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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lady Cosgrove
Lord Philip
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[2006] HCJAC 16
Appeal No: XC659/04
OPINION OF THE COURT
delivered by LADY COSGROVE
in
APPEAL
by
ABDUL MUTALUB BASHIR
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Appellant: McBride, Q.C.: Beltrami Anwar, Glasgow
Respondent: Hughes, A.D.; Crown Agent
2 February 2006
[1] The
appellant was convicted after trial on 24 June 2004 of a charge of abduction in the following
terms:
"On
28 March 2003 and 29 March 2003 at Reform Street, Dundee and various
roads between Dundee and Sheffield to the prosecutor unknown, and
129-131 Upwell Street, Sheffield you did, whilst acting with others,
abduct Abda Bibi known as Bashir, shout, swear, threaten to kill her, force her
into a motor vehicle, detain her in said motor vehicle against her will, drive
her to 129-131 Upwell Street, Sheffield and detain her there against her
will".
On 10 August 2004 the
appellant was sentenced to five years imprisonment in respect of this
offence. His uncle, who appeared as a
co-accused on the indictment, was convicted in similar terms but has appealed
successfully against his conviction.
[2] The
circumstances of the offence are fully described in the trial judge's
report. It appears that the offence
arose from tensions within a family of Pakistani origin who lived in
Sheffield. The complainer, who was aged 21
at the time of the trial, was the youngest of five children, all of whom were
born in Sheffield and were brought up in the family home at 129-131 Upwell
Street. The appellant was the
complainer's older brother. The
complainer's parents had traditional Muslim attitudes towards their
family. The complainer came under pressure
to conform. She obtained good
examination results at school and wanted to go on to study history at
university. Her parents, however, had
other plans for her. From the time she
was about 16 years old her mother spoke to her about arranging for her to
marry a Pakistani husband. Appeals to
family honour made her give in to this suggestion and in July 2001, when she
was 18, she went to Pakistan and there met and married her husband. Shortly afterwards she returned home, but
thereafter agreed to go back to Pakistan to help with her husband's visa
application for entry to the United Kingdom.
She later returned to the United Kingdom and then gave in to pressure
from her family to work, rather than go to university, so that she would be in
a position to support her husband financially, which would help with his visa
application.
[3] In
September 2002 the complainer decided to leave home and go to stay with an
elder sister in Dundee. She formed a relationship with a boyfriend
in Dundee. It distressed her mother in
particular that she had left home in this way, and in subsequent months she
came under pressure from various family members to return home.
[4] On
the afternoon of 28 March
2003 the complainer was in Dundee city
centre when she was accosted unexpectedly by another sister, who claimed that
she had come to Dundee from Sheffield to say
goodbye to the complainer before going on holiday. Thereafter, the appellant and his uncle came
on the scene, and it became clear that the purpose of all three was to put
pressure on the complainer to return to Sheffield. Some of the subsequent events were recorded
on the CCTV system which operates in Dundee city centre. For about half an hour the complainer could
be seen moving from place to place, followed closely by the other three. Her brother and sister in particular
attempted to persuade the complainer to go back to Sheffield. She made it clear to them that she was
unwilling to do so. Her uncle then went
to fetch the car from where it had been parked. The appellant was shouting and saying things
to the complainer like "I'll kill you, look in my eyes". When the car arrived the complainer's sister
put her into the rear seat of the car and the appellant got in and sat beside
her, so that the complainer was sitting between them. It had been suggested to her that they would
take her to the house of the sister who lived in Dundee, but instead it became
apparent that they were going to take her all the way to Sheffield.
[5] During
the journey the complainer felt unable to escape from her relatives. On arrival at the family home in Sheffield
she went into the house and went upstairs.
She did not feel able to leave the house. The downstairs door was locked in case she
ran away. She was detained in the house
until the following afternoon. At that
time she decided to ask for outside help, so she wrote a note which she dropped
out of the window. The note was picked
up by a neighbour who alerted the police.
Two police officers went to the house.
The appellant answered the door and adopted an obstructive attitude, but
the police entered and found the complainer upstairs. She was in a state of distress.
[6] As
the trial judge notes, it is evident from the verdict of the jury that the appellant,
in addition to shouting, swearing and threatening to kill the complainer, was
involved art and part with their sister in the use of force to cause the
complainer to enter the car. Thereafter
he was involved in her detention in the car during the journey to Sheffield and
in the house there.
[7] The
trial judge also records that the appellant appeared before him as a first
offender and that the social enquiry report was in favourable terms and
assessed him as being of low risk of re-offending. Various letters and testimonials spoke of his
previous good character.
[8] In
relation to the sentence imposed by the him, the trial
judge states in his report that he decided that this was a serious matter which
merited a substantial prison sentence both by way of punishment and as a
deterrent to others. It was a
determined attempt to prevent the complainer from leading her life as she chose
to do by depriving her of her personal freedom. He notes that the whole incident lasted for
the best part of twenty four hours and that, although she was disposed to play
it down by the time she came to give evidence, must have been extremely
distressing for the complainer. It was
not possible to tell from the evidence how far the commission of the offence
was premeditated by the appellant, but even if he acted on the spur of the
moment the adduction was then carried out with deliberation and the
complainer's detention was only ended by the police in the face of obstruction
on his part. It was these
considerations which led him to select the sentence of five years imprisonment.
[9] The
submission on behalf of the appellant at the hearing before us was to the
effect that while there could be no doubt that the appellant's conduct was
unacceptable, and that a custodial sentence was appropriate, the sentencing
judge had attached insufficient weight to several mitigatory factors. In particular, it appeared that the
appellant's motive was to bring his sister back to the family home to deal with
the issue of her having left her husband for someone else. It was clear that it was as a result of
family pressure, particularly from his mother, who thought that she was doing
the right thing for the family, that he had acted as
he did. It was also submitted that more
weight should have been attached to the appellant's first offender status, the
fact that he was in regular employment, the positive background report which
assessed him as being at low risk of re-offending, and the fact that offence
did not involve a significant degree of violence. The complainer was said to have visited the
appellant in prison and to have indicated that she had forgiven him.
[10] We have no doubt that the sentencing judge was well entitled to
take a serious view of this offence whereby the complainer was deprived of her
freedom. It requires to be made clear
that upholding cultural or religious traditions can never be an excuse for the
commission of a criminal offence. The
law of the land protects the liberty of the individual and any interference
with that, even by a family member, cannot be tolerated. The sentencing judge was accordingly well
entitled to conclude that a significant custodial sentence was merited in this
case. We are persuaded, however, that
the sentence of five years imprisonment was excessive in the particular
circumstances of this case. We consider
that the requirements of retribution and deterrence can be adequately met by a
lesser sentence of three years imprisonment.
In reaching that decision we are influenced by the fact that, apart from
the one threat that was made and the act of forcing her into the car, no
further violence was perpetrated against the complainer. Further, her detention was within the family
home where it was likely to be less frightening than if it had been in
unfamiliar surroundings;
and she was apparently allowed to move about freely within the
house.
[11] In these circumstances the sentence of five years imprisonment
is quashed and a sentence of three years imprisonment is substituted.
