England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		7th December 2016

MR JUSTICE MALES:

1. We have before us three appeals against sentence, each brought with the leave of the single judge, arising out of a sustained incident of violent disorder which occurred at an illegal rave which took place in the early hours of 24th May 2015. The three appellants are, first, Thomas Carling, now aged 19, who was sentenced to 12 months' detention in a young offender institution, second, Joshua Colman, now aged 22, who was sentenced to 18 months' imprisonment, and third, Glen More, now aged 24, who was sentenced to 12 months' imprisonment.
2. Each of the appellants pleaded guilty but in the case of Carling and Colman they did so at the first reasonable opportunity and were therefore entitled to full credit, while More only did so on the day of trial. Carling and Colman were sentenced by His Honour Judge Heath in the Crown Court at Lincoln on 21st July 2016 together with numerous other defendants who also pleaded guilty to violent disorder in the same incident and received sentences ranging for the most part between 1 and two-and-half years immediate custody although one defendant (Richardson) was given a sentence of 9 months suspended and another (Carden) received 4 months' immediate custody. More was sentenced separately, on 7th October 2016 in the same court but before a different judge, His Honour Judge Hirst.

The Incident Overall

3. These offences arose out of an illegal rave being held at Twyford Woods, Lincolnshire on the night of 23/24 May 2015. That was an area comprising woodland and reclaimed land and was a site of local amenity owned by the Forestry Commission. Late on Friday 23rd May the police received reports of large numbers of people gathering in the woods. It appears that they had come from all over the country. Vehicles had been abandoned in the area and were blocking people's driveways. The police attended and could see that entry to the site had been gained by cutting through a main gate. Large numbers were congregating and stages were being set up.
4. Just before midnight on 23rd May the police issued a notice under section 63 of the Criminal Justice and Public Order Act 1994 requiring those present to disperse. Failure to comply with this notice was a criminal offence. At 2.00 am on 24th May a group of officers went onto the site with a tannoy telling the crowd to disperse. The police blocked access to the site and tried to turn people away but this did not prevent people still arriving from making their way onto the site. Some abandoned their vehicles and continued on foot. One A road had to be closed due to the large number of abandoned vehicles.
5. From approximately 1.00 am the police attempted to clear the site of sound stages, five of which had been set up. The violence which has given rise to the charges against the appellants and others occurred when the police attempted to dismantle stages 2, 3 and 5. On each of these occasions there was large scale and violent resistance by the crowd including the throwing of missiles at the police.
6. Stage 1 was dismantled first, with little resistance being encountered although there was some hostility from the crowd shown towards the police. The dismantling of stage 2 led to violence. The police attended in numbers and with riot shields but were attacked by a large crowd. Missiles were thrown but no real damage was done to the police.
7. Stage 3 was dismantled just after dawn, at around 4.30 am. By this time it was light and much of this and the succeeding incident was captured on video footage, some taken by the police and some posted on social media. We have viewed this footage. The police attempted to seize the generator which powered the stage sound, moving forward in line wearing protective gear and with riot shields and batons, but were confronted by the crowd and met with concerted resistance. At times people in the crowd, which was mostly but not exclusively male, attacked the police line and a struggle ensued. People were standing close to the police line attempting to provoke and goad the police by aggressive words and gestures, no doubt hoping for a reaction by the police for others to film with their mobile phones. When under attack the officers defended themselves with their batons but otherwise used their shields to push the crowd back.
8. In the course of this part of the incident, which lasted about 20 minutes, one man was arrested after a struggle. Missiles were thrown regularly including bottles, stones (some quite large), lengths of wood and a scaffolding pole. An attempt was made to screen some of those involved so that it would be difficult to identify them. Eventually however the police succeeded in seizing the generator, thus disabling the sound system for stage 3 at which point they were able to withdraw. Stage 4 was dismantled next with relative ease.
9. The police attempted to dismantle stage 5 at about 7.00 am, by which time the incident had been continuing for many hours. By this time there remained a group of between 300 and 500 people who were refusing to leave. The police line moved forward but was attacked by a number of individuals. Once again missiles were thrown and makeshift weapons, including a tree branch were used to strike police officers. At one point a group of people emerged from the woodland on the flank of the police line throwing posts, lumps of concrete, stones and bottles and forcing the police to retreat. This appears to have been a deliberate and planned outflanking movement. Later however the police were able to return and cleared the stage without serious resistance.
10. In total 26 police officers were injured in the course of the night, although none of the injuries proved to be serious. They were, however, sufficiently serious to cause three of the officers to be taken to hospital while one officer is seen in the video footage being helped away from the line by two colleagues apparently injured. It is fortunate that the injuries were not more serious than they were. Given the nature of the objects thrown with considerable force at the police they could easily have been so.
11. Once the crowd was finally dispersed the clean-up operation began. The site was left in a state of mess with broken glass, litter and human excrement scattered around. It cost the Forestry Commission £4,000 to clear up the site. The whole police operation lasted for two or three days and resulted in a large number of officers being recalled off leave and drafted in from neighbouring police forces.

