Gilmour v R.

Where violent disorder forms part of serious public disorder, sentence must reflect the cumulative harm caused when individual acts encourage and inflame a violent crowd. Significant immediate custody will normally be required, even for an offender of previous good character, although a guilty plea, genuine remorse and personal mitigation remain material.

A sentencing judge may make a sure finding about disputed conduct from the cumulative effect of circumstantial video evidence. The Crown retains the burden of proof, but facial recognition or uninterrupted footage is not essential where other reliable evidence supports identification.

The appellant pleaded guilty at Kingston Crown Court to violent disorder during serious disorder following a demonstration in central London. He was filmed participating in an attack on a shop in Oxford Street. The Crown also alleged that he had thrown a large bin at a vehicle carrying the Prince of Wales and the Duchess of Cornwall.

His Honour Judge Price QC found that allegation proved and imposed 16 months’ imprisonment on 15 July 2011. The Registrar directly referred the appellant’s application for leave to appeal sentence. The issues were whether the judge had been entitled to make the finding of fact and whether the sentence was manifestly excessive or wrong in principle.

1. Application for leave to appeal sentence refused. The judge was entitled to be sure that the appellant threw a bin at the royal car. The footage did not permit a facial identification or continuous tracking of the thrower. Nor could a bright mark on the image safely be treated as a positive identifying feature. However, the cumulative evidence of build, hair, clothing, location and conduct was capable of establishing identity beyond reasonable doubt. The appellant’s decision not to give evidence did not relieve the Crown of that burden.

2. The court accepted that some earlier conduct was good-humoured and that the appellant was intoxicated. It nevertheless held that his conduct before and after the disputed incident was consistent with the judge’s finding. That conduct included masking his face, attempting to light a fire at the Supreme Court, joining the press around the vehicles, and later taking part in the attack on the Oxford Street shop.

3. In sentencing for violent disorder committed amid mass public disorder, the court must recognise that each participant’s conduct can encourage others and that the public harm arises from the combined conduct of the crowd. The court approved the principles illustrated by R v Al-Haddad & others [2010] EWCA Crim 1760 and R v Blackshaw & others [2011] EWCA Crim 2312, while distinguishing their more serious facts.

4. The appellant’s good character, remorse, charitable work, family support and guilty plea were properly reflected. Yet his serious and dangerous acts in an inflammatory setting required immediate custody. A sentence in the region of 20 to 21 months after trial, reduced to 16 months for the plea, was neither manifestly excessive nor wrong in principle.

• Court of Appeal (Criminal Division) — refused the directly referred application for leave to appeal sentence in [2011] EWCA Crim 2458.
• Kingston Crown Court — His Honour Judge Price QC sentenced the appellant to 16 months’ imprisonment on 15 July 2011 after his guilty plea to violent disorder.