Sentencing Academy report on ‘Sentencing and ethnicity’
The Sentencing Academy has produced a report reviewing ethnicity and custodial sentencing trends from 2009 to 2019. Over the years, several official reports have addressed the role of race and ethnicity in sentencing decisions. The current report looked at sentencing patterns for different offender profiles with two key issues that emerged. The first was ethnic disproportionality, and the second, differential sentencing outcomes.
Disproportionality was expressed by comparing the percentage of BAME individuals appearing in the criminal justice system compared to their proportion in the general population. The data on custody rates and average custodial sentence lengths were combined to form the “expected custodial sentence” (ECS), a new measure of punitiveness. In 2019 the ECS for an indictable offence was 6.6 months for a white offender and 10.2 months for an Asian offender. The overall ECS figure does mask the fact there is variation across offence categories, the greatest divergent is with offences of violence.
Despite the Sentencing Academy research, the authors said that the knowledge of differential sentencing across ethnic groups remained imperfect, although it had improved. The preliminary conclusions were:
- BAME groups are associated with greater use of imprisonment;
- Visible minority offenders attract higher custody rates than white offenders, but the ordering of different groups varies from study to study;
- group-based differences in custody rates and custodial sentence lengths are consistently statistically significant;
- there is long-standing evidence of ethnicity-based differences using custody rates and average custodial sentence lengths;
- between 2009-2019 black offenders attracted the most punitive punishment levels;
- ethnicity-based differences emerge most consistently and strongly for drug offences;
- little is known about ethnicity-based sentencing differentials in the magistrates’ courts;
- the research studied custody rates and average custodial sentences so that no conclusions could be drawn regarding other sentencing options.
It was noted that data collection ceased in 2015 and further research priorities were set out:
- Publication of sentencing trends in the magistrates’ court was discontinued some time ago, as the majority of offenders are dealt with in that court, data needs to be obtained.
- The sentencing differentials appear higher for drug offences, but BAME defendants are over-represented for other offences too, where more research is required.
- Very little is known about variations at a local level.
- Sanctions other than custody have rarely been studied, for example, the level of fines, length and duration of suspended sentences, use and length of community orders and the use of out of court disposals.
The most important question is why certain ethnicities are linked to higher custody rates. A range of hypotheses would need to be explored, such as consideration of pre-sentence reports. There are ethnic differences in relation to the relationship between a PSR recommendation and the sentence imposed. A white offender is more likely to have the recommended sentence imposed than a BAME defendant.
The report concludes that the rates of immediate imprisonment for BAME defendants have been higher than for white offenders for many years. Both the level and the cause of the differential need to be understood before the sentencing process can be addressed so that it treats all equally. The difference in custody rates has declined more recently, but there is still a differential. The challenge is finding the cause; only then can the government, courts, and the Sentencing Council devise proper remedies to address the disparities.
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Prosecution Guidance for Illegal entry to the UK
The Crown Prosecution Service and law enforcement agencies have agreed a consistent approach to the handling of illegal entry cases for those entering the UK via small boats and lorries.
Their guidance has been updated in the sections regarding small boats and larger vessels, passengers and prosecution strategy/international enquiries. It is primarily concerned with prosecuting those who bring migrants to the UK in circumstances which pose a risk to the migrants lives. It is not aimed at the migrants themselves.
The decision of whether to charge with an illegal entry offence is a two-stage test. Prosecutors must first be satisfied that there is sufficient evidence and then go on to consider whether prosecution is in the public interest.
Immigration Enforcement is likely to be involved, and consideration can also be given to a civil penalty if it is not possible to pursue a criminal investigation. A civil penalty would involve the Border Force and the Clandestine Entrants Civil Penalty Team.
An example charge would be under section 25 of the Immigration Act 1971, as follows:
Person A on (date) did an act, namely transported/concealed a (nationality) national into the UK, which facilitated the commission of a breach of immigration law by an individual who was not a national of the UK, knowing or having reasonable cause for believing that the act facilitated the commission of a breach of immigration law, namely (details), by that individual, who was not a citizen of the UK.
