IRENE WILSON v. THE UNITED KINGDOM
Inadmissible
George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
1. The applicant, Ms Irene Wilson, is a British national, who was born in 1958 and lives in Londonderry. She was represented before the Court by Mr P. Bowles, a lawyer practising in Saintfield, County Down, with Peter Bowles & Company Solicitors. 2. The United Kingdom Government (“the Government”) were represented by their Agents, Ms H. Moynihan and Ms L. Dauban of the Foreign and Commonwealth Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 20 October 2007, the applicant was assaulted by her husband Scott Wilson at their home, after they had been out drinking. She suffered a severed artery on the right side of her head, which required eight stitches. She also suffered multiple bruising and sustained a blow to her head when she fell against a banister. 5. The applicant maintains that this was the last in a series of assaults which had been carried out by her husband in the course of their thirty-two year marriage. She made a statement to the police. The Government maintain that, in her statement, the applicant herself had accepted that, prior to 2006, she had only been subjected to emotional abuse and that it was only in 2006 that the abuse turned physical. They further maintain that the applicant had not complained to the police at any time prior to the offence of 20 October 2007. 6 Mr Wilson was arrested and charged with causing grievous bodily harm with intent to do grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861. He was granted bail on 22 October 2007 and required to reside at an alternative address to the matrimonial home. 7. There was a reconciliation between the applicant and her husband, further to which he successfully applied to have his bail conditions varied so that he could return home. 8. On 23 October 2007, the applicant told the police that she no longer wished Mr Wilson to be prosecuted. Nonetheless, the police file was sent to the Public Prosecution Service of Northern Ireland (“the PPS”), where it was allocated to a senior public prosecutor. 9. In light of the applicant’s wish that Mr Wilson not be prosecuted, the senior public prosecutor considered the case. The prosecutor did so according to the PPS’s policy for prosecuting cases of domestic violence, which provides that cases will not automatically be stopped because the victim does not want to proceed and that, as a general rule, the PPS will prosecute cases where there is sufficient evidence and no factors preventing them from doing so. 10. The prosecutor sought further information, including a transcript of the 999 emergency telephone call, medical reports, police notebook entries, the serious crime scene log, photographs of the scene and injuries, further statements to corroborate the applicant’s account, information on the current status of the relationship, and a risk assessment. Following consultation with the regional prosecutor, it was decided that the prosecution should proceed, regardless of the applicant’s statement withdrawing the complaint. 11. The reconciliation between the applicant and her husband proved to be only temporary and, when the applicant was informed of the PPS’s decision, she reinstated her complaint. 12. On 21 March 2008, the PPS concluded that there was insufficient evidence of intention to do grievous bodily harm, as required for prosecution under section 18 of the 1861 Act. The charge was therefore reduced to one of grievous bodily harm contrary to section 20 of the same Act. The Government maintain that there was no discussion with Mr Wilson’s representatives regarding this decision. 13. Mr Wilson appeared for arraignment before Londonderry Crown Court on 26 June 2008. He entered a plea of not guilty. 14. The case was then listed for mention in the Crown Court on 1 September 2008. The Government maintain that prosecuting counsel expressly requested a meeting with the applicant to explain the nature of the section 20 charge against Mr Wilson. On the same day Mr Wilson was re-arraigned and entered a plea of guilty. 15. He appeared for sentencing on 7 October 2008. The sentencing judge received inter alia a victim impact report on the applicant, photographs of her injuries and the transcript of the 999 telephone call. He also had before him a probation service report He also heard a plea in mitigation from Mr Wilson’s counsel. Counsel accepted that, had there been a record of violence, an immediate custodial sentence would have been inevitable; however, he submitted that there was no such record in Mr Wilson’s case. 16. The judge sentenced Mr Wilson to eighteen months’ imprisonment, which was suspended for three years. The judge’s sentencing remarks were as follows: “Now Mr Wilson I have looked carefully at this case. It is on the face of it and remains a serious matter. Conviction under section 20 carries a maximum sentence of several years’ imprisonment. Your background is a surprising one to find for someone on such a serious charge of violence. You have no criminal record, you are a man who has lived now for 50 years of your life without getting into the slightest trouble; on the contrary, you have held down a number of very significant posts in your life and the reference provided to me shows me a side of your character which is very much to your credit. Sadly the events of this night betray a different side to your character, which perhaps only emerged with consumption of alcohol. It seems that, although I didn’t choose to go into the detail too