Neutral Citation Number: [2011] EWCA Crim 2323
Case No: 2011/4912/A4, 2011/4914/A4, 2011/4917/A4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date Wednesday, 12 October 2011
 
B e f o r e:

THE VICE PRESIDENT
(LORD JUSTICE HUGHES) 

MR JUSTICE CRANSTON

MR JUSTICE HICKINBOTTOM 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 
ATTORNEY‑GENERAL'S REFERENCE NO 69, 70 & 71 OF 2011   
 
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Mr M Nawaz appeared on behalf of the Attorney General 
Mr A Burns appeared on behalf of the Offender Metcalfe
Mr C Rich appeared on behalf of the Offender Sweeney
Mr A Burns appeared on behalf of the Offender Jeavons 
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J U D G M E N T 

1.	THE VICE PRESIDENT:  Her Majesty's Solicitor General seeks leave to refer under section 36 of the Criminal Justice Act 1988 sentences of three‑and‑a‑half and four years imposed on three defendants who, very late in the day, pleaded guilty to conspiracy to cause grievous bodily harm.  We give leave.
2.	As the judge rightly observed, the background to this crime was all too clearly a dispute between criminals.  That its exact nature is not known does not matter and is not surprising.  
3.	These three defendants were three members of a group of something like eight to twelve who set out to attack and injure their opponents when the targeted victims were in a public house on a busy Saturday evening.  The principal target was a man called Mawson whose wife was the licensee of the public house.  There had been previous ill‑will which had resulted in threats to him in the few days beforehand, but there is no proper basis for attributing any of that to any of these three defendants.  However, it had been quite serious.  His two cars, a Range Rover and a BMW, had been set on fire.  
4.	At about a 9.45 on the evening of Saturday 10th April 2010, Mr Mawson was to be found in his wife's public house sitting with two friends.  A gang or mob of about six to ten men invaded the pub, bent on doing him serious injury.  They were masked, all of them, with balaclavas and they were heavily armed.  Several of them had swords or machetes.  Some had baseball bats.  They went straight for Mawson who was struck on the arm with a sword causing a severe wound which severed an artery and which undoubtedly threatened his life.  He was also struck on the head with a baseball bat.  The attackers covered their actions by fairly extensive general mayhem designed no doubt both to intimidate and to confuse.  The windows of the public house, a juke box and fruit machines were deliberately smashed up.  Moreover, in addition to Mawson's injuries three other men were also injured.  A man called Graham who was sitting with Mawson was struck on the head with a baseball bat to the extent that his skull was fractured and he had to undergo emergency surgery.  A Mr Sargent had his head cut open by a similar blow from a baseball bat and was severely beaten about his limbs.  A Mr Burns had yet another large cut to his head which had in the end to receive something like eight or nine surgical staples and he was gashed about his back and leg.  So there were multiple blows with both the sharp and the blunt weapons on four different people.  In the case of Mawson and Graham the injuries were life‑threatening.  As it turned out, or perhaps was already known, Mawson was already suffering from Leukaemia from which he subsequently died but there is no suggestion that that was part of the knowledge of the attackers.  
5.	Thus the attack really bore all the hallmarks of a criminal dispute.  It was brutal and it was brazen.  It was carried out in public.  The attackers felt free to act as they wished, no doubt because of their numbers and because of their violence, as well as because of the limited disguise.
6.	After the event, the two vehicles which had carried them there and carried them away afterwards were found burned out.  The only sensible inference from that is that they were deliberately burned to destroy any scientific evidence that might otherwise have been gathered from them and which might have led to the perpetrators.  The cars were connected with the defendant Sweeney in the sense that they had been seen in association either with a home that he used or travelling in convoy with a vehicle that he used.  They may not have been his vehicles, but the connection was present.
7.	These three men, plus one other called Fletcher, were arrested in the fortnight or so after the event.  Fletcher subsequently absconded and was not present to stand trial.  There is no doubt that others (unidentified or at least unapprehended) will also have been involved.  
8.	These defendants all declined, on initial interview, to answer any questions at all.  There was a later partial admission made by Sweeney when he was confronted by plain scientific evidence that he had been in contact with Mr Graham when he was bleeding.  It was also the fact that Sweeney had been injured himself, by exactly what process it is not clear.  At that stage he admitted that he had been present but claimed that he had been an innocent customer in the pub who got caught up in violence that was nothing to do with him.  Eventually, on his very late plea of guilty, he admitted that he had been present in the public house not as an innocent customer but as a spotter or observer for the attackers in order to point out the intended targets.
9.	These three defendants pleaded not guilty when the case was listed for plea and they maintained those pleas not simply up to the first day of trial but until its third day.  It is however the fact that the jury had not been sworn.  There had been first an informal and belatedly a formal application for disclosure from the Crown and discussion of that issue apparently occupied, one way or another, the first couple of days or so of the trial.  The material which was sought related to the criminal background of Mr Mawson who was not a witness because by then he was dead, although he had made a statement, and/or Mr Graham.  One can understand defendants thinking it to be in their interests that they should have information of that kind and they were of course entitled to ask for it, albeit they may have done so a little late.  But it was not on any view information which had any bearing at all on the question of whether or not they were present and guilty.  It might have had a bearing on mitigation.  It might, if the credibility of Mr Mawson or Mr Graham had been in issue, had a bearing on that, but neither of them had purported to identify any of these three defendants.  The evidence that they were present was other evidence and did not depend on the credibility of either of the victims.  In the end, once the disclosure question had been ventilated the defendants all tendered extremely late pleas of guilty.  They offered written bases of plea which were not significantly contested.  
