Holland & Anor, R. v [2007] EWCA Crim 1035

No. 2007/00222/A1, 2007/00232/A1

[2007] EWCA Crim 1035

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 20 April 2007

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE GAGE

and

MR JUSTICE BURTON

Between

R E G I N ACrown

- v -

Between

NEIL THOMAS HOLLAND

MICHAEL ALAN JAMES

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MR M KNOWLES appeared for APPLICANT NEIL HOLLAND

MR N USHER appeared for APPLICANT MICHAEL JAMES

J U D G M E N T

[1]On 2 November 2006, at the Crown Court at Manchester Minshull Street, the appellant Alan James (now aged 27) pleaded guilty on re-arraignment to an offence of violent disorder. On the following day, 3 November 2006, the appellant Neil Holland (now aged 40) also pleaded guilty on re-arraignment to the same offence. On 8 December 2006, each was sentenced to an extended sentence of four years pursuant to section 227 of the Criminal Justice Act 2003 made up of a custodial term of two-and-a-half years' imprisonment and an extension period of eighteen months. Each of the applicants applies for leave to appeal against sentence, the matter having been referred to this court by the single judge on a ground which appears now to have no substance. However, in relation to the substantive grounds of appeal we grant leave in respect of both and deal with the appeal.

[2]There was before the court a number of other co-accused, six of whom pleaded guilty to violent disorder and were sentenced to sentences comprising short terms of imprisonment suspended for two years with the requirement of 80 hours' unpaid work in respect of all of them. Four others pleaded guilty to the same offence on re-arraignment and were sentenced to community orders. Another co-accused Simon Hughes, pleaded not guilty to violent disorder. He failed to attend the hearing of the trial. A bench warrant was issued but he has not as yet been apprehended. He was described by the judge as one of the three principal offenders. Six other co-accused, who pleaded not guilty, were acquitted by a jury.

[3]In summary the facts are as follows. In the late afternoon of Saturday 15 October 2005, male and female members of staff working at Brannigans Bar at the Grand Central complex in Stockport saw a group of approximately ten to fifteen men enter the public house. They sat around a circular table in the centre of the bar. Their presence was noted and the staff became concerned at their behaviour. One of the group had been seen by a barmaid to go behind the bar and try to take a bottle of Baileys. He was asked to leave the premises, but refused to do so. The behaviour of this group, who were Manchester City supporters, became more and more boisterous and they began to chant football songs. In addition derogatory remarks were made by one member of the group about Stockport County in general. The name of Neil Holland was mentioned.

[4]The manager became so concerned by their behaviour that he telephoned a member of the door staff and requested him to come in. By the early evening it was clear that the group in the public house expected something untoward to happen. There was a notable use of mobile telephones by members of the group. It appeared that they were waiting for someone or for something to happen. Suddenly there was a loud noise and the group (the City group) were seen to rush towards the front door. By that time another large group had arrived. They were all supporters of Stockport County. A serious incident of public disorder began at the doorway of Brannigans which involved the two sets of supporters. A number of items, both large and small, were used as missiles. Fists and feet were used to fight. Damage was caused to the doorway of the public house and also to the items of property used as weapons and missiles. Whilst this incident took place the Brannigans’ staff, two of whom were pregnant at the time, retreated into the glass washing-up room and closed the door for their own safety, or remained behind the bar so that there was a barrier between them and the violence. The police were called.

[5]The violence that took place was recorded on security cameras that were in operation inside the doorways of Brannigans and also on closed-circuit television cameras that were operating outside the doorway and in the general area of the Grand Central complex in Stockport. The judge who sentenced the appellants had before him a compilation DVD of footage from the CCTV cameras which he viewed. We have it before us but we have found it unnecessary to watch it. The two groups were seen on the pedestrian area of the Grand Central complex. Initially the Stockport group began to walk towards the City group, before turning back and effectively retreating as the City group marched towards them. Eventually the Stockport group were seen to walk down the pedestrian area and around a corner on to the A6, a major road running through Stockport. There they re-grouped. As the City group reached the A6, further fighting was seen to take place in the road. Police then arrived and many of the participants could be seen running away from the scene clearly to avoid the police officers.

