No. 2008/05335/A7
Neutral Citation Number: [2008] EWCA Crim 2847

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday 19 November 2008

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MRS  JUSTICE  RAFFERTY  DBE

and

MR  JUSTICE  DOBBS  DBE

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R E G I N A

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SYED  MUSTAFA  ZAIDI
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Mr R L Marks QC appeared on behalf of the Applicant

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J U D G M E N T
Wednesday  19  November  2008

THE LORD CHIEF JUSTICE:  I shall ask Mrs Justice Rafferty to give the judgment of the court.

MRS JUSTICE RAFFERTY:
1.  On 27 August 2008 in the Crown Court sitting at Manchester, this 44 year old Applicant was convicted of two counts of cruelty to a person under 16 years and, on 24 September in respect of each, sentenced to a term of 26 weeks' imprisonment suspended for twelve months with consequential orders.  The Registrar has referred to the full court this application for leave to appeal against sentence, which we grant. 

2.  The Appellant is a devout Shia Muslim.  Within the Shia calendar there arises the festival of Ashura commemorating a 7th Century battle.  It is, by virtue of its factual matrix which we need not rehearse, one which it is accepted arouses emotion.  During it, it is the practice for Shia males to flagellate themselves with a zanjeer, a wooden-handled instrument to which is attached a number of light-weight curved blades.  The object, and so far as we can see the outcome, is to evoke respectful feelings of grief.  The ritual is entitled Zanjeer-Zani.  To it, on 19 January 2008, at the Shia Centre Mosque in Levenshulme, Manchester, went the Appellant.  Perhaps 48 hours or so before, he had been aware of a ruling by the centre management that youngsters below 16 would not be allowed to use the zanjeer.

3.  On 19 January the Appellant used the zanjeer to flagellate himself and the older of the two of his three sons then present (aged 15) made clear that he too wanted to use it.  In contravention of the ruling by the centre manager the Appellant allowed his boy so to do.  What followed was a similar indication and similar permission in respect of the 13 year old.  Each lad was cut to his back.  The court has been provided not only with photographs but with photographs recorded on a digital versatile disc.  It is plain, as Mr Marks QC has told us and as the trial judge readily accepted, that the colloquial phrase "looked a lot worse than they were" was appropriate.
  
4.  It was accepted that at all times the 15 year old and the 13 year old used the zanjeer under the supervision of their father and there was no suggestion that this was done in private: quite the reverse, a number of males attended and observed.  The use by the boys was but brief and, as the judge was later to recognise, there came a time when the Appellant's mature judgment was that the youngsters were about to do too much damage to themselves.  He intervened and stopped it.  

5.  When the boys' mother, from whom the Appellant was estranged, discovered what had happened she involved the police.  

6.  Interviewed, the boys at first suggested that their father had forced the use of the zanjeer upon them, but by the time they gave evidence for the Crown they conceded that, prior to this, on more than one occasion they had used it and on this occasion, 19 January 2008,  had been keen to use it again. 

7.  This family, the parents (estranged), had for a number of years lived in Pakistan and the United Kingdom, finally achieving residence here from 2004, the Appellant living in London and his ex-wife and his sons in Manchester.  There was a monthly contact order with the boys but there were very considerable difficulties attached to it.  

8.  Once arrested, the Appellant denied forcing his sons to take part -- a stance later vindicated by their concession in evidence.  He did, however, candidly accept that he had at their request allowed them to take part in the ritual. 

9.  Aged 44, he was of exemplary good character.  

10.  A pre-sentence report considered his motivation to be his fervent religious belief, but postulated that his engagement of his children in participating in the zanjeer ritual was his method of asserting familial control.  Risk of reconviction was low.  The problems in the marriage had their origin in cultural differences.  He had a number of advantages, which included positive community links, and was suitable for a community order. However, thought the author, he minimised his responsibility.  

11.  Sentencing him, the judge, who it must be remembered had listened to a contested trial, considered that the Appellant had let his sons take part against the advice of the Mosque Elders.  Still he failed to understand the approach of the law or to accept any culpability.  The judge accepted that his behaviour was likely to have been affected by fervent religious belief and desire to participate in the ritual.  Albeit the boys were not forced to take part, the law protected them from themselves.  There were no serious injuries, the Appellant's relationship with his sons had suffered because of the event and the subsequent proceedings, no malice had been intended, the ceremony itself had lead to considerable emotional arousal and the boys were not taking part in the ritual for the first time, having done so in Pakistan.  The Appellant, always supervising, was vigilant to intervene.  The result was that the boys did not need medical treatment and came to no harm.  It was plain that the Appellant was anxious to re-establish contact with his boys.  He was a hard-working man.  The offence, however, passed the custody threshold.  The circumstances were such that the court felt entitled to suspend it. 

12.  Grounds of Appeal are that the sentence was wrong in principle or manifestly excessive, the facts so unusual that it did not pass the custody threshold. 

13.  Cases such as this are notoriously difficult to sentence.  On the one hand, before the court is a man of exemplary good character and mature years who comes to the dock with personal difficulties.  On the other hand, awaiting sentence was a man on notice that the Mosque Elders deprecated what he then allowed impressionable youngsters to do.  In our judgment this sentencing tribunal trod a careful, measured path through the competing arguments before reaching a conclusion with which we find ourselves unable to disagree.  Given the advice from the Mosque Elders it is inevitable that the damage self-inflicted by boys of 15 and 13, supervised by their father, passed the custody threshold.  Once that is said, the nominated term of 26 weeks is entirely unimpugnable.  Grateful as we are to Mr Marks, we are unable to accede to his submission and this appeal is dismissed.

THE LORD CHIEF JUSTICE:  Mr Marks, do you have a representation order for today's purposes? 

MR MARKS:  Yes, thank you, my Lord.