misreporting leaves many questions unanswered, including: Would they have been jailed if the boyfriend had stood back? Why was the racially motivated aggravation charge left off by the CPS?
What makes you think the ruling wasn’t transcribed? Anyway, if an appeal is taken the parties can request a full order instead of the abbreviated oral ruling.
From the FF link above provided by Stanislaus.
If judgements are sometimes given in this way does this full order already exist somewhere i.e. the question I in part asked or is it sometimes created well after the fact as required? What does “no written manuscript available” mean?
[QUOTE=Liberal Heresy]
The sentencing guideline itself is from 2004, true. Yet this is referenced on both the CPS website and the Sentencing Guidelines Council website as being current.
The relevant page on the CPS website was itself officially updated in March 2010 and “applies to offenders sentenced on or after 3 March 2008.” This was my starting out point that led me to the other documents linked above.
This page declares "The primary factor is the seriousness of the offence committed; that is determined by assessing the culpability of the offender and the harm caused, intended or reasonably foreseeable. Consider the SGC guideline ‘Overarching Principles: Seriousness’”
So the CPS in 2010 uphold this document as being the primary first step.
The Seriousness document itself on the Sentencing Guidelines Council website states "“The Sentencing Guidelines Council issues this guideline as a definitive guideline. By virtue of section 172 of the Act, every court must have regard to a relevant guideline.”
So as an admittedly lay person interested in the truth your assertion that this earlier document is redundant seems highly questionable.
I will have a look at the CJ&IA this evening though. In regards to your own position stated here where in this act does it mitigate or amend the seriousness of this particular type of offence?
[/QUOTE]
I am sorry, I was unclear. There have been multiple guidelines since the first one came out (the one that you linked too). Later guidelines have been on specific areas of law rather then being merely general. For example the latest one is on sentencing for ABH (2011). There is also one on the exact reduction for aguilty plea.
[QUOTE=Liberal Heresy]
Perhaps, that would fall under case law which I have no aggregate access to and so cannot confidently say.
What I can say, is that the sentencing guidelines that judges are expected to take account of states at the lowest degree that the lowest level of ABH falls within a range that includes custodial sentence even from the bottom rung of seriousness.
“Other assault resulting in minor, non-permanent injury: Starting Point: Community Order (HIGH), Sentencing Range: Community Order (MEDIUM) - 26 weeks custody”
I do not know the level at which the crime has to be agreed beforehand to get to the more serious pre-meditated level but the nature of gang attacks, particulalrly when this woman was followed down the street, would infer some degree of group decision making before the attack occured.
I o not know what Community Orer High means but 150 hours of Community Service does not sound like it.
[/QUOTE]
Pre-Meditated means that the decision to undertake the crime was made before the whole event transpired and was not made in the heat of the moment. In this case the fight was clearly in the heat of the moment. There is little evidence to suggest otherwise.
Community Sentences run from 80-300 hours. 150 would be a mid level community order. Also understand how sentences are calculated, the Judge decides on a sentence with regard to circumstances and the guidelines and only then applies any reduction due to a guilty plea. In this case the circumstances were a non-premeditated crime which caused some but not serious harm. It is a category three. No previous convictions mean that the sentence should be on the lower end of the scale. The sentence should be a high community order. Now apply the credit for a guilty plea and you shave 1/3 of the sentence and viola 150 hours it is.
’
You have members of the press and media who routinely fill the gallery, they will report on what the judge said and that is what made it into the newspapers, Statements of made in sentencing are not always recorded down at the time, if there is an appeal, a judge will send written reasons to the Appellate Court alongwith his own notes. I have seen Crown Court have to deal with upto 40 sentences in a day. It would be painfully slow, if every case had its sentencing transcripts recorded.
AK, thank you for these items. I shall read them with interest.
Regarding oral judgements, I still have to scratch the metaphorical head.
If a judge considers, say 20 cases a day then four weeks later if called to give reasons for the judgment he will have to recall one out of of 400 odd judgements.
One assumes it is not outwith the capabilities of the administrative arm of the judiciary to record these in real time. Anyway, thanks for the reply.
You’re thinking about this all wrong. The judge will have a file full of memos and copies of relevant authority and a trial transcript to go from. He’s not recreating the whole thing from memory.
RNATB, sure but I certainly am aware of that, the judgement doesn’t occur in a vacuum but for the sake of recording the final decision it just seems odd to not include that considering many menthods that could capture it with ease.