R v Perrie Michael Fisher

This application for leave to appeal against sentence has been referred to the Full Court by the Registrar.

On 20 August 2024 the applicant Perrie Fisher, aged 29, pleaded guilty in the magistrates' court to an offence of violent disorder, contrary to section 5(1) of the Public Order Act 1986 and to an offence of failing to surrender to custody at a previous hearing, contrary to section 6(1) of the Bail Act 1976. He was committed for sentence to the Crown Court.

The following day, 21 August, the applicant appeared at Winchester Crown Court and was sentenced by His Honour Judge Nigel Lickley KC to 28 months' imprisonment for the offence of violent disorder and to one month consecutive for the Bail Act offence, a total sentence of 29 months' imprisonment. There is no appeal against the sentence for the Bail Act offence.

The grounds of appeal in relation to the violent disorder are, first, that the judge wrongly categorised the culpability element of the offence and consequently applied too high a starting point; and second, that there is an unfair disparity between the applicant's sentence and the sentences imposed on other defendants on a later date by a different judge for their part in the same incident of violent disorder.

We are grateful to Miss Alexandra Scott on behalf of the applicant and Mr Duncan Atkinson KC on behalf of the Crown for their written and oral submissions.

The violent disorder took place on the evening of Wednesday 31 July 2024 in Aldershot outside a hotel that was being used by the Home Office to house asylum seekers, 85 families in total. This was two days after the tragic fatal stabbing of three young girls at a dance class in Southport. Fuelled by misinformation and far right sentiment, violence spread to various towns and cities across the country. Mosques and hotels housing asylum seekers were targeted. Many of those responsible for the violence were quickly identified and arrested and brought before the courts where they were swiftly convicted on their own pleas of guilty and sentenced. This incident in Aldershot was part of that pattern of serious public disorder and lawlessness, much of it racially aggravated.

At about 17.30 hours that day staff at the hotel informed the police that there was a crowd outside the hotel and that more people were arriving. Initially the planned protest was peaceful. In fact police officers had already been deployed but further units were sent as the numbers had grown to approximately 150.

At about 18.40 hours some 10 individuals gained access to the grounds of the hotel by jumping over a brick wall. Initially they were peaceful within the grounds, even playing football. However more and more people joined them through a gate. The applicant was one of them. He lived in Farnham. He had travelled to Aldershot, about four miles away, in order to join in this protest.

Much of what followed was captured on CCTV or other video footage. At about 18.44 hours some of the group began to look into the windows of the hotel attempting to see anyone inside. A fire cracker was set off and aimed into the hotel car park. A few minutes later a number of people in the group began to pick up bicycles in the compound and were seen to throw them into skips in the car park. These bicycles had apparently been donated for the use of the families living in the hotel.

There was footage showing the applicant riding around on one of the bicycles with an England flag wrapped around him, before getting off and throwing the bicycle into a skip. Other footage showed the applicant picking up a child's scooter and throwing it at the hotel with force, resulting in a loud bang which was greeted with cheers from the crowd. The applicant then told a police officer to "fuck off". Next the applicant was seen with three bicycle wheels in his hands. He threw at least one of the wheels at the hotel, again with force. Finally he was seen again riding a child's bicycle wearing an England flag. He got off and threw the bicycle up a flight of stairs, hitting the doors of the hotel.

Because this was an offence of violent disorder the judge had to consider the whole picture of what was taking place, not simply the applicant's own individual conduct.

As part of that further background, at about 19.15 hours a young girl was seen kicking and punching the main door to the hotel. The police believed she was trying to gain entry. At the same time a man was seen forcing open windows of the property, reaching inside to grab and snap the blinds and pulling broken blinds back out through the window. The same man picked up a rock and threw it at the building. At 19.39 hours a group of males damaged a wall causing it to break. A few minutes later another flare was sent into the car park.

The police estimated that there were more than 200 people present at some points. Some of them entered the hotel grounds, damaging a gate, kicking footballs at the hotel windows, banging on the windows, attempting to force open doors to get into the building and reaching inside the building to damage blinds. All of these acts were accompanied at times by foul, abusive, racist chanting.