[6]Both of the appellants were part of the Stockport group of supporters. Holland was at the front of the Stockport group when the incident began. He was heavily involved in the disorder. He used his fists and feet. At one stage he gestured to encourage others to come into the doorway and become involved. He picked up a metal cash machine sign, but did not throw it. He eventually left the doorway, walked away and became involved in the further fighting which took place on the A6 road. When he was interviewed by the police he said that he had been working during the day and that he had then gone to a public house in Stockport where he met the co-accused Hughes. Whilst he was in the public house, a group of men whom he knew entered. They had been to the Shrewsbury match to watch Stockport. Shortly after, he and others went to Brannigans. As he went to go in he said that "a load of lads came screaming at the door". He described a confrontation where, he said, he defended himself and had at all times acted in self-defence. He was shown footage from the CCTV cameras which showed what he had done. Despite that, he maintained that at all times he was acting in self-defence. However, by his plea he accepted that he was guilty of the offence of violent disorder.

[7]James was also part of the Stockport County supporters. He stood behind Holland and Hughes with his hood up as the incident started. A cylinder bin was thrown outside by one of the Manchester City supporters in the doorway. James was seen to move off camera, but returned later armed with that same bin. He threw it back at the men in the doorway. He was seen to be shouting and gesturing aggressively towards the other group. He was also seen to pick up a metal cash sign and throw it at the men in the doorway. He then picked up what appeared to be a piece of glass which had smashed after being thrown by a member of the other group. He threw that back inside the doorway. He was further seen to pick up a cylinder bin a second time and to throw it at the men in the doorway. He then beckoned the others to leave the scene and he moved towards the pedestrian area. As he moved away, there was further shouting and gesturing towards the Manchester City supporters. He was seen on the A6 to walk away and turn around towards the other group just before the fighting broke out.

[8]James was arrested. He said that he had been to Shrewsbury to watch Stockport County play. He went with a group of friends and then returned with them in a minibus before going out for a drink in Stockport. He said that he went into Brannigans, but he denied being there at the time of the incident. He said that he went there at about 11.30pm. He disputed the identification of him when shown the CCTV footage. He refused to go on an identification parade.

[9]The prosecution case was that the two appellants together with Hughes were the main offenders.

[10]Holland has a number of previous convictions: ten for threatening behaviour; four for assault occasioning actual bodily harm; two for violent disorder; and one for affray. There was a pre-sentence report in respect of him before the court. In the opinion of the author of the report he was a medium to high risk of re-offending and a moderate risk of harm to the public. Since it is not contended on his behalf by counsel that the judge was wrong to assess him as dangerous, pursuant to section 229 of the Criminal Justice Act 2003, it is unnecessary to recite any part of that report. We content ourselves by saying that it gives ample evidence upon which the judge could reach that conclusion.

[11]In James' case there was also a pre-sentence report. He also has a number of convictions. They include three for threatening behaviour, two for affray and one for violent disorder. In the pre-sentence report the author records the following: “2.6 Throughout interview Mr James consistently minimised the nature of his actions in terms of acting in retaliation to the actions of the other group. He showed no remorse for his behaviour and commented that he would have acted in a similar manner whether he was under the influence of alcohol or not. Mr James appeared not only unable to consider the direct victims of the offence but also failed to acknowledge the impact of his actions on bar staff and the general public who were put in fear of their safety. ....

[4]1 An offence of this nature, which involves the use of violence and had the potential to cause serious harm to the victims, will be viewed seriously by the court. Mr James maintains that he did not go out to the Brannigans bar with the intention of causing harm. Although he can recognise that he would have induced fear in the victims, by his own admission this was his intention and as such does not form appropriate victim awareness. Mr James' continued assertion that this offence was in no way related to organised football violence impacts on his culpability." It is fair to point out that the author of the reports ends that paragraph as follows:

"At this present time it is my assessment that Mr James poses a medium risk of harm to the public through the commission of violent offences."