closely, so as not to cause distress to other persons in this case, in particular your wife, Irene, it would appear that you felt upset and angry at what you perceived to be your wife’s conduct on the evening in question. Both of you had had something to drink but it is your drink that I am concentrating on. It seems that you reacted to this by behaving in a cowardly and very unworthy way by striking her, by knocking her down and it appears that during the course of that she sustained an injury. Now it is not for me to start to speculate on why precisely this happened. It seems, again without causing undue distress to her, that your relationship maybe was not what it might have been and what one might hope in a happy marriage although it is right to say that there seems to be no previous incident of this type. Nevertheless, as a result of your behaviour and perhaps for various other reasons, your marriage has now been damaged apparently irreparably and your wife has suffered this great trauma and of course your own position is not an enviable one either. I have read the victim impact statement on Mrs Wilson, who I understand is in the court, and it clearly demonstrates ... that she has suffered considerably through your behaviour. She has now had to make major life changes. She has gained some assistance with support of the counselling into her own life. She will have to undergo what the doctor describes as a tortuous period of readjustment. Other matters are speculated upon which I don’t propose to read out in open court but in essence this ghastly affair has caused chaos in its wake for her and indeed it is right to say for you and again it sadly demonstrates to the court how drink can cause such a Jekyll and Hyde change in some people’s personality. When I first read these papers it seemed to me inevitable that you would go to prison: the court will not and cannot tolerate violence perpetrated against women in particular and that was my first instinct. I have read carefully, however, what has been said about you, both from the reference which has been provided and which speaks very highly of your otherwise good character and your good nature. I also note carefully the report presented to the court by the highly experienced Probation Officer Ms [B] who has very considerable experience of this type of case and I am impressed by the fact that she says of you and I quote: ‘The defendant presents as ashamed and embarrassed with regard to the violent nature of the assault he perpetrated on his wife. The complete loss of control evidenced by Mr Wilson on this date suggests some form of build up of pressure around the relationship and the trigger on this occasion is what is alleged to have occurred on the night of this incident.’ She says also: ‘there is little doubt from my discussion with the defendant that his remorse for perpetrating this assault is genuine. There is evidence of some distorted thinking which supports controlling an aggressive behaviour in his psyche and this could be addressed through various appropriate programmes.’ Now I understand that you have actually even before coming to court engaged in counselling and have completed a number of counselling sessions. ... Well I have to concentrate in particular on the wrong done to your wife and it is for that wrong that you appear before the court today faced with the very real possibility of going to prison. I thought very carefully about a number of possible ways of disposing of the case. You pleaded guilty at the first reasonable opportunity and ... you will get full credit for that. Clearly that is something that should not be lightly brushed to one side. Very often in cases of this type the defendant will brazen it out and require the injured party to give evidence, which as we all know is a highly distressing matter for any witness but particularly when it is a crime committed within the family. You have spared your wife that and that maybe demonstrates to me in a better way than any written words can a different side to your character and supports the view of the experienced probation officer that you genuinely feel ashamed and remorseful. So in the end of the day and not without some considerable thought I have decided that the best way to deal with your case is to impose a prison sentence but not to make it immediate. I had thought about a probation order but it seems to me that you have completed a number of counselling sessions and whilst I am absolutely certain that further work with counselling might help, there is no reason why you couldn’t undertake that voluntarily. I don’t think it requires, in the particular circumstances that you are in, and the fact that you and your wife are now estranged, I don’t think that it requires me to do that. ... [A]lthough I can see advantages to probation in this particular case I cannot see that it is the preferred course. The sentence of the court therefore in this case is one of 18 months’ imprisonment to mark the seriousness of this offence and I am going to suspend the operation of that sentence for a period of 3 years. That is a long period of time longer than usual but it is a mark of the seriousness of the offence and also to give you an opportunity to put this behind you. You have already apologised. You have already indicated that you feel remorseful and it will give you and your wife, I hope, an opportunity to draw a line under this sad affair. Clearly your relationship has been seriously damaged by what has happened and you and your wife will have to rebuild