How did a vicious attacker get off so lightly?

Above is the video of an assault on a police officer. As the video explains, the police saw an incident as somebody was ejected from a bar and went to see what was happening. As PC GIlder was dealing with a man another man ran up behind him and punched him to the back of the head knocking the officer unconscious. The attacker was fined £165, which by any stretch of the imagination seems unjustifiably lenient especially when viewed against sentences recently imposed for far less serious assaults on politicians.

The story has been picked up by several news outlets including the Daily Star and the Sun newspapers. Unsurprisingly all of the reports criticise the very lenient sentence imposed on this attacker.

Interestingly though, none of the reports name the man and all of the reports give broadly the same information that appears to have been lifted entirely from the video above and presumably a press release that accompanied it. This does give the impression that the reports are all based solely on the video and not on any research undertaken independently, e.g. contact with the court to confirm the sentence, obtain the attackers name, etc. The video itself makes no reference to the sentence imposed, although several newspapers quote PC Gilder saying, “The fact that for assaulting a police officer you can get fined £165 just shows in my opinion that you can assault a police officer and it is really not going to cost you anything at all. £165 is not much more than a night out.”

I don’t think there are many people who would look at an attack like that and not instinctively feel that it deserved a far more substantial sentence than a small fine, so why did the magistrates impose that?

Let’s take a look at the sentencing guidelines for assault on a PC. They tell us that we must first decide what category the assault falls into. An assault demonstrating a high degree of harm and a high degree of culpability will be the most serious while one demonstrating a low degree of harm and a low degree of culpability will be the least serious. At the bottom end of the sentencing range an offender can expect a fine while at the top end they should expect a starting point of 12 weeks imprisonment rising to 6 months imprisonment in the most serious offence (nb this offence predates the enhanced maximum sentence for assaults on emergency workers). So, to have received a fine, the court would have had to find that this assault involved a low level of harm and low culpability on the part of the offender.

Looking at the guidelines, it’s not hard to see how an unimaginative sentence would find this to be in the lowest category. The definition given of high degree of harm is a “sustained or repeated attack on the same victim”, which this was not. While factors indicating a high level of culpability are given as:

Statutory aggravating factors

Offence racially or religiously aggravated

Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation)

Offence motivated by, or demonstrating, hostility to the victim based on the victim’s disability (or presumed disability)

Other aggravating factors

A significant degree of premeditation

Use of weapon or weapon equivalent (for example, shod foot, headbutting, use of acid, use of animal)

Intention to commit more serious harm than actually resulted from the offence

Deliberately causes more harm than is necessary for commission of offence

Leading role in group or gang

Offence motivated by, or demonstrating, hostility based on the victim’s age, sex, gender identity (or presumed gender identity)”

None of those aggravating features appear to apply either, which could cause a bench to decide that the offence falls at the very low end of the guidelines.

There is a tendency among some sentencers to mistake the guidelines for tramlines which may not be crossed in anything but the most extreme situations. That is an error. PC Gilder was rendered unconscious, to my mind that is high level of harm especially given that had he been one of the unlucky few who are hit once then subsequently die the offender would properly have been charged with murder. Turning to the question of culpability. The attacker threw a pint of beer at the officers at the start of the video then attacked from behind in a very targeted attack intended to take the officer by surprise and prevent him defending himself or fighting back. For me that demonstrates a high level of culpability.

Based solely on that video and the information in the various press reports I’ve read, it is difficult to understand how a bench did not find that the correct sentence should have been one of imprisonment, albeit that the attack happened some years ago and there may well have been mitigation built up in that time to justify suspending the sentence.

So, now we have to ask ourselves why the court failed to spot the seriousness of this assault. I’ve set out one possible explanation – a misreading of the guidelines – but that doesn’t really strike me as likely.

What does seem likely to me is that the sentencer was never shown the video and was probably only given the briefest of descriptions of the incident. Why do I think that? Because I’ve seen it happen frequently. I saw a prosecutor show a video to the bench this week and, honestly, it stuck out because it is such a rare occurrence. In the past, I’ve had clients get very light sentences because the police report of the incident fails to relay the detail of the offence, perhaps the reporting officer naively assumes that the prosecutor will read the witness statements as well as the summary of the report. (Before you ask, no I would not point out all the aggravating features of an offence in that situation, I am there to represent the defendant not act as a second prosecutor). Prosecutors are often given a dozen or more files to read an hour before they have to present them all meaning that prosecutors often lack time to properly prepare for hearings and can do little more than read the summary.

So, we have a couple of possible explanations for this extremely light sentence. First, it is not the sentence that was imposed at all as none of the reports appear to have conducted any research beyond watching the video and reading a press release. However, you would expect PC Gilder to know the sentence that was imposed and so I think we can dismiss that option. Secondly, the court treated the sentencing guidelines to restrictively, which while possible seems unlikely to me. Finally, the prosecutor never showed the video and did not give sufficient details of the offence. That seems to me the most likely option given what we know. I don’t say that to criticise prosecuting lawyers; I do criticise the government that underfunds the criminal justice system to the point that lawyers acting on behalf of the state can be faced with so many cases at such short notice that they cannot properly prepare for the hearings they are about to face. This doesn’t happen all the time, but from what I see it does happen very often and sometimes offenders are let off far too lightly as a result.


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