McKeown & Ors, R v

Factual and Procedural Background

This opinion concerns three references submitted by the Director of Public Prosecutions under section 36 of the Criminal Justice Act 1988, challenging the alleged unduly lenient sentences imposed on three respondents convicted of riotous assembly contrary to common law. The convictions arose from disturbances following a municipal decision to limit the display of the Union flag outside Belfast City Hall. The prosecution contends that the sentencing judge erred by setting starting points for imprisonment too low and by suspending sentences without identifying highly exceptional circumstances. The opinion situates the offences within a broader context of repeated violent disorder in the jurisdiction, emphasizing the distinction between lawful protest and violent riotous assembly.

Legal Issues Presented

1. Whether the sentencing judge erred in failing to identify the correct starting point or by setting a period of imprisonment that was too low compared to the appropriate starting point for riotous assembly offences.
2. Whether the sentencing judge erred in suspending sentences of imprisonment without identifying highly exceptional circumstances justifying such suspension.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Najeeb and others [2003] EWCA Crim 194	Sentencing framework for riotous assembly including starting points for various levels of participation and violence.	Used as a primary reference for establishing sentencing ranges and principles in the absence of local guideline cases.
R v Heagney and others [2012] NICC 35	Local sentencing guidance for riotous assembly, incorporating factors such as duration, violence, and disruption.	Adopted as the local sentencing framework, confirming starting points and aggravating factors for riotous assembly offences in Northern Ireland.
R v Blaney and others [1989] NI 286	Authority supporting the need for deterrent sentences in cases involving petrol bombing and serious violence.	Confirmed the court’s position that deterrent sentences are required for riotous assembly offences, not limited to petrol bombing cases.

Court's Reasoning and Analysis

The court began by distinguishing lawful protest from violent riotous assembly, emphasizing the importance of protecting freedom of expression while condemning violent disorder. It noted the absence of a local guideline case on sentencing for riotous assembly but relied on the English Court of Appeal decision in R v Najeeb and the local case R v Heagney for sentencing guidance.

The court outlined a sentencing framework based on culpability, violence used, and participation level, ranging from 5 years for significant participation involving throwing bricks or stones, up to 10 years for ringleaders or those using serious violence. It identified relevant factors for setting starting points, including group size, violence nature, riot duration, harm caused, public interference, community relations impact, and public cost.

Applying this framework to the individual cases, the court found that the sentencing judge had erred by setting starting points too low and suspending sentences without identifying highly exceptional circumstances. The court emphasized the need for deterrent sentences given the persistent and violent nature of the offending. It acknowledged mitigating factors such as early guilty pleas and personal circumstances but held that these were insufficient to justify the sentences imposed.

In one case, the court accepted the suspension of sentence due to exceptional personal circumstances related to military service and post-traumatic symptoms. In the other cases, the court imposed determinate custodial sentences with immediate effect, noting the importance of deterrence and public protection.

Holding and Implications

The court held that the sentences imposed on two of the respondents were unduly lenient and warranted increase to determinate custodial sentences without suspension.

Specifically, the court imposed custodial sentences of 18 months (split between custody and licence) for two offenders and ordered immediate commencement of these sentences, taking into account time spent on remand. The court dismissed the application relating to the third offender, who had exceptional personal circumstances justifying suspension.

The decision reinforces the principle that deterrent sentences are required for riotous assembly involving violent disorder. It clarifies that suspension of sentences should only occur in highly exceptional cases and that personal mitigation carries limited weight where deterrence is paramount. No new precedent was set beyond affirming existing sentencing frameworks and principles.