Template Letter to AG re: Sam Pybus sentence

Many people have been saddened and horrified by the sentence handed down to Sam Pybus for the murder of Sophie Moss. He had pleaded guilty to manslaughter, but not to murder, using the so-called ‘rough sex defence’ that his violence towards her, in this case strangulation, had at the outset been consensual. His plea to manslaughter was accepted and he was jailed for 4 years and 8 months.

A number of people have asked how a sentence can be reviewed as ‘unduly lenient.’ It is done through the Attorney General’s office. A template letter is provided here.

Attorney General’s Office 

By email: uls.referrals@attorneygeneral.gov.uk

Date: [before 4 October 2021]

Dear Attorney General

I am writing to you to request a review of the sentence of Sam Pybus, passed at Teesside Crown Court on 7 September 2021, as unduly lenient. 

The sentence was one of four years and eight months imposed for manslaughter. Pybus had strangled Sophie Moss to death, while he was intoxicated. Although he said he could not remember what had happened, he entered a guilty plea saying it had occurred during consensual sexual activity. 

The Sentencing Guidelines state that where death “was caused in the course of an unlawful act which carried a high risk of death or GBH which was or ought to have been obvious to the offender” the appropriate category for sentencing is Category B, high culpability, which carries a starting point of 12 years custody. It ought to be obvious to anybody that strangulation carries a high risk of death or GBH. 

I would ask you to refer the sentence to the Court of Appeal as unduly lenient.

Yours sincerely

I Know It When I See It

Legal Feminist welcomes feminist blog posts from practising lawyers. In this post, guest blogger and paralegal Ffion Lloyd writes about the shocking growth of the incel movement and suggests the time has come to treat it as a terrorist movement.

We all know the phrase, ‘I know it when I see it’, when you may struggle to describe or pinpoint what ‘it’ exactly is, however, we all feel it and know where ‘its’ boundaries are. Schmid and Jongman described terrorism as acts committed for “idiosyncratic, criminal, or political reasons.” This definition includes mass attacks by non-ideological psychotics. The Crown Prosecution Service describes terrorism as “the use or threat of action… designed to influence any international government organisation or to intimidate the public” which is “for the purpose of advancing a political, religious, racial or ideological cause” and cites examples as including “serious violence against a person” “endangering a person’s life” and “creating a serious risk to the health or safety of the public or a section of the public”.

Despite these recognised and accepted definitions, there remain a number of organisations and groups in the UK which blatantly pose a threat to the safety and security of society and yet are not recognised by the authorities as terrorist or as holding terrorist ideologies. 

On Thursday 12th August 2021 Britain witnessed its worst mass shooting in nearly a decade. A country that, since the Dunblane shootings, has successfully avoided the horror of mass shootings. We have prided ourselves on being the complete opposite to the USA when it comes to gun control.  The UK has strict and rigorously enforced gun control laws; anyone caught in possession of an illegal firearm will face a mandatory minimum prison sentence of seven years.

But in spite of our tight gun control, two women, two men and a three-year-old girl were fatally shot in 12 minutes by a 22-year-old, self-identified ‘incel’. In the aftermath of this shocking event, use of the phrase “incel” had the media frantically seeking to explain what this right-wing, misogynistic ideology stands for. However, this is not a new term let alone a new group. A January 2020 report by the Texas Department of Public Safety warned that incels were an “emerging domestic terrorism threat” that “could soon match, or potentially eclipse, the level of lethalness demonstrated by other domestic terrorism types“.

Alongside that report, a 2020 paper, Studies in Conflict & Terrorism, published by Bruce Hoffman noted that the incel movement’s “core ethos entails the subjugation and repression of a group and its violence is designed to have far-reaching societal effects” and concluded that “the violent manifestations of the ideology pose a new terrorism threat, which should not be dismissed or ignored by domestic law enforcement agencies“. Yet despite these warnings, Jake Davison, a 22-year-old guy from Plymouth, was frequently and freely able to post YouTube videos, actively discussing his life failures and angrily complaining that the root cause of his insecurities and lack of sexual experience were the fault of women. More specifically, the lack of interest women had in him.

