Fairness in Treatment Before the Justice System

The following article, which very usefully discusses legal background and context to protest and public order offences is by a member of DTRTP’s legal team, Paramjit Ahluwalia of Mitre House Chambers.

FAIRNESS IN TREATMENT BEFORE THE JUSTICE SYSTEM- ARE WE REVERTING BACK TO THE 1980’S?

‘One of the features of a vigorous and healthy democracy is that people are allowed to go out onto the streets and demonstrate. Thousands of demonstrations take place each year in London. Experience has shown that for the most part gatherings of this kind are peaceful. The police, on whom the responsibility of maintaining public order rests, seek to facilitate rather than impede their activities.’ 

1.      Lord Hope in the ground breaking judgment of Austin v Commissioner of the Police of the Metropolis ]2009] UKHL 5, a House of Lords case dealing with the issue of kettling, opened the judgment with the above remarks.

2.      It goes without saying that the right to protest is a fundamental pillar of society. More than 30 years ago, protests in Southall in April 1979 ( from which 300 arrests took place) and the resulting death of a protestor Blair Peach heralded critical turning points both for the Asian community and the way policing was perceived. It was only earlier this year that a Metropolitan Police report was published revealing that Blair Peach was almost certainly killed by an officer from the elite riot squad, known as the Special Patrol Group. Witnesses at that time described the special needs teacher Peach being struck by police baton blows- the report by Commander Cass published 30 years on confirmed that ‘there is no evidence to show he received the injury to the side of his head in any other way.’

3.      There was heightened publicity recently by the Metropolitan police before student protests of 9^th November 2011 about the possible use of rubber bullets.

4.      Worryingly, looking back at the miner strikes of 1984-1985, there was use of violence by the police on horse-back charging protestors- one such instance resulted in serious injuries being inflicted upon protestors at the Orgreave Coking Plant around Rotherham. Compensation was forced to have been paid out for the police actions in that instance.

5.      As a barrister practising in crime, I do not seek to revert to a criminal justice system of the early 1980’s.

6.      Yet in the last few years, it would seem that we are struggling again with politics entering and in my view hindering the criminal justice system in the following ways-firstly the choice of charges. Factual circumstances that would not normally amount to ‘violent disorder’ are being prosecuted at this high level. And secondly the imposition of ‘deterrent’ sentences on top of the inflated charging.

7.      In this short article, I seek to tackle several issues that perhaps have been ignored by certain sections of the press. I write merely from a personal perspective and experience as a legal aid barrister.

8.      On the 28th October 2011 the Court of Appeal dismissed the appeal of Charlie Gilmour upholding a sentence imposed of 16 months custody for a matter of violent disorder, and on the 4^th November 2011, many individuals who had pleaded guilty to matters of violent disorder received substantial custodial sentences at Kingston Crown Court, despite the fact that many had entered guilty pleas at an early opportunity and were of good character.

9.      The concern I have is about the charging policy and criteria used by the Crown Prosecution Service in matters that relate to allegations emanating out of protest. 

CHARGING STANDARDS

10.  Particularly in relation to the student protests a year ago, individuals were not charged proportionate to the alleged offences committed. I know, as do many of my peers practising in criminal law that individuals who have thrown objects on a Saturday night while drunk in the city centre do not attract charges of violent disorder. The element of political protest has led to higher charging. This is despite the feature that many individuals are of good character. The legal system is there to protect the liberties of individuals and not to reflect any form of political bias, or deter individuals from carrying out their fundamental rights to protest.

11.  It is for the Crown Prosecution Service to determine the charging level imposed. Just as one example, I provide below 3 different types of public order charges;

12.  If a criminal offence is alleged to have been committed, a person ought to be prosecuted, as long as the Code for Crown Prosecutors has been applied in a fair and consistent manner. The Code for Crown Prosecutors sets out the test that should be applied in determining whether an individual should be charged, 

• ‘Is there enough evidence against the defendant?

When deciding whether there is enough evidence to charge, Crown Prosecutors must consider whether evidence can be used in court and is reliable. Crown Prosecutors must be satisfied there is enough evidence to provide a “realistic prospect of conviction” against each defendant.

• Is it in the public interest for the CPS to bring the case to court?

A prosecution will usually take place unless the prosecutor is sure that the public interest factors tending against prosecution outweigh those tending in favour.’

13.  But the very foundations of fairness that make up our criminal justice system should mean that individuals are charged in a like fashion.