The Parts Played by the Appellants

12. Having described the overall incident, we turn to consider the parts played by the three appellants. Carling was one of those seen throwing stones at the police while they were attempting to seize the generator at stage 3. He pleaded guilty on a basis of plea, accepted by the prosecution, that he threw two items towards the police lines as shown on the DVD during the clearance of stage 3, which stones did not hit police officers, and that he did not throw any items or otherwise use or threaten violence. The stones were however thrown, we would add, at fairly close range and must have been intended to hit the police officers.
13. Carling handed himself in to the police after seeing footage of himself on social media and made full admissions. He also wrote a letter of apology. He said that he had too much to drink and accepted that he had thrown stones. He was also seen in the footage at stage 5 but was not himself using violence at that stage. This is therefore consistent with his basis of plea albeit not mentioned in it. It is evident that, even if the violence which he personally committed was limited to what is described in his basis of plea, that does not set out the full extent of his involvement at the scene. He remained part of a menacing crowd encouraging others by his presence.
14. Colman was prominent in the video footage, appearing a number of times. He is seen throwing at least five stones at the police, some of which were fairly large. He too made candid admissions in interview but said also he did not have a clear recollection of what he had done as he had drunk a large amount of beer and had taken cocaine, methadone, MDMA and LSD.
15. More's involvement, at least so far as the video footage is concerned, was at stage 5. He is not visible in any of the footage at earlier stages. As the police line was moving forward towards the stage, he climbed onto a van which was situated between the advancing police and the crowd. He gestured towards the crowd behind him, encouraging and inciting it and struck down four blows towards a police officer with a bottle. These were blows delivered with his full force after raising the bottle above his head. It is accepted that it was in fact a plastic rather than a glass bottle, although the police officers under attack would not have known this and in any event the bottle contained liquid and therefore would have been of some weight as a weapon. More's personal involvement was therefore of short duration in contrast with other appellants. It occurred at the point at which the police were in difficulty as part of the crowd was emerging from the wood and turning their left flank as we have described.
16. More also made admissions in interview, including that he had been drinking and using drugs. However, he pleaded not guilty at the pre-trial preparation hearing, declining to identify the issues in his case despite an express request from the judge he do so. His plea of guilty was only entered on the day of trial. A defence statement was served which pleaded self-defence against a threat (presumably by the police) although its main thrust was that More's role was isolated and that he was not present together with others using violence. That was a hopeless defence once the DVD was viewed but although that DVD evidence was available to him shortly before the PTPH he maintained his not guilty plea until the day of trial.
17. On the day of trial he put forward a basis of plea which included the assertion that:

"Whilst on top of the van I became aware of riot police getting closer and closer and there came a point when riot police officers were right alongside me and I could see their batons raised in my direction. I panicked and instinctively struck out at the officer's riot shield with the plastic drink bottle I had been drinking from. My actions were short-lived and self-contained."