A police officer who tried to shut the gate to the hotel car park to prevent more people entering, suffered a minor injury in doing so. The police were massively outnumbered and the situation was getting out of hand. Police reinforcements were deployed and after a short time the crowd dispersed and the hotel was secured. The value of all the damage caused was just short of £2,000.

There was evidence from the Deputy Chief Constable that the incident caused a genuine sense of fear in the local community with people worried to leave their own homes. People were concerned for the safety of their children and were struggling to explain to their children why they were not allowed to go outside. There was also a significant impact on local businesses which were forced to close early. Shops were boarded up for fear that they would be targeted next. The police dedicated significant resources to ensure that officers were in the right place to ensure that those intent on causing division did not succeed in their objective. Officers were required to work longer shifts and rest days were cancelled.

Following a media appeal using the CCTV and video footage, eight of the prominent offenders were identified, including the applicant. The applicant was arrested on 3 August, three days after the incident. When interviewed he made no comment. He was charged with violent disorder on 9 August and bailed to attend the magistrates' court on 13 August. He had a pre-booked holiday in Dubai with his partner and child beginning on 11 August, as he had previously told the police when he was interviewed and bailed.

There seems to have been some attempt on the applicant's behalf to have the hearing on 13 August adjourned but the applicant chose to go on holiday anyway rather than attend that court hearing. A bench warrant was issued not backed for bail. He was arrested on his return and produced in custody at the magistrates' court on 20 August when he entered the guilty pleas. Other defendants who had attended court on 13 August gave no indication of plea and were sent to the Crown Court for trial, to appear for a plea and trial preparation hearing on 4 September.

Meanwhile, as we have explained, the applicant was in the Crown Court the day after his guilty pleas and sentenced that day. Other defendants were sentenced on later occasions by a different judge.

At the sentencing hearing the prosecution suggested in opening the case that the violent disorder was a Category 1B offence under the relevant Sentencing Council guideline. That had also been Miss Scott's contention in the note for sentence that she had prepared in advance of the hearing. In exchanges with prosecuting counsel, the judge made it clear that he regarded the violent disorder as a Category 1A offence, the level A culpability factor being "targeting of individual(s) by a group". He took the view that the applicant and the rest of the hostile crowd were targeting the asylum seekers and their families in the hotel.

For a Category 1A offence the starting point under the guideline is four years' custody with a range of three to four-and-a-half years. For a Category 1B offence the starting point is three years with a range of two to four years. The statutory maximum is five years. That no doubt accounts for the substantial overlap in the ranges. We observe that with a five year maximum there will necessarily be bunching towards the top of the ranges where the difference at the very top is only six months.

The applicant had a previous conviction for two offences of battery in 2012 for which he was sentenced to a youth rehabilitation order. In 2014 he had been fined for an offence of criminal damage.

There was no pre-sentence report, nor was any report necessary. Realistically an immediate custodial sentence was inevitable and the judge had character references for the applicant and a letter written by the applicant himself expressing his remorse.

In his sentencing remarks the judge said he was satisfied that the sole purpose of the activity of the group, including the applicant, was to intimidate, frighten and terrify the occupants of the building. They were the target. There was no legitimate purpose in this activity. It was totally unjustified and unlawful. Although there was no direct evidence in the form of witness statements from the residents at the hotel or security staff, they were undoubtedly caused alarm and distress by what was happening outside.

The judge was also satisfied that the sole purpose of the violence was hostility based on race or religion, given that the violence and the accompanying disorder were targeted at the occupants of a migrant hotel. The activity was designed to cause fear in the minds of vulnerable people and the applicant was acting with the others with the common purpose of damaging property and intimidating those in the building. His actions intentionally assisted and encouraged others and he was encouraged and assisted by them. The judge said that the applicant's actions were not momentary or accidental; he had made decisions. His actions were fuelled by hostility based on race and religion and the mob he was part of was very intimidating and very threatening.

