No custody for DV as woman not "vulnerable"

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"A Pakistani cricketer who beat his wife with his own bat and forced her to drink bleach while urging her to kill herself is set to join a top British club after being spared jail."

"But Bashir was spared jail at Manchester Crown Court, where the judge decided that he did not pass the custody threshold because his wife was not a vulnerable person."

What the actual fuck?

The prosecution has to prove not only that the accused's actions could have led to the victim's death but that they intended to kill the victim.

IANAL but I thought the test was not possibility or intent but whether it was reasonably foreseeable.

If you want to kill someone and you throw a balloon at them, it isn't attempted murder because it was not reasonably foreseeable that a balloon could kill them.

If you kill someone by feeding them a fruit which neither of you knew they were allergic to, it was not reasonably foreseeable that the fruit would cause a severe reaction.

On the other hand if you have no particular wish to kill anyone but you drop a brick off a bridge over the motorway then it is reasonably foreseeable that that action could cause serious injury and/or death so it is dealt with as a more serious crime even though your intent was less.

Not good examples but I hope you see what I'm on about.

prh it's not just an isolated incident from one judge, there seems to be a notion amongst some family court judges, that a woman is not vulnerable, or shoukd experienced DV if she is intelligent. My friend was told by the judge that she shoukd have negotiated with her attacker, due to her intelligence. It should not even feature in court proceedings of DV and abuse. Yes I agree the whole system needs changing, not just one judge. The judges comments are just a very small example of the mindset of some judges in court.

there seems to be a notion amongst some family court judges, that a woman is not vulnerable, or shoukd experienced DV if she is intelligent

A woman is always vulnerable if there is DV in my view. However, the sentencing guidelines are interested in whether a woman is "particularly vulnerable", i.e. more vulnerable than other women experiencing DV. Under the guidelines as they stand an educated woman is less likely to be regarded as "particularly vulnerable" than an uneducated woman, the argument being that an uneducated woman is more likely to find it impossible to leave the relationship for cultural, religious or financial reasons. It is complex, however. A woman who is old, disable or pregnant or who has recently given birth is likely to be regarded as "particularly vulnerable" regardless of the level of education. Male victims of DV, on the other hand, are rarely regarded as "particularly vulnerable" unless they are disabled or old. I would agree that some judges are better than others and that there may be a need to update the guidelines. And if the judge genuinely said that to your friend he/she was incredibly stupid and needs retraining (shooting at dawn might be more appropriate).

I thought the test was not possibility or intent but whether it was reasonably foreseeable

It is both. There has to be an intention to kill and an overt act towards the killing. The act must go beyond planning but stop short of killing.

Your first example would not be attempted murder because, however much you hate someone, throwing a balloon at them cannot be classed as an overt act towards killing them.

Your second example would not be attempted murder because there is no intent.

Your third example would be manslaughter if someone was killed but it would not be attempted murder if no-one was hurt. There are various possible charges that could be brought but not attempted murder as there is no intent to kill.

Attempted murder is always difficult to prove. For that reason most cases that could be classed as attempted murder end up being charged as GBH, attempted GBH or GBH with intent.

prh47bridge what do you think the perpetrators intent was here, in this case?

"it could be that they are concerned that the evidence may not be strong enough to secure a conviction. As he has pleaded guilty he has accepted all the allegations."

If he has pleaded guilty and accepted all the allegations do they then need to prove the in court?

I assume not as you say "If he had pleaded not guilty the prosecution would have had to prove them beyond reasonable doubt."

So they did not need to prove it beyond reasonable doubt, so any 'fears' over lack of evidence are wholly unfounded.

"A bargain has positives and negatives for both sides. From the prosecution's point of view they have avoided the risk of the defendant being acquitted and have ensured he gets a criminal record, but the record is for a lesser crime than the one he actually committed. From the defendant's point of view he has a lower sentence than he would have received had he been convicted of the more serious offence, but he has given up the chance to defend himself with the possibility of getting a not guilty verdict. Both sides have opted for certainty over the uncertainty of a contested trial."

And what about all the other women out there who are effectively being told if they are bright or articulate then they had better not get caught up with any man who treats them like shit because ultimately it will be their fault. Surely sentencing is meant to send a message. This one does, loud and clear, women we do not give a shiny shit about you.

