A “legitimate question” for Cherie Booth?

15 February 2010

As set out below, my view is that her remarks are unlikely to have affected the sentence received in this particular case, and there seems no real force in the allegations of either discrimination or undue leniency. 

But there may be what the defendant’s own solicitors call a “legitimate question” as to why she made the remarks in the first place, as I have been able to establish that the religious beliefs of the defendant were not actually part of his mitigation at all.

The outrage

“This is a very worrying case of discrimination that appears to show that religious people get different treatment in Cherie Blair’s court,” said the President of the National Secular Society, who promptly made a formal complaint to the Office of Judicial Supervision.

The philosopher A.C. Grayling went even further, not feeling any need to await the investigation of the NSS complaint: Cherie Booth “has proved herself unfit for the bench, and a vigorous reassertion of judicial impartiality and inclusiveness is needed. It ought to come as a corollary to a disciplinary action against Mrs. Blair, her removal from the bench, and a commitment to having better reasons for keeping violent people out of prison than that they believe in ancient pre-scientific superstitions.”

Articles on the on-line editions the Daily Mail, the Independent, and Daily Telegraph attracted hundreds of hostile comments.  Well known bloggers, such as Cramner and The Heresiarch, opined elegantly. And Twitterers got into their usual frenzy, re-tweeting the links to each other with the inevitable “WTF”.  

More and more indignation was piled on the same few reported words.  

The philosophically-minded debated endlessly the relationship between morality and religion.   And then there was, of course, the equal and opposite reaction, of contrarian pundits “defending” the judge’s comments for the very same reason the others were complaining.

But hardly anyone sought to find out more information other than that was already reported, including about the relevant legal and sentencing framework for this sort of offence, if only to see the extent of any supposed discrimination or undue leniency.  

Only a very few paused to consider whether the judge’s comments were even reported correctly before venting their strong feelings or articulating their ethical arguments.

The happy combination of a “bad law” story with the media’s perception of the personality and religious views of the judge in question made any such sensible approach seemingly redundant. 

So what actually did happen?

The offence

The story starts with a quarrel at a queue for a cashpoint.  One man punches another and walks away.  The victim follows the attacker to remonstrate.  The victim then gets punched a second time, and is this time knocked to the ground.  His jaw is fractured.  The attacker is arrested and claims self-defence to the police; however the CCTV footage seems to make such a defence unsustainable.

The defendant Shamso Miah then enters an early plea of guilty to assault occasioning actual bodily harm (ABH).  The magistrates commit him to the Inner London Crown Court for sentencing. 

Although the assault was nasty, it did not have aggravating features such as a weapon or having been pre-meditated.  The victim was not a child or other especially vulnerable person.  The evidence before the court seems to be that the fracture caused by the assault was “mild”.  The defendant also has very good mitigation: it was his first offence and so benefits from his previous good character. 

The defendant is given a six month custodial sentence, suspended for two years, and was also ordered to do 200 hours community service.  In the words of Mr Miah’s solicitors:

“The sentence imposed was fair and consistent with sentencing guidelines.  The mitigation which justified this sentence included the defendant’s early plea of guilty and his lack of previous convictions.”

The relevant sentencing guidelines for ABH are here.

If the attack had been indeed spontaneous and the fracture was mild, then you will see that the sentencing range is actually from a medium community order to 26 weeks custody (ie, six months).  The sentence imposed is perhaps at the top end of this guideline. 

You will also see, at the bottom of the page, reference to the McDonald case, where a six month custodial sentence was also imposed, but where the victim suffered a worse set of injuries than the victim in the present case.

Accordingly, there is nothing in the applicable guidelines in regard the six month custodial sentence in this case as being unduly lenient or indeed particularly lenient at all. 

The suspension of sentence

Of course, it is not the six month custodial sentence which has caused the indignation, but the fact that it was suspended for two years.  The defendant could then “walk free from court” in the way beloved of journalists wanting to a peg for a legal story.

According to most of those who have commented on this case this suspended sentence appears explicable by the judges response to the defendant’s religious beliefs. 

However, the suspension of the sentence was probably due far less to religion than the less exotic new sentencing regime introduced by section 189 of the Criminal Justice Act 2003, which radically changed the basis for imposing suspended sentences, and has led to an explosion in their use.  

Previously, suspended sentences were only to be given in “exceptional circumstances”.   But since that Act took effect, suspended sentences are now routinely combined with other punishment orders, especially for first time offenders committing sufficiently grave offences.  

As the explanatory notes to the Act state:

“At present [ie, pre 2003 Act] a custodial sentence can be suspended for between one and two years provided that the offence warrants custody and the suspension is justified by the “exceptional circumstances” of the case. A suspended sentence can be combined with a fine or compensation order, but not with a community sentence (although a supervision order can be attached). The custodial sentence is activated by the committal of another imprisonable offence. This Act replaces this sentence with an amended version which is designed to be more widely available and more effective in correcting offending behaviour. The key change is that the court may suspend a short custodial sentence […] for between six months and two years on condition that the offender undertakes activities in the community.”

The 2003 Act led to significant increase of suspended sentences overall, as set out in the government’s sentencing annual, see Chapter 2 here.

In 2003, the Crown Court imposed only 1,558 suspended sentences for all offences; but in 2008 they imposed 17,446.  

