Barratt, R. v

On 6th November 2016 there was a riot at HMP Bedford. Disorder broke out after inmates refused to go back into their cells following their afternoon association time which had been cut short due to staff shortages. The disorder was brought under control after a number of hours when prison riot teams were called in. The disorder was largely captured on CCTV.

Several prisoners were charged with offences arising out of the disturbance. Seven prisoners, including the appellant, were charged with offences under the Prison Security Act 1992 ("the Act"), five of them with affray and one of them with an offence of burglary.

Section 1 of the Act provides, so far as material:

The section creates a single offence of prison mutiny which can be committed either under subsection (2), when at least two prisoners engage on the conduct with the requisite purpose, or under subsection (4), on the basis of deemed participation in the mutiny.

The appellant and one other prisoner, Kevin Murphy, were originally charged with actual participation under subsection (2). However, on the first day of trial prosecution was permitted to amend the indictment to add a second count of deemed participation under subsection (4). An application made by all defendants to dismiss that count was rejected by the Judge. Following that ruling the appellant pleaded guilty to count 2. The co-accused maintained their not guilty pleas and the trial continued on count 1 against the appellant and Murphy and on count 2 as against the remaining co-accused. On the eighth day of the trial the prosecution offered acceptable pleas to affray for the co-accused and agreed to let count 1 lie on the file in respect of the appellant and Murphy.

The prosecution case was that the appellant and his co-accused were among those who engaged in this riot. Specifically, in relation to the appellant, the Prosecution alleged that he was a ringleader and that he and Murphy organised the disorder by encouraging other inmates not to return to their cells at the end of association. As part of the disorder it was alleged that the appellant had pulled a phone off the wall, entered the wing office and taken food, washed his hands and used the telephone, put on an officer's uniform that was hanging in the office, kicked something in the doorway and been involved in the destruction of the hard drive of the CCTV. The prosecution relied upon the evidence of Officer Spencer, that she had given the order to lock up at the end of association and the CCTV footage of the disorder.

On count 1, actual participation, the appellant disputed that he had been a ringleader, that he told anyone to refuse to “lock up” or shared any intention to overthrow lawful authority in the prison. On count 2 the appellant's case was that, although he had heard Officers Spencer's order to “lock up”, that was before the mutiny had started. He accepted that he had joined the disorder after the mutiny began but there had been no direction to submit to lawful authority during the time with which he could have complied.

Relying upon the authority of R v Mason and Cummins [2005] 1 Cr App R 11, the basis of the submission made to the judge to dismiss count 2 was in summary:

In a succinct but clear ruling the judge refused to dismiss count 2. He rightly identified under subsection (4) that there was no requirement that any particular instruction be given. In any event, the judge was satisfied that any instructions given by the officer to the prisoners to return to their cells were ongoing instructions that carried on until complied with. The issues of when, then the mutiny had started that evening whether the defendants had a reasonable opportunity to submit to lawful authority were ultimately matters for the jury to determine.

As noted above, following the Judge's ruling the appellant pleaded guilty. Following discount for guilty plea the Judge sentenced him to 2 years' imprisonment. The Judge noted that the riot had caused around £750,000 worth of damage and caused the prison capacity to be reduced from 510 to 251 prisoners. That led to prisoners having to be re-accommodated in other prisons. It took a year before the prison was restored to full operational capacity. The Judge was satisfied that the Appellant had been encouraging other prisoners at the start of the disturbance and, during the riot, he had personally broken into the office on the wing causing damage to property and to the computer equipment. There were no sentencing guidelines but the Judge considered the authority of R v Whiteman [2004] Cr App R(S) 59, where a sentence of 4 years was upheld as a starting point even for those who had joined the disturbance after it had started, albeit in a much more serious riot.

The Appellant sought to appeal against conviction and sentence. As to conviction he contended that the Judge's ruling was wrong and that he had failed to consider the effect of Mason and Cummins, in particular the need for ‘synchronicity’ between the mutiny and the failure to submit to lawful authority. It is contended that, as no orders were given to bang up after the mutiny had started, the Appellant had no opportunity to substitute to lawful authority. The Registrar referred the application for permission to appeal to the Full Court.

