R v Bowker (Anthony)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham |
| Judgment Date | 09 July 2007 |
| Neutral Citation | [2007] EWCA Crim 1608 |
| Docket Number | Case No: 2006/05452 A8 |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 July 2007 |
[2007] EWCA Crim 1608
Lord Justice Latham
Mrs Justice Rafferty DBE and
Mr Justice Wynn Williams
Case No: 2006/05452 A8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
(His Honour Judge Gilmour QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Cherie Booth QC & John Maxwell for the Appellant
Iain Goldrein QC (instructed by the CPS) for the Respondent
Hearing dates: 9th May 2007
Judgement
The appellant is now 19. He appeals to this court with leave of the single judge against the sentence imposed on him in the Crown Court at Liverpool on the 18 th September 2006 for an offence of violent disorder to which he had pleaded guilty. He was sentenced to 28 months detention in a Young Offender Institution and made subject to an anti-social behaviour order. This offence had occurred in the early hours of Sunday 31 st July 2005, when the appellant was two days short of his 18 th birthday. The charge arose out of the events outside a night club in the centre of Wigan called Maximes'. Most of the events were captured on CCTV. A compilation video was prepared by the police for the purpose of presenting the evidence to the court. It was clearly the product of numerous detailed viewings of the original video recording. In addition, a detailed case summary was prepared which in large part is a careful commentary on what is seen in the video. A further document was prepared which summarised the parts played by the individual defendants. It is apparent from the exchanges before the judge that all defendants, and all counsel, accepted the accuracy of the identifications made by the police and of the description of the parts that they and their clients had been seen to play.
We have viewed that video, which lasts over 30 minutes, though it does contain a number of pauses and explanatory captions. Suffice it to say that the events portrayed and those who took part in them, fully merited the comments made by the judge in his sentencing remarks.
“I have had the advantage of seeing a video. There may be those in court who have not seen the video. They will have to take my word for it that it shows on occasions scenes of sickening violence, and it is almost a miracle that nobody received permanent or fatal injuries. There are, in particular, occasions where defenceless individuals who, of course, may themselves have been earlier guilty of violence, having their head kicked as if it was a football. I can only assume that those who were inflicting those kicks were wearing trainers or other soft shoes. Had the case been otherwise, brain damage would have been inevitable for those who were completely defenceless on the ground.”
The violence took place between two rival groups of youths who had been in Maximes' night club. The incident lasted for approximately 15 minutes. During the course of it, as is clear from the judge's comments, there was some savage punching and kicking, and at one point a knife was used as a result of which one of the youths suffered stabbing injuries.
The summary prepared by the prosecution of the participation of the appellant as seen on the CCTV recording is in the following terms:
“He is involved from the very outset squaring up to Banner and fighting with him sparking the large scale disturbance. Prominently involved in the initial stage of the disturbance he repeatedly adopts a boxing stance and punches out at others and on more than one occasion is clearly pleased with his efforts. He returns to the fray having walked off and remains to the fore of the group who retreat after the initial incident resisting the efforts of a female to escort him away. Thereafter he is involved in punching and kicking “Bravo” to the ground and whilst he is on the ground. He is also one of several males who repeatedly kicked Banner to the head as he lies motionless in the street.”
The judge was, accordingly, fully entitled to treat him as being in the forefront of those involved in this disgraceful incident both when it started and towards it end. A substantial period of detention was accordingly appropriate. He concluded that there was a need for deterrent sentences. Depending upon the part that each of the nine defendants played in the violence, he stated that his starting point was between nine months and three and a half years. In his sentencing remarks he made no distinction between any of the defendants on the grounds of their age. They were all 19 or older at the time that they were sentenced. The sentence imposed on this appellant was based on the judge's conclusion that he fell into the highest category of culpability and accordingly would have received three and a half years detention but for his plea of guilty, hence the ultimate sentence of 28 months detention in a Young Offenders Institution.
As far as the anti-social behaviour order was concerned he imposed that in respect of all nine defendants. He was satisfied that were they to attend any of the well known night clubs in Wigan there would be a significant risk of their being involved in violence again.
He continued:
“All of you are capable of violence when you have had too much to drink. In my view it is necessary for the protection of others who attend clubs in Wigan that you should be prevented from doing so. Accordingly the statutory requirements are, in my judgment, satisfied in respect of each and every one of you. Without limitation of time, you are prohibited from entering Wigan Town Centre between the hours of 10 pm and 7 a.m. each and every day of the week.”
