Barratt, R. v

For deemed participation in a prison mutiny under section 1(4) of the Prison Security Act 1992, the prosecution must prove both that a mutiny was in progress and that the prisoner had a reasonable opportunity to submit to lawful authority but failed to do so without reasonable excuse.

The required synchronicity is between the mutiny and the failure to submit. It does not require an express instruction to be given during the mutiny. A prisoner may have a reasonable opportunity to submit by returning to a cell or otherwise disengaging from the disturbance.

Following a riot at HMP Bedford, Aaron Barratt was charged with prison mutiny. On the first day of trial, the prosecution amended the indictment to add a count of deemed participation under section 1(4) of the Prison Security Act 1992. The trial judge refused an application to dismiss that count, after which Barratt pleaded guilty and received two years’ imprisonment after credit for his plea.

He appealed conviction on the basis that no order to return to cells had been given after the disturbance became a mutiny. He also appealed sentence as manifestly excessive. The central issue was whether section 1(4) required an express instruction, given during the mutiny, before a prisoner could fail to submit to lawful authority.

1. The court dismissed both appeals. The trial judge correctly refused to dismiss the count under section 1(4) of the Prison Security Act 1992.

2. Section 1 creates one offence of prison mutiny. It may be committed by actual participation under section 1(2), or by deemed participation under section 1(4). Applying R v Mason and Cummins [2005] 1 Cr App R 11, a deemed participant need not share the purpose of overthrowing lawful authority. The prosecution must, however, prove that a mutiny was taking place.

3. Section 1(4) requires a prisoner, during a mutiny, to have or be given a reasonable opportunity to submit to lawful authority and to fail without reasonable excuse to do so. The required synchronicity is between the mutiny and that failure. It is not an additional requirement that a particular instruction be issued during the mutiny. An unheeded order may be evidence of a reasonable opportunity, but it is not a statutory condition.

4. Once the disturbance had become a mutiny, Barratt did not submit to authority. He continued to participate, including by entering the wing office and damaging property. He had a reasonable opportunity to return to a cell or otherwise disengage, and advanced no reasonable excuse. The conviction was therefore sound.

5. The sentence appeal also failed. Comparison between individual riot cases was of limited assistance. The extensive damage and disruption, together with Barratt’s encouragement of the disorder, participation and personal damage to property, supported a three-year sentence before credit for plea. It was not manifestly excessive.

• Court of Appeal (Criminal Division) — dismissed the appeals against conviction and sentence: [2018] EWCA Crim 1603.
• Trial court — refused to dismiss the amended count of deemed participation in prison mutiny. Barratt pleaded guilty and was sentenced to two years’ imprisonment after credit for his guilty plea.