Turning to the guideline, the judge was satisfied that two level B factors of culpability were established. First, the applicant participated in an incident which involved widespread and/or large-scale acts of violence on people and/or property. Second, he participated in an incident involving persistent and/or sustained unlawful activity. The presence of these two level B factors entitled the judge to consider level A culpability and he was satisfied that the level A factor already mentioned was established in that the applicant was part of a group targeting individuals, namely the migrant residents in the hotel and their families.

The judge was satisfied that there were the following multiple Category 2 harm factors which took it into Category 1 harm. First, the incident had caused serious fear, disruption and distress. Second, it had caused severe detrimental impact to the community. Third, it had caused loss of livelihoods. Fourth, there had been a cost to the public purse in terms of additional policing. There had also been some damage to property, albeit fairly modest in monetary terms. The judge was satisfied that it was a Category 1A offence with a starting point of four years.

Turning to aggravating and mitigating factors under the guideline, it was a serious statutory aggravating factor that the offence was motivated by and demonstrated racial hostility. Other aggravating factors under the guideline were that the applicant had thrown objects and that there were vulnerable people present in the hotel - although the judge cautioned himself against double counting as these had been factors in his assessment of culpability.

As to mitigating factors, the judge accepted that the applicant was genuinely remorseful and deeply regretted his behaviour on the day. He noted from the character references that people spoke highly of the applicant and described his behaviour on this occasion as out of character. The applicant and his partner had a young child, he was in employment as a subcontractor and employed others. The judge acknowledged the consequences of custody for others affected as well as the applicant himself.

The judge said that having made adjustments upwards and downwards from the starting point for these aggravating and mitigating factors, the appropriate sentence would have been three-and-a-half years' imprisonment after trial. The judge allowed full credit of one-third for the early guilty pleas, reducing the sentence to 28 months. He imposed a consecutive sentence of one month for the Bail Act offence.

In her focused and elegant submissions before us this morning, Miss Scott submits, first, that the judge was wrong to find that this was a Category 1A offence in the teeth of submissions from both prosecution and defence that culpability was at level B rather than level A. She submits that this violent disorder targeted the building; it did not target individuals and no individual in the building was put at risk of physical violence. She submits essentially that by taking a starting point of four years under the guideline for Category 1A rather than three years for Category 1B, it must follow that the sentence was manifestly excessive.

The grounds of appeal were lodged in October 2024 before this Court, presided over by the Lady Chief Justice, gave judgment in the combined appeals of Cush and others [2024] EWCA Crim 1382. The Court considered four separate cases from different parts of the country arising from similar episodes of violent disorder over the same few days in the aftermath of the Southport killings.

In the respondent's notice, not settled by Mr Atkinson, it is conceded that in view of observations made by the Court in one of the appeals in Cush, at [53], the judge was wrong to treat this as a Category 1A offence. We shall return to this concession. Mr Atkinson submits however that this does not mean that the judge's sentence of three-and-a-half years before credit for plea was manifestly excessive. Indeed, in that particular appeal in Cush , despite the same mis-categorisation of culpability, the Court nevertheless upheld the sentence the judge had imposed. In short, Mr Atkinson submits that from a guideline starting point of three years for Category 1B, the judge would still have been entitled to arrive at the same sentence of three-and-a-half years before credit for plea, having regard to the multiple culpability and harm factors, as well as the statutory aggravating factor of racial motivation. Mr Atkinson points out that the sentence of three-and-a-half years was less than the Category 1A starting point of four years and was also well within the range for a Category 1B offence, namely two to four years.

We shall deal with this ground of appeal first as it is quite separate and distinct from the second ground, disparity. In Cush at [49] to [58] the court dealt with the appeal of Temesgen. He had pleaded guilty to violent disorder arising from a disturbance in Plymouth when rival groups of demonstrators and counter-demonstrators confronted each other. The judge held that it was a Category 1A offence because there had been "targeting of individuals by a group" which was a culpability level A factor. At [53] the Court accepted that the judge had fallen into error in categorising the offence as he did. The Court said:

However, the court in Cush concluded that the error did not render the sentence manifestly excessive. The number of category B culpability factors justified an initial upwards adjustment from the starting point. There were also three aggravating factors before consideration of mitigation. A sentence in the upper part of the B1 category range was appropriate in the Court's judgment.