It is against both the length of the term of detention and the extent of the anti-social behaviour order that this appellant appeals. So far as the length of the order for detention is concerned, it is not argued on the appellant's behalf that the judge was wrong to place him in the category of those whose actions that night place them in the highest category of culpability. Nor is it suggested that, had the appellant been over 18 at the time of the offence, a starting point of three and a half years was manifestly excessive or wrong in principle. But he was 17 at the time, albeit by only two days. It is accordingly submitted on his behalf that this sentence was wrong in principle.
We have been referred to the decision of this court in R v Ghafoor [2003] 1Cr App R (S) 84 in which this court said at paragraph 31:
“The approach to be adopted where a defendant crosses a relevant age threshold between the date of the commission of the offence and date of conviction should now be clear. The starting point is the sentence that the defendant would have been likely to receive if he had been sentenced at the date of the commission of the offence. It has been described as a “powerful factor”. That is for the obvious reason that as Mr Emmerson points out, the philosophy of restricting sentencing powers in relation to young persons reflects both (a) society's acceptance that young offenders are less responsible for their actions and therefore less culpable than adults, and (b) the recognition that, in consequence, sentencing them should place greater emphasis on rehabilitation and less on retribution and deterrence than in the case of adults. It should be noted that the “starting point” is not the maximum sentence that could lawfully been imposed, but the sentence that the offender would have been likely to receive.”
Cherie Booth, QC, on behalf of the appellant, submits that as a result, the proper sentence for this appellant should have been one of 12 months detention in a Young Offenders Institution. At the time of the commission of the offence, the maximum sentence that could have been imposed on him was a detention and training order for two years pursuant to the provisions of the Powers of Criminal Courts (Sentencing) Act 2000. The judge concluded that, although the maximum sentence of imprisonment that he could impose was one of five years, the appropriate starting point was three and a half years. He then gave the appellant credit for his plea. If that approach is applied to the maximum of two years, the starting point should have been one of 18 months detention, and after giving credit for the guilty plea, the sentence should have been one of 12 months detention. She points out that the judge nowhere in his sentencing remarks refers to the fact that the appellant was only 17 at the time of the offence. This is perhaps not surprising as there is nothing to indicate that this fact was drawn to his attention in mitigation.
Ms Cherie Booth's further point, therefore, is that the judge would appear to have sentenced him on the basis that there were no constraint on his sentencing powers. She submits that the approach of the court in Ghafoor is not only correct as a matter of domestic law, prior to the Human Rights Act 1998, but is now required by virtue of that Act in the light of Article 7.1 of the European Convention on Human Rights. Article 7.1 provides:
“No one should be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
As far as domestic law is concerned, this court in its judgment in Ghafoor set out the way in which the approach which it described as “clear” had developed. The starting point was the decision of this court in Danga (1992) 13 Cr App R (S) 408. That decision settled the question of what...
To continue reading
Request your trial
-
BH v Norwich Youth Court
...the fact that any sentencing court would be free to sentence BH as an adult. Mr Rule referred to what was said in R v Bowker [2008] 1 Cr App R (S) 72 as being of particular 35 We accept that the crossing of the age boundary at BH's 18 th birthday was a relevant consideration. However, we d......
-
Liam David Bennett v R
...in Robson [2006] EWCA Crim 1414 wrongly interpreted the provisions of sections 225 and 226 of the CJA 2003. Moreover, that in Bowker [2007] EWCA Crim 1608, the court's reliance on Taylor v UK Application No 48864/99, 03/12/2002 in rejecting the applicability of Article 7 to a similar situ......
-
R v Bao (Chunxia)
...time. The provisions of Article 7 are directed at “… the mischief of retroactive or retrospective changes to the law”: see R v Bowker [2007] EWCA Crim 1608 at paragraph 27, per Sir David Latham VP. In the present case there has been no change in the law. The sentencing guideline report fore......
-
R v Adam Hashi and Others
...and to the case of R v Scott Parkinson [2004] EWCA Crim 2757. There are also further useful illustrative cases in the supplement, including R v Bowker [2007] EWCA Crim 1608. It is important to stress that those are all examples, but the considerations are, in our judgment, those posed in th......