[12]In sentencing the two appellants, the judge said that he had seen the video depicting the parts played by each of them. He was satisfied that within the terms of the Criminal Justice Act 2003 each appellant was dangerous and he concluded that he must pass an extended sentence pursuant to section 227. In setting the custodial period he said that he took as a starting point three years, but discounted it because of the guilty plea to two-and-a-half years. The extended period was expressed as a period of eighteen months, making a total of four years.

[13]Mr Knowles does not now challenge the judge's assessment of Holland as dangerous. He concedes that there was ample material upon which the judge could reach that conclusion. In our judgment that was a realistic concession. However, he submits that the custodial element of the sentence was too long. In that respect he makes a number of submissions. He submits that the offence of violent disorder was not the most serious; indeed, he puts it at the lower end of the scale. He further submits that there is a wide gap of disparity between the sentences passed upon the two appellants and the other co-accused who pleaded guilty and who were sentenced to a maximum of eight months' imprisonment suspended for two years with a condition of carrying out work. Further, Mr Knowles submits that in the case of Holland (as indeed in the case of Jones) the fact that in addition to the custodial sentence there is also a licence period of eighteen months, makes the disparity between him and the co-accused even more stark. In the circumstances it is submitted that this court ought to intervene and quash the custodial element of the sentence and for it substitute a shorter sentence. Mr Knowles does not submit that the total extended sentence should be reduced.

[14]On behalf of the appellant James, Mr Usher submits that the judge should not have assessed James as dangerous. He relies on the fact that no serious injury -- indeed no real injuries at all -- arose out of this incident. He relies on the fact that, although James has the previous convictions to which we have referred and which are "specified" offences, there was no material before the court to show that in any of them any serious harm had been caused to any of the victims. He submits that on the totality of the material before him, it was wrong for the judge to find that the presumption in section 229 was not rebutted. He also adopts the submissions made by Mr Knowles on behalf of Holland in relation to the length of sentence.

[15]We shall deal first with the question of dangerousness in relation to James. In our judgment there was ample material before the judge on which he could reach the conclusion that the presumption of section 229 was not rebutted. We have already set out the material in the pre-sentence report. In addition, we have referred to the previous offences. In our judgment this material was quite sufficient to enable the judge to reach the conclusion (which it was for him to reach) that the presumption was not rebutted. We remind ourselves that in the recent decision of R v Johnson and Others

[2006] EWCA Crim 2486

, at paragraph 11, the President of the Queen's Bench Division said:

"At the risk of stating the obvious, the final consideration to which we draw attention is that this court will not normally interfere with the conclusions reached by a sentencer who has accurately identified the relevant principles and applied his mind to the relevant facts."

In our judgment that is what the sentencing judge did in this case. He was entitled to reach the conclusion that he did. We reject that ground of appeal.

[16]We turn now to the length of the sentence, which applies to both appellants. The decisions of this court amply justify a conclusion that sentences in respect of football violence and violent disorder range from the very serious to the less serious. In all such cases it is for the judge to assess the seriousness and to reach his conclusion as to the length of the sentence. So far as the disparity argument is concerned, in our judgment the judge was in the best position to determine where these two appellants (said to be the principal offenders) fitted into the pattern of sentences which he passed. There is ample authority in the decisions of this court that a sentence of two-and-a-half years in respect of this sort of incident is appropriate. The point taken that the extended part of the sentence makes the disparity with others more stark is in our judgment not sufficient to render the sentences passed by the judge manifestly excessive. The whole point of the extended licence period is in order to protect the public by causing those who have been found to be dangerous to be on licence for a longer period. In the circumstances this argument in our judgment cannot succeed.

[17]We have reached the conclusion in relation to all these matters, despite the submissions that have been courteously and persuasively put before us, that nevertheless there is nothing in the grounds of appeal which is sufficient to render the sentences manifestly excessive. Accordingly, although we grant leave, we dismiss these appeals. _____________________________