The Sunday Times

January 22nd, 2012

No, m’lud, it’s not real remorse but can I avoid jail anyway?

Justice must be seen to be done. Even more importantly, perhaps, injustice must not be seen to be done. But injustice is precisely what was on display at the crown court in Manchester last Wednesday. On the steps outside, just after his conviction, a vicious young thug was defiantly dancing and punching the air in delight with his heavily tattooed fingers.

Daniel Chrapkowski was celebrating because even though he had been found guilty of grievous bodily harm against a young passer-by, injuring him badly, he had been let off jail. All Chrapkowski got for this unprovoked attack, to which he admitted, was 160 hours of community service and an electronic tag for two months.

This is the astonishing outcome of what happened one night in Manchester last January when Chrapkowski and two friends — one of them on bail at the time for a violent offence — were spending their time assaulting wheelie bins and tipping rubbish over the street. A young man walking home with his girlfriend asked them what on earth they were doing. Their response was to attack him, one of them meanwhile boasting that he had just been let out for GBH. Chrapkowski punched the man in the face and tripped him up, before he and another repeatedly kicked and punched him in the head and stomach. Then all three ran away, leaving the stranger unconscious and bleeding.

Their victim, Joseph O’Reilly, needed many hours of hospital treatment. His jaw was fractured, his brain was bleeding and later he had to have a metal plate fitted into his face. He was in pain for weeks, suffered dizzy spells and then collapsed and had to return to hospital a few months later. He still suffers from dizziness, anxiety and numbness in his face and mouth.

The first thought that comes to any reasonable person’s mind is that any man who does that to another man ought to be slung straight into the slammer and kept there for a long time. If prison is for nothing else, it is for locking up violent criminals who hurt people, especially when they do so for no particular reason. There’s room for argument about most other crimes, about the point of prison and the poor chances of rehabilitation, but not about this. Grievous bodily harm is most grievous. Letting Chrapkowski: jailed for people off for it doesn’t seem to be justice. Letting the perpetrators walk the streets unpunished is wrong and unsafe. And seeing someone celebrating the leniency of the court in such a case, right outside that court, is an affront to public morals.

There have been the usual cries of outrage. But it would not be right to blame the judge, Martin Steiger QC. He was only obeying orders, or rather the sentencing guidelines that apply to all judgments. The maximum tariff for GBH without intent, as in this case, is five years. And, as usual, the judge must take mitigating factors into account, and remorse is one.

Chrapkowski did express remorse in court — or at least it was expressed on his behalf. Katie Jones, his defence lawyer, said: “He is extremely remorseful and wishes to apologise to the court. It is extremely out of character.” Presumably she meant that his violence was out of character but it became apparent all too soon that remorse was extremely out of character in his case. At least, he didn’t feel it for very long. In short, he fooled the judge.

There is something very wrong with a not GBH mitigating factor (especially in such a serious crime) that is so exceptionally easy to abuse: remorse is a good way to pass jail and return to Go, and for that reason it is a card that is played in the courts every day, by cheats as well as by the honest. Not only can a judge be fooled, like anyone else, but the system seems to conspire in this folly. A defendant’s barrister might easily be tempted to suggest to her client — if he doesn’t already know — that cries of remorse will do him a lot of good in court.

I heard from a legal expert recently that there’s a sort of code in court to enable fastidious barristers to enlighten the judge: if a defence barrister expresses her client’s remorse in particular terms, it means she is conveying to the judge that she herself is sceptical about it.

Probation officers and social workers, who are generally opposed to prison sentences, may well give formal assurances to the courts of their clients’ remorse, even if they are doubtful of it.

Dr David Green, director of the Civitas think tank, is certainly sceptical about the claims of remorse in the courts. “If we accept that the primary duty of barristers is to justice, then I think the legal profession in recent times has lost its way, morally speaking,” he said.

“A lot of lawyers coach their clients in what to say to help them give plausibility to their pretended remorse … On questions of guilt and innocence generally, I suspect many lawyers do now sail very close to the wind in presenting their clients’ cases to the courts.”

If protestations of remorse are so prone to abuse, perhaps sentencing guidelines ought to be reconsidered yet again. Perhaps remorse ought not to be a mitigating factor in serious crimes of violence such as GBH, except in unusual situations where it is unmistakably present. At the very least there should be much heavier requirements of proof. But, more broadly, this miserable case brings up most of the usual questions that anger the public about sentencing and about villains not being sent to jail.

A maximum of five years — in effect 2Å — does not seem enough for beating a man half to death, and senselessly. In any case, the number of people convicted of serious, prison-worthy crimes who are now let off with suspended sentences has rocketed since Labour’s 2003 Criminal Justice Act came into force in 2005. It is getting bigger under the coalition. In 2005, of all such prison-worthy convictions, only 1.8% of convicts were given suspended sentences (5,610 people). In 2010 the figure was 9.8%, which means 34,176 serious offenders, some of them like Chrapkowski, were at large instead of in jail.

What the public knows is that the jails are full of the wrong people — the mentally ill, addicts, self-harmers, people of low intelligence and the illiterate. These people need quite different treatment. Yet what it sees is that dangerous people, who without any doubt ought to be in jail, are let loose.

Whatever it is, it doesn’t look like justice being done.