The Incel movement is an inherently misogynistic internet subculture that has reportedly led to over 61 homicide deaths since its founding. The term “involuntary celibate” arose in the 1990s and originally had no violent connotation. However over the last two decades, the incel community became increasingly misogynistic, blaming women and glorifying rape and violence against women.  Then in 2014, Elliot Rodger murdered 6 people, and wounded 14 others, as part of what he called a “Day of Retribution” rooted in the frightening notion that women were fundamentally flawed and deserved death. Rodger went on to write his lengthy 133-page manifesto in which he rationalises the massacre of women. In his “ultimate and perfect ideology of… a fair and pure world,” all women should be “quarantined” in “concentration camps,” where he could “gleefully watch them die,” though some would be kept alive and artificially inseminated to perpetuate humanity. Following this event, pro-violent, internet subcultures have continued to grow and have resulted in several murders and attacks by men propagating this terrifying ideology. 

Despite this, as the law currently stands in the UK incel ideologies are seemingly not regarded a dangerous enough to be classed as terrorism. In the past, extremist groups which have sought to overthrow the social order,  the IRA, the LTTE and most recently ISIS, have been deemed terrorist organisations. Why is the incel movement any different?  

ISIS provides a good case in point – it is recognised as representing a direct threat to the security of a country and its interests; the incel movement undermines democratic norms and values of equality and shares a number of similarities. They are male dominated, historically anti-women and heavily rely on the internet and online forums as a primary communication tool. While anti-women views existed long before the internet, subsections of the internet have accelerated their spread, expanded their reach and fuelled their women hating content.

The nature of attacks, perpetrated by violent radicalized groups such as the incel movement and ISIS, have a very gendered dimension which is predominately virtual and largely comprises young males. How can it be that one an illegal terrorist organisation and the other simply frowned upon, when at their core, they have such fundamental similarities? Does the fact that ISIS is founded in a religious doctrine make it fundamentally more dangerous? It is very hard to see why that should be the case.  If that is the case, what is the difference? Are incels deemed less dangerous because they predominantly target women and not men? Does this somehow make them less of a threat to society? 

If so, this is naive, given incel perpetrators have clearly shown that their attacks also target men, who are deemed attractive and lucky in life (‘chads’). More to the point, the suggestion that hatred of women is somehow less of a threat is also a terrifying conclusion. Violent attacks on women in general have been all too frequent items in the news in recent years, from the shocking assassination of Jo Cox to the brutal murder of Sarah Everard. The murder of Sarah Everard led to an outpouring of concern about violence against women.  And yet despite those sentiments, society has not yet fully recognised the dangers posed by those who fundamentally hate women.  Incel related violence is explicitly aimed at instigating an overthrow of social order. 

Terrorism, I know it when I see it. When will the government? 

Suspended sentencing: the case of Javed Miah

This is a blog about sentencing, and outrage, and outrageous sentencing.

In particular, it’s about this case of sexual assault perpetrated by a stranger, reported in the Mirror as “Dad who attacked woman walking home at night avoids jail as he ‘would lose his job.’”

The facts are thrown into particularly sharp relief this week, in the wake of the abduction and murder of Sarah Everard. The defendant, Javed Miah, walked behind the victim and bumped into her, asking her the time. After following her for a minute, he groped her bottom, pushed her to the ground, and moved his hand from her crotch up to her chest. The victim managed to connect an emergency SOS call on her mobile phone at which point he ran away. 

Miah was given a six month sentence, suspended for two years. He will also have to complete 250 hours of unpaid work, complete the sex offenders rehabilitation programme, and sign the sex offenders register for seven years. 

Women are justifiably outraged. How can a man push a woman to the ground, commit a sexual assault, seemingly intent on worse and yet walk free from court? 

Other commentators can point you towards the Sentencing Guidelines and point out that the judge has followed them. The Mirror reported that the judge called the attack ‘sustained.’  That would make it a Category 2, Culpability B offence, carrying a one year starting point with a range of a community order to two years custody. With both the logic and the emotion of a Sudoku puzzle, the starting point of one year is then adjusted up for location and timing (alleyway, after dark), then down for previous good character and remorse, ending at a 9 month sentence. A further 30% off is applied for a guilty plea, bringing it down to six months. The judge must then consider mitigation and whether or not the sentence can properly be suspended. Any sentence of 2 years or less is capable of being suspended – and there are good reasons for this: if someone loses their home, job, relationship and future prospects they are more, not less, likely to reoffend. Feed the data here into the OASys machine and we have a defendant who has a secure relationship – ding! – with a job – ding! – and a home – ding! – and children, meaning community ties – ding! – which all feeds into the assessment of a low risk of reoffending. 

