The Court
of Appeal today issued guidance on sentencing for riotous assembly and
increased two sentences arising from the flags protests earlier this year. The
Director of Public Prosecutions had referred the cases to the Court of Appeal
submitting that the sentences imposed were unduly lenient.
The
Lord Chief Justice, delivering the judgment of the Court, said it was important
to make it plain at the outset that none of the sentences were the result of the
exercise by anyone of the right to lawful protest. He noted that the right to
protest has an important place in society and added:
“It is quite inappropriate in a
democratic society for the criminal law to be used to inhibit peaceful lawful
protest. Citizens are entitled to be heard and the right to freedom of
expression must be protected by the law and secured by the courts. It is only
those who lend themselves to the encouragement or engagement in violent disorder
who offend the criminal law on riotous assembly.”
The
Lord Chief Justice continued:
“There remain a significant number
of people, usually male, who persist in lending themselves to violent mob
activity. The gravamen of this offence is the decision to participate in the
assembly thereby causing fear and alarm to those members of the public
affected. Each participant adds to the weight of numbers in the mob and fuels
the level of aggression that has been evidenced to us in these cases. Even for
those who participate by presence and encouragement only, their culpability must
be judged by the total picture of the disorder and violence caused. Such
persistent criminal conduct spread as it is across our community inevitably
requires a deterrent sentencing framework. Those who chose to participate by
presence and encouragement had the option of walking away. Those who actually
used violence did so as part of the violent disorder. Their conduct cannot be
viewed in isolation.”
In
delivering the sentencing guidance, Sir Declan Morgan stated:
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Where a deterrent sentence is required, previous good
character and circumstances of individual personal mitigation are of
comparatively little weight;
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Where a deterrent sentence is imposed it should only
suspended in highly exceptional circumstances; and
-
Where there is compelling evidence such as video
material an offender is unlikely to get full credit for admissions and a plea
where there was realistically no alternative.
The
Lord Chief Justice said that in selecting the appropriate starting point, the
judge may have to take a number of matters into consideration:
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The size of the group of offenders;
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The nature of the violence used;
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The duration of the riot;
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Whether the riot is associated with any other disorder
occurring before or after the incident in question;
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The harm caused;
-
The nature and extent of interference with the
public;
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Any likely effect on community relations; and
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The likely cost to the public purse.
The
Lord Chief Justice said that a deterrent sentence of immediate custody is
required, other than in highly exceptional circumstances, where there is any
participation, including participation by way of presence and encouragement, in
large scale riots involving the use of serious violence and extensive public
disruption. He directed that:
-
Those present for a significant period and repeatedly
throwing missiles such as bricks or stones should expect a sentence of five
years following a trial;
-
Ringleaders should expect sentences of 10 years
following trial;
-
Those who instigate or organise those present or use
more serious violence should expect sentences between five and ten years after a
trial.
The
Lord Chief Justice went on to consider the sentences in the three cases that had
been referred by the Director of Public Prosecutions.
Robert McKeown
was seen on four separate occasions on the evening of 3
December 2012 attacking police in East Belfast. His image was published in the
local press and he handed himself into the police. He said he had gone to the
City Hall to show his support for the flag protest and rather than walking away
joined in throwing stones at the police when he arrived back in East Belfast.
The trial judge gave him credit for his guilty plea and imposed a suspended
sentence of 18 months imprisonment. The Court of Appeal found this to be unduly
lenient and considered that the minimum appropriate sentence was a determinate
custodial sentence of 2 years 6 months imprisonment. The Lord Chief Justice did
not consider that McKeown’s circumstances were sufficiently exceptional to
constitute a suspended sentence. Taking into account the impact of double
jeopardy in that McKeown will now have to serve a prison sentence whereas
previously he had been allowed to remain in the community, the Court of Appeal
imposed a determinate custodial sentence of 18 months comprising nine months in
custody and nine months on licence. McKeown was ordered to present himself at
Maghaberry Prison on 13 November to start serving his sentence.
Edward Lynn
was arrested on the Albertbridge Road on 5 January 2013. He was wearing a scarf
around his face and he could be seen on CCTV evidence throwing a missile at
police lines with another piece of masonry in his hand. While he pleaded
guilty at the first opportunity, the Lord Chief Justice said that the CCTV
evidence meant that credit for the plea was reduced. The court heard that Lynn
had served in Afghanistan with the Territorial Army in 2010-11 and had suffered
from an adjustment disorder with post-traumatic symptoms. The trial judge
imposed a suspended sentence of 15 months imprisonment. The Lord Chief Justice
said the Court of Appeal had to take into account that Lynn had been exposed to
horrendous violence during his army service when he was still a teenager and
this had affected his ability to control his actions. He said that Lynn’s
particular circumstances led the Court to consider that it should not interfere
with the suspended sentence. Lynn’s sentence was not varied.
Stephen Ferris
was seen throwing a golf ball at police in East Belfast
on 12 January 2013. He was later seen throwing missiles into the Short Strand
and running towards police lines holding a piece of masonry. He accepted at
interview that he was present at the protest and agreed that he had breached
police lines. He was 18 years old at the time. The Lord Chief Justice said
there was little distinction between Ferris and McKeown and imposed a
determinate custodial sentence of 18 months comprising nine months in custody
and nine months on licence. He was order to present himself to the Young
Offenders Centre on 13 November to begin the sentence.