"I'm not convinced an attempted murder charge would have stuck. The prosecution has to prove not only that the accused's actions could have led to the victim's death but that they intended to kill the victim."

maybe that is the problem with our system. It advantages the perpetrators of violent crime, mostly men, by requiring us to know what is in their minds! Maybe if it walks like duck, and talks like a duck, it is, indeed a duck.

Maybe if men (or women) want to go around doing violent things that can lead to the death of others (I'm not talking about accidental things, I'm talking about obviously intentionally violent actions against another person or people) then they should accept that those looking on and judging them will not have the time or energy to peel back their brains and find intentions.

"from the description given it sounds like he could have faced a more serious charge - GBH or possibly GBH with intent. However, he was charged with ABH so he has to be sentenced accordingly."

Why do you thin he was not charged with those more serious crimes, prh47bridge?

prh47bridge, are you a solicitor?

For all my questions, feel free to answer or not as you choose, I won't hold it against you if you choose not to answer.

He did ph, a very misogynistic individual. I agree there are those who are more vulnerable, every woman who is a victim of dv is vulnerable.

perpetrator's intent.

MrsHathaway excellent comments.

anyone who has bleach forced into their mouth is vulnerable to the possibly of dying. How much more vulnerable can you get!

It's the usual shit, men defining which women are worthy of care or protection, which are not....

I do agree Italian, a lot of judges do not have a clue about DV and how the perp mind works, and how they use various tactics, to lure their victim to where they want them. How difficult it is for the victim to escape.

Dv is dv, whether the victim is educated or not, still the same old abuse.

what do you think the perpetrators intent was here, in this case

Given his reported words I am not sure he intended to kill. He clearly intended to harm.

If he has pleaded guilty and accepted all the allegations do they then need to prove them in court

No. They only need to prove the allegations if he pleads not guilty.

So they did not need to prove it beyond reasonable doubt, so any 'fears' over lack of evidence are wholly unfounded

That is because he pleaded guilty. If they had originally intended to prosecute for, say, GBH and he was going to plead not guilty they would have to prove his guilt beyond reasonable doubt. He would not have admitted any of the offences. So concerns over lack of evidence are entirely relevant. They could not accept his guilty plea to ABH then try to up it to GBH on the basis that he has admitted the allegations. The law doesn't work like that. And without the guilty plea there would have been no admission of the allegations.

And what about all the other women out there who are effectively being told if they are bright or articulate then they had better not get caught up with any man who treats them like shit because ultimately it will be their fault

No-one has said the victim is in any way at fault. However, the judge could only sentence based on the conviction for ABH. If there was a plea bargain maybe the CPS were wrong to accept it but equally it may be that if they didn't the perpetrator would have been acquitted by the jury and walked away without a stain on his character. I do not know why the CPS made the charging decision they did (but see my answer to your later question for some thoughts on the subject). Without knowing what evidence they have and the basis for that decision there is no way of knowing whether or not they got it right. But the CPS don't make their charging decisions on the basis of the message it sends. They are required to consider first and foremost whether there is a reasonable chance of getting a conviction. In a case like this, if they are concerned that they may not be able to prove GBH, going with ABH is better than letting the perpetrator get away without being convicted of anything.

I am concerned that suspending the sentence sends the wrong message. I obviously don't know what the pre-sentence reports said so I hesitate to say definitively that the judge got it wrong but it feels wrong to me. And if the sentence was suspended on the basis of the alleged contract with Leicestershire CC I would personally disagree with the decision even if the alleged contract had been true.

It advantages the perpetrators of violent crime, mostly men, by requiring us to know what is in their minds

You have to prove intent to get a conviction for murder so why would you not have to prove intent for attempted murder? The sentences for the crimes most commonly charged are close to the sentences for attempted murder for precisely the reasons you give. And the law applies equally to women who are actually more likely than men to be let off on charges of murder and similar due to lack of intent.

Why do you think he was not charged with those more serious crimes

I don't know. I am guessing. It could be incompetence by the CPS or it could be that they felt the evidence wasn't there for a more serious charge. However, there are a couple of things about this case that make me think it was a plea bargain. Whether that was to save the victim from having to give evidence or because the CPS were worried about the strength of the evidence I don't know. If I had to guess I would say it was probably the strength of the evidence. Given the delay between the DV and the victim reporting it there probably wasn't much evidence (if any) so it may have been essentially her word against his. That is always risky for the prosecution given the presumption of innocence. But I am guessing and could be completely wrong.

anyone who has bleach forced into their mouth is vulnerable to the possibly of dying. How much more vulnerable can you get!

