Thursday, 29 March 2012

You be the judge - Was 56 days imprisonment justified?

Update 30th March - appeal dismissed- see Crown Court sentencing remarks - end of this post

It is reported that Liam Stacey - a 21 year old student - was sentenced by a District Judge (Magistrates' Court) to 56 days imprisonment for his "tweets" in relation to Bolton Wanderers footballer Fabrice Muamba.  See The Guardian "Student jailed for racist Fabrice Muamba tweets" where it is reported that Stacey entered a guilty plea to a charge of racially aggravated disorderly behaviour with intent to cause harassment, alarm or distress contrary to Crime and Disorder Act 1998 s.31 (as read with  Public Order Act 1986 s.4A)

There is no doubt that his tweets were highly, some might say extremely, offensive and there were around 26 of them.  The District Judge (Magistrates' Courts) who sentenced Stacey would have been able to see them all.

Sentencing - general principles:

Sentencing is far from an easy task.  The sentencer must apply all the relevant law (e.g. Part 12 of the Criminal Justice Act 2003 and Part 4 of the Coroners and Justice Act 2009).  In particular,
the sentencer must consider: the sentencing objectives (Criminal Justice Act 2003 s.142);  allowance for guilty plea (CJA 2003 s.144); general restrictions on custodial sentences (CJA 2003 s.152); pre-sentence reports (CJA 2003 s.156); and the duty to explain the sentence (CJA 2003 s. 174).  Furthermore, sentencing guidance must be followed (Coroners and Justice Act 2009 s.125) unless the court is satisfied that it would be contrary to the interests of justice to do so and, if so, the reasons for departure from the guidelines must be stated in open court - as required by the CJA 2003 s.174(2) aa.

Sentencing in the Magistrates' Court for Crime and Disorder Act 1998 s31 based on Public Order Act 1986 s.4A

Sentencing guidance for this offence can be found in the Magistrates' Courts Sentencing Guidelines at page 87.  The page refers to the s4A offence and also the Crime and Disorder Act 1998 s31

Disgraced student is led to custody
The guideline approach requires that the sentencer first decides what the sentence would be but for the racial aggravation and then to increase the sentence to reflect this element.  The increase may be to a more onerous penalty of the same type (e.g. to a "high level" community penalty instead of, say, a "medium level") or the court may consider that the threshold for a more serious type of sentence is passed (e.g. that the offence is now so serious that that neither a fine alone nor a community sentence can be justified for the offence (see CJA 2003 s.152).

The sentencer must identify the starting point for the sentence and then consider any aggravating and mitigating factors relating to the offence.  This leads to a preliminary view of the sentence.  The sentence is then increased to reflect the racial aggravation.  Next, any mitigation relating to the offender (e.g. previous good record, remorse etc) is taken into account and much of this will usually be available from a pre-sentence report (PSR).  (PSRs are generally highly desirable in relation to imprisonable offences).  Then a reduction for guilty plea has to be considered - (CJA 2003 s.144).

The court must give reasons for its sentence and must indicate what the sentence would have been in the absence of the racial aggravation.

Was 56 days imprisonment justified for Mr Stacey?   You be the judge !!  I think it is difficult to square with the guidelines but, given that the District Judge referred to public outrage, he may well have had deterrence in mind as an objective in sentencing and there can be no doubt that the "tweets" were particularly objectionable.  The judge referred to them as "vile and abhorrent comment about a young footballer who was fighting for his life" and also added that Stacey needed to learn how to handle alcohol better.  I think there is force in the view that Stacey might have benefited more from undertaking a high level community penalty (e.g. a stiff number of hours of unpaid work) and this might have also benefited society more than his imprisonment and, in this event, Stacey could have been ordered to pay an appropriate contribution to the costs of the case.  It is understood that Stacey now faces a disciplinary hearing at Swansea University where he was studying biology.  For him, this offence is likely to have lifetime repercussions.

Update 30th March:

An appeal was dismissed - see BBC 30th March 2012 

The Crown Court’s sentencing remarks are here.
The opening paragraph refers to the charge being Public Order Act 1986 s.31.  That section is repealed – see here.     I think that the opening paragraph should read Crime and Disorder Act 1998 s.31 – see the post above.
Para. 14 of the judgment is also interesting in that the defence appear to have accepted that Stacey deserved significant punishment for the offence which he committed.  Furthermore, the defence did not submit that a sentence of imprisonment was wrong in principle. However, it was argued that there were mitigating factors in the case to enable the court to impose an alternative to an immediate sentence of imprisonment.   Argument was put for a stringent community order or a suspended sentence of imprisonment coupled with appropriate punitive requirements.   The defence also accepted that if a sentence of immediate imprisonment is the appropriate sentence a term of 56 days was not too long.
Para. 16 states – “There are no applicable sentencing guidelines. We have been referred to no previous decided cases either in the Court of Appeal or at the Crown Court to assist in determining an appropriate sentence for this type of offence. “  

However, there are guidelines for the offence under CDA 1998 s31. (based on POA 86 s.4A)  – see Page 87 of the Magistrates Court Sentencing Guidelines - link in the post above.

