Gillett [2023] EWCA Crim 1530

R v Dominic Gillett [2023] EWCA Crim 1530 was a renewed application for leave to appeal against sentence heard by the Court of Appeal (Lord Justice Singh, Mrs Justice McGowan DBE and Mrs Justice Hill DBE) on 3 November 2023, which was refused. Miss Gardner appeared for the applicant.

On 9 January 2023 Mr Gillett, then aged 25, pleaded guilty on re-arraignment at the Crown Court at Bristol to riot contrary to section 1(1) of the Public Order Act 1986. No evidence was offered on an accompanying arson charge. He had earlier pleaded guilty to violent disorder, but that plea was vacated and the count marked as an alternative. On 21 February 2023 His Honour Judge Patrick sentenced him to four years and eight months’ imprisonment.

The offence arose from a protest on 21 March 2021 in Bristol city centre. Around 2,000 people attended College Green for a demonstration against the Police, Crime, Sentencing and Courts Bill, which began peacefully. By mid-afternoon, however, a fraction of the crowd turned their attention away from the proclaimed aim and focussed on the police. Some protesters moved to Bridewell Police Station and then to Castle Park, where a sit-in by peaceful protesters was joined by others who began to attack the police. The mood changed markedly. Chanting, previously directed at proposed legislation, became focussed on the police, with cries of “ACAB” and “All cops are bastards”. By 5.15 pm the crowd outside Bridewell Police Station was openly aggressive. Missiles were thrown at officers, who were initially in low-key uniform without helmets. Officers attempted to form a cordon, but the crowd pushed against them repeatedly. Violence escalated over several hours. Windows of the police station were smashed, police vehicles set alight (one while an officer remained inside), and shields, helmets and batons were taken from officers. The cost of damage ran to tens of thousands of pounds, many officers were injured, and the mental toll was considerable.

Mr Gillett, identified from extensive CCTV footage as person “Golf Charlie”, was seen wearing brown trousers, a grey jacket and a scarf covering the lower part of his face, later removing the jacket to use it as a face veil and revealing a dark shirt. The judge and the Court of Appeal both watched the CCTV. The prosecution relied on around nine examples of his conduct. He was the first person to climb onto a police van and stamp on it, helping others up and stamping aggressively on the front light in behaviour immediately copied by others. He was seen in early scuffles at the front line kicking down and under officers’ shields to strike their legs. When the crowd enveloped Bridewell Police Station, he removed a bicycle from the rack outside and carried it to the corner window, waving up at the crowd more than once to beckon others. He then attacked the window with the bicycle. Others joined in, but without enthusiasm. He renewed his attack, waving his hand forward, and the crowd followed him and succeeded in breaching the window at around 7.20 pm. At about 7.45 pm he left the crowd and made a beeline for a mobile police station vehicle parked alone on Bridewell Street. He climbed onto the bonnet and windscreen and stamped on the windscreen until it smashed. Prosecuting counsel described his actions as acting as a “catalyst” for the crowd, which then focussed on that vehicle. While another person set it alight, he attacked it with a shovel, helped rock it on its axles and added fuel to the fire. He was later seen silhouetted by the burning van, alone on the roof of one of the police vehicles as it tried to move away. When three police vehicles retreated down Bridewell Street behind the burning vehicle with a lone officer acting as rear guard, he picked up a wheelie bin, initially alone then with another person, and half-rammed and half-threw it at the officer. Later footage showed him throwing liquid at officers’ shields as they reformed the line.

Mr Gillett handed himself in on 24 August 2021 but declined to comment in interview. He advanced a written basis of plea which contended that he had engaged peacefully earlier in the afternoon, was not part of any organised group, had intended to protest peacefully, had assisted people with basic first aid and had at one point spoken calmly to officers asking them to respond less violently. As to specific incidents, he contended that others had attacked the police station windows before he became involved and that he had joined in at a later stage; that someone else had set the van on fire; and that he had not thrown bottles or stones. The judge accepted the basis of plea except for the “beckoning” aspect relating to the police station attack. The judge held that the CCTV showed the applicant had indeed encouraged others to join in the attack on the window, and sentenced him on that basis.

