R. v James Henry Sargeant
Court of Appeal
17 October 1974
(1974) 60 Cr. App. R. 74
Lord Justice Lawton, Lord Justice Scarman and Mr. Justice Dunn
October 10 and 17, 1974
Sentence—General Aspects of Punishment—How Far Applicable at Present Time.
Evidence—Antecedents of Defendant—Appropriate Manner of Giving—Matters Disputed by Defence.
Observations on the general aspects of punishment—retribution, deterrence, prevention and re-habilitation and how far they are relevant to the present day.
Great care should be taken in giving to the trial judge the antecedents of a convicted person, and the practice laid down in Van Pelz (1942) 29 Cr. App. R. 10 should be followed. Defending counsel should read the police report of the antecedents beforehand and, if there is anything in it which *75 is disputed by the defendant, he should bring that matter at once to the attention of prosecuting counsel. Prosecuting counsel must then decide whether to call admissible evidence to prove the disputed facts or prevent the police officer from giving evidence about the disputed matters.
Van Pelz (1942) 29 Cr. App. R. 10 and Robinson (1969) 53 Cr. App. R. 314 followed.
Appeal against sentence.
The appellant pleaded guilty at the Central Criminal Court on May 20, 1974, to affray and was sentenced by His Honour Judge Argyle Q.C. to two years’ imprisonment.
H. M. Boyd for the appellant. No counsel appeared for the Crown.
Lawton L.J.:
On May 20, 1974, at the Central Criminal Court, the appellant pleaded guilty to a charge of affray at the end of the prosecution’s case. On May 24, 1974, he was sentenced by His Honour Judge Argyle to two years’ imprisonment. He now appeals against that sentence by leave of the single judge, who asked for an up-to-date Social Enquiry report to be prepared. He also asked the prison authorities to report how this appellant had reacted to his sentence.
During the evening of October 26, 1973, the appellant was on duty at a discotheque at Crown Hill at Croydon, together with three other doormen. Their job in colloquial language was to act as “bouncers.” The appellant had no criminal record. The other bouncers had. One of them had a bad criminal record. There was another man on the staff of this discotheque who was taking part in what the prosecution alleged was the affray. He too had a bad criminal record.
The duties of the bouncers were to see that people did not get into the discotheque without paying and to maintain order inside. They must have had a difficult job. When this offence was committed, which was about midnight on October 26, 1973, there were no less than 700 people there. The discotheque was licensed and there was more than one bar. These bars were open up to the ordinary licensing hours. But by taking advantage of certain provisions in the Licensing Acts, the proprietors of that discotheque were able to go on serving liquor after the end of ordinary licensing hours by having a so called “waitress service.” The result of that way of running the discotheque was to make it a magnet for young men in the Croydon area, who had been drinking in public houses and who wished to go on drinking after the public houses closed.
A party of young men had been drinking in a public house in the Carshalton area. They were respectable young men as far as is known. By the time when this public house closed, a few of them had had more to drink than they should have done. They decided, as young men are wont to do, to continue their drinking at this discotheque in Croydon. They went there, some in a mini-bus which had been laid on for the purpose, and others in their own motor vehicles.
When they got to the discotheque, they went up to one of the bars. By this time there was waitress service in the bar. This inevitably meant that there was some delay in people getting served with drinks. Some of the young men there became impatient. One of the young men who had come in the party from Carshalton started behaving badly. Perfectly properly one of the bouncers told him to stop it, otherwise he would be put out. He did stop.
The appellant had been nearby whilst this young man had been making a nuisance of himself. The appellant seemed to think that the situation called for some physical intervention on his part. He went up to this young man, *76 caught him round the neck, and then butted him two or three times. There was no need for this intervention, still less for the violence. The inevitable happened. The group of young men from Carshalton, seeing their friend being treated in this way, intervened. Thereupon the other bouncers joined in. There followed a scene of extreme violence. Very serious injuries indeed were inflicted on some of these young men, and it is clear that somebody, but not this appellant, used weapons upon the young men. Fortunately perhaps for this appellant, he was quickly put out of action by somebody’s foot coming into contact with his testicles. The evidence would indicate that the injury which he sustained, if not serious, was painful.
As a result of this affray, the police arrived on the scene. At first they did not appreciate that the bouncers had been involved to the extent to which they had been. The young men were taken to hospital to be treated for their injuries. In due course the police decided that the bouncers had to be interviewed. They were taken to the police station. It is to this appellant’s credit that, almost as soon as he arrived there, he made a frank and accurate statement to the police as to what his part had been. By this time he was clearly sorry for what he had done. He told the police that he appreciated that he had over-reacted to the situation, and had used more force than was necessary. Very properly the bouncers were charged with affray and sent for trial.
At the trial this appellant and another bouncer, whose name was Trestain, pleaded guilty. The other bouncers were acquitted. We have been informed this morning by counsel that yet another employee, who was involved but who was not arrested at the time, has since been arrested and committed for trial. The man Trestain was sentenced by Judge Argyle to three years’ imprisonment. He has not appealed, and it is not for us to make any comment of any kind about the sentence which was passed on him. We are concerned solely with the sentenced passed on this appellant.