Immigration Enforcement work with other agencies and will assess whether there is a facilitation case. The assessment is based on first responder accounts, aerial footage, and migrants’ details, such as repeat offenders.
The approach recognises that migrants and asylum seekers often do not have a choice in the manner of travel, facing exploitation by organised groups. Prosecutors are reminded to consider the published public interest factors in charging those entering the country this way.
The guidance says that passengers should not be prosecuted unless they are repeat offenders or if they have been deported previously. Rather than facing prosecution, they should be dealt with by administrative removal channels. The focus for the prosecution should be on those with more significant roles who facilitated the illegal entry. The guidance also clarifies that where passengers are intercepted or rescued at sea, it is unlikely any offence of illegal entry has been committed.
The section on small boats and larger vessels sets out the charges to be considered when dealing with drivers and/or pilots. This can include those who did not play a part in arranging the journeys but played a less significant role in controlling the vessel during the crossing. Therefore, a person could be charged where they did not act for financial gain but helped to purchase, inflate or steer the boat, especially if other persons’ lives were put at risk.
International enquiries are to be made at an early stage, whether or not the suspect is a UK national. The reasoning behind the enquiries is the existence of relevant material abroad relating to how the migrants were facilitated in. The importance of submitting a timely request for mutual legal assistance is stressed and for the police to find out what evidence may exist and how it could be obtained within a relevant timescale.
Such lines of enquiry may be phone links, overseas organisers and material showing locations where facilitated persons stayed. Member States have 45 days to decide these requests, and it can then take a further 90 days to deal with, so early requests are important.
Early engagement between agencies and the prosecution is encouraged so that a strategy can be developed. This would mean the prosecution could advise who to treat as a suspect, victim or witness and whether the public interest was in prosecuting or if administrative removal was appropriate.
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When consent isn’t consent
An unusual case was dealt with at the Court of Appeal recently concerning offences of rape, and in particular the question of consent.
The victim, referred to as X, was the partner of Smith, who was the leader of a large-scale drugs conspiracy. Smith enjoyed watching X have sex with his friends; he was much older than X. She apparently consented to the sex with Ivor, George, Thomas and Mike, but the issue for the jury was whether that consent was genuine, if it was not genuine, whether the appellants reasonably believed that it was.
Sexual Offences Act 2003
The Sexual Offences Act 2003 sets out the issue of consent and says that the offence is committed if the complainant does not consent or if the perpetrator does not reasonably believe that the complainant consents. A person consents if he or she agrees by choice and has the freedom and capacity to make that choice.
The appellants were found guilty of rape, so the jury must have been sure that the apparent consent was not genuine and also satisfied that the appellants did not have a reasonable belief that X was consenting. They were sentenced on the basis that they believed that she was consenting but that the belief was not reasonable. This led to sentences outside of the guidelines that, without further explanation, could look lenient for rape.
They appealed on the ground the judge should have found that there was no case to answer as there was no evidence that each did not have a reasonable belief that she was consenting.
The Prosecution case
The prosecution case was that each appellant knew Smith, and each was aware of his methods of getting his way in the drugs world. They knew there was a disparity of power in Smith’s relationship with X, and they were aware she consumed alcohol and drugs before having sex with each of them. None of them made any inquiry with X; one admitted overhearing a conversation between Smith and X where she said she wasn’t really consenting.
The appellants argued at trial and on appeal that taking the evidence at its highest, there was nothing capable of proving the absence of a reasonable belief in consent. The law does not require a defendant to inquire about consent even when the broad circumstances might be thought to put him on inquiry. The Court of Appeal held that the judge was right to leave the issue to the jury. The evidence that went to reasonable belief was made up of a mosaic of individual pieces from a wide range of witnesses. It required the jury to evaluate those pieces in the context of a broad picture to determine whether the prosecution had proved the absence of reasonable belief. The evidence was there for the jury to come to the conclusion that it did.
