Fokrul Islam [2019] EWCA Crim 1494
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Fokrul Islam [2019] EWCA Crim 1494 concerned an appeal to the Court of Appeal (Criminal Division) by Mr Fokrul Islam against the length of a driving disqualification, in which Lords Justice Males and Edis and Mr Justice Jay dismissed the appeal.
Mr Islam pleaded guilty on 18 December 2018 before Her Honour Judge Canavan to dangerous driving contrary to section 2 of the Road Traffic Act 1988. On 17 January 2019 he was sentenced to 12 months’ imprisonment suspended for 24 months with a requirement of 250 hours of unpaid work. He was also disqualified from driving for four years and until passing an extended driving test. He appealed with leave of the single judge against the length of the disqualification only.
At around midday on 22 June 2018 police officers in Limehouse, London, observed Mr Islam driving and stopped to speak to him, having seen that he was not wearing a seat belt. Upon becoming aware of their interest Mr Islam accelerated away, causing wheelspin. He drove the wrong way down a one-way street and then onto another road, forcing an oncoming vehicle to mount the pavement to avoid a collision. The speed exceeded 20 mph in congested conditions and the incident lasted approximately two minutes. The police later found the car abandoned nearby. When officers attempted to break into the vehicle, Mr Islam approached and agreed to let them in, taking them to where he had hidden the keys. A search revealed a small packet of cannabis in the boot. Body-worn camera footage recorded the driving and relevant admissions after he was stopped. He initially denied dangerous driving, alleging he had been targeted by the police.
Mr Islam had appeared before courts on about 24 previous occasions between 2006 and 2016 for 41 offences. In May 2013 he had been convicted at East London Magistrates’ Court of driving without a licence, taking vehicles without consent, and driving uninsured, and had been disqualified. His most recent conviction before this offence was in May 2016 for supplying controlled drugs, for which he received three years’ imprisonment. He was released on licence on 5 January 2018, that licence expiring on 18 May 2019. Following his arrest for dangerous driving he was recalled to prison on 5 July 2018 and detained until 5 August 2018. The insurance he purported to have was invalid because he had concealed his antecedents when obtaining it.
In sentencing, the judge noted that he had committed offence after offence and thrown back every opportunity the court had given him. She observed that he was on licence for serious offences when he committed this offence and described him in non-technical language as a waste of space. Because he had already been recalled to prison, she decided to give him an opportunity to do something useful by suspending the sentence, although she strongly suspected he would breach the order. That suspicion proved correct, as by the time of the appeal Mr Islam was in Brixton Prison serving 11 months after breaching the suspended sentence order.
Mr Islam’s ground of appeal, advanced by Ms Aska Fujita, was that the four-year disqualification was manifestly excessive.
The court noted that disqualification for not less than 12 months and the extended test requirement were mandatory for dangerous driving. There were no guidelines for the length of disqualification where a judge decided a longer period was required. The court reviewed a number of authorities concerning disqualification length. It held that one principle was that disqualification should not be so long as disproportionately to affect rehabilitation prospects, although in this case those prospects did not appear promising. Another principle was that disqualification should prevent harm to the public, a principle of most weight with younger offenders who might grow out of dangerous driving tendencies, but Mr Islam at 27 was past that age and no one could know when he would cease to be a danger.
The court considered the extent to which disqualification might properly be regarded as punitive. In Backhouse [2010] EWCA Crim 1111, at paragraph 21, this Court upheld a four-year disqualification on different facts, observing it was intended to have a punitive effect. That approach was cited in Griffin [2019] EWCA Crim 563. The court held that disqualification having a punitive element was in accordance with the Criminal Justice Act 2003, as disqualification was part of the sentence and should reflect culpability and harm and achieve the statutory purposes of sentencing in section 142 of the 2003 Act, which included punishment.
The court emphasised that there was no formula for measuring the right length of disqualification; it was a judicial decision tailored to the offender and offence. In this case the offence was serious, involving a successful attempt to avoid or defer encountering the police. Mr Islam had a very significant criminal record and was on licence. It was an aggravating feature of considerable significance that his motive was to evade the police and that he did evade them temporarily. A substantial disqualification was required to reflect a man with a significant criminal record who chose to place innocent members of the public at risk even of death to avoid being spoken to by the police.
The court held that balancing all factors and sentencing principles, the choice for the judge was for a disqualification between three or four years. The period of four years chosen was within the range properly open to her, albeit at the top. It was not possible to describe the disqualification as manifestly excessive. There was no reason to suppose that four years would create any greater risk to rehabilitation than a shorter disqualification. The court assessed the sentence as matters stood before the judge in January 2019 without regard to subsequent events, save that it would have had regard to any beneficial factor, of which there was none. In short, the appeal against the four-year driving disqualification was dismissed as the sentence was within the proper range available to the judge despite being at its upper limit.