As I said at the beginning of this judgment, this appellant has had no previous convictions. He is 26 years of age, and a skilled green-keeper in the golfing world. He started acting as an assistant green-keeper in his adolescence. He has acquired a good deal of expertise. He has had jobs as green-keeper with a number of distinguished and well-known golf clubs. The tragedy of his case is that the very day on which he appeared at the Central Criminal Court he should have been starting work as head green-keeper with one of the best known golf clubs in the south of England. His conviction has inevitably meant that that job is no longer available to him, and it also means that there is a strong possibility that no golf club will ever employ him again. By his stupidity on this occasion, he has deprived himself of a career in the golfing world, and all because he lost his temper when trouble started. The very fact that he has lost his career is of course a severe penalty for him.
The problem for this Court is whether the sentence was wrong in principle. It is necessary for this Court to analyse the facts of this case. We have come to the conclusion that, if the trial judge did analyse them, he analysed them incorrectly. What really was the case against this appellant? His job was to help to keep order. He was inexperienced in that job. It is clear from his record that he is inclined to be headstrong. I say that, because despite his skill as a green-keeper, he has had some difficulty in keeping jobs, because he cannot always see eye to eye with golf clubs’ secretaries. He had had something to drink whilst he was on duty that night, though there was nothing to suggest that he had had too much to drink. If he had followed the instructions of his employers, he would not have had anything to drink. He was faced with a situation in which a young man had been misbehaving. He took the view, wrongly with hindsight, that the best way of dealing with the potential difficulties which *77 that young man might cause, if he resumed misbehaving, was to use some force on him. He used no weapon. What he did do was to butt the young man, which can be very painful for the victim. If he had thought for a moment, he would have appreciated the nature and extent of the chain of events which he was starting. It is almost certain that he did not think. Young men who act in this kind of physical way seldom do think of what the consequences are going to be. The evidence establishes that very soon after he did what he did he was put out of action and took no further part in the appalling violence which followed.
What ought the proper penalty to be? We have thought it necessary not only to analyse the facts, but to apply to those facts the classical principles of sentencing. Those classical principles are summed up in four words: retribution, deterrence, prevention and rehabilitation. Any judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case with which he is dealing.
I will start with retribution. The Old Testament concept of an eye for an eye and tooth for tooth no longer plays any part in our criminal law. There is, however, another aspect of retribution which is frequently overlooked: it is that society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass. The courts do not have to reflect public opinion. On the other hand courts must not disregard it. Perhaps the main duty of the court is to lead public opinion. Anyone who surveys the criminal scene at the present time must be alive to the appalling problem of violence. Society, we are satisfied, expects the courts to deal with violence. The weapons which the courts have at their disposal for doing so are few. We are satisfied that in most cases fines are not sufficient punishment for senseless violence. The time has come, in the opinion of this Court, when those who indulge in the kind of violence with which we are concerned in this case must expect custodial sentences.
But we are also satisfied that, although society expects the courts to impose punishment for violence which really hurts, it does not expect the courts to go on hurting for a long time, which is what this sentence is likely to do. We agree with the trial judge that the kind of violence which occurred in this case called for a custodial sentence. This young man has had a custodial sentence. Despite his good character, despite the excellent background from which he comes, very deservedly he has had the humiliation of hearing prison gates closing behind him. We take the view that for men of good character the very fact that prison gates have closed is the main punishment. It does not necessarily follow that they should remain closed for a long time.
I turn now to the element of deterrence, because it seems to us the trial judge probably passed this sentence as a deterrent one. There are two aspects of deterrence: deterrence of the offender and deterrence of likely offenders. Experience has shown over the years that deterrence of the offender is not a very useful approach, because those who have their wits about them usually find the closing of prison gates an experience which they do not want again. If they do not learn that lesson, there is likely to be a high degree of recidivism anyway. So far as deterrence of others is concerned, it is the experience of the courts that deterrent sentences are of little value in respect of offences which are committed on the spur of the moment, either in hot blood or in drink or both. Deterrent sentences may very well be of considerable value where crime is premeditated. Burglars, robbers and users of firearms and weapons may very well be put off by deterrent sentences. We think it unlikely that deterrence would be of any value in this case.
We come now to the element of prevention. Unfortunately it is one of the facts of life that there are some offenders for whom neither deterrence nor *78 rehabilitation works. They will go on committing crimes as long as they are able to do so. In those cases the only protection which the public has is that such persons should be locked up for a long period. This case does not call for a preventive sentence.
Finally, there is the principle of rehabilitation. Some 20 to 25 years ago there was a view abroad, held by many people in executive authority, that short sentences were of little value, because there was not enough time to give in prison the benefit of training. That view is no longer held as firmly as it was. This young man does not want prison training. It is not going to do him any good. It is his memory of the clanging of prison gates which is likely to keep him from crime in the future.
In the light of that analysis of the classical principles to be applied in sentencing, what is the result on the facts of this case? The answer is that this sentence is much too long. It was submitted that a suspended sentence should have been passed. For the reasons I have already given, we do not agree. But we are satisfied, having regard to the facts of this case and the social inquiry and prison reports which the Court has been given that we can deal with this case by substituting for the sentence which was passed such a sentence as will enable him to be discharged today. To that extent the appeal is allowed.