Consent is not simply Yes or No
This case amply demonstrates that consent is not a simple issue of yes or no. Back in 2018, a survey found that many people were still unclear as to what rape was. A third of people thought it wasn’t usually rape if a woman was pressured into having sex, but there was no physical violence. A third of men thought that if a woman flirted on a date, it wouldn’t generally count as rape even if she didn’t explicitly consent to sex. 21% of women thought the same.
This is a complicated area of law; if you find yourself accused of a sexual offence, you need expert advice at an early stage. Please do not fall into the trap of thinking that you do not need a solicitor if you have done nothing wrong, or that if you do have one it will make you look guilty. Everyone has the right to free and independent advice at the police station; it is a right that you should use.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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A policeman, a taser and manslaughter
Benjamin Monk, a police officer, has been sentenced for the manslaughter of Dalian Atkinson, who died in 2016.
Dalian Atkinson was an ex-footballer who had played for several clubs, including Manchester City and Aston Villa, before retiring from the game in 2001. In August 2016, Mr Atkinson was suffering from kidney failure, and it appeared he was suffering from mental health issues and paranoia linked to that kidney failure.
The police were called to Mr Atkinson’s father’s house due to his threats to kill his father. His mental health had dramatically deteriorated; he falsely claimed to have killed other family members and was shouting that he was the Messiah. He was unrecognisable to family members and had lapsed into a form of psychotic state.
Taser discharged
Benjamin Monk was one of the police officers who attended the scene following a call from a neighbour. Mr Atkinson was behaving out of character and was being aggressive. Monk attempted to calm him down and retreated; he discharged his taser, which did not affect Mr Atkinson, who continued to advance. The taser was discharged for a second time, again with no effect. As Mr Atkinson advanced on the police officer again, the taser was deployed for the third time, and Mr Atkinson fell to the ground.
Monk was charged with murder and pleaded not guilty. At his trial, the jury accepted that using the taser on the three occasions was reasonable and lawful to try and restrain and control Mr Atkinson. Evidence was given that reasonable use of the taser would include deliberately maintaining an electrical circuit for between five and ten seconds. The taser causes neuro muscular incapacitation and collapse.
Once Mr Atkinson had collapsed, he still had to be restrained and controlled, and reasonable force could be used to do so. Monk, however, kept the taser depressed for 33 seconds and then kicked Mr Atkinson in the head while he was still on the floor. The prosecution case was that either or both of those two actions amounted to the use of unreasonable force.
Guilty of manslaughter
The jury found Monk guilty of manslaughter rather than murder; in deciding the appropriate sentence, the judge had to determine what force he was sure the jury decided was unlawful. He found that he could not be sure, based on a large quantity of evidence, that Mr Atkinson had been subjected to an electric current for any period materially beyond that accepted as being lawful. Although the taser was depressed for 33 seconds, it was likely the taser barb had become detached.
The kicks to the head while on the ground did exceed reasonable force. The evidence as to the number of kicks varied, but there was clear forensic evidence from footwear impressions that there were at least two. The prosecution and defence experts jointly agreed that the kicks were delivered with moderate force; they did not cause any serious injury and would not have caused death in a healthy person. The kicks had been a contributory factor to his death, the effect of them being to increase his degree of unconsciousness, which had an adverse effect on his ability to maintain his airway and breathe properly.
Convictions of police officers
According to the Independent Office for Police Misconduct, Monk’s conviction was the first in thirty years of a serving police officer convicted of manslaughter in the course of their duties. There have been ten other murder of manslaughter charges brought against officers since 1990, but all have been acquitted or the cases not proceeded with. Another officer was charged with assault in this case, as she struck Mr Atkinson with her baton, but the jury failed to reach a verdict. Monk has been suspended from the force since 2019, and misconduct proceedings will now be fast-tracked. He was sentenced to 8 years imprisonment, of which he will serve two thirds before being released on licence.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Modern slavery – new sentencing guidelines
The Sentencing Council has the responsibility of developing and monitoring sentencing guidelines. The aim is to promote consistency in sentencing while maintaining the independence of the judiciary.