your lives from a different prospectus. It will also remind you, Mr Wilson, that if you get into any trouble in the next 3 years I am sure it won’t be against your wife, but if you assault anyone else in such a serious manner you will go to prison, you understand that, and I have to warn you that if you do come back before the court within 3 years you may well receive this sentence together with any sentence that is thought appropriate for any future offence. I hope given your background that it is only an academic fear and with control of your drinking habits and addressing the aggression that seems to be latent with drink, which you have already started to do, that the court will not see you back again. I am obliged by law to consider the making of a compensation order. I have thought about this carefully in this case. I don’t think it is appropriate in this particular case I think it is a matter best left to be dealt with by the criminal injury legislation and therefore the court, as I say, imposes a sentence of 18 months suspended for 3 years. If you commit no offence within the next 3 years you will hear nothing more of this. You are now free to go.” 17. On 16 October 2008, the applicant’s solicitors wrote to the PPS seeking their views on the sentence. A meeting was then arranged for 31 October 2008 between the senior public prosecutor and the applicant; at the meeting the prosecutor explained the reasons for the prosecution decision in the case. According to the Government, the applicant indicated that she was content with the PPS’s actions but remained unhappy with the sentence. A further letter was then sent on 19 March 2009 by different legal representatives, raising concerns as to the handling of the case and the information provided by the PPS. The senior public prosecutor replied on 27 March 2009, referring to the meeting of 31 October 2008. 18. The applicant then complained to various public bodies in Northern Ireland about the excessive leniency of the sentence but without success. In particular, by letter dated 10 March 2009, the Attorney-General stated he did not have the power to apply to have the sentence reviewed by the Court of Appeal (on the grounds that it was “unduly lenient”) as that power was limited to the most serious offences (see relevant domestic law and practice at paragraph 23 below). 19. The applicant sought compensation for her injuries. This was initially refused by the Northern Ireland Compensation Agency, on the basis that the physical injury suffered by the applicant was not sufficiently serious to reach the minimum level of severity required and there was no evidence of a disabling mental illness. The applicant requested a review of that decision. This led the Agency to refer the applicant for examination and assessment by a psychiatrist. Following receipt of the psychiatrist’s report, on 18 May 2010 the Agency offered the applicant compensation of GBP 2,800. The applicant accepted that offer. 20. The offences covered by sections 18 and 20 of the Offences Against the Person Act 1861 are two of the three principal offences against the person where bodily harm is caused (the other, less serious offence is actual bodily harm contrary to section 47 of the Act). Section 18 carries a maximum sentence of imprisonment for life. By virtue of the Criminal Justice (No. 2) (Northern Ireland) Order 2004, in Northern Ireland section 20 carries a maximum sentence of imprisonment for seven years. 21. For Northern Ireland, there are no sentencing guidelines for section 20 assaults in the context of domestic violence. The Court of Appeal in Northern Ireland has stated that, where guidelines promulgated by the Sentencing Guidelines Council of England and Wales accord with local experience, they may be followed (Attorney-General’s Reference (Number 1 of 2008) Gibbons and others [2008] NICA 41). The Sentencing Guidelines Council of England and Wales has promulgated guidelines entitled “Overarching Principles: Domestic Violence”. Aggravating factors set out in the guidelines include: abuse of trust and abuse of power, violence where the victim is particularly vulnerable, where there is an impact on children, the exploitation of contact arrangements with a child in order to commit an offence, a proven history of violence or threats by the offender in a domestic setting, a history of disobedience to court orders, and where the victim is forced to leave home as a consequence of the offence. Mitigating factors include positive good character (although good character in relation to conduct outside the home should generally be of no relevance where there is a proven pattern of behaviour) and provocation (although assertions of provocation should be treated with great care). Other factors influencing sentence include the wishes of the victim. Here, the guidelines state (at paragraphs 4.1–4.4): “As a matter of general principle, a sentence imposed for an offence of violence should be determined by the seriousness of the offence, not by the expressed wishes of the victim. There are a number of reasons why it may be particularly important that this principle is observed in a case of domestic violence: • it is undesirable that a victim should feel a responsibility for the sentence imposed; • there is a risk that a plea for mercy made by a victim will be induced by threats made by, or by a fear of, the offender; • the risk of such threats will be increased if it is generally believed that the severity of the sentence may be affected by the wishes of the victim. Nonetheless, there