Mr Gillett had two convictions for four offences. In November 2016 he received a community order for possessing cocaine, being drunk and disorderly, and resisting or obstructing a constable. On 16 March 2021, only days before the protest, he was fined for an offence relating to an HS2 protest involving hiding tools or property. He also had a youth caution for common assault.

The judge applied the Sentencing Council guideline for riot. The prosecution contended that the applicant’s actions had escalated the level of violence and that he had been an instigator and played a leading role, placing the offence in culpability category A. Harm was agreed to be category 1. For a category 1A offence the starting point is seven years’ custody with a range of six to nine years. For a category 1B offence it is six years with a range of three to seven years. The judge considered the prosecution argument but concluded with some diffidence that this was category 1B. He observed that Mr Gillett had played a significant role over a long period encouraging others. Though acting alone, his actions encouraged others. The judge adjusted the starting point upwards from six years to six years and four months to reflect the aggravating features. These included that he was an active and persistent participant over a long period, that the events took place in a busy public area, that improvised weapons had been used, that alcohol had been consumed, and that he had a relevant previous conviction. The judge reduced the sentence by six months to five years and ten months to reflect personal mitigation, including genuine remorse shown in the pre-sentence report, insight into his offending, relative youth, attempts at rehabilitation, the delay since the offence (partly attributable to his own actions), and his capacity for hard work. A further discount for the guilty plea resulted in a final term of four years and eight months’ imprisonment.

The renewed application advanced four grounds. First, it was argued that the judge erred in placing Mr Gillett in the role of instigator and did not take the basis of plea into proper consideration. The Court rejected this. The judge did not in fact categorise the offence as 1A. He adopted category 1B and adjusted the starting point upwards slightly within the range. There was substantial evidence from the CCTV of repeated acts of violence and encouragement. The judge’s approach was measured and relatively generous. As to the basis of plea, the judge expressly accepted it save for the “beckoning” aspect. Having watched the CCTV, as the Court itself did, the judge was entitled to conclude that Mr Gillett did through his actions encourage people to attack the police station. The applicant could clearly be seen waving his arm with the apparent intent and effect of encouraging others to follow him towards the window he broke with the bicycle. A Newton hearing would not have assisted, as this issue turned entirely on what could be seen on the CCTV. The fact that the CCTV was selective and showed negative aspects of behaviour was inevitable; the judge had to focus primarily on the criminal acts. Minor inaccuracies in description, such as referring to the applicant as at the “head of the procession”, did not undermine the reasoning. Nor did the fact that the thrown liquid was milk, or that there were police vans behind the officer at the wheelie bin incident.

Secondly, it was submitted that the judge failed to have sufficient regard to those already sentenced. The grounds cited six other defendants whose sentences ranged from three years and nine months to five years and ten months’ imprisonment. The Court noted that each sentencing exercise is fact specific and that the relevant test for disparity is whether right-thinking members of the public knowing the facts would think something had gone wrong with the administration of justice (R v Fawcett (1983) 5 Cr App R(S) 158). There were several aggravating factors that applied to Mr Gillett but not necessarily to others: he was active and persistent over a long period, incited others, and threw missiles and objects. The judge had sentenced many if not all of the others and was well placed to assess relative roles. There was nothing in the information provided about other sentences that gave cause for concern.

Thirdly, it was argued that the judge failed to have sufficient regard to personal mitigation, particularly that the six-month discount was insufficient. The Court held that the judge had referred specifically to the pre-sentence report and made clear which mitigating factors he accepted: genuine remorse, insight, youth, rehabilitation efforts, the period the offence had been hanging over him, and capacity for hard work. The judge’s approach was careful and sensitive, and the weight attached to those factors could not render the sentence manifestly excessive.

Fourthly, it was contended that too much emphasis was placed on the HS2 conviction. The Court noted that the fine had been imposed days before the events in this case and for similar activity, so the judge was entitled to regard it as highly relevant. In any event, the judge had referred to several aggravating features and increased the starting point by only a modest amount from six years to six years and four months. There was no error in the approach to the previous conviction.

In short, the Court refused leave to appeal, holding that the judge had conducted a careful fact-specific sentencing exercise, had properly identified the applicable guideline category, had been entitled to depart from the basis of plea on one limited aspect supported by the CCTV, had given appropriate weight to mitigation and had not erred in relation to parity or the treatment of previous convictions.

R v Fawcett (1983) 5 Cr App R (S) 158