Barratt, R. v [2018] EWCA Crim 1603

[2018] EWCA Crim 1603Case No 201800220/C2-201800357/C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 19 June 2018
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE SIMON
MR JUSTICE NICKLIN
HIS HONOUR JUDGE MAYO QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
AARON BARRATT
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
Mr B Aldred appeared for ApplicantMr N Ogborne appeared for Crown
J U D G M E N T (Approved)WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
[1]On 6th November 2016 there was a riot at HMP Bedford. Disorder broke out after inmates refused to go back into their cells following their afternoon association time which had been cut short due to staff shortages. The disorder was brought under control after a number of hours when prison riot teams were called in. The disorder was largely captured on CCTV.[2]Several prisoners were charged with offences arising out of the disturbance. Seven prisoners, including the appellant, were charged with offences under the Prison Security Act 1992 ("the Act"), five of them with affray and one of them with an offence of burglary.[3]Section 1 of the Act provides, so far as material: Offence of prison mutiny.(1) Any prisoner who takes part in a prison mutiny shall be guilty of an offence and liable, on conviction on indictment, to imprisonment for a term not exceeding ten years or to a fine or to both.(2) For the purposes of this section there is a prison mutiny where two or more prisoners, while on the premises of any prison, engage in conduct which is intended to further a common purpose of overthrowing lawful authority in that prison.(3) For the purposes of this section the intentions and common purpose of prisoners may be inferred from the form and circumstances of their conduct and it shall be immaterial that conduct falling within subsection (2) above takes a different form in the case of different prisoners.(4) Where there is a prison mutiny, a prisoner who has or is given a reasonable opportunity of submitting to lawful authority and fails, without reasonable excuse, to do so shall be regarded for the purposes of this section as taking part in the mutiny.(5) Proceedings for an offence under this section shall not be brought except by or with the consent of the Director of Public Prosecutions."[4]The section creates a single offence of prison mutiny which can be committed either under subsection (2), when at least two prisoners engage on the conduct with the requisite purpose, or under subsection (4), on the basis of deemed participation in the mutiny.[5]The appellant and one other prisoner, Kevin Murphy, were originally charged with actual participation under subsection (2). However, on the first day of trial prosecution was permitted to amend the indictment to add a second count of deemed participation under subsection (4). An application made by all defendants to dismiss that count was rejected by the Judge. Following that ruling the appellant pleaded guilty to count 2. The co-accused maintained their not guilty pleas and the trial continued on count 1 against the appellant and Murphy and on count 2 as against the remaining co-accused. On the eighth day of the trial the prosecution offered acceptable pleas to affray for the co-accused and agreed to let count 1 lie on the file in respect of the appellant and Murphy.[6]The prosecution case was that the appellant and his co-accused were among those who engaged in this riot. Specifically, in relation to the appellant, the Prosecution alleged that he was a ringleader and that he and Murphy organised the disorder by encouraging other inmates not to return to their cells at the end of association. As part of the disorder it was alleged that the appellant had pulled a phone off the wall, entered the wing office and taken food, washed his hands and used the telephone, put on an officer's uniform that was hanging in the office, kicked something in the doorway and been involved in the destruction of the hard drive of the CCTV. The prosecution relied upon the evidence of Officer Spencer, that she had given the order to lock up at the end of association and the CCTV footage of the disorder.[7]On count 1, actual participation, the appellant disputed that he had been a ringleader, that he told anyone to refuse to “lock up” or shared any intention to overthrow lawful authority in the prison. On count 2 the appellant's case was that, although he had heard Officers Spencer's order to “lock up”, that was before the mutiny had started. He accepted that he had joined the disorder after the mutiny began but there had been no direction to submit to lawful authority during the time with which he could have complied.[8]Relying upon the authority of R v Mason and Cummins [2005] 1 Cr App R 11, the basis of the submission made to the judge to dismiss count 2 was in summary:(i) s.1(4) of the Act required that a mutiny was already taking place at the time when the actus reus of the offence under that section was committed;(ii) as the actus reus is that "prisoner who has or is given a reasonable opportunity of submitting to lawful authority ... fails without reasonable excuse to do so", the prosecution had to prove there was such an opportunity at a time after the mutiny had started and(iii) there was no such opportunity in this case because there were no orders to bang up after the mutiny had started. The only command or order was made by Officer Spencer which was made before the mutiny had started.[9]In a succinct but clear ruling the judge refused to dismiss count 2. He rightly identified under subsection (4) that there was no requirement that any particular instruction be given. In any event, the judge was satisfied that any instructions given by the officer to the prisoners to return to their cells were ongoing instructions that carried on until complied with. The issues of when, then the mutiny had started that evening whether the defendants had a reasonable opportunity to submit to lawful authority were ultimately matters for the jury to determine.[10]As noted above, following the Judge's ruling the appellant pleaded guilty. Following discount for guilty plea the Judge sentenced him to 2 years' imprisonment. The Judge noted that the riot had caused around £750,000 worth of damage and caused the prison capacity to be reduced from 510 to 251 prisoners. That led to prisoners having to be re-accommodated in other prisons. It took a year before the prison was restored to full operational capacity. The Judge was satisfied that the Appellant had been encouraging other prisoners at the start of the disturbance and, during the riot, he had personally broken into the office on the wing causing damage to property and to the computer equipment. There were no sentencing guidelines but the Judge considered the authority of R v Whiteman [2004] Cr App R(S) 59, where a sentence of 4 years was upheld as a starting point even for those who had joined the disturbance after it had started, albeit in a much more serious riot.[11]The Appellant sought to appeal against conviction and sentence. As to conviction he contended that the Judge's ruling was wrong and that he had failed to consider the effect of Mason and Cummins, in particular the need for ‘synchronicity’ between the mutiny and the failure to submit to lawful authority. It is contended that, as no orders were given to bang up after the mutiny had started, the Appellant had no opportunity to substitute to lawful authority. The Registrar referred the application for permission to appeal to the Full Court.[12]Mr Aldred, on behalf of the Appellant, has helpfully developed these submissions before us today. It is common ground that the only instructions to prisoners was that given by Officer Spencer at 16.38. He relies on the fact, as stated in the prosecution's opening note prepared for the court:
"Before the riot began [the Appellant] encouraged other prisoners not to ‘lock up’ and shortly thereafter that chaos ensued."
