Two police officers are shot and killed whilst on duty. This lead to an immediate reaction, the usual calls for the return of capital punishment and concerns about criminals having guns. Concerns that have been going on for several years and not abated.
So. Here’s the question – in the current climate which of the following is the more serious?
(i) A mentally ill man wearing a t-shirt saying ‘One less pig perfect justice’ and ‘kill a cop 4 fun.co.uk Ha, haa?’ in the hours after the shooting, or
(ii) Someone unlawfully possessing a glock semi-automatic pistol with 122 rounds of live ammunition that can go in it?
On 29th November, Danny Nightingale was released from the Royal Courts of Justice in London after his appeal against sentence was allowed and he was given a suspended sentence. On the same day (and seemingly in front of the same panel of Judges) Barry Thew’s appeal against the sentence of 8 months imprisonment was dismissed. Some background on the Thew case is here and for Nightingale here.
Should either of them been convicted?
Mr Nightingale has been granted permission to appeal the conviction and it will be heard next year. For that reason, whilst it will be interesting to see what the basis is, we will hold fire on any comment until the appeal is heard.
As was made clear in Thew, given that he had pleaded guilty, the Court did not (and indeed could not) examine the conviction. The offence was s4A Public Order Act 1986 and by his plea, Mr Thew would have accepted the following:
- he wore the t-shirt
- the t-shirt was in fact “threatening, abusive or insulting” and
- he intended to “cause harassment, alarm and distress” by wearing it
As the Court states, there was no appeal against conviction, and therefore there is not much that can be said in relation to it. I have grave doubts that wearing such a shirt is a criminal offence, even given the day that it was worn. If it is, then I don’t think it should be – it falls within the area of speech that is unpleasant and confrontational, but is protected by Art 10.
Why were the appeals decided in the way they were?
There is some commentary on Nightingale here. What is noteworthy, and very surprising, is that there is no reference in the judgment to any caselaw – previous decisions of the Court. This is all the surprising as the Court has repeatedly said that the cases where a reduction from the 5 year mandatory sentence will be few.
There was no reference to Rehman  EWCA Crim 2056 where the purpose of the 5 year mandatory sentencing was set out (para 12):
“the rationale of Parliament, the policy was to treat the offence as requiring a minimum term unless there were exceptional circumstances, not necessarily because the offender would be a danger in the future, but to send out the deterrent message to which we have already referred. The mere possession of firearms can create dangers to the public. The possession of a firearm may result in that firearm going into circulation. It can then come into possession of someone other than the particular offender for example by theft in whose hands the firearm would be a danger to the public. Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or the offender, unless they pass the exceptional threshold to which the section refers”
Or to the fact that “previous good character (although relevant in not increasing the sentence beyond the minimum) cannot amount to exceptional circumstances, nor can the fact that he did not intend to use the pistol or any of the guns held unlawfully for criminal purposes. All the circumstances identified by the judge were irrelevant. A minimum sentence of five years should have been imposed.” AG Ref (No 23 of 2009) EWCA 1683). Another factor in that case was that one of the (three) weapons had been lawfully held prior to the change in the law (on that defendant’s firearm licence) and it was therefore seemingly a case of failing to dispose of a weapon lawfully obtained rather than acquiring an unlawful weapon – did that make it exceptional? No it did not.
Did the Court explain why what was said in that case that “Those who in any way contravene the Firearms Act must for the good of society, whatever the consequences are to their family, expect to receive the minimum sentence from Parliament. Judges must not feel sorrow or sympathy for any offender. The protection of the public demands nothing less than the imposition of minimum sentences” did not apply here? No.
Nor was there reference to the principle that even if exceptional circumstances are found, the Court should still take 5 years as a starting point (Bowler  EWCA Crim 2068). Do we know why the circumstances of Mr Nightingale’s offending are such that the appropriate sentence should be reduced to 20% of the starting point, and then be suspended?
With Mr Thew, the Court stated that given when the offence was committed, and that it was deliberately offensive, with the risk that other people might be stirred into a violent reaction on seeing the message, the conclusion that the maximum sentence was deserved was entirely appropriate. His mental health issues did not play a part in the offence and therefore was not a mitigating factor.
Of course the people involved are not the same. Mr Thew has a lengthy criminal record, Mr Nightingale an exemplary service record.
It’s important to state that I am not saying that Mr Nightingale belongs in prison, far from it. I think that the sentence passed is a merciful one, but one that makes sense in the circumstances. The concern I have over it is the flaws in sentencing that it exposes and the message that it sends out to the public, especially when coupled with the sentence upheld on Mr Thew on the very same day.
The first problem is that it highlights the difficulties in the law of mandatory sentencing. By rights on the law as it has been set out (see some of the cases above) a sentence of 5 years would have been unexceptional. The concern is that the public campaign on Mr Nightingale’s behalf was the decisive factor, that is of course the same public who went along with the campaign for mandatory minimums. The Nightingale sentence seems to fly in the face of all the authorities on guns to date. The answer is to face the iniquities of the mandatory sentencing system rather than carving out exceptions when the Daily Telegraph requires.
The second problem can be shown by a comparison with Mr Thew’s sentence. All citizens must respect the law. But for this to be the case, the law must be sensible and worthy of respect. Sentences for criminal offences must reflect the gravity of the offence, but also what is passed for other offences. Here, whilst 12 months suspended is theoretically more severe than 8 months immediate (including the breach of a suspended sentence), the reality is that Mr Thew has been dealt with more seriously.
Personally, whilst I am a lawyer, I am also a member of the public. We have had a reminder this weekend of what can happen with lawfully held weapons if the wrong person gets hold of them. If I had a choice of stopping an idiot wearing a t-shirt, or someone, however heroic they may have been, leaving a deadly weapon with live ammunition around, I know which I’d choose.