14.  Prosecution must be fair and not prejudicial.

15.  Of large importance is that individuals are not discriminated against simply due to their political views, as set out within paragraph 2.4 of the Code;

‘Prosecutors must be fair, independent and objective. They must not let any personal views about the ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation, or gender identity of the suspect, victim or any witness influence their decisions. Neither must prosecutors be affected by improper or undue pressure from any source. Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction.’

16.  If an individual pleads guilty at the first opportunity then they ‘normally’ would receive a sentence reduction of around 1/3. So if the Crown were to choose to prosecute an individual under the category of violent disorder, rather than affray, automatically the sentencing that a Judge would impose appears to be increased.

17.  And yet the only real form of intervention that can be made to the Crown’s decision to charge at a particular level is judicial review. The test of ‘Wednesbury unreasonable’ is unlikely to be met. And Crown Court Judges have no power to insist that individuals are prosecuted for an affray, rather than a violent disorder.

18.  For instance, in a recent appeal against sentence the Court of Appeal upheld a sentence of 16 months that was imposed on Charlie Gilmour, who pleaded guilty to a matter of violent disorder. The test that the Court of Appeal considers in terms of appeals, is whether or not a sentence can be described as ‘manifestly excessive.’

19.  Lord Justice Hughes in the judgment of that case R v Charlie Gilmour [2011] EWCA Crim 2458 considered;

‘We do not believe that violence in this context and of the kind displayed by this defendant can normally be met by other than significant sentences of immediate custody even for those of otherwise good character. The judge could not give Mr Gilmour the same reduction in sentence for his plea of guilty which he would have been able to give if he had felt able to admit everything he had done, but he could, and plainly did, reduce the sentence appreciably because he pleaded guilty.  Violent disorder carries a maximum of five years imprisonment. A sentence of something in the region of 20-21 months after trial, which is what the judge has passed, correctly took account both of the defendant’s serious and dangerous acts in this inflammatory context and of his normal character. It is a penalty which properly met the facts of this case.  We are unable to say that it is arguably either manifestly excessive or wrong in principle.  The application for leave to appeal the sentence must accordingly be refused.’

20.  If the Crown Prosecution Service in their discretion choose to prosecute an individual for violent disorder, then any guilty plea or conviction entails a higher starting point for sentencing, and the case authorities a Judge would compare it to are ones relating to violent disorder, and not matters of affray or s4 Public Order Act matters, even if the facts making up those charges are fairly similar.

21.  The deterrent impact of sentences is one factor to take into account, but in a sense if the Crown have already determined that they seek to prosecute someone for a higher charge that attracts a higher penalty, then the individual is being sentenced even more harshly when a Crown Court Judge comes to deal with sentencing.

22.  The Court of Appeal on the 27^th and 28^th September 2011 heard 10 joined appeals for matters relating to the riots that took place in August 2011. In the judgment of   R v Blackshaw and other [2011] EWCA Crim 2312, the Court considered the issue of deterrent sentences;

‘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.’

23.  Strictly speaking the Court of Appeal at paragraph 24 of R v Blackshaw did not consider the cases before it had anything to do with demonstrations

24. ‘We shall now set out the factual context in greater detail. On 6 August 2021 a crowd gathered outside Tottenham Police Station demonstrating in support of “justice” for Mark Duggan. The demonstration became violent. Two police cars, a bus and cars were set on fire, shops were set alight. Disorder became widespread. Before long it had nothing whatever to do with any demonstration.’

24.  The criminal justice system has a responsibility to treat all before it equally- regardless of political opinion. 

25.  If people are seeking to exercise their democratic right to protest, namely in seeking to change what is wrong and what is unfair, this should not lead to their criminalisation.

26.  All I would urge is that those who are being prosecuted be so fairly. It is not merely the courts that have a duty to apply the principles of fairness, but also the Crown Prosecution Service in the application of their Code for Crown Prosecutors. Charging standards and the very decision to prosecute is with the CPS. And we have seen with recent events such as the Fortnum and Mason Protestors, how some individuals are facing prosecution for the same matters which others are not facing prosecution for.

27.  The fundamental basis of the right to protest is one matter. Even more important than this is to avoid the mistakes of 30 years ago. Distrust of policing and an inconsistent approaches to prosecuting and charging on the basis of politics  is not a legacy that ought to be left for the next generation.