Recent headlines about the “breathtakingly lenient” sentence given to Lavinia Woodward, the Oxford University student who “walked free” after stabbing her boyfriend, supposedly because she was white, female and clever, raised important questions over bias in our criminal justice system.
Last week the judge in the case, Ian Pringle, QC, faced three complaints to the Judicial Conduct Investigations Office about the sentence. They were rapidly dismissed as being beyond the scope of the office, which cannot look at sentences because of judicial independence.
However, the case has as much to do with how crime stories are typically reported and public perceptions as it does with questions of judicial conduct.
The Sentencing Council issues definitive sentencing guidelines, which judges are required to follow in most cases. The guidelines for assault set out a step-by-step process. However, before looking at these guidelines in the context of the Woodward case, it is helpful to look behind the colloquial wording of reporting to reveal the legal principles beneath.
Newspaper court reports often refer to a “stabbing”, yet no such offence exists. The legal offence is usually “wounding” or “grievous bodily harm” (GBH). Various GBH offences are created by sections 18 and 20 of the Offences Against the Person Act 1861. In the Woodward case the charge was wounding, which is defined as a break to the continuity of the skin.
There are two separate wounding offences: first, “wounding with intent to do GBH”, which means intending really serious harm, carrying a maximum penalty of life imprisonment; second, “unlawful wounding”, which means wounding without an intention to do GBH, carrying a maximum penalty of imprisonment for five years. A big difference, not often made clear in news stories. Woodward appears to have been charged (by the Crown Prosecution Service, not the judge) with this lesser offence.
Then one can look at the sentencing rules Judge Pringle would be required to apply. Step one requires the judge to assess harm as greater or lesser, and culpability as higher or lower. He seems to have assessed harm as lesser (a few minor lacerations) and culpability as higher (use of a knife). This gives the judge the starting point, for sentencing, of 18 months.
The judge then considers mitigating and aggravating factors, which enable him to move upwards and downwards from this starting point within the range defined by the guidelines, which is one to three years.
Here, the obvious aggravating factor is that Woodward appears to have been intoxicated. Obvious mitigating factors are previous good character, the absence of previous convictions, remorse, isolated incident and steps taken to address addiction. All of these factors are identified in the guidelines. Defence counsel invited the judge to give weight to further factors, such as immaturity, vulnerability and certain personal difficulties from Woodward’s past.
Once the judge has moved up or down the range to account for the mitigating and aggravating factors, he applies a discount for the guilty plea. The guidelines require a one-third discount for a plea at the earliest opportunity. Here, the judge arrived at a final figure of ten months, which, assuming a full third credit for a guilty plea, gives a start point of fifteen months.
A young, blonde, privileged female involved in violent crime makes an ‘intriguing’ story
In deciding whether to suspend the sentence, which is a discretion available only where the appropriate custodial term is two years or less, a judge will usually consider all the circumstances and the objectives of sentencing. These are, principally, to punish, to deter others and to rehabilitate. Press reporting of the Woodward case did not highlight that suspended sentences are reasonably common for first-time offenders who have entered an early guilty plea and face a sentence of two years’ imprisonment or less.
Judge Pringle, in fact, decided to “defer” sentence. This is a relatively rare process that can be used where a defendant is seeking to overcome a dependence or addiction and the court wishes to test the defendant’s resolve.
Most cases that come before the criminal courts in England and Wales are disposed of by way of a guilty plea. A tiny proportion are reported. This is perhaps the biggest difference with the Woodward case: a person from a minority and economically disadvantaged background receiving a suspended sentence for an out-of-character drunken assault in a backstreet pub will, most likely, be of little interest to the press; but a young, blonde, privileged female involved in violent crime makes an “intriguing” story. This is perhaps the biggest reason Woodward’s case made headlines and her sentence then caused outcry.
Judges should, of course, be held accountable. But better education of the news-reading public to understand the operation of the legal principles behind the headlines, and how judges are applying them, is necessary too.
Mark Cotter Q.C. took silk in 2017, following a highly successful career as a junior specialising in serious and heavy crime (both for the prosecution and the defence). He undertakes a significant amount of private work and has, for many years, been ranked in Chambers and Partners as a leader in the field of crime at the London Bar.