This post was kindly reproduced on Legal week's Legal Village


  1. No doubt what he wrote was extremely objectionable. But I am struggling to understand why this is an offence at all. It's not like shouting "fire" in a crowded theatre (when there is none). It is not like "fighting words" - he didn't say it in front of Fabrice's brother, or indeed in front of anyone. Everyone who read it had plenty of time to calm down before they had any opportunity to punch him in the face as he no doubt deserved.

    So it is hard to convince myself that he has done anything worse than be an utter pillock.

    We should all in return, say or tweet "you are a pillock, saying such horrible things about a man who might well have been dying". We should resolve not to deal with him until he mends his ways. Those who know him might send him to Coventry.

    And we should leave it at that. That would be a reasonable, proportionate, appropriate and just response.

  2. I agree with Ben. What is the offence here? The 'victim' was out cold, he couldn't see the remarks therefore could not be insulted by them.

    And the sentence contrasts badly with the case of the muslim girls who attacked a while girl in the street, assaulter her badly, all the while shouting, "Kill the white slag!" and got let off jail time. Their case had multiple aggravating factors: gang attack; actual body harm; lack of remorse, but they get the lesser sentence.

    It is difficult to avoid the conclusion that the CJS is institutionally anti-white.

  3. I referred to this case 28/03/2012 and my concern or observation was the silence on the part of those who avowedly exclaim their opinion that immediate custody should be reserved for recidivist, violent and/or serious offenders. Their mantra that sentencing in the community should be the norm for non violent non recidivist offenders has been deafening in its silence. This reflects a political correctness which perhaps has informed the District Judge in his sentencing. It is a further signal that court managers have fear of placing controversial matters before a bench of lay magistrates. Are they afraid of what their employers might say, do or enact in such circumstances? Has whispering from Whitehall reached the twenty or so Justices Clerks positioning themselves for advancement in the new order? Is HMCTS exercising control to the eventual exclusion of Justices of the Peace sitting in their current format? Neither democracy nor so called representative justice was well served in this case in my humble opinion.

    1. Many interesting questions here. I agree that the silence on the part of those who normally press for non-custodial sentences is remarkable.

      Of course, it should not be "Court Managers" who allocate cases to either judges or benches. Allocation is supposed to be a judicial decision. Personally, I would like to see the criteria for choice between DJ(MC) and Bench set down more clearly than it is. It is now quite a long time since what were known as the Venne criteria and one suspects they are now little more than history.

    2. ObiterJ, now that the European Commissioner for Human Rights has said the sentence was wrong, do you know if Liam Stacey can make a formal complaint of some kind?

      I was just wondering whether some other poor blighter could be affected by the precedent set by this case, so it would be in everyone's interests to get this case reviewed, wouldn't it?

    3. I think that the only possibility would be a case stated appeal to the High Court. This would have to be based on a question of law relating to the sentencing. [Note: Mr Stacey had entered a guilty plea before the District Judge].

      I am grateful for your comment highlighting that Mr Hammarberg said this.

      The link to Mr Hammarberg's view is The Guardian. Interestingly, Mr Hammarberg has now retired.

      In practice, Mr Stacey would actually serve 28 days in prison.

    4. @ Justice of the Peace - I note from the latest edition of Magistrate magazine that there is a working group looking at judicial deployment. It is reported that "these are difficult and sensitive discussions and conclusions are not expected for some six months." The old Venne criteria were taken as the starting point.

      It appears that the Senior Presiding Judge was not prepared to agree to a moratorium on appointment of DJs(MC) whilst the working group conducted its work.

      See Magistrate April 2012 - Working for You - page 16.

  4. His offence was racially aggravated harassment, alarm or distress. The 'distress' element of this offence, whether aggravated or not, is highly objectionable in a free socirty. I can just about accept the harassment or alarm elements. The remarks of the District Judge make it clear that distress to Muamba's family was an important element in the sentence. Should we protect people against distress by law? Remeber that the police have used this offence to caution people for wearing T-shirts with 'distressing' slogans. Is this whar we want?

  5. Today (16th April) the UK Human Rights blog drew attention to two interesting posts touching on this case:

    The Guardian - Victoria Coren - So what did the troll actually say?

    Inforrm's Blog - Jacob Rowbottom - Casual comments and legal controls- watch what you say online