Alan Barnard [2019] EWCA Crim 1206
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Alan Barnard v Regina [2019] EWCA Crim 1206 concerned an appeal against sentence by a man convicted of grievous bodily harm and witness intimidation. The Court of Appeal (Lord Justice Holroyde, Mr Justice Martin Spencer and His Honour Judge Picton) dismissed the appeal.
On 16 January 2019 in the Crown Court at Sheffield, Mr Barnard pleaded guilty to inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 and witness intimidation contrary to section 51(1) of the Criminal Justice and Public Order Act 1994. He pleaded not guilty to attempting to pervert the course of public justice, which the prosecution did not pursue. On 11 February 2019 he was sentenced to eighteen months’ imprisonment for the section 20 offence and twelve months consecutive for witness intimidation, making a total of two and a half years. He appealed against the intimidation sentence only, conceding that the sentence for grievous bodily harm was justified.
On 25 November 2018 at around 7 p.m., the complainant Nicholas Ellis was outside the George Hotel Public House smoking. The appellant approached and struck him one blow to the left side of his face. Mr Ellis fell to the floor. The landlady, who was or had been in a relationship with the appellant, pushed the appellant inside. The incident was captured on closed-circuit television. Mr Ellis initially did not wish to make a complaint but four days later, because his jaw remained sore and swollen and he was struggling to eat, he attended hospital. An x-ray established that his jaw was broken. He was referred to another hospital where he underwent an operation and remained overnight. Mr Ellis informed the landlady that he was going to report the matter to the police. Shortly afterwards the appellant telephoned to apologise and ask if the charges could be dropped. He asked whether there was anything they could do to sort it out. Mr Ellis replied that because the hospital had logged it as an assault and the police were involved his hands were tied. The appellant contacted him again later and said he would put five hundred pounds in Mr Ellis’s bank account if the charges were dropped. Mr Ellis repeated that he could not do that. In a victim personal statement, Mr Ellis said the appellant’s contact had worried him because he was unsure whether the appellant might seek revenge and he felt the appellant was capable of causing serious harm if not stopped.
In passing sentence, the Recorder described the section 20 assault as unprovoked and against a vulnerable victim who had no warning and could not take protective action. He noted the consequences could easily have been more severe, including death given that Mr Ellis struck his head on the ground when he fell. The injuries required surgery and hospitalisation and caused great pain. The Recorder said the appellant had attempted to buy the complainant off with five hundred pounds, which was an offence against the criminal justice system requiring a consecutive sentence. The Recorder identified the appellant’s previous convictions for violence as an aggravating factor. By reference to the assault guideline he took a starting point of eighteen months, adjusted upward to two years for the aggravating features, then applied twenty-five per cent credit for the guilty plea to reach eighteen months for the section 20 offence. He imposed twelve months consecutive for witness intimidation.
The appellant, aged thirty-nine, had eight previous court appearances for eleven offences between 1995 and 2017. He had received a non-custodial sentence for assault occasioning actual bodily harm in 1995, four months in a young offender institution for assault occasioning actual bodily harm in 1998, and a non-custodial sentence for assault occasioning actual bodily harm, criminal damage and common assault in 2002. In 2014 he had received sixteen months’ imprisonment suspended for twenty-four months for a section 20 wounding. His other offences were for excess alcohol and breaches of court orders. In the pre-sentence report he said he punched the victim because he saw him kissing his on-off partner. He said he later telephoned to apologise and make amends. He denied offering money to persuade Mr Ellis to withdraw his complaint, asserting it was never his intention to intimidate and he had genuinely felt bad. Excessive alcohol, poor emotional control and poor anger management appeared to have contributed. He said he had not drunk alcohol since the incident. The report noted custody would result in loss of employment and proposed a community disposal.
The grounds of appeal asserted that the sentence for witness intimidation did not appropriately take account of current case law or the totality principle, making the overall sentence manifestly excessive. Mr Davies, appearing for Mr Barnard, developed those submissions and referred the court to several authorities in the absence of a sentencing guideline.
In Chinery [2002] EWCA Crim 32 an appellant who told a witness to an assault in which he had been involved that bad things happen to people who grass and that she should watch her back received six months’ imprisonment, upheld on appeal. In Parry [2007] 1 Cr.App.R.(S) 62 an appellant who told a thirteen-year-old complainant in an assault case that something bad would happen if charges were not dropped received six months consecutive for witness intimidation, although the Court of Appeal made a two-month sentence for assault concurrent. In Lawrence [2005] 1 Cr.App.R.(S) 83 an appellant who threatened to kill his father and tell people his father was a sex offender received sixteen months reduced on appeal to eight months, the court noting that the appellant committed the offence when intoxicated and some threats were uttered when already in custody. In Younger [2014] EWCA Crim 2376 an appellant convicted after trial who, two days after receiving a suspended sentence for theft, shouted a threat to do a security guard involved in his arrest received eighteen months reduced to twelve months on appeal. The Court of Appeal in that case referred to Smith [2011] 2 Cr.App.R (S) 676, which identified factors bearing on sentence as being whether intimidation was isolated or part of a campaign, the content of any threat, whether intimidation was accompanied by violence, the circumstances in which the threat was uttered, whether contact was premeditated or by chance, and the impact on the witness. The court in Younger also emphasised that the key factor is the public policy of ensuring the integrity of the justice system through sentences with a general deterrent effect.
The Court of Appeal noted that the present case did not involve any specific threat of violence but identified a number of aggravating factors. The appellant made two efforts to contact Mr Ellis and the conversations did not take place in chance meetings. He did so knowing he had been responsible for a serious assault causing significant injury. He would have understood he faced imprisonment if the matter were pursued. He chose in those circumstances to offer Mr Ellis what could only be described as a bribe in the hope of persuading him not to support a prosecution. By his plea he accepted that his actions were intended to and did have an intimidatory effect. The victim personal statement confirmed that to be the case. Such behaviour clearly had the potential seriously to undermine the integrity of the justice system.
The Recorder did not identify the sentence he had in mind before applying credit for plea, but it appeared likely to have been sixteen months. The court considered whether, in the light of such assistance as the cases provided and bearing in mind totality and the mitigation available, this resulted in a sentence that should be assessed as manifestly excessive. After careful reflection on the arguments advanced, the court concluded that whilst the sentence was undoubtedly severe and at the very top of the range one might expect for this kind of offending, in the particular circumstances of the case it was not manifestly excessive and accordingly the appeal was dismissed. In short, a twelve-month consecutive sentence for witness intimidation by offering a bribe to a victim of serious assault was upheld as severe but not manifestly excessive.