Following a consultation period, the Council has published sentencing guidelines for offences under the Modern Slavery Act 2015. The guidelines apply to adult offenders and cover the following four offences:
- holding someone in slavery (section 1);
- human trafficking (Section 2);
- committing an offence with the intention of committing a human trafficking offence (section 4);
- breach of a slavery and trafficking prevention order, or a slavery and trafficking risk order (section 30).
Why are there new guidelines?
The guidelines are to be introduced following an increasing number of cases coming before the court and are the first for these offences. The two principal offences in the Act are under sections 1 and 2; trafficking and slavery/forced labour are frequently sentenced together with the same factors taken into consideration. For this reason, one guideline has been produced to cover both offences, with the same culpability and harm factors and the same aggravating and mitigating factors.
The guidelines for these more serious offences provide for a sentence of up to 18 years imprisonment for offenders who played a leading role, with substantial financial advantage and who exposed victims to a high risk of death.
How is the sentence for a Modern Slavery offence arrived at?
A sentence is reached following an assessment of culpability and harm; the level of culpability is given a category 1 to 4, and harm is listed as A, B or C. The two are then combined to provide a sentencing range and starting point. Aggravating and mitigating factors are relevant in placing the offence at the right level within that sentencing range.
The draft guidance was amended to include a reference in the levels of culpability to threats made to a victim’s family, as well as the victim. Whether the offender had been a victim of trafficking, whether previously or in the same offending as charged, is also relevant. The culpability factors reflect an expectation of substantial financial gain, and material advantage is now included.
The assessment of harm is decided upon using a table provided in the guidelines. The assessment can be assisted by expert evidence based on factual evidence from the victim, including a victim impact statement. A close examination of all particular circumstances is required, and sentencers are not to assume that the absence of evidence from those trafficked means a lack of harm or seriousness.
The Council stated that courts are used to assessing harm with differing degrees of evidence. The guidance is focussed on the central point that victims, even if not obviously traumatised, may not recognise their own victimhood or be able to offer positive evidence of it. A victim’s apparent consent to their treatment is to be treated with caution.
Section 4 of the Act is committing an offence with the intention of committing a human trafficking offence which is punishable with a maximum of ten years’ imprisonment. Those who replied to the consultation agreed with providing brief guidance on the approach to be taken on sentencing. This entails the sentence being commensurate with that of the primary offence, for example, kidnap or false imprisonment, with an enhancement of up to 2 years imprisonment, to reflect the intention to commit the human trafficking offence.
The offence under section 30, breach of an order, is also dealt with in the guideline by way of brief guidance. Sentencers are pointed to the guidelines for similar breaches, such as a breach of a criminal behaviour order or a sexual harm prevention order. The reasoning behind this is that breaches of the orders referred to carry the same maximum sentence and also refer to harm/risk of harm.
Responses to the consultation
The Independent Anti-Slavery Commissioner responded to the consultation, pointing to the wider harms caused by modern slavery offences, such as economic harm, public safety and wider criminality. The Council did not believe there was a specific way to draw the sentencer’s attention to the wider harms. Still, it did consider they were reflected in the higher starting points and sentencing levels set out in the guideline.
In addition to the offences covered in the guidelines, the Act provides for various orders to be made, such as reparation orders, slavery and trafficking risk and slavery and trafficking prevention orders. The guidelines have to be followed unless the judge or magistrate is satisfied that it is contrary to the interest of justice to do so.
The guidelines will come into effect on 1st October 2021.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Trade mark offences – new sentencing guidelines
Trade Mark offences are the latest set of offences to be given sentencing guidelines by The Sentencing Council.