18. This part of the basis of plea was not accepted by the prosecution. More was given an opportunity to give evidence to support his account but declined to do so. The video footage shows that it is false.

The Judges' Sentences

19. Sentencing Carling and Colman, together with numerous other defendants who have not appealed, for their parts in this incident, His Honour Judge Heath began by explaining the well-established principle that in cases of violent crowd disorder it is not only the precise individual acts that matter. What matters also is the fact that a defendant is taking part in violent disorder, threatening violence against other people which is part and parcel of the whole threatening and alarming activity so that judges must have regard to the total picture as well as the individual specific acts which cannot be regarded in isolation. The court has to look at the level and nature of violence and scale of disorder with each case being fact specific. The judge observed that the consumption of alcohol or illicit drugs, or a combination of both, provided no excuse for the behaviour of any defendant. We interpose that although that observation is correct, it is no excuse, the consumption of alcohol and drugs is rather to be regarded as an aggravating factor.
20. The judge continued by recognising, in the case of each defendant, including the appellants Carling and Colman, that there was much good in each of them and that each was now remorseful for what had taken place and for his or her part in it. Nevertheless, it was unacceptable for the police to be subjected to violence and threats of violence as they carried out their task of enforcing the law and the court would impose firm punishments on those involved in violent disorder such as had occurred here. The judge recognised the personal mitigation available to each of the defendants but considered that immediate custodial sentences would be necessary to punish those involved and also "to provide an element of deterrence to those who might be minded to engage in violent disorder in similar situations against police officers who were simply trying to do their jobs". In our judgment, the judge was entitled to conclude that a deterrent element in the sentences to be passed was appropriate.
21. Having made these general points and summarised the facts, the judge turned to the individual defendants before him, identifying the particular parts which they had played and the mitigation available to each of them in order to arrive at the appropriate sentence.
22. In the case of Carling he referred to his early admissions and apology and to the remorse and shame which he felt. He referred also to educational difficulties which he had at an earlier stage of his life and to the fact that he was in employment, with good references, and stood to lose his job if sentenced to custody. He referred also to Carling's mental health difficulties and the fact he was awaiting counselling. Nevertheless the judge considered that a sentence of 12 months in a young offender institution was necessary.
23. In the case of Colman, the judge referred to his remorse for his involvement and to the fact that, although he had taken what the judge rightly described as a "cocktail of drugs", he had by the time of sentence rid himself of drugs and was in a relationship with a young woman who had a son who looked up to him, as well as the fact that he had worked for the last 3 or 4 years as a scaffolder. He had a previous conviction but it was from when Colman was 17 and was for an unrelated matter. Nevertheless in his case a sentence of 18 months' imprisonment was necessary.
24. It is apparent that as these two appellants received full credit for their pleas despite the clear DVD evidence against them the sentences imposed on them after a trial would have been 18 and 27 months respectively.
25. As we have said, More was sentenced later and separately by a different judge, His Honour Judge Hirst. It appears that he was given the opportunity of being sentenced by His Honour Judge Heath, who had sentenced the other defendants involved in this incident so that any arguments as to parity of sentence as between different participants in the incident could be made to the judge who had passed the relevant sentences, but he declined this opportunity. The judge was referred to a number of authorities, including cases which affirmed the principle to which we have already referred that what must be taken into account is not just the acts of the individual defendant but the overall picture. He dealt also with parity arguments advanced on behalf of More to the effect that his case was similar to some of those, such as Richardson, who had received the most lenient sentences from His Honour Judge Heath. The judge took account of More's age and positive good character, accepting that his involvement in this incident was out of character, but concluded that the sentence had to be one of immediate custody and could not be suspended. He said that after a trial a sentence would have been in the region of 14 months' imprisonment and reduced it to 12 months to give credit for More's late plea.