So yes, assuming from the limited information in the reports that it was correctly categorised, the magistrate has applied the guidelines correctly. The defendant pleaded guilty, so we don’t even need to get into whether the prosecutor has done their job well: plainly they have. Defence lawyers are often blamed for ‘getting their client off the hook,’ but since this defendant had pleaded guilty, we can blame the defence for nothing more sinister than effective mitigation, which is the right of the most egregious criminal in the land. And of course, it would be absolutely wrong to suggest the judge was entitled to sentence the defendant for what he (probably) would have done if not for the victim’s actions, rather than for what he did do. We do not sentence people for things they didn’t do – even if we think they might have done had they had the opportunity. This is fundamental to the rule of law.

And yet. 

The purpose of this blog is not to reassure readers that the system is infallible. It is to make plain that the disquiet felt by women at sentences like this is not because women have failed to understand how the guidelines work, but because the guidelines do not reflect the terror that this type of offending causes to women going about our daily lives. We can reassure readers that such sentences are not the result of outright bias or corruption – but we would, ourselves, prefer an assurance that the Sentencing Guidelines will be updated and improved.

Timothy Brehmer: from coercive control to loss of control

This week Timothy Brehmer was acquitted of the murder of Claire Parry. Brehmer, a former police officer, had not denied that his actions had killed her. Instead, he said that he had not intended to kill her. That he had intended only to shove her out of the car, and yet somehow, she had ended up dead. 

Women across the UK followed the case as Brehmer’s story changed. She had been breathing when he left the car, he said. He said she had tried to stab him. Or maybe not, maybe he had tried to stab himself. Her death must have been positional asphyxiation. Whatever, he hadn’t intended to kill or seriously harm her. Media reporting revealed descriptions of controlling coercive behaviour, and few had sympathy for the pity parade that constituted his reported evidence. 

The verdict, acquitting him of murder, was met with outrage from feminists. How could we reach a stage where a man strangles a woman for at least 10-30 seconds with enough force to break three bones in her neck, his evidence is a kaleidoscope of unlikelihood, and yet somehow he is not guilty of her murder?

The answer lies in the “loss of control” defence. Importantly, we will never know why it is that the jury came to the verdict which they did. They had two options to reach their conclusion. One was that Brehmer’s evidence was true – or at least, they had some doubt that it was lies – and that he hadn’t really intended to seriously hurt or kill her when he strangled her. The second was that he had intended to seriously hurt or kill her, but that his actions arose from a “loss of control.”

Although we will not find out which of the two were the basis for the jury’s decision, we do know that the judge sentenced on the basis of loss of control. Once the verdict is in, it is for the judge to decide which is more likely, and to sentence on that basis. 

The Bournemouth Echo, reporting the sentencing hearing, records that the judge said 

“This is a case where I should sentence you [on the basis] that you lost your self control following the message that was sent to your wife, rather than you unintentionally killing Mrs Parry. 

“I am sure that you did deliberately take Mrs Parry by the neck.” 

He went on to make findings that the “loss of control” trigger was “only just met” and that Brehmer’s actions bore high culpability within the sentencing guidelines.

So what is “loss of control,” and how does it fit within the legal framework?

Before 2010, the defence was one of “provocation.” It was up to the jury to decide whether a person had been provoked sufficiently to lose their control and thereby to benefit from the reduced sentence for manslaughter, not being guilty of murder. It produced some absolutely shocking results: Thomas Corlett, who got three years for killing his wife after she ‘provoked’ him by moving the mustard pot to the wrong side of the table, for example. It was referred to by campaign stalwarts Justice for Women as the “nagging and shagging” defence, because it enabled men to argue that their wife being unfaithful or arguing had reasonably provoked them to kill her. After some significant campaigning, law reform was finally proposed in 2008, slowly made its way into the Coroners and Justice Act 2009, which was enacted in 2010. The relevant provision is this:

What is this “qualifying trigger?” Nagging and shagging is explicitly excluded, or so the drafters hoped:

In plainer terms, the questions are these: under s.54, was there a loss of control? Was there a qualifying trigger? And might any other comparator in similar circumstances have behaved the same way?  If so, s.55 tells us what the qualifying triggers are – here, did the victim say something or do something ‘extremely grave’ and causing the defendant to have a ‘justifiable sense of being seriously wronged?’ 