And in respect of all offences against the person (including ABH and the more serious grievous bodily harm), the Crown Court went from imposing 385 suspended sentences in 2003 to 4,660 in 2008.

Judges have clearly found it increasingly appropriate to combine suspending the custodial element of the sentence with a non-custodial element of community service.

Moreover, in respect of ABH in particular, the Courts are positively encouraged to be lenient with first time offenders.  The Sentencing Guideline Council, the official body for providing guidance to judges, states:

“Matters of personal mitigation are often highly relevant to sentencing for this offence and may justify a non-custodial sentence, particularly in the case of a first time offender. Such a disposal might also be considered appropriate where there is a guilty plea.”

And so even just a quick Google search will reveal dozens of news reports where there has been a suspended sentence for ABH:

• a soldier who broke four ribs of his baby son
• a fireman (with an exemplary service record) who kicked a man in the head
• a disabled man who attacked someone at an Alice Cooper concert who had asked him to stop waving his false leg

There is also no reason to regard the suspension of Mr Miah’s six month custodial sentence as unduly lenient or particularly lenient at all; especially when the suspension of the sentence was accompanied by 200 hours of community service.

The significance of Cherie Booth’s remarks

So the sentence of Mr Miah did not - and does not - seem exceptional.  Other than the reported comments of the judge on sentencing, there is nothing newsworthy about the sentence at all.   Indeed, the partners at Mr Miah’s defence solicitors were not even aware that one of their cases had featured in the news until I contacted them. 

Mr Miah was just another first-time offender convicted of ABH where the sentencing judge combined a suspended sentence with extensive community service. 

However, when imposing this particular sentence, Cherie Booth QC is quoted as saying:

“I am going to suspend this sentence for the period of two years based on the fact you are a religious person and have not been in trouble before.

”You caused a mild fracture to the jaw of a member of the public standing in a queue at Lloyds Bank.

“You are a religious man and you know this is not acceptable behaviour.”

There is no transcript currently available of what she actually said in this case.  But, even if we accept the comments as accurately reported, what do they actually show? 

On the basis of what is set out above, the remarks do not in themselves prove discrimination or unduly lenient treatment occurred.  The sentence is entirely explicable on other grounds.

There also seems to be no example of someone was not religious being treated less favourably by the same judge for a similar offence.  The National Secular Society has confirmed that they are not aware of any avowed atheist or secularist ever receiving a heavier sentence for any offence before any judge.

However, the unexceptional nature of the imposed sentence may not be the end of the matter.

A legitimate question?

There does remain the curious issue of why she mentioned the religious beliefs at all. 

My initial thought was that it had been raised in mitigation, either by him or on his behalf.  I was even expecting to defend in this article his right to raise whatever mitigation he thought appropriate and her right to respond to that mitigation.

This turned out not to be the case.

For, although it cannot be ruled out that the role in religion in his life was mentioned by his lawyer in open court, I can confirm that it was not actually part of the mitigation pleaded on Mr Miah’s behalf.

The judge’s awareness of the defendant’s religious beliefs was probably derived from the (confidential) pre-sentence report or the facts of the case (he had been to a Mosque before the assault).

Cherie Booth mentioned Mr Miah’s religious beliefs in sentencing even though they had not actually been raised formally as a mitigating factor: she raised them on her own volition.

As Paul Kaufman, a partner at Mr Miah’s defence solicitors Wiseman Lee (and himself a member of the British Humanist Association), says:

“A defendant’s religious belief or membership of a religious group is not in itself of any relevance in mitigation. 

“There is no reason why a person who claims to be religious should be dealt with more favourably than someone who does not.   Religious people are as capable as non religious people of doing bad things.  There is a risk that any reference to religion when passing sentence will encourage people to claim they are ’ religious’ in the expectation that they may be dealt with more sympathetically. 

“There is a risk that people who are not religious will feel that they are at a disadvantage when appearing in Court.”

But did her remarks affect his client’s sentence?

“It is impossible for me to say whether the defendant’s religious belief affected the sentence imposed in this case.  The sentence was within the guidelines.  

 “It is therefore possible that the question of the defendant’s religious belief played no part at all. 

 “However, a legitimate question is raised as to why the Judge should mention this issue unless she did believe it to be a relevant consideration.”

Every day in court one will hear judges and magistrates exhorting or admonishing convicted defendants, often emphasising personal details culled from pre-sentence reports or put in mitigation.  It is sometimes cringe worthy, and it is often futile; but it is certainly not unusual.   

However, in this case she would have known that the media may pick up on any religious-related comments, and use it as an excuse to indulge in “Blair-bashing” and to publish yet more unflattering photos of her, which they never seem to do with any male judge.

Ultimately, Mr Miah would have been likely to have “walked free” on the reported facts with any competent judge acting in accordance with the applicable guidance, whatever the remarks made on sentencing.  It would have perhaps been more exceptional and newsworthy had he not done so.

But with all that said: the “legitimate question” posed by Mr Kaufman does seem to linger: why did she mention the defendant’s religious beliefs at all?

Allen Green, a freelance legal and policy journalist, writes the Jack of Kent blog.

This is the first of a regular series of blogposts looking at the background to legal stories in the news.  The approach will be modelled loosely on Ben Goldacre’s Bad Science columns, but dealing with legal rather than science issues.