12 November 2013

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:

  • Where a deterrent sentence is required, previous good character and circumstances of individual personal mitigation are of comparatively little weight;
  • 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:

  • The size of the group of offenders;
  • The nature of the violence used;
  • The duration of the riot;
  • Whether the riot is associated with any other disorder occurring before or after the incident in question;
  • The harm caused;
  • The nature and extent of interference with the public;
  • Any likely effect on community relations; and
  • 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.