In the Media

Justice denied? A week at the Old Bailey

PUBLISHED June 28, 2006

Judges wasting days on cases that used to be decided in half an hour. Violent serial offenders walking free. Police and lawyers in despair. What our reporter found when he spent a week at the Old Bailey

The time is 2.15pm on Tuesday and at the Old Bailey the customary hour-and-a-quarter lunch break is just about over.

In Court Nine there's a sentencing to finish and one of the defendants, Carl Cumberbatch, hands over his bus pass to his mother before taking his seat in the dock.

"It doesn't run out for two days," she jokes to a male companion, "but I guess he won't be needing it."

The crime this 18-year-old recidivist thug is being sentenced for took place just over a year ago. Then, Cumberbatch and two friends attacked an innocent passer-by in front of his wife and three young children. Their victim was beaten about the head with a plank of wood, smashed in the knee with a metal pole and pelted with missiles.

"A dreadful attack on an unarmed man," the presiding judge, His Honour Judge Gerald Gordon, gravely concludes when he resumes his position in a throne-like chair at the front of the court. But ? and it is a very big but ? apparently it is not 'dreadful' enough for Cumberbatch to be jailed.

Hand back the bus pass, mother, and dry your tears. Young Carl is coming home.

This is despite the fact that he has been in trouble since the age of 15, when he was convicted of possessing an offensive weapon. Despite the fact that one month after that conviction, for which he was given a 12-month supervision order, he and three others forced their way into the home of a man with learning difficulties and beat him semi-conscious (Sentence? Two-year supervision order).

And despite the fact that, with regard to the latest crime, the probation service has warned that Cumberbatch is dangerous and that there is a high risk of him offending again. Never mind all that. Judge Gordon decides to give him one last chance ? an 18-month, noncustodial, community order ? and a good ticking-off.

"You are the only person who can make something of your life if you choose to do so," he sternly informs the defendant. "Don't let me see you again." Exit Judge Gordon left. Exit Cumberbatch right.

It's the end of another case in another court and because it's a relatively minor matter, it would normally receive no coverage in the media, national or local. That's a shame, because the devil is in the detail and it actually provides a fascinating insight into the way in which justice is administered in Britain in 2006.

I have spent the past week at the Old Bailey in London, where the country's most serious trials are heard, listening in on criminals being sentenced for everything from murder to cannabis cultivation. My time there coincided with the ongoing controversy over sentencing, a controversy sparked by the case of the paedophile Craig Sweeney, who kidnapped and abused a girl of three yet could be back on the streets in little more than five years.

Politicians blamed the judge (Home Secretary John Reid branded the sentence 'unduly lenient') and then the judges hit back, blaming the politicians (the Lord Chancellor claimed they had been made the 'whipping boys' for flaws in a system overseen by the Government).

At the heart of the argument lies a new piece of legislation, the Criminal Justice Act 2003, brought in by Labour to 'rebalance the system in favour of victims, witnesses and community'. Noble enough aims, but after a week in the Old Bailey I can only conclude there's still some way to go.

New rules brought an 18-year sentence down to just five

Indeed, after a decade of covering crown courts, I'm surprised by the lack of confidence ? bordering at times on confusion ? shown by judges and barristers as they attempt to interpret the new Act. Cases that would have taken half an hour in the past now take half a day, despite the fact that judges supposedly have less discretion, not more, as to how they sentence.

To fully understand why this is, it is first necessary to understand the Act. It came into force in April last year and many of its provisions apply only to crimes committed after that date. Because it generally takes a year or so from the commission of a crime for it to reach its courtroom conclusion, only gradually are such cases reaching the point of sentencing.

Specifically, the Act makes the imposition of certain sentences mandatory for certain offences. Most important of all are the 'dangerous offender' provisions within the Act which aim to protect the public from criminals thought most likely to reoffend. To pass the 'dangerousness test', as it is referred to in court, the offender must be convicted of a 'specified offence' of which some 150 are listed (ranging from serious violent and sexual offences, such as wounding with intent and rape, to relatively minor ones such as affray and indecent exposure) or a 'serious specified offence' (one that carries a sentence of life or ten years plus).

If the defendant has been convicted of such an offence, the next step for the court is to decide whether there is a high risk of him doing so again. And if so, is there a significant risk that the future offence will cause 'serious harm' to the public? If the judge believes the answer is yes, then he must impose one of three mandatory sentences. The first of these applies if the offence is punishable with less than ten years. In that case, a minimum custodial term of 12 months must be imposed.

If the crime is worthy of ten years' imprisonment or more, then the judge must impose either a life sentence or one of 'imprisonment for public protection' ? basically a life sentence under a different name.

Public protection sentences are 'indeterminate', meaning that rather than a specific sentence, the judge will set a minimum term. The idea behind this is that 'dangerous' criminals can now be kept in jail indefinitely or until such time as it is thought they are safe to be released.

All well and good, but here's the sticking point. The decision on the timing of release when the minimum tariff has been reached is made by the Parole Board ? a body in which the public has little faith. It is for this reason that the length of the minimum tariff has become the focus of controversy. Critics argue that it's all very well saying Prisoner A could be locked up for ever, but what if, in the real world, the Parole Board thinks differently?

Back to the Old Bailey and, all around, the theory of the new Act is being put into practice.