Grounds of Appeal

26. Each of the appellants contends that the sentence passed upon him was manifestly excessive in the circumstances having regard to what is said to be his limited role in the overall offending as well as his positive good character.
27. Mr Greenhall and Ms Brown, for Carling and Colman respectively, have urged that the sentence periods imposed were too long, while Mr Rose, on behalf of More, has said not only that the sentence was too long but that his was a case where the sentence could have been suspended. Each counsel has referred to the role played by the respective appellants and has emphasised as the principal point on these appeals the strong personal mitigation which each of the appellants has. Undoubtedly that is the case but this was a matter of which the judge was fully aware.
28. We were told, and were pleased to hear, that in all three cases the appellants either have been or will be able to return to the employment which they had before these incidents occurred. That too is to their credit and demonstrates the view of their characters which their various employers have.

The Authorities

29. Reliance was placed, in particular by Mr Greenhall for Carling and by Mr Rose for More, on other cases where lesser sentences have been passed or sentences were reduced on appeal by this court, where a defendant had a limited individual role within wider disorder. We will refer to some of these. However, these cases provide no guidelines of general application save for two points which emerge very clearly. The first is that to which we have already referred, namely that in sentencing for violent disorder the court has to take account not only of the precise individual acts committed by each defendant but also the overall violence within which those acts occur. In this regard the observation of Hughes LJ in R v Gilmour [2011] EWCA Crim 2458 is highly relevant:

"It is an unavoidable feature of mass disorder that each individual act, whatever might be its character taken on its own, inflames and encourages others to behave similarly, and that the harm done to the public stems from the combined effect of what is done en masse."

30. The second point of general application, not surprisingly, is that each case depends on it own facts. Thus a submission that a defendant's actions in one case were less grave than those of a defendant in another case will generally carry little or no weight.
31. With those points in mind we turn to two cases particularly relied upon by the appellants. First, in R v Al-Dahi [2013] EWCA Crim 1267 there was disorder by 150 to 200 people at a protest outside the Syrian Embassy involving missiles thrown at police. A sentence of 15 months for a late guilty plea was reduced on appeal to a suspended sentence of 26 weeks. There are numerous factual differences from the present case (the numbers involved, the extent of police injuries and the political element to mention three obvious differences). In that case the applicant personally had kicked out "in the direction of" a police officer who was under attack by demonstrators which had caused an injury and he had thrown a missile at the Embassy building although apparently not at police officers. Particular weight was given by this court to the fact that "emotions were running particularly high" following "a mass killing for which the government of [the applicant's country] was being blamed" and to disparity with the way in which the applicant was treated compared with other demonstrators - see paragraphs 10 and 11 of the judgment. Clearly that was a very different case from the present.
32. Perhaps closer to home, so far as this appeal is concerned, R v Decker-Heath [2015] EWCA Crim 406 was a case of an illegal rave attended by up to 1,000 people. The appellant was a member of a large and volatile crowd attacking police lines and striking out at officers. However, he did not use any weapon and did not throw anything, factors which were emphasised at paragraph 9. To the extent that this kind of exercise is appropriate at all, this is a significant distinction from the parts played by each of the appellants in the present case. A sentence of 12 months was reduced to 6 months on appeal which included full credit for plea.
33. Both of these cases involved a close analysis of the particular facts, including both the overall level of violence and the particular appellant's individual involvement, without attempting to lay down any general guidance. We doubt whether it is useful to attempt to compare the relative gravity of the appellant's actions in the present case with those of the appellants in these other cases. That would be to lose sight of the whole picture which needs to be taken into account and which provides the context within which an individual's actions need to be assessed. It is apparent that the judges in the present case considered carefully the involvement of the numerous individuals whom they had to sentence and did so within this overall context.
34. Finally on the authorities we would mention R v Michelle Smith (21st October 2016), which was relied on by Mr Rose on behalf of More. That was a case where a sentence of 12 months' imprisonment, imposed on a demonstrator convicted of violent disorder following an early plea of guilty, was suspended. That however was a very different case which gives no real assistance to the present appeals.

Overall features of the present case.

35. We have already set out the circumstances in which the violence in the present case occurred. Features of particular relevance to the sentencing exercise include the following:

1. This was a case of large scale public disorder. Some 1500 people were present, of whom a significant number were engaged in violence.