This conclusion echoed the general guidance given by the Court earlier in the judgment at [16]:

We raised with Mr Atkinson in oral argument whether the situation in the present case could really be equated with that described in the appeal of Temesgen in Cush. We had similarly raised that matter with Miss Scott during the course of her oral submissions. There was no question here of rival groups confronting each other. The hostility and violence was all one way, directed at the hotel and in reality at the migrant families living there.

We are bound to say that we have some difficulty with the Crown's concession that this was level B culpability rather than level A, a concession which Mr Atkinson felt obliged to maintain before us out of fairness in that it had been the position of the Crown not only in the lower court but in the respondent's notice. However, Mr Atkinson rightly submits that the very serious aggravating feature that this was the targeting of a building because it contained vulnerable migrant families was a factor which had to be reflected by a very significant increase in the sentence. The element of racial hostility towards those inside the hotel can and should properly be reflected in a very significant uplift for that statutory aggravating factor, quite apart from the other features.

If this were not treated as a Category 1A offence, we are satisfied that the approach taken by this Court in the appeal of Temesgen is equally appropriate here. As we have already outlined, the judge quite properly found there were two level B culpability factors. He also found that there were four Category 1 harm factors. That in itself would have justified a significant increase from the Category B1 starting point of three years. In addition, a very significant further uplift was appropriate for the statutory aggravating factor of racial motivation. It was a very prominent and serious aggravating factor. On the judge's findings, seeking to intimidate asylum seeking families living at the hotel was the sole reason for the violent disorder.

The range for Category B1 is up to four years. In our view the offence would easily have justified elevation of the sentence to the top of that range before allowing for mitigation. The judge accepted that there was significant mitigation but a reduction by 6 months from four years to three and a half years would have been ample, resulting in the same sentence of three-and-a-half years that the judge imposed, before credit for plea.

Having considered the matter very carefully, we are not persuaded that the resulting sentence of 28 months' imprisonment after credit for plea was manifestly excessive.

Having concluded that, standing alone, this sentence of 28 months was not manifestly excessive, we turn to consider the second ground of appeal: disparity.

The disparity argument advanced in the grounds of appeal is based on a comparison of the applicant's sentence with lower sentences passed a month later on two other defendants charged with the same offence of violent disorder, Kieran Marney and Clive Patfield. They pleaded guilty on 4 September when they attended the plea and trial preparation hearing and were sentenced by a different judge, His Honour Judge Rufus Taylor. They were entitled to credit of only 25 per cent for their guilty pleas, not having indicated guilty pleas at the first opportunity in the magistrates' court.

We have been provided with the judge's sentencing remarks for those two defendants and their antecedents and character references.

Before Judge Taylor it was common ground that the violent disorder was a Category B1 offence with a starting point of three years. In much briefer sentencing remarks Judge Taylor concluded that Marney's sentence after trial would have been three years four months, which he reduced to three years for mitigation. With credit of 25 per cent for his guilty plea the sentence was 27 months' imprisonment. This was only one month less than the applicant's sentence for the violent disorder, although there was of course an important difference in the level of their credit for plea.

In the case of Patfield the judge concluded that his sentence after trial would have been three years which in fact was the same as the starting point. He made a reduction to two years eight months for mitigation. With credit of 25 per cent for his guilty plea the sentence was two years' imprisonment.

Miss Scott submits that there was an unfair disparity with these other sentences which renders the applicant's sentence of 28 months manifestly excessive.

She submits that Marney's involvement in the violent disorder was, if anything, more serious than the applicant's. Marney not only threw three bicycles into the skip but was seen banging on the door of the hotel and rattling the doors with force, then reaching through a window to rip parts of the blinds, and finally throwing a bicycle at the window. She also points out that Marney, who was 25 years of age, had a relevant conviction for section 20 wounding for which he received a suspended sentence of 20 months' imprisonment in 2019 which he had subsequently breached by committing road traffic offences. She acknowledges the mitigation that he was remorseful and had three young children.

