Introduction

The case of McKeown & Ors, R v ([2013] NICA 63) adjudicated by the Court of Appeal in Northern Ireland on November 12, 2013, centers around three references by the Director of Public Prosecutions (DPP) under section 36 of the Criminal Justice Act 1988. These references challenged the leniency of sentences imposed on the respondents following their convictions for riotous assembly under common law.

The disturbances in question arose after Belfast City Council decided to limit the number of days the Union flag was flown outside Belfast City Hall, sparking significant public unrest. The DPP contended that the sentencing judges erred in setting sentences that were either too lenient in terms of starting points or by suspending sentences of imprisonment.

The primary legal issue revolved around whether the sentences handed down adequately served as deterrents against violent public disorder, with particular focus on the participation level in riots and the appropriateness of suspended sentences.

Summary of the Judgment

The Court of Appeal reviewed the sentencing decisions in three cases where individuals were convicted of riotous assembly related to disturbances over the Union flag protests. The appellate court examined whether the lower courts had appropriately applied deterrent sentencing principles as outlined in previous cases, particularly R v Najeeb and others [2003] EWCA Crim 194 and R v Heagney and others [2012] NICC 35.

The court reaffirmed the necessity of imposing deterrent sentences to prevent the recurrence of violent mob activities. It emphasized that participation in such riots, even by mere presence or encouragement, contributes to public disorder and thus warrants significant penal responses.

In the cases of McKeown and Ferris, the appellate court found the initial sentences unduly lenient, particularly criticizing the suspension of sentences where deterrence was essential. For Lynn's case, however, acknowledging the offender's psychological vulnerabilities stemming from military service, the court upheld the suspended sentence.

Ultimately, the court adjusted the sentences to align with the established deterrent framework, prescribing determinate custodial sentences where appropriate and dismissing the applications where suspension was justified by exceptional circumstances.

Analysis

Precedents Cited

The judgment extensively referenced two pivotal cases to guide sentencing:

• R v Najeeb and others [2003] EWCA Crim 194: This case involved severe riots in Bradford, characterized by organized, prolonged, and violent disorder. The Court of Appeal in England set a precedent for imposing substantial custodial sentences proportional to participants' roles and severity of actions.
• R v Heagney and others [2012] NICC 35: Addressing disturbances in Belfast, Judge Burgess adopted a sentencing framework inspired by Najeeb, categorizing offenders based on their participation level and violence employed, setting specific sentencing ranges accordingly.

The appellate court in McKeown & Ors utilized these precedents to evaluate whether the initial sentencing aligned with the established frameworks for deterrence and proportionality in riotous assembly offenses.

Legal Reasoning

The court underscored the essential role of deterrence in sentencing for public disorder. It articulated that sentences should not only punish but also discourage future violent assemblies, thereby maintaining public order. The reasoning followed these lines:

• Deterrence as a Principle: The court emphasized that effective deterrence requires sentences that reflect the gravity of the offense, particularly given the recurring nature of such disturbances in the community.
• Proportionality: Sentences should correspond to the offender's role within the assembly. Ringleaders and those committing severe acts of violence receive harsher penalties compared to minor participants.
• Suspended Sentences: The court maintained that suspended sentences should be an exception rather than a norm in cases demanding deterrent measures, reserving suspension for truly exceptional circumstances.
• Aggregate Conduct: The cumulative impact of an individual's participation, even if limited to presence or encouragement, contributes to the overall disorder, warranting significant sentencing.

The court determined that the original sentences failed to sufficiently account for these factors, leading to unduly lenient outcomes that could undermine public safety and order.

Impact

The judgment in McKeown & Ors, R v ([2013] NICA 63) has profound implications for future cases involving public disorder and riotous assemblies:

• Enhanced Sentencing Guidelines: The court’s reaffirmation of the sentencing framework from Najeeb and Heagney provides clearer guidelines for judges to apply deterrent principles consistently.
• Deterrence Emphasis: By highlighting the necessity of deterrent sentences, the judgment reinforces the role of punishment in preventing future offenses, thereby promoting public order.
• Reduced Leniency: The strict stance against suspending sentences in non-exceptional circumstances ensures that sentences reflect the severity of participation in disorderly conduct.
• Legal Precedent: This case serves as a binding precedent within Northern Ireland, guiding lower courts in handling similar offenses with appropriate sentencing measures.

Overall, the judgment strengthens the legal framework against violent public demonstrations, ensuring that sentencing serves both punishment and prevention objectives effectively.

Complex Concepts Simplified

1. Riotous Assembly

Definition: A group of individuals coming together with the intent to cause public disorder or engage in violent acts. It differs from lawful protest in its inclination towards violence and disruption.

2. Deterrent Sentencing

Definition: The practice of imposing penalties severe enough to discourage the offender and the public from engaging in similar conduct in the future.

3. Suspended Sentence

Definition: A court-imposed sentence that is not immediately enforced, allowing the offender to remain in the community under certain conditions. If the offender breaches these conditions, the sentence can be activated.

4. Culpability

Definition: The degree of responsibility an individual has for a criminal act, taking into account their role and intent.

5. Double Jeopardy

Definition: A procedural defense that prevents an individual from being tried again on the same (or similar) charges following a legitimate acquittal or conviction.

6. Post-Traumatic Symptoms

Definition: Psychological and emotional challenges that arise after experiencing traumatic events, which can influence behavior and decision-making.

Conclusion

The Court of Appeal's decision in McKeown & Ors, R v ([2013] NICA 63) underscores the judiciary's commitment to upholding public order through stringent deterrent sentencing for riotous assembly offenses. By reinforcing the principles set forth in pivotal cases like Najeeb and Heagney, the court ensures that sentences are proportionate, discouraging individuals from engaging in or inciting violent public disorder.

The judgment balances the protection of lawful protest rights with the necessity to penalize and deter violent disruptions that threaten community safety and cohesion. It highlights the judiciary's role in maintaining societal order, ensuring that sentencing serves both punitive and preventive functions effectively.

Ultimately, this ruling serves as a critical reference point for future cases, promoting consistency in sentencing and reinforcing the boundaries of lawful assembly within a democratic society.