may be circumstances in which the court can properly mitigate a sentence to give effect to the expressed wish of the victim that the relationship be permitted to continue. The court must, however, be confident that such a wish is genuine, and that giving effect to it will not expose the victim to a real risk of further violence. Critical conditions are likely to be the seriousness of the offence and the history of the relationship. It is vitally important that the court has up-to-date information in a pre-sentence report and victim personal statement. Either the offender or the victim (or both) may ask the court to take into consideration the interests of any children and to impose a less severe sentence. The court will wish to have regard not only to the effect on the children if the relationship is disrupted but also to the likely effect on the children of any further incidents of domestic violence.” 22. The Government have provided statistics on those convicted of section 20 offences in Northern Ireland for the years 2004-2006. The most common sentence was an immediate custodial sentence (with the average sentences for those years being between 12 and 19 months’ imprisonment). However, a significant proportion of offenders received suspended custodial sentences instead. For instance, in 2006, of 126 offenders, 54 received immediate custodial sentences and 46 received suspended custodial sentences (the remainder were given community orders, fines or conditional discharges). 23. Sections 35 and 36 of the Criminal Justice Act 1988 allow the Attorney-General to apply to have sentences for certain offences reviewed by the Court of Appeal. He or she may do so when a particular sentence appears to him or her to be unduly lenient. An offence under section 20 does not fall within the provisions of sections 35 and 36 and thus the Attorney-General cannot apply to have a sentence for that offence reviewed by the Court of Appeal. 24. The Family Homes and Domestic Violence (Northern Ireland) Order 1998 provides civil protection for victims of domestic violence in Northern Ireland. Article 11 allows a court to make an “occupation order”, which can require a respondent to leave a house. Articles 20-24 provide for the making of non-molestation orders. Article 25 makes it an offence without a reasonable excuse to contravene a non-molestation order or, where a non-molestation order is also in force, an occupation order. The maximum penalty is a fine or six months’ imprisonment (Article 15 of the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2005). 25. The Northern Ireland Office launched the above, five-year strategy in 2005. The foreword states that domestic violence is a crime and is not acceptable in any circumstances, and that the strategy focuses on preventative measures and on the provision of better protection, justice and support services for victims and their children. Initiatives include media advertising and the introduction of a free, 24 hour, domestic violence telephone helpline. 26. In Nunn the defendant pleaded guilty to causing death by dangerous driving. He had been drinking. The victim was his friend, who had been in the car he was driving. He was sentenced to four years’ imprisonment. When he appealed against his sentence, the victim’s mother and sister supported his appeal, stating that the length of the sentence was adding to their grief. The Court of Appeal reduced the sentence to three years’ imprisonment. In doing so, it observed: “We mean no disrespect to the mother and sister of the deceased, but the opinions of the victim, or the surviving members of the family, about the appropriate level of sentence do not provide any sound basis for reassessing a sentence. If the victim feels utterly merciful towards the criminal, and some do, the crime has still been committed and must be punished as it deserves. If the victim is obsessed with vengeance, which can in reality only be assuaged by a very long sentence, as also happens, the punishment cannot be made longer by the court than would otherwise be appropriate. Otherwise cases with identical features would be dealt with in widely differing ways leading to improper and unfair disparity, and even in this particular case, as the short judgment has already indicated, the views of the members of the family of the deceased are not absolutely identical. If carried to its logical conclusion the process would end up by imposing unfair pressures on the victims of crime or the survivors of a crime resulting in death, to play a part in the sentencing process which many of them would find painful and distasteful. This is very far removed from the court being kept properly informed of the anguish and suffering inflicted on the victims by the crime. In the present case, however, the Court is concerned not with the judgment of the deceased’s mother and sister about the level of sentence imposed on the applicant, but with the clear evidence, which we accept, that by its very length the sentence on [the defendant] is adding to the grief and anxiety which they are suffering consequent on [the victim’s] death. When the mother and sister of the deceased and the rest of the family have already suffered so much, we do not think that these adverse consequences of this particular sentence should be disregarded. In mercy to them we shall reduce the sentence as far as we can, consistent with our continuing public duty to impose appropriate sentences for those who cause death by driving dangerously under the influence of drink.”