On that basis, he contends that the prosecution could not demonstrate the required synchronicity between the mutiny and the failure to submit to unlawful authority. He relies upon the Court of Appeal statement in Mason & Cummins [19]:
"[The] significance in the present case is related to the need of the prosecution to synchronise the mutiny and the failure on the part of each appellant to submit to lawful authority. Thus, if the disturbance only ripened into a mutiny after such a failure, which was the defence case, the failure would not be caught by section 1(4)."
[13]We are satisfied that Mason and Cummins establishes the following propositions:(1) Section 1 creates a single offence of prison mutiny which can be committed either: i. by conduct with the requisite purpose under section 1(2) or ii. on a deemed basis pursuant to section 1(4): [12].(2) To be guilty of an offence on the deemed basis: i. the prosecution must prove that a mutiny is taking place, (i.e. at least two prisoners engaged on the mutiny) with the requisite intent, but ii. it is not necessary to prove that a person failing to submit to lawful authority shares the purpose of "overthrowing lawful authority": [13].(3) "Overthrowing" is a stronger word than by subverting and is not synonymous with refusing to obey lawful orders or mere defiance of or challenge to lawful authority. The word was chosen deliberately to confine offences of prison mutiny to serious disturbances: [16]-[18].(4) The prosecution must prove ‘synchronicity’ between the mutiny and the failure to submit to lawful authority. If a disturbance only ‘ripened into a mutiny after such a failure’ the failure would not be caught by s.1(4): [19].[14]There appears to be no authority as to the interpretation of what amounts to "failing to submit to lawful authority” in this context.[15]In our judgment, it is important to concentrate upon the words of subsection (4). In order for a defendant to be deemed to be taking part in a prison mutiny the prosecution must prove two things:(1) that a mutiny was taking place in the prison and(2) a prisoner who has, or is given a reasonable opportunity to do so, fails to submit to lawful authority. A defence of “reasonable excuse” for the failure is available but does not arise on the facts of this case.[16]The concentration upon the order given by Officer Spencer at 16.38 for prisoners to return to their cells is, we find, a distraction. The offence is not committed by failing to follow an express instruction during a mutiny. A reasonable opportunity of submitting to lawful authority does not require any order to have been given. The fact that an order has been given and not heeded may well be powerful evidence that the defendant did in fact have a reasonable opportunity to submit to authority and failed to do so, but it is not necessary for an order to be given.[17]The Appellant did not contend that during the late afternoon/early evening on 6 November that there was not a mutiny in Bedford Prison, nor did he suggest that, once it started, he submitted to lawful authority. On the contrary, whilst it was taking place he broke into the wing office and damaged a number of items. On that basis the judge's decision to refuse to dismiss the s.1(4) count was correct.[18]The Crown's opening note was perhaps not helpful in isolating the real issue:
"[The appellant] faces a charge of having been given a reasonable opportunity of submitting to lawful authority and failed without reasonable excuse to do so ... You will hear the instruction from the prison officer for all prisoners on A Wing to lock up. They didn't. These prisoners watched the ringleaders start the disorder and joined in, thus making them guilty of this offence say the Crown."