10.	Jeavons was accordingly dealt with on the basis that he had been recruited at a comparatively late stage and went along with others.  He was one of those who invaded the public house.  He wore a balaclava.  He did not himself, he said, have a weapon in his hands, although those he was with did.  It was his case that the dispute, whatever it was, with Messrs Mawson and/or Graham was not one to which he had been a party.  In effect it was his case that he was hired muscle.
11.	Metcalfe admitted that he was one of the drivers.  He said that he had stayed outside in the car, no doubt because they would need a rapid getaway or might do so and had not himself gone into the public house.  That too was not a point of contest.  
12.	Sweeney, as we have already said, was the spotter in the public house.
13.	The defendants were around their early twenties.  Of them Jeavons was the youngest, he was not quite 20 at the time of the offence.  He had not previously been sent to custody although he had convictions in the past for affray, disorder and common assault, one at least of which had been committed when on bail.  His father, who was in business on his own account, gave evidence that there was family support for him and that he had, albeit unsuccessfully, begun to trade on his own account and no doubt the inference was that he had the potential for honest work.  
14.	Metcalfe was 23.  He had a conviction for possession of a pepper spray gun when he was 18 and had received a suspended sentence for aggravated taking of a motor vehicle which subsequently had to be activated because he disobeyed the terms of the order.  He had been cautioned in the past for burglary, theft and the taking of cars.
15.	Sweeney was 24.  He had a conviction for burglary when he was 19 and also when he was 20 a conviction for the possession of a knuckleduster.  It is true that he had not used it on the occasion on which it was found, but there cannot have been any excuse for the possession of it.
16.	The sentences which the judge passed were as follows.  On Jeavons the sentence was four years and on Metcalfe and Sweeney the sentence was three‑and‑a‑half years each.  The judge did not say what reduction for the plea of guilty, late as it was, he had allowed.  It may well be that counsel are correct in deducing that he had worked on something like 20 per cent.  If that is right then his starting points must have been five year for Jeavons and about four‑and‑a‑half or little less for the other two men.  
17.	The relevant guideline was the new definitive guideline on assault and other offences of violence issued by the Sentencing Council and, we accept, recently promulgated.  The judge had been persuaded, apparently at a time of an earlier discussion, that the case could properly be dealt with as one falling into the middle of the three categories that are set out in that guideline, that is to say category 2.  Category 2 is expressly there for offences which have as their features either greater harm and lower culpability or the inverse ‑ lesser harm and higher culpability.  There can be no question but that this was a case of greater harm.  Very serious life threatening injury had been done to two people and other injuries almost as serious to two others and the judge made it clear that he treated it as a case of greater harm; nobody could have done otherwise.  It must follow that the judge was persuaded that the case could properly be dealt with as one of lower culpability.  
18.	The guidelines do not of course attempt to set out every factor which bears on the question of culpability.  They do specifically identify frequently encountered features of cases and in this context they identify as aggravating factors firstly a significant degree of premeditation and secondly use of a weapon.  Both of those features, we are satisfied, were unarguably present in this case.  This was a planned mob attack.  It has nothing in common with an unpremeditated spontaneous act of violence.  The fact that Jeavons and/or Metcalfe may have been recruited to the attacking team not that long before the attack was launched does not alter that fact.  
19.	The other factor which appears to have persuaded the judge was the role of the defendants.  It is true that the guidelines identify as a factor which may indicate lower culpability a subordinate role in a group or gang, but that has to be balanced against any factors which demonstrate high culpability which are present as two very important ones clearly were here.  Leaving aside the identified aggravating factors, it seems to us impossible to contend that those who take part in this kind of combined criminal attack in pursuit of a criminal dispute have anything other than high culpability.  The role of these defendants was as we have identified.  To the extent that any of them say that the original dispute with Mawson was not theirs we are unable to see that that means that their role was to be treated as subordinate.  They were fully party to this attack.  Jeavons was one of the invaders.  Whether he was carrying a weapon or not he knew perfectly well that the others were and he knew what reason they were there for.  Metcalfe was a driver.  Such gangs need a driver.  Sweeney was a spotter.  They also need spotters.
20.	In the case of Jeavons it is legitimate to say that he was the youngest of those before the court and it could properly be said that he displayed on this and no doubt other occasions a degree of lack of maturity, but he was nearly 20 and an entirely voluntary party to this invasion.  
21.	What happened took place in a busy public house on a Saturday evening.  The pub was full, somebody was having their birthday party and there were many, many entirely innocent patrons.  The object was, as the defendants all admitted, grievous bodily harm.  We accept that it can be understood why the defendants thought it in their interests to seek additional information about whatever unsavoury background there was to their victims.  They were entitled to seek to use the process of the court for that purpose even if it could hardly have a bearing on whether they had been present or not.  What they cannot do is having taken up the time of the process for that purpose and as a result delayed their admission until not just the last minute but really some time after it, claim the recognition which is given to those who admit their guilt promptly.  If the judge treated these pleas of guilty as calling for a 20 per cent reduction, then we are satisfied that he erred in principle.  
22.	Secondly, we are satisfied that he erred in principle in regarding this as a category 2 case.  It is a plain category 1 case.  The very least sentence after trial which this kind of offence ought to have attracted is something in the region of nine or ten years.  We will take for present purposes the lower of those two figures.  We will make what reduction we can for the belated pleas of guilty, but the result is that the sentences which the judge imposed, which would have been in the case of two of these men outside even the category 2 range, were, we are afraid, simply wrong in principle.  
23.	We quash the sentences, we impose in the case of Jeavons eight years and in the case of Metcalfe and Sweeney seven years each.