The case was adjourned for re-hearing on October 17, 1974.
The appellant was not represented. Leonard Gerber for the Crown.
Lawton L.J.: When the appeal of James Henry Sargeant was before the Court last week our attention was drawn to the fact that Detective Inspector Ingram, as he then was (he has since retired from the Metropolitan Police) at the trial had given evidence about Sargeant in these terms: “Q. And do you understand that apart from employment at Scamps, his last employment was as a head greenkeeper? A. Yes, Sir. Q. Which terminated on August 31 of last year, he being dismissed for drunkenness? A. Yes, Sir.”
Counsel defending Sargeant had instructions that that was not true. As a result he cross-examined the Inspector as follows: “Q. My instructions also are that he left his last greenkeeping job having given in his notice, and not for the reason given in your report, but I believe your source of information is the Club Secretary? A. The Club Secretary, Sir.” The inference which the Court draws from the form of defending counsel’s question is that before the Inspector gave the evidence to which I have referred there had been some discussion either between counsel and the Inspector or between defending counsel and prosecuting counsel about the circumstances in which the accused had come to leave his last employment. The Court also draws the inference that defending counsel had made it clear to somebody on the prosecution’s side that it was disputed that the accused had been dismissed for drunkenness. What then should have followed? If the prosecution took the view, as they could have done, that it would have helped the learned judge to know whether the accused had been dismissed for drunkenness, on finding that this allegation was disputed admissible evidence should have been called. The information which the Inspector gave to the Court was hearsay.
When the appeal came to this Court it was reported to the Court by the probation officer that the Club Secretary had denied that he had ever said anything of the kind alleged. He told the probation officer that the accused had left the employment on notice. The Court thought that this conflict of recollections was most unsatisfactory and as a result requested the Commissioner of Police for the Metropolis to have some inquiries made and, as we expected would happen, most thorough inquiries have been made and the results reported to the Court. In fairness to the ex-Inspector this should be said. He has given a circumstantial *79 account of how he got this information. Those from whom he says he got it have denied that they gave it to him. What is obvious, however, is that such information as was given by the Club Secretary to the Inspector was given over the telephone and we all know that messages given over the telephone can be misunderstood.
The Court has no intention of trying to resolve the conflict of recollection which exists in this case, but what it does propose to do is to call attention once again to, and to underline, the need for great care in the giving of evidence of antecedents. As I reminded counsel in the course of discussion, before 1941 it was a common practice for police officers giving evidence of antecedents to make general observations about an accused person such as “He is known to resort with prostitutes and thieves.” In 1941 the Court of Criminal Appeal in the case of Van Pelz, 29 Cr. App. R. 10, disapproved strongly of that kind of evidence. Perhaps I might call attention to what was said by the police officer in that case. The accused was a woman and it was said of her: “She is very well known indeed as a prostitute who frequents the West End of London with a view to contacting men with money, and her activities in this direction have exercised the mind of the police for a considerable time past.” I am not going to read from the judgment, I will read part of the headnote: “A police officer called after conviction to give evidence of the character and antecedents of the prisoner should in general confine his evidence to the previous convictions (if any) and antecedents of the prisoner, including evidence of the prisoner’s home and upbringing if his age makes this information material. He should also inform the Court of any matters (whether the subject of charges which are to be taken into consideration or not) which he believes are not disputed,” and I would wish to underline the word “disputed,” “by the prisoner and ought to be known to the Court. He should, further, inform the Court of anything known in the prisoner’s favour, such as periods of employment or good conduct.” Following that case it became the practice at the Bar for prosecuting counsel to give defending counsel an opportunity of making representations about any matter in the antecedent report which was disputed. The Court was pleased to hear from Mr. Gerber today that that practice still continues.
Defending counsel should read the antecedent report and, if there is anything in it which is disputed by his client, he should bring that matter at once to the attention of prosecuting counsel. Prosecuting counsel will then have to make up his mind whether to call admissible evidence to prove the disputed facts or to omit them from the evidence. That means, of course, that he must stop the police officer giving evidence about the disputed matters.
We have not had the benefit today of hearing prosecuting counsel in this case, through no fault of his, so we do not know exactly what happened. The most we can do is to infer that it is probable that defending counsel indicated in some way that there was a dispute about this matter of the dismissal. Whether defending counsel pointed to the disputed facts clearly enough, again we do not know, and we make no criticism of counsel on either side. What we do wish to do is to underline the importance of the principle in Van Pelz (supra) being followed.
It was found necessary in 1969 in Robinson, 53 Cr. App. R. 314, to draw attention to the need for care in this matter. Once again we call attention to the need for great care in this matter. Nothing gives a bigger sense of injustice to a convicted man than false statements being made about him after the verdict. We hope that it will not be necessary for some time now to remind anybody of the importance of this matter.
Representation
- Solicitor: The Solicitor, Metropolitan Police, for the Crown.
Sentence reduced.