[19]The fact that an order to prisoners to return to their cells is given before a riot starts may well, depending on the facts, fall to be characterised as a continuing instruction. But for the reasons we have explained, whether it does so is not determinative whether there has been a failure to submit to lawful authority. We are satisfied that the judge correctly held that section 1(4) did not require the giving of any specific instruction.[20]The requirement of synchronicity in Mason and Cummins is simply that the failure to submit to lawful authority, where there is a reasonable opportunity to do so, must be at a time when the mutiny is in process. The issue does not arise on the facts of this case. It is plain that the appellant did not submit to lawful authority once the disturbance in Bedford Prison had ripened into a mutiny. He had a reasonable opportunity to do so by returning to a cell otherwise disengaging. He did not contend that he had a reasonable excuse for not doing so.[21]In Mason and Cummins the Court of Appeal made brief reference to the passage of the Bill in Hansard [18]. We invited counsel's submission on the statements made on behalf of the government during the Committee stage in the House of Lords on 3 March 1992.[22]An amendment had been tabled to remove section 1(4) on the grounds it had the potential to catch people who are simply standing around whilst a mutiny took place. In addition, concern was expressed that some prisoners, for fear of retribution, might feel unable to submit to the prison authorities during the riot.[23]Earl Ferrers, on behalf of the government, responded to these points as follows:
"The purpose of Clause 1(4) is to deal with the real problem which arises in a serious situation when large numbers of onlookers congregate and refuse to disperse. Protests about food or other conditions would not fall within the definition of mutiny. A prison disturbance becomes more dangerous as the numbers involved grow. The disruption caused is greater, and it becomes more difficult to quell the disturbance and to restore order. Clause 1(4) is designed to stop the numbers growing. It provides a clear incentive for prisoners who may not be actively involved to leave the scene and get out of the light when a mutiny begins. Their departure - whether or not it is in response to an order from the prison officers - makes it much easier to resolve an incident peacefully and to restore order. If they will not disperse and their presence adds fuel to the mutiny, then it seems to me to be only fair to regard them as taking part and to make them liable to the same penalty... Under Clause 1(4), once it has been established that there is a mutiny and that there was a reasonable opportunity to leave the scene in safety but that some people did not do so, all prisoners who remain would be regarded as taking part in the mutiny unless they had a reasonable excuse for not leaving... It is also not unknown for ring-leaders to try to pass themselves off as bystanders. A prisoner who does not take a reasonable opportunity to leave the scene of a mutiny and deliberately remains there without reasonable excuse cannot in any reasonable view properly be described as an innocent bystander. In my view he is a guilty bystander.T he purpose of clause 1(4) is to deal with the real problem which arises in a serious situation where large numbers of onlookers congregate and refuse to disperse. Protests about food or other conditions would not fall within the definition of mutiny. A prison disturbance becomes more dangerous as the numbers involved grow. The disruption caused is greater and it becomes more difficult to quell the disturbance and to restore order. Close 1(4) is designed to stop the numbers growing. It provides a clear incentive for prisoners who may not be activity involved to leave the scene and get out of the light when a mutiny begins. Their departure - whether or not it is in response to an order from the prison officers - makes it much easier to resolve an incident peacefully and to restore order. If they not disperse their presence add fuel to mutiny then it seems to me to only fair to regard them as taking part and make them liable to the same penalty ... under clause 1(4) one it has been established there was a mutiny and there was a reasonable opportunity to leave the scene in safety but that some people did not do so, all prisoners who remain would be regard as taking part in the mutiny unless they had a reasonable excuse for not leaving... That does not mean that all those who are present will necessarily be found guilty of mutiny. Of course, there may well be prisoners who are unwittingly caught up in a mutiny, who wish to leave the scene but who might be attacked by their fellows if they did so... If they are unable to leave in safety then the offence will not apply to them. It is a necessary safeguard to protect the innocent. Clause 1(4) does not reverse the burden of proof. The prosecution will need to prove beyond reasonable doubt that there was a prison mutiny and that the prisoner concerned remained on the scene despite having a reasonable opportunity to surrender in safety. If the accused gives evidence that he had a reasonable excuse for his behaviour, the prosecution will also need to convince the court that he did not have such an excuse. Clause 1(4) is designed to catch the culpable bystander (and I make no excuse for that) while providing adequate safeguards for the genuinely innocent bystander."
[24]On behalf of the appellant, Mr Aldred, having reviewed the Hansard extract that we have just set out, suggested it did somewhat damage the submission he is advancing on behalf of the appellant.[25]As it happens, we have not considered it necessary to resort to Hansard to interpret the section. We are satisfied that the section is not ambiguous as to its effect. But we note, that it is consistent with the view that we have reached. There may be cases where the court will have to consider what amounts to "submitting to lawful authority" and whether a prisoner had a reasonable opportunity to do so during a mutiny. That point does not arise in this case and so for the reasons we have given the appeal against conviction is dismissed.[26]Turning to sentence, Mr Aldred submits that fixing the sentence at 3 years, before discount, for the appellant's role in this case was manifestly excessive. The disorder in Whiteman was not only more serious but much more serious, in significant ways, and meant a sentence of 3 years for the appellant's offence could not have properly taken into account the lack of a large number of aggravating factors.[27]We do not find comparison of particular features of individual cases to be very helpful. In the present case, £750,000 worth of damage was caused together with major disruption to the prison system. The judge's remarks identify the appellant's culpability in the offence as high. He was not a mere bystander. He had encouraged the disorder, had participated in the mutiny and had himself caused significant damage. A sentence of 3 years before discount was not manifestly excessive. The appeal against sentence is therefore dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.