Mr Aldred, on behalf of the Appellant, has helpfully developed these submissions before us today. It is common ground that the only instructions to prisoners was that given by Officer Spencer at 16.38. He relies on the fact, as stated in the prosecution's opening note prepared for the court:

We are satisfied that Mason and Cummins establishes the following propositions:

There appears to be no authority as to the interpretation of what amounts to "failing to submit to lawful authority” in this context.

In our judgment, it is important to concentrate upon the words of subsection (4). In order for a defendant to be deemed to be taking part in a prison mutiny the prosecution must prove two things: (1) that a mutiny was taking place in the prison and (2) a prisoner who has, or is given a reasonable opportunity to do so, fails to submit to lawful authority. A defence of “reasonable excuse” for the failure is available but does not arise on the facts of this case.

The concentration upon the order given by Officer Spencer at 16.38 for prisoners to return to their cells is, we find, a distraction. The offence is not committed by failing to follow an express instruction during a mutiny. A reasonable opportunity of submitting to lawful authority does not require any order to have been given. The fact that an order has been given and not heeded may well be powerful evidence that the defendant did in fact have a reasonable opportunity to submit to authority and failed to do so, but it is not necessary for an order to be given.

The Appellant did not contend that during the late afternoon/early evening on 6 November that there was not a mutiny in Bedford Prison, nor did he suggest that, once it started, he submitted to lawful authority. On the contrary, whilst it was taking place he broke into the wing office and damaged a number of items. On that basis the judge's decision to refuse to dismiss the s.1(4) count was correct.

The Crown's opening note was perhaps not helpful in isolating the real issue:

The fact that an order to prisoners to return to their cells is given before a riot starts may well, depending on the facts, fall to be characterised as a continuing instruction. But for the reasons we have explained, whether it does so is not determinative whether there has been a failure to submit to lawful authority. We are satisfied that the judge correctly held that section 1(4) did not require the giving of any specific instruction.

The requirement of synchronicity in Mason and Cummins is simply that the failure to submit to lawful authority, where there is a reasonable opportunity to do so, must be at a time when the mutiny is in process. The issue does not arise on the facts of this case. It is plain that the appellant did not submit to lawful authority once the disturbance in Bedford Prison had ripened into a mutiny. He had a reasonable opportunity to do so by returning to a cell otherwise disengaging. He did not contend that he had a reasonable excuse for not doing so.

In Mason and Cummins the Court of Appeal made brief reference to the passage of the Bill in Hansard [18]. We invited counsel's submission on the statements made on behalf of the government during the Committee stage in the House of Lords on 3 March 1992.

An amendment had been tabled to remove section 1(4) on the grounds it had the potential to catch people who are simply standing around whilst a mutiny took place. In addition, concern was expressed that some prisoners, for fear of retribution, might feel unable to submit to the prison authorities during the riot.

Earl Ferrers, on behalf of the government, responded to these points as follows:

On behalf of the appellant, Mr Aldred, having reviewed the Hansard extract that we have just set out, suggested it did somewhat damage the submission he is advancing on behalf of the appellant.

As it happens, we have not considered it necessary to resort to Hansard to interpret the section. We are satisfied that the section is not ambiguous as to its effect. But we note, that it is consistent with the view that we have reached. There may be cases where the court will have to consider what amounts to "submitting to lawful authority" and whether a prisoner had a reasonable opportunity to do so during a mutiny. That point does not arise in this case and so for the reasons we have given the appeal against conviction is dismissed.

Turning to sentence, Mr Aldred submits that fixing the sentence at 3 years, before discount, for the appellant's role in this case was manifestly excessive. The disorder in Whiteman was not only more serious but much more serious, in significant ways, and meant a sentence of 3 years for the appellant's offence could not have properly taken into account the lack of a large number of aggravating factors.

We do not find comparison of particular features of individual cases to be very helpful. In the present case, £750,000 worth of damage was caused together with major disruption to the prison system. The judge's remarks identify the appellant's culpability in the offence as high. He was not a mere bystander. He had encouraged the disorder, had participated in the mutiny and had himself caused significant damage. A sentence of 3 years before discount was not manifestly excessive. The appeal against sentence is therefore dismissed.