On the 18th September this year PC’s Fiona Bone and Nicola Hughes were callously murdered whilst attending what was for all intents and purposes a routine burglary call. Dale Cregan is on remand for their murder along with the murders of David and Mark Short.
On the very same day 39 year old Barry Thew paraded around Radcliffe town centre wearing a t-shirt which carried deeply offensive comments about killing police officers. Members of the public were shocked at this vile act and reported him to the local police. They, whilst still coming to terms with the events of that day were quick to intervene and arrest him.
He was charged with an offence contrary to s4A of Public Order Act and yesterday he was jailed for 4 months for this offence. In addition to this Thew admitted breaching a suspended sentence order for cannabis production. Another 4 months were added to his tally.
Thew’s defence argued that he had previously been a mental health in-patient and was on anti-psychotic medication. It was also offered that he had a long standing dispute with GMP over the death of his son some 3 years ago and continually being subject to stop and search. Thew claimed the words on the t-shirt related to another matter and not the murder of the two officers.
Since sentencing there has been much difference of opinion across twitter on whether this sentence is too harsh or too lenient.
A good starting point to determine an answer to this is to know what the offence actually carries. s4A is summary only and carries a maximum penalty of 6 months in prison and/or a fine.
S4a was an addition to the Public Order Act by virtue of the Criminal Justice and Public Order Act 1994. It sits between the s4 offence (fear or provocation of violence) and the s5 offence of causing harassment alarm and distress. S5 is summary only and is non imprisonable and S4 carries the same penalty as s4A. The difference between s5 and s4A is “intent”. In simple terms s5 is drunken yobbish behaviour that causes harassment, alarm and distress whilst s4A is acting in a manner with deliberate intent to achieve that result.
Without dissecting the offences too far it is fairly obvious that the s4A charge was the appropriate offence.
For comparative purposes the basic offence of theft when tried summarily also carries 6 months imprisonment. On indictment it leaps to 7 years. This means a simple shoplifter tried at the magistrates could face 6 months in jail on conviction.
On the Today programme on BBC radio 4 this morning John Humphreys interviewed John Cooper QC and Ian Hanson (GMP Federation Chair) about the offence and sentence. All were in agreement that the actions of Thew were abhorrent. The debate centred on the severity of sentence and the rights to freedom of expression under Art 10 of European Convention on Human Rights.
I’m not a Human Rights legal expert. There has been a lot of commentary on Twitter that Thew had the right to say and do what he liked no matter how reprehensible it may be. I would argue to the contrary. Art 10 states that such freedoms may have restrictions or penalties as prescribed by law. Freedom of expression extends only so far as the line where a criminal offence is committed. That freedom is then removed. The debate will rage on about where that line should be drawn. I believe the line moves subject to the circumstances of each and every individual case. Based on the specifics unique to this matter I believe a criminal offence was committed and Thew would have no appeal under Art 10.
The next issue was sentencing. John Cooper said that the consistency of sentencing was out of kilter. He cited a number of recent cases leading to imprisonment and compared them to domestic situations where community service is handed down. Ian Hanson agreed with inconsistency and said officers up and down the country deal with that on a daily basis. He called it a sentencing lottery.
I too have been left scratching my head sometimes as the same people come into custody over and over again for stealing or repeatedly beating their partners. I see cases where offences could be prevented and hurt stopped if tougher sentences were imposed on repeat offenders. There are also arguments though that short term prison sentences have little to no rehabilitative effect.
We know that the maximum sentence is not generally handed down on the first occasion. Minor public order and theft offences will generally progress through a number of out of court disposals first. From this point, based on the variances in sentencing, you may think the courts can do what they please. This is not the case and the magistrates or district judge have to comply with sentencing guidelines produced by the Sentencing Guidelines Council.
These work on establishing a sentencing “starting point” and then increasing or reducing the punishment from there subject to aggravating or mitigating factors.
The s4A offence has three starting points.
1. A fine to a low level community order.
2. Low level community order to 12 weeks custody.
3. High level community order to 26 weeks custody.
Each level details examples of behaviour that would meet that criteria. Based on this Thew would appear to hit starting point 2. The guidelines then require the court to consider the offence seriousness and any factors that increase or decrease the culpability or harm caused. Reductions also need to be considered for a guilty plea.
Thew has been given 4 months (16 weeks approx) for this offence. This is 4 weeks more than the level 2 starting point maximum sentence. The aggravating factors list is quite clear that the list is not exhaustive. Considering Thew’s actions, timing and the distress he caused I can see why the sentence was increased.
One matter that is overlooked by most commentators to date is a factor that always affects sentencing; previous convictions. The Manchester Evening News reports Thew as having 29 convictions for 77 offences. Clearly a man familiar with custody and the court process. What we don’t know is what these offences are. Are they all theft and burglary matters? Are they all drink drive and disqualified driving or is Thew a public nuisance and forever on the street causing a disturbance? If he has a history of public disorder then it makes an increase in sentence more understandable.
The question is whether it was increased to a disproportionate level? Or is the counter argument more accurate that the sentence is correct and many others are far too lenient?