Monday, 15 June 2020

14 days for Mr Andrew Banks

There was considerable disorder in central London (and elsewhere) over the weekend of 13  and 14 June 2020. One man urinated just to the right of the memorial in Parliament Square to Police Constable Keith Palmer who was killed by Khalid Masood in March 2017 - see BBC News 15 June 2020 and ITV News 15 June.

The man in question was Andrew Banks (28) from Stansted, Essex. He was charged with the common law offence of outraging public decency and was sentenced to 14 days imprisonment when he appeared at Westminster Magistrates' Court and entered a guilty plea.

The BBC report tells us that
Banks is a Tottenham Hotspur fan (irrelevant to the offence), that he had travelled to London with others to "protect statues"  but did not know which statues. He was said to have drunk 16 pints during Friday evening to Saturday morning and had not been to sleep.  The report also notes that Banks contacted the :Police after being confronted by his father. His counsel told Chief Magistrates Emma Arbuthnot that Banks was ashamed of his actions and "had mental health issues."

The sentence of imprisonment was welcomed in some quarters. For ecample, by Tobias Ellwood MP who had given first aid to PC Palmer as he lay dying in the grounds of Parliament.

Outraging public decency:

Outraging public decency is a common law offence, and was formerly regarded as one form of public nuisance. It is triable either-way and, if tried in the Crown Court, the sentence is "at large" - i.e. any appropriate term of imprisonment (immediate or suspended), a community sentence or a fine. The offence can consist of any act or display fulfilling the following conditions:

(1) it must be lewd, obscene or disgusting to such an extent as to outrage minimum standards of public decency as judged by the jury (or other tribunal of fact) in contemporary society;
(2) it must occur in a place which is accessible to or within view of the public; and

(3) two or more persons must be present during the act or display, whether or not they are aware of the act or display or are outraged by it.

The offence has been used to deal with a wide rage of conduct such as: indecent exposure, masturbating or other sexual activities (real or simulated) in public, publishing a magazine with contact advertisements for gay men, intimate filming of women without their consent, exhibiting a sculpture consisting of a human head with freeze-dried human foetuses as earrings, nude bathing in inhabited areas, disinterring a corpse for dissection, indecent pay-per-view exhibitions, exhibiting a picture of sores, procuring girls to be prostitutes and urinating on a war memorial

Some cases on this offence are:  Hamilton [2007] EWCA Crim 2062 and Rose v DPP [2006] EWHC 852 (Admin).

In Hamilton the offence was trundled out to deal with "upskirting". Today, that could be dealt with by the Sexual Offences Act 2003 section 67A (in force from 12 April 2019).

Rose was a case where oral sex took place in the foyer of a bank to which access was available using a swipe card. The bank manageress, as part of her duty, viewed the CCTV when the bank opened the following day.  The man was convicted in the Magistrates' Court (Deputy District Judge Pascoe) but the High Court quashed the conviction because, as a matter of law, there was no offence where only one person saw or could have seen the act complained of.

In 2015, the Law Commission recommended that the offence of outraging public decency be abolished and replaced by a statutory offence - see their 2015 Report.

Andrew Banks - sentencing:

Banks' action was, to say the least, unpleasant and capable of causing offence. It took place in a public place (just to the right of PC Palmer's memorial) where others could (and did) see what he was doing.  Banks can be taken to have accepted, by his guilty plea, that his conduct had outraged public decency.

The judge had a choice in sentencing - imprisonment (immediate or suspended), community sentence or a fine. The aims of sentencing are set out in the Criminal Justice Act 2003 s.142 -

(a) the punishment of offenders,

(b) the reduction of crime (including its reduction by deterrence),

(c) the reform and rehabilitation of offenders,

(d) the protection of the public, and

(e) the making of reparation by offenders to persons affected by their offences.

The court  must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence - section 152.

Under section 153 a custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.

When Banks is released he will be subject to supervision for 12 months - Criminal Justice Act 2003 section 256AA.

Alternatives?

A Suspended Sentence Order would have been possible and an unpaid work requirement could have been added.

Further reading:

New Law Journal - Criminal Law - Outraging Public Decency

2 comments:

  1. It seems that there was possibly the thought of deterrence in the mind of the judge on passing such a severe sentence. We will never know and nor will we know if government "advice" on sentencing had filtered down to the judge. If 2011 were an example I would not be quick to overlook that possibility.

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  2. 1
    Sentencing remarks in the case of Andrew Banks by the Senior District Judge, the Chief Magistrate Emma Arbuthnot at Westminster Magistrates’ Court on 15th June 2020
    You have pleaded guilty at your first appearance to an offence of outraging public decency arising out of the events on Saturday. You were seen to urinate next to a memorial to the murdered police office PC Palmer. The photograph of you doing this has been publicised widely.
    You have explained in interview that you were so drunk you had no idea where you were urinating. Most importantly I accept you did not intend to urinate next to PC Palmer’s memorial. I accept you are remorseful.
    You have never been before the courts before and are of good character.
    Your explanation for your behaviour is that you had drunk 16 pints that night and not been to bed. You have explained that a group of football supporters decided to come up to Westminster to protect the monuments. You had no idea what monuments these were. You just went along with your friends.
    The irony is that rather than protecting a monument you very nearly urinated on one of them. It was more luck than judgment as you had no idea what the memorial was.
    2
    The harm caused is the upset and shock felt by members of the public
    who saw the photograph on the news and on-line. This has generated
    strong revulsion. By doing what you did, you have shown no respect
    at all for a police officer who was killed protecting the Houses of
    Parliament.
    When you urinated next to the walls of the Houses of Parliament you
    should have known that it would be witnessed by the public and the
    press.
    I turn to sentence.
    There are no sentencing guidelines for this offence and any
    sentencing authorities have very different facts.
    On the summary I have given, this is not the sort of case where a
    community order would be commensurate with the seriousness of the
    offence. You have caused much shock and upset. The public have
    been truly outraged by what you did.
    I take into account what has been said to me on your behalf, that you
    have been depressed for the past year and have an alcohol problem
    which you are determined to deal with. This you can do in the
    community when you are released.
    This is so serious that only a short custodial sentence is appropriate.
    Your good character, admissions in interview and plea of guilty
    means that I have reduced the sentence of 28 days to one of 14 days
    3
    immediate imprisonment. This will not be suspended and you will
    serve half and then be under the supervision of the probation service
    for one year. If you re-offend you may be taken back in to custody to
    serve the other half of the sentence.
    You will pay the surcharge that every defendant must pay of £128 and
    £85 costs. This will be paid within 28 days of today and there will be
    a collection order made to ensure that this is paid.
    Senior District Judge (Chief Magistrate) Emma Arbuthnot
    15th June 2020

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