2. The conduct was illegal from the outset on the part of all concerned. It was not a case of a peaceful demonstration with incidents of violence by some participants. Indeed entry to the site was gained by criminal damage to the main gate and those involved deliberately and knowingly ignored police tannoy announcements telling people to leave.

3. There was extensive violence against the police over a period measured in hours, albeit that the violence was not continuous during that period, as the police attempted to dismantle three of the five stages. This included the throwing of missiles (wooden posts, lumps of concrete, a scaffolding pole and bottles) as well as stones. It included also a deliberate and planned attacking manoeuvre on the police from a group emerging from a wooded area. It was not the case of a mere few minutes violence.

4. Twenty-six police officers received injuries albeit most of them minor. However, the nature of the missiles thrown was such that serious injuries could easily have occurred. Plainly the missiles were thrown with the intention of causing injury.

Decision

36. It is a matter for considerable regret when a young person of good character, or in Coleman's case effective good character, takes part in criminal activity which is out of character and which is quickly regretted. That activity and the punishment which necessarily follows may cast a blight over the lives of those who are essentially, apart from this occasion, decent young people. We recognise the severe consequences for each of the three appellants which inevitably result from a prison sentence. Thus a single night of mindless violence may have long-term consequences.

36. Nevertheless this was an extremely serious incident, involving sustained violence against the police by a large number of people over several hours. Moreover, the individual parts played by these appellants were by no means negligible, as we have explained. Each of them participated personally and enthusiastically in serious violence against the police, attempting, albeit unsuccessfully, with the use of missiles or a weapon, to inflict injury on police officers engaged in the performance of their duties, which injuries could easily have been very serious. The fact that this was mindless as distinct from premeditated violence and was carried out under the influence of alcohol and/or drugs was, as the judge said, no excuse. The judge was entitled, as we have indicated, to pass sentences which included an element of deterrence. Sentences of immediate imprisonment or detention for these appellants were, if not inevitable, at any rate highly likely and well within the discretion of the sentencing judge.
37. It is apparent from the sentencing remarks that the judge in each case considered carefully the evidence relating to the particular involvement of each of the defendants appearing before him as well as the age, maturity and individual circumstances of each defendant. In the case of Carling and Colman the sentences of 12 and 18 months respectively, after giving full credit for their guilty pleas, took into account their ages, lack of previous convictions and genuine remorse for what they had done. It may be that the sentences in these two cases could be regarded as severe but we are unable to accept that they were manifestly excessive. They were sentences which the judge was entitled to impose taking full account of the overall incident as well as the parts played by these particular appellants and the personal mitigation available to them.
38. In the case of More, whose individual involvement in the violence was limited in time, as we have already described, although in using the word "limited" we do not by any means downplay its significance, a further submission was made in writing that the sentence imposed on him was too high when compared with the sentence imposed on another defendant, Richardson. That submission, however, was rightly not pursued. In any event a disparity argument advanced on behalf of More would have been particularly unattractive when he declined the opportunity to be sentenced by the same judge as had sentenced the other defendants. In any event the sentencing judge was entitled to find that More's role was more serious and deserved a more severe sentence than that passed on Richardson and demanded a sentence of immediate imprisonment.
39. We see nothing wrong with the sentence imposed on More. When account is taken of the reduced credit to which he was entitled, in view of the lateness of his plea, his sentence was at the lower end of the sentences imposed for the offending in this incident of serious violence, in which More participated in the manner which we have described. It gave appropriate weight to his absence of convictions and positive good character which included the favourable comments about him made in the pre-sentence report, which not only expressed his embarrassment, shame and disbelief as to what he had seen himself doing on the DVD but also described him, no doubt correctly, as being, in all other areas of his life, a thoroughly decent, industrious young man who functions appropriately. However that was a matter the judge clearly did take into account in arriving at the sentence at which he did arrive.
40. For the reasons which we have given, therefore, each of these appeals against sentence is dismissed.