R v Imran Hussain Ghafoor

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLord Justice Dyson
Judgment Date19 July 2002
Neutral Citation[2002] EWCA Crim 1857
Date19 July 2002
Docket NumberCase No: 2002/01981/W2

[2002] EWCA Crim 1857

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM BRADFORD CROWN COURT

](His Honour Judge Gullick)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

Lord Justice Dyson

Mr Justice Silber and

Her Honour Judge Goddard QC

Case No: 2002/01981/W2

Between
Imran Ghafoor
Appellant
and
The Crown
Respondent

Mr B. Emmerson QC and Mr T. Khan (instructed by John Kelly and Co) for the Appellant

Mr N. Campbell QC and Mr J. Gibson (instructed by the Crown Prosecution Service) for the Crown

Lord Justice Dyson

This is the judgment of the Court:

1

On 11 February 2002, the appellant, who was born on 14 September 1983, pleaded guilty to an offence of riot contrary to section 1(1) of the Public Order Act 1986. The offence had been committed on 7 July 2001, when he was 17. On 14 March 2002, he was sentenced by HH Judge Gullick to four and a half years detention in a young offenders institution pursuant to section 96 of the Powers of the Criminal Courts Sentencing Act 2000 ("PCCSA"). On 4 April, the defence applied to the judge to vary the sentence under section 155 of the PCCSA on the grounds that he had erred in principle in passing a sentence that was heavier than he would have had power to impose at the date when the offence was committed. The judge said that the application raised an issue of incompatibility between Article 7 of the European Convention on Human Rights ("ECHR") and section 164(1) of the PCCSA, and that this could only be resolved by the grant of a declaration of incompatibility by this court under section 4 of the Human Rights Act 1998 (" HRA"). Accordingly, he refused the application to vary the sentence, but subsequently issued a certificate under section 11(1A) of the Criminal Appeal Act 1968 that the case was fit for appeal. The certificate was in these terms:

"The appellant, an 18 year old came before the Crown Court for an offence of riot committed when he was 17. He was sentenced to four and a half years YOI in view of his age at the date of conviction (per Section 96 PCC(S) A 2000. Article 7 of the European Convention prohibits retrospective legislation and the second limb provides "Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. In the case of the appellant, is it a breach of his Convention rights under Article 7 for him to have been sentenced as an 18 year old and is the Court required to restrict itself to the maximum sentence (2 years detention) that could be imposed on a 17 year old appearing in the Youth Court?"

2

On 10 July, we allowed the appeal. We quashed the sentence of four and a half years, and substituted one of 18 months detention in a young offenders institution. We now give our reasons.

The statutory provisions

3

Section 96 of the PCCSA ('Detention in a young offender institution for other case where offender at least 18 but under 21') provides:

"96. Subject to sections 90,93 and 94 above, where—

(a) a person aged at least 18 but under 21 is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, and

(b) the court is of the opinion that either or both of paragraphs (a) and (b) of section 79(2) above apply or the case falls within section 79(3),

The sentence that the court is to pass is a sentence of detention in a young offender institution."

4

Section 97(1) provides that "the maximum term of detention in a young offender institution that a court may impose for an offence is the same as the maximum term of imprisonment that it may impose for that offence".

5

Section 100(1) of the PCCSA ('Offenders under 18: detention and training orders') provides:

"100. (1) Subject to sections 90,91 and 93 above and subsection (2) below, where—

(a) a child or young person (that is to say, any person aged under 18) is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, and

(b) the court is of the opinion that either or both of paragraphs (a) and (b) of section 79(2) above apply or the case falls within section 79(3),

The sentence that the court is to pass is a detention and training order."

6

The maximum term of such an order is prescribed by section 101(1) and (2) which provide:

"(a)…the term of a detention and training order made in respect of an offence (whether by a magistrates' court or otherwise) shall be 4, 6, 8, 10, 12, 18 or 24 months" (section 101(1)); and

"(b) the term of such an order "may not exceed the maximum term of imprisonment that the Crown Court could (in the case of an offender aged 18 or over) impose for the offence" (section 101(2)).

7

Section 164(1) ('Further interpretative provisions') provides that:

"164(1) For the purposes of any provision of this Act which requires the determination of the age of a person by the court or the Secretary of State, his age shall be deemed to be that which it appears to the court or (as the case may be) the Secretary of State to be after considering any available evidence."

Article 7 of the ECHR

8

Article 7.1 provides:

"No one shall 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."

The facts

9

The appellant pleaded guilty to participating in the riot that took place in Bradford on 7 July 2001. Although he was present at the scene of the disorder for several hours he remained an onlooker for most of that time. He was captured on video in the city centre in the afternoon behaving peaceably. He was filmed again between about 8.44pm and 9.35pm throwing stones at police officers on six or seven separate occasions, amongst a hostile crowd of other people who were doing exactly the same. There was no evidence that he had participated in the more serious incidents of violence that occurred later that evening. He handed himself in to the police after his photograph appeared in the press.

10

When interviewed by the police six weeks later the appellant was shown the video extract. He made full admissions and expressed remorse. He said that he had left the area voluntarily at about 10.30pm when he realised the violence was escalating.

11

The appellant had no previous convictions. In the pre-sentence report, the probation officer said that, although the appellant had displayed a significant lack of maturity and understanding in his involvement in the riots, he had also expressed regret and shame for what he had done. The risk of further offending was assessed as low. The probation officer proposed that, in dealing with length of sentence, the Court take into account the fact that the appellant was a young man of previous good character, who had handed himself in to the police on two occasions, had been dismissed from his employment and had expressed remorse.

Sentencing remarks

12

In passing sentence, the judge said that the facts of the offence were so serious that only a custodial sentence could be justified. Over a period of about twelve hours, there had been public disorder on a massive scale which involved burning, looting and destruction, and also sustained and ferocious violence, directed principally at the police. The judge had to have regard to that total picture, as well as the appellant's specific acts. It had to be made clear to those who chose to take part in activities of this type that the court would have no hesitation in marking the seriousness of what had occurred and would do so in the present case. It would be a wholly wrong approach to take the acts of any individual participant in isolation. The acts were not committed in isolation and it was that fact that constituted the gravity of the offence. The court had to pay regard to the level and nature of the violence used, the scale of the riot, the extent to which it was premeditated, the number of persons engaged in its execution and finally, in the context of the overall picture, the specific acts of the individual defendant. The video extract showed the appellant throwing missiles at police officers on six or seven separate occasions between 8.44pm and 9.35pm, amongst a hostile crowd of other people who were doing exactly the same. The judge took into account his plea of guilty at an early stage; his good character, his personal mitigation; his character references; the pre-sentence report and the fact of his remorse and responsible behaviour in handing himself in to the police on two occasions.

The submissions

13

On behalf of the appellant, Mr Emmerson QC submits as follows. The sentencing regime applicable to an offender is that current at the date of conviction: see Danga [1992] 94 Cr App Rep 252 and subsequent authorities. But it is wrong in principle, a breach of Article 7 of the ECHR and, therefore, a breach of section 6(1) of the HRA for a sentencing court to impose on an offender a sentence which is in substance more severe than the sentence which could lawfully have been imposed at the time when the offence was committed. Sections 96, 100 and 164(1) of the PCCSA are not, in themselves, incompatible with article 7. Nor are they rendered incompatible by the approach to interpretation established by this court in Danga and subsequent authorities. The incompatibility in the present case arises only because the judge decided to impose a sentence which was heavier than could lawfully have been imposed when the offence was committed. A declaration of incompatibility is, therefore, unnecessary.

14

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