In Court Nine I watch as a gang of five robbers ? Lanre Hameed, 24, Marcus Onayiga, 25, Roland Okpara, 26, Barry Pryce, 24, and Bruce Taylor, also 24 ? are led into the dock.

Their case is of particular interest to the public because of the issues it raises about reoffending and early release.

Hameed, the ringleader, for example, had a long history of convictions for robbery, culminating in a five-year jail sentence in May, 2001. But he was released early on licence and between January and May, 2005, he and his gang held up a travel agent, post office and off-licence. Firearms were used and Hameed shot the driver of a refrigerated truck in the leg.

They are serious crimes by a criminal with serious form and any right-thinking person would expect Hameed, a drug addict, to be locked up for a serious length of time.

So what does he get under the new Act? Five years minimum.

Judge Stephen Kramer QC calculates the sentence as follows.

First, Hameed clearly passes the 'dangerousness test'. As a result, he can be sentenced under the 'public protection' banner and given an indeterminate sentence. The judge works out that normally he would have got 18 years. But because he pleaded guilty to charges of robbery, possessing a firearm and grievous bodily harm, that is reduced by a third.

The 12-year sentence is then automatically halved because, under Home Office guidelines, all prisoners are considered for parole after half their sentence,
and then a further 351 days are taken off for time served on remand.

Any criticism about sentence length should not be laid at the feet of the judge, however. He is clearly sticking to the rules and his starting point of 18 years seems fair.

It is the legislation that imposes the discounts and places the burden of deciding fitness for release on the Parole Board ? and only when cases such as this reach that point will we know what teeth these indeterminate sentences have in reality.

They kicked him 'as of trying to kill an animal'

A similar acknowledgement of the judge's diligence is needed when considering the case of Cumberbatch. In sentencing him and his two friends, Judge Gordon takes extraordinary care that everything is done in accordance with the Act.

Indeed, when I enter the court at 10am, I expect sentencing will be finished in half an hour. Instead, it does not wrap up until almost 3pm.

The reason is that the judge must ensure he applies the 'dangerousness test' to each defendant.

In making this decision he relies largely on two areas ? previous convictions and a pre-sentence report by the probation service. In these reports, an assessment of risk is graded as low, medium or high.

In the case of Cumberbatch's co-defendants, Anthony Eyiango, 19, and 18-year-old Dwain Warner, that risk is put at medium and low respectively and their previous is relatively minor.

As a result, Judge Gordon concludes the test is not met and sentences accordingly. Eyiango, who admitted hitting the man over the head with a plank of wood, receives two years in prison for GBH, half of which will be spent on licence.

Warner, guilty of affray, receives a 12-month community order and must do 120 hours' unpaid work.

The case of Cumberbatch is far more borderline because of his previous convictions and because the probation service has assessed him as a high risk of reoffending. A report states it is something that 'could happen at any time and the impact could be serious'.

But, ultimately, it's for the judge to decide.

"As I have already made clear, I have had to assess dangerousness," he tells Cumberbatch, from Catford, South-East London, who has admitted affray. "I have come to the conclusion, not without hesitation, I should give you one last chance to keep out of trouble."

And so, instead of a custodial sentence, he imposes an 18-month community order with additional requirements such as unpaid community work.

Is it the right sentence? Having heard details of Cumberbatch's previous, I have my doubts, but again, only time will tell.

The final footnote to my week in the Old Bailey ? and to the Criminal Justice Act 2003 ? is provided by two horrific murders.

The first, which received widespread publicity, was that of gay barman Jody Dobrowski. The 24-year-old died after he was set upon on Clapham Common, a notorious South London gay cruising area.

Thomas Pickford, 25, and decorator Scott Walker, 33, punched and kicked him to the ground "as if trying to kill an animal", the Old Bailey heard.

Sentencing them, Judge Brian Barker concludes that the crime was motivated by homophobia and jails each man for at least 28 years.

The next day, reports of the sentence are splashed across the papers. This is the first time, they note, that a judge has used powers within the 2003 Act that allow for an extra-long sentence for homophobic 'hate crimes'.

But it is interesting to note that on the same day in the Old Bailey, another murderer, Lee Lindsay, is handed an even longer sentence, of 30 years.

Together with an accomplice, the 21-year-old had entered a house in Harrow, North-West London, and stabbed a man to death. He also attempted to murder two others during the robbery.

Again, the high minimum term emanates from the Act, which adds weight to murders if they are committed for gain.

They seem sensible provisions, but during the Lindsay case the new legislation throws up one further conundrum.

Although it is evident to all concerned that Lindsay has to be sent to prison for life for murder, the court still has to go through the motions of the 'dangerousness test' for the charges of attempted murder and conspiracy to rob.

This is despite the fact that even if an indeterminate sentence were handed out, it would be superseded by the one for murder.

At one point, the case is almost adjourned to allow for the preparation of further reports to meet the demands of the Act. "It's madness," one defence barrister tells me. "Absolute madness."

Police officers, too, have voiced concerns over the difficulties caused by the Act.

In the end, at the Old Bailey, common sense prevails and shorter, fixed sentences are imposed for the lesser offences ? so perhaps it's just an anomaly that can be worked out in time.

And as the Sweeney case has shown, when such anomalies do arise, the public would prefer that the authorities fix them fast ? rather than fight among themselves.