Patfield was much older, now aged 60. He was of previous good character. The judge described his involvement as slightly less. He was shouting and screaming and banging on the walls, windows and doors of the hotel. He was in employment, supporting over 100 employees, and had positive character references.

Miss Scott submits that it cannot be fair or justified that the applicant received a sentence before credit for plea of three years six months whereas Marney's sentence was only three years before credit for plea. She submits that applying the relevant test, right- thinking members of the public, with full knowledge of all the relevant facts and circumstances would consider that something had gone wrong with the administration of justice for there to be such a disparity of sentence: see Fawcett (1983) Cr. App. R. (S.) 158. She submits that the unfairness is all the greater considering that it was the applicant alone who pleaded guilty at the magistrates' court, an unfairness which she says could undermine the encouragement of early guilty pleas.

Miss Scott has produced for us helpfully a table of the sentences which have now been passed on all of the defendants charged with the violent disorder arising from this incident who have been sentenced so far. There are three more. The table sets out the sentence before credit for plea, for comparison with the applicant's sentence of three-and-a-half years or 42 months. Like Patfield, another defendant, Bowling, received a sentence of 32 months' imprisonment before credit for plea. Brannan received a sentence of 24 months and Howell 30 months before credit for plea. We have not been provided with the necessary material to make any meaningful assessment of the factors relevant in these additional cases, as Miss Scott accepts. As we understand it she relies on the table simply to show that the applicant's sentence stands out as by far the longest.

Mr Atkinson submits that there is no merit in the disparity argument. He points out that it was not possible for all the defendants to be sentenced by the same judge because of the pressures of the timescale involved. We accept that it was very much in the public interest that those who had pleaded guilty were sentenced at the earliest opportunity which was achieved in the case of the applicant who was sentenced first.

Mr Atkinson submits that if the judge was entitled within the guidelines to pass the sentence he did on the applicant, no right thinking person would consider that something had gone wrong with the administration of justice simply because other defendants were apparently more leniently dealt with later by a different judge.

Having considered all these submissions carefully, we are unable to accept that the differences in the sentences creates an unfair disparity which renders the applicant's sentence wrong in principle or manifestly excessive. This is a very different situation from a case where multiple defendants are sentenced by the same judge on the same occasion. Indeed, it is difficult to envisage, we think, any situation where a perfectly proper sentence passed by judge A on one defendant becomes manifestly excessive because judge B a month later passes a more lenient sentence on an associated defendant. We put that proposition to Miss Scott in the course of argument and she disagreed with it, submitting that there were particular features in this case which did justify a disparity argument. We disagree.

Without seeking to criticise the sentences imposed by Judge Taylor, we observe that three years four months for Marney before credit for plea meant an uplift of only four months from the guideline starting point of three years which probably did not reflect sufficiently all the factors we have identified as requiring a much more significant increase, bearing in mind that it was not treated as a culpability A offence. In the case of Patfield there was no increase at all from the starting point of three years to reflect all those factors. Both those defendants can perhaps count themselves fortunate that their sentence was not higher but that provides no justification for reducing the applicant's correct sentence.

We also observe that the applicant was perhaps fortunate himself to receive full credit of one-third for his guilty plea. In one sense at least it was hardly entered at the first opportunity in the magistrates' court, which is the essence of the guideline which must be applied. The first opportunity was in fact on 13 August when he was required to attend the magistrates' court but failed to do so, having chosen to go abroad on holiday instead. There is authority from this Court that sometimes in broadly similar (but not identical) circumstances credit for plea may properly be reduced: see Williamson [2020] EWCA Crim 1085; [2021] 1 Cr. App. R. (S.) 29.

For all these reasons we are satisfied that on the most careful examination there is no merit in the proposed appeal and accordingly leave is refused.