Sentences on rioters should deter violence, not ostentatious acts of urination

Five people involved in the riots which occurred on March 21st in Bristol were sentenced yesterday. All received prison sentences and four out of the five deserved them. They had admitted throwing objects, and attacking both a police vehicle and Bristol’s central police station. Many officers were injured. In disturbances which lasted from early evening well into the night officers were struck, spat on, kicked and punched, some whilst defenceless on the ground. Some – with good reason – feared for their lives. Hundreds of thousands of pounds of damage was caused in damage to police property alone.

These were the four who deserved their sentences (details taken from the Avon and Somerset Police press release):

Kane Adamson, 21,  threw items including road signs, a road work barrier and an electric scooter at officers while he also threatened officers and repeatedly punched and kicked their shields. Jailed for three years and six months.

Brandon Lloyd, 21, pushed and kicked officers’ shields, cornered and assaulted a PC by kicking them, and threw items at and kicked the windows of the Bridewell Police Station, damaging the glass. Jailed for three years and 11 months.

Kain Simmonds, 18,  sprayed an aerosol in the direction of an officer’s face, kicked officers’ shields, kicked the window of the Bridewell and repeatedly struck a police van with an officer’s baton. Sentenced to three years and three months at a young offenders institution.

Stuart Quinn, incited others to attack police officers, throw items at the Bridewell and cause damage to a police van. Jailed for three years and three months.

The defendants appear to have been identified on police video footage, part of which was released after the sentencing.

The violence arose out of a protest against the Police, Crime, Sentencing and Courts Bill, which contains a great deal of lamentable new law. I have written in some detail on this blog about one particularly nasty aspect of the Bill aimed at Gypsies and travellers, but they are by no means the only objectionable provisions.

The Bill would also significantly extend the powers of the Police to prohibit or impose conditions on demonstrations and other public assemblies, to avoid what Clause 56 (11) calls “serious disruption to the life of the community.” What does that mean? The answer is that it means whatever the Home Secretary wants it to mean, because under Clause 56 (12) the Bill gives her the power “to define any aspect of an expression mentioned in subsection (11).” That alone is an extraordinary provision – though unfortunately less extraordinary than it once would have been – empowering a Government Minister to change the legal meaning of language as she or he sees fit. It is a type of legislation known to English lawyers as a “Henry VIII” clause, but given the potentially breathtaking powers it hands to government ministers to limit demonstrations it might be almost as accurate to call it a “Xi Jinping” clause.

None of that of course excuses the violence used against the police who are not responsible for the Bill, did not ask for it, and some of whom who may well, individually have had sympathy with many of the objections to it.

The violence was not just inexcuseable. It was also extraordinarily counter-productive: the Bill is aimed at controlling disruptive demonstrations. What better argument could Priti Patel have to demonstrate the necessity for additional powers than to point to one of the most violent political demonstrations of recent years in which brave police officers were targetted by demonstrators chanting “Kill the Bill”?

But the fifth defendant sent to prison did not deserve it. Yasmin Schneider – who identifies as non-binary and prefers the pronoun “they” – was given a 5 month sentence of imprisonment for “outraging public decency.”

Yasmin Schneider

Their crime was that during the riots they urinated at the feet of the police. Should you wish to, you can see footage of one of the incidents at the end of the police video uploaded above. It is not especially disgusting to watch.

She was not charged with riot or violent disorder, or with any crime of violence. That was because her crime was not a violent one. It was an act of protest that many would have found distasteful, though to my mind at least it was a great deal less distasteful than chanting “Kill the Bill” at a riot when police officers were under sustained attack and fearing for their lives.

Why then was Schneider given a prison sentence?

As usual the full sentencing remarks have not been published, but the hearing was well covered by the Bristol Post. According to their report, Judge Patrick said that her actions “dehumanised the police” and that there was a “high degree of harm caused.”

One can understand that a defendant’s actions have to be judged in the context in which they occur. A single angry man on his own hammering on the outside of a police van is much less alarming than a man – like Kain Simmonds – doing so as part of a mob attacking the police. So it would be wrong to judge her as though she was a drunk caught short in the street after too many beers. In the context it was a calculated act of protest, and, given her plea of guilty, I suppose we must accept that the charge of “outraging public decency” was appropriate. It is, at least in my opinion, a dangerously vague common law offence (that is, it is not created by legislation) which criminalises – I take the definition from Archbold’s Criminal Pleading, Evidence and Procedure – “open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order.”

There are no formal sentencing guidelines for outraging public decency and, as a common law offence, it theoretically carries an unlimited prison sentence. In practice immediate imprisonment is far from inevitable. Judge Patrick himself will be remembered by some for a 2014 case in which he imposed a suspended sentence on a man who tried repeatedly, though without success, to have sex with various sheep and cattle in front of outraged picnickers outside Tottenham Hotspur’s training ground.

In an earlier case (Hardy [2013] EWCA Crim 2125]), the Court of Appeal said that when sentencing a man for “displaying his semi-erect penis” by rubbing it on the back of a car and “shaking it up and down,” the courts should have regard to the sentencing guidelines for “exposure,” an offence under the S.66 of the Sexual Offences Act 2003, committed where a person “intentionally exposes his genitals, intending that someone will see them and be caused alarm or distress.”

It seems that Judge Patrick may have had those guidelines in mind, not least because of his use of the expression “high degree of harm caused.”

Where there is both a high degree of harm and high culpability, the sentencing guidelines for exposure suggest a starting point of 26 weeks imprisonment, although that would not necessarily be an immediate sentence, and it would in any case have to be reduced to give credit for a guilty plea. If either a high degree of harm or a high degree of culpability is not present the guidelines suggest the starting point should be some form of community order.

What are the factors that indicate greater harm and greater culpability? The guideline helpfully sets them out.

None of these applies, and in fact the exposure guidelines are perhaps not really very apposite to Schneider’s offence.

So how was it that the judge was able to conclude that public urination during a riot caused “a high degree of harm”? Certainly it caused no physical harm, and it seems improbable that any of the injuries suffered by the officers that evening were psychological injuries consequent upon seeing Ms Schneider urinate. The judge fell back upon the nebulous assertion that urinating in front of police officers “dehumanised” them. Whatever that means, it is surely far better that during a riot a person should “dehumanise” police officers by ostentatious acts of micturition than by hurling a brick at them; or indeed by provocatively chanting “Kill the Bill,” something which nobody – so far – has suggested should be a criminal offence.

Moreover – at least judging by the report in the Bristol Post – Judge Patrick does not appear to have given much weight to the personal aspects of mitigation that Schneider’s counsel outlined to the court. These included homelessness at the age of 16, domestic abuse, pregnancy, a stay at a mother and baby unit, and what sounds like rather fragile mental health. Even if the judge regarded that mitigation as irrelevant, and because he is a humane and decent man I doubt that he did, it is still very difficult to see what an immediate prison sentence achieves that a suspended sentence coupled with some form of community order would not. If it is felt that only a harsh sentence would deter others in the future, surely it would make more sense to draw a sharp distinction between those demonstrators who used actual violence and those, like Schneider, who did not.

It is violence that needs to be deterred at political demonstrations, not tasteless or offensive acts of protest.

 

 

 

 

 

 

The post Sentences on rioters should deter violence, not ostentatious acts of urination appeared first on BarristerBlogger.

Source: https://barristerblogger.com/2021/07/31/sentences-on-rioters-should-deter-violence-not-ostentatious-acts-of-urination/

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