R v Blackshaw

JurisdictionEngland & Wales
Judgment Date18 October 2011
Neutral Citation[2011] EWCA Crim 2312
Docket NumberCase No: 2011/04685/A6 (1) 2011/05031/A8 (3) 2011/05027/A4 (4) 2011/05029/A6 (5) 2011/04942/A5 (6) 2011/05100/A4 (7) 2011/05028/A5 (8) 2011/04842/A8 (9) 2011/04844/A1 (10)
CourtCourt of Appeal (Criminal Division)
Date18 October 2011
Between:
R
Appellant
and
Blackshaw (1)
Respondent
and
R
and
Sutcliffe (2)
R
and
Halloway (3)
R
and
Vanasco (4)
R
and
Gillespie-Doyle (5)
R
and
Mcgrane (6)
R
and
Koyunco (7)
R
and
Craven (8)
R
and
Beswick (9)
R
and
Carter (10)

[2011] EWCA Crim 2312

Before:

Lord Judge, the Lord Chief Justice of England and Wales

Sir John Thomas, President of the Queen's Bench Division

and

Lord Justice Leveson

Case No: 2011/04685/A6 (1)

2011/04941/A2 (2)

2011/05031/A8 (3)

2011/05027/A4 (4)

2011/05029/A6 (5)

2011/04942/A5 (6)

2011/05100/A4 (7)

2011/05028/A5 (8)

2011/04842/A8 (9)

2011/04844/A1 (10)

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM CHESTER CROWN COURT

THE RECORDER OF CHESTER (1) (2)

ON APPEAL FROM MANCHESTER CROWN COURT

THE RECORDER OF MANCHESTER (3) (4) (5) (9) (10)

ON APPEAL FROM INNER LONDON CROWN COURT

HIS HONOUR JUDGE FRASER (6)

ON APPEAL FROM WOOD GREEN CROWN COURT

HIS HONOUR JUDGE ADER (7)

ON APPEAL FROM MANCHESTER CROWN COURT

HIS HONOUR JUDGE HENSHALL (8)

ROYAL COURTS OF JUSTICE

STRAND, LONDON, WC2A 2LL

G Roberts for Blackshaw (1)

R Tanner (Solicitor Advocate) for Sutcliffe (2)

D Gaskell (Solicitor Advocate) for Halloway (3)

M Stanbury for Vanasco (4)

R Tanner (Solicitor Advocate) for Gillespie-Boyle (5)

G Newell for McGrane (6)

C Palmer for Koyunco (7)

R H English for Craven (8)

R H English for Beswick (9)

H Richardson (Solicitor Advocate) for Carter (10)

D Penny for the Crown

Hearing dates : 27 th September 2011

The Lord Chief Justice of England and Wales:

1

There can be very few decent members of our community who are unaware of and were not horrified by the rioting which took place all over the country between 6 th August and 11 th August 2011. For them, these were deeply disturbing times. The level of lawlessness was utterly shocking and wholly inexcusable.

2

These are appeals against sentence (leave having been given by the sentencing judge or by this court) by ten adult offenders involved in the lawlessness in different ways and different places.

I. Sentencing Principles

3

Before we summarise something of the ghastliness inflicted on a variety of different neighbourhoods subjected to public disorder, and dealing with the individual appeals, we shall identify the applicable sentencing principles.

4

There is an overwhelming obligation on sentencing courts to do what they can to ensure the protection of the public, whether in their homes or in their businesses or in the street and to protect the homes and businesses and the streets in which they live and work. This is an imperative. It is not, of course, possible now, after the events, for the courts to protect the neighbourhoods which were ravaged in the riots or the people who were injured or suffered damage. Nevertheless, the imposition of severe sentences, intended to provide both punishment and deterrence, must follow. It is very simple. 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.

5

This is not new found sentencing policy. In the context of a riot in Cambridge some 40 years ago, this court observed:

"When there is wanton and vicious violence of gross degree the court is not concerned with whether it originates from gang rivalry or from political motives. It is the degree of mob violence that matters and the extent to which the public peace is broken…

Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who by weight of numbers pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers…

In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence." ( R v Caird [1970] 54 Cr. App. R 499 at 506.)

6

This approach reflects consistent sentencing policy for many years and continues in force today.

7

The broad submission on behalf of each appellant is that the sentences passed on the individual offender for his or her individual offence were disproportionately severe. If the court were dealing with a single isolated offence, that submission would have considerable force. If, for example, a young man went down a quiet street in the middle of a town miles away from any rioting, but at a time when rioting was occurring miles away elsewhere, and broke into shop premises and there, without causing any damage, stole some cigarettes, and then left the premises, for the unfortunate shopkeeper to discover on the following morning that he had been burgled, the case would be serious enough. It would properly be dealt with in accordance with sentencing principles as the offence that it was, an offence without the aggravating feature that the offence formed part of the mob criminality which produced the public disorder.

8

It is elementary that sentencing courts cannot ignore the context in which the crime or crimes for which sentence is to be passed was committed. It is 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 present appeals, the context hugely aggravates the seriousness of each individual offence. None of these 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.

9

It was observed on behalf of some of the appellants that their involvement followed earlier criminal activity by others. 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. That leads us to address the suggestion that perhaps this level of public disorder should be treated as "mindless" activity. It was undoubtedly stupid and irresponsible and dangerous. However none of these appeals involves children or young offenders (where different sentencing considerations arise) nor indeed offenders with significant mental health problems. None of the offenders before us was "mindless". The actions were deliberate, and each knew exactly what he (and in one case, she) was doing.

10

The next broad submission to be addressed is that the sentences were inconsistent with existing sentencing guidelines. Section 142 of the Criminal Justice Act 2003 ("the 2003 Act") 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."

Section 143(1) provides:

"In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused…"

Guideline judgments given by this court, together with guidelines issued by the Sentencing Guidelines Council and the Sentencing Council reflected these principles both before and after the enactment of sections 142 and 143 of the 2003 Act.

11

For offences committed after 6 April 2010, section 125(1) of the Coroners and Justice Act 2009 ("the 2009 Act") provides:

"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."

Further for such offences, section 174(2) of the 2003 Act, as amended by paragraph 84 of schedule 21 to the 2009 Act, makes clear that when sentencing for offences committed after 6 April 2010, the court must:

"(a) identify in the definitive sentencing guidelines relevant to the offender's case and explain how the court discharged any duty imposed on it by section 125 of the Coroners and Justice Act 2009

(a)(a) where the court did not follow any such guidelines because it was of the opinion that it would be contrary to the interests of justice to do so, state why it was of that opinion."

12

The same provision amends section 174 to cover guidelines issued by the Sentencing Council for England and Wales under section 120 of the 2009 Act. The guidelines which fall within the ambit of section 120 include guidelines issued by the Sentencing Guidelines Council under the 2003 Act which were in...

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