“The fact that a thing done or said constituted sexual infidelity is to be disregarded” was intended to ensure that men who felt ‘provoked’ by their partner’s cheating (or alleged cheating) did not get away with murder. 

We should recall, a decade later, that there was considerable opposition to this from some quarters. Feminists were accused of “feminising the law.” Dominic Grieve objected that “the Government have decided that thousands of years of human history and experience should be jettisoned for a piece of political correctness and proclamation: a declaratory statement that sexual infidelity can never justify violent behaviour.”  Others pointed out that since men do kill in violent rage, it would be improper to prevent a jury from considering infidelity. 

There were also objections that the clause was poorly drafted. These, unfortunately, were rather better founded. What constitutes ‘sexual infidelity,’ how grave is extremely grave and how serious is a serious wrong? Most importantly, what happens if sexual infidelity is just part of a wider context of loss of control? These were the questions considered in R v Clinton, a case concerning three men, who in the span of three weeks had each killed their partner. The Lord Chief Justice, giving judgment, said that “The starting point is that it has been recognised for centuries that sexual infidelity may produce a loss of control in men, and, more recently in women as well as men who are confronted with sexual infidelity.”

The Court went on to take the view that while the new law meant that infidelity alone could not constitute a qualifying trigger, infidelity could still be considered if there was a wider context:  “In our judgment, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it.”

In Brehmer’s case, the trigger was not sexual infidelity, but the fear of her revealing the affair they were having, and so there was no prohibition on this being considered a ‘qualifying trigger.’ 

One question raised by all of this is where coercive control, not considered in 2008, would fit in. How should the law approach men who kill not because they lose control of themselves, but because they are losing control of their partner? Can or should statute try to draw the distinction? 

It leads us to a situation where the solution is, perhaps, not available in law. The 2009 changes sought to block one such avenue, but were rather defeated in Clinton. What the defence of “loss of control” really needs is social change whereby the question as to whether a man in the same circumstances, with a “normal degree of tolerance and self-restraint” might act the same way, is met with a jury which says “absolutely not.” 

Why is Kasabian singer Tom Meighan not in prison?

Within 24 hours of Kasabian singer Tom Meighan’s announcement that he would be stepping back for “personal reasons,” he was at Leicester Magistrates Court pleading guilty to one count of assault by beating (common assault) on his ex-fiancee.

The details of the offence as they are reported – that he was drunk, knocked her down, attempted to strangle her, pushed her into a hamster cage and threatened her with a pallet, and most prominently, that he did all of this in front of a child – are serious.

A number of people are, quite reasonably, asking how it might be that he didn’t go to prison.

The sentencing guidelines on common assault require that the judge first consider the “offence category.”

There seems to be little doubt that in this case there was greater harm (it was described as a sustained attack) and higher culpability (strangulation is understood to signify an intention to commit greater harm than may in fact have resulted), placing it firmly into Category 1, the most serious category.

The court then moves on to the starting point and category range.

The starting point for a Category 1 offence is a high level community order, which is then adjusted up or down depending on aggravating and mitigating factors.

Aggravating factors will include that the offence was committed in the presence of a child and while under the influence of alcohol. Mitigating factors would have been remorse and his claimed commitment to addressing an alcohol dependency. Add to that the credit he is given for a guilty plea, and the adjustment is up and back down again to the starting point for a Category 1 assault.

This table sets out what is meant by a ‘low’ ‘medium’ or ‘high’ level community order. Meighan was given 200 hours unpaid work and a rehabilitation requirement, placing this at the upper end of the high level community order band, narrowly missing the custody threshold.

All that this means, of course, is that the sentence is in line with the Sentencing Guidelines. It doesn’t mean that the Sentencing Guidelines are beyond criticism.

The Centre for Women’s Justice has campaigned for non-fatal strangulation to be made a specific crime, as it is under-charged when treated as common assault, and other organisations have campaigned to make misogyny a hate crime. It may well be that sentencing in domestic abuse cases needs reform – but as of today, these are the guidelines that continue to apply, and may go some way to explaining why cases like these continue to attract non-custodial sentences.