The Sentencing Council produces guidelines on sentencing for the judiciary and criminal justice professionals. The aim is to promote greater consistency in sentencing whilst maintaining the independence of the judiciary. The guidelines set sentencing ranges within the maximum for the offence and must be followed unless the court is satisfied that it would not be in the interests of justice to do so.
A consultation was held on guidelines for trade mark offences, and two new guidelines have now been produced for sentencing individuals or companies that sell or possess counterfeit goods intended for sale. The new guidelines will replace the existing one, which applies to individuals only, and will be used in all courts from 1st October 2021.
The offences concerned are relatively low volume offences, with around 370 adults and 40 organisations being sentenced in 2019. As they are low volume, it is likely that sentencers will not have too much experience of them, and so the Council felt that comprehensive guidelines would be of assistance.
Of the adult offenders, 36% received a community order, 31% a fine, 17% a suspended sentence, 4% were sentenced to immediate custody, and 5% were given a discharge. The remaining 6% were dealt with by other means such as forfeiture of property, a day in the cells, confiscation order, compensation order or other miscellaneous disposals. The average custodial sentence was 12 months, and no sentences exceeded 36 months.
An organisation that is a legal entity can be prosecuted with the only options being a fine or a discharge (an organisation cannot be sent to prison or be given a community order). The level of fine is unlimited.
Unauthorised use of a trade mark is an either offence that can be dealt with in the magistrates’ court or the crown court. The maximum sentence is ten years imprisonment and/or an unlimited fine.
Individuals
The level of culpability is to be assessed by determining the offender’s role, the extent to which the offence was planned, and the level of sophistication. There are three levels in the guideline, high, medium and lesser culpability.
The level of harm is recognised as being “somewhat complex and nuanced”. When the guideline was road-tested, the feedback was that the model was tailored to the offence, and it met with approval. The assessment involves putting a monetary figure on the offending by reference to the equivalent genuine goods’ retail value and any significant additional harm suffered by the trade mark owner or purchasers of the counterfeit goods.
The guideline says:
- Where there is evidence of the volume of counterfeit goods sold or possessed:
- the monetary value should be assessed by taking the equivalent retail value of legitimate versions of the counterfeit goods involved in the offending.
- Where it would be impractical to assign an equivalent retail value of legitimate versions, an estimate should be used.
- Where there is no evidence of the volume of counterfeit goods sold or possessed:
- In the case of labels or packaging, harm should be assessed by taking the equivalent retail value of legitimate goods to which the labels or packaging could reasonably be applied, taking an average price of the relevant products.
- In the case of equipment or articles for the making of copies of trade marks, the court will have to make an assessment of the scale of the operation and assign an equivalent value from the table below.
The equivalent retail value is likely to be considerably higher than the actual value of counterfeit items, and this is accounted for in the sentencing levels. There may be exceptional cases where the retail value is grossly disproportionate, and an adjustment may be made in these cases. An example of additional significant harm could be purchasers being put at risk of physical harm from the counterfeit goods.
The guideline also sets out the steps that can be taken with a view to making a confiscation order, compensation order and forfeiture of goods.
Organisations
The penalties in this guidance are financial and must be considered in the following order-
- Compensation
- Confiscation (Crown Court only)
- Fine
Compensation must be considered to require the offender to pay compensation for any personal injury, loss or damage, having regard to the evidence and the offender’s means. Priority is to be given to the payment of compensation over any other financial penalty, and reasons must be given if a compensation order is not made.
Confiscation orders can only be made in the Crown Court, and a case dealt with in the magistrates’ court may be committed to the crown court for the order to be considered. If the lower court would otherwise have dealt with the case, the crown court would be limited to those powers. Confiscation is to be dealt with, and taken into account, when assessing any other fine or order.
Culpability factors for organisations are similar to those in the guideline for individuals; the harm factors are identical.
In considering the impact of the changes, the Council stated that they expected the guidelines to encourage consistency of approach and would not change average sentencing severity. However, an increase in custodial sentence lengths may result in the most serious cases, with some increase in the use of imprisonment for cases of low value but with a high risk of serious harm.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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