Yes they are at risk of dying but that isn't what the sentencing guidelines mean by "particularly vulnerable".

It's the usual shit, men defining which women are worthy of care or protection, which are not

Just under half the members of the sentencing council which sets out these guidelines are women. One of them is Alison Saunders, the current DPP and an advocate of women's rights.

prh - thanks for the clarification. I knew those hours listening to law students droning on hadn't been completely wasted

What about the concept of "wicked recklessness" - or is that just Scots Law? I vaguely remember the possibility of murder without intent if the act was dangerous enough that someone could die because of it, ie firing a gun into a roomful of people, or forcing someone to drink bleach.

Yes, that is just Scottish law. In England you have to prove intent to kill or cause serious injury. However, you don't have to prove intent to kill the specific person who actually died, so firing a gun into a roomful of people may well qualify as murder on the basis that you clearly intended to kill someone.

Here's another link to the petition posted up thread:

www.change.org/p/cpsuk-take-domestic-violence-seriously-in-courts

prh47bridge "Given his reported words I am not sure he intended to kill."

What did he say and why would we believe such a person is going to tell us the truth. That's one of the faults here, a man tries to murder his wife, says he wasn't trying to murder her, just what scare her, hurt her, abuse her, shut her up, keep her in line, punish her, what would make his actions OK and why should we give a shiny shit about what he has to say!

"That is because he pleaded guilty."

So it all seems a little bit too much on the side of the shit-bag and not the victim, or am I missing something?! Why not charge him with the more serious crime and hopefully he will admit to that. If not, how about looking at any evidence they have.

If this man had done this to the judge would another judge have said what this judge said, would he have set the bar so low! I am guessing no.

"No-one has said the victim is in any way at fault." I think you will find that is the implication of the lack of punishment.

" If there was a plea bargain maybe the CPS were wrong to accept it." I would say so, and again, if the victim were a judge I am guessing pleas bargaining would not have been flavour of the day.

"...going with ABH is better than letting the perpetrator get away without being convicted of anything." I would say the better choice is to make laws that protect all people, no matter how vulnerable or not other people seem to think they are. To collect evidence and prosecute and then punish people when they are found guilty, or in this case, confess to the crime.

This crime is not being taken seriously because the victim has the misfortune to be married to the scum bag. Would you not agree?

"the sentencing guidelines mean by "particularly vulnerable". that would mean the so called 'guidlines' are shit IMHO or perhaps not fit for purpose.

"You have to prove intent to get a conviction for murder so why would you not have to prove intent for attempted murder?"

Maybe, just maybe, we as a society should be looking at the damage to the body of the person and not the mind of the perpetrator. If I pick up a gun and point it someone and shoot do you really need to know what is in my mind? I would say the circumstances are relevant, I may be holding the gun in war, or self defense or whatever. But once we have established that I am shooting at a person do we really need to know whether or not I intended to kill that person?

"And the law applies equally to women who are actually more likely than men to be let off on charges of murder and similar due to lack of intent." What does this mean, how many women are attacking men unprovoked? Can you link to the evidence of this? Please.

"Just under half the members of the sentencing council which sets out these guidelines are women." So still more men than women, and the judge is a man, and lots of women share misogynistic views about their compatriot women - so still not a level playing field.

And this shit just makes it less likely we will get that level playing field any time soon.

BUT thank you for engaging and providing answers. I sound like an angry person, I know, but I am not angry with you.

PS prh47bridge I am not sure he intended to kill either, but I wonder how many women have been killed by violent abusive men who did not intend to do so?

prh47bridge, many thanks for your clear and patient explanations on this thread. I've learned a lot. I completely get (and share) others' anger, but we can't win change unless we understand what we are dealing with.

Yes they are at risk of dying but that isn't what the sentencing guidelines mean by "particularly vulnerable".

If the sentencing guidelines are so clearly defined as to rule out anyone who isn't disabled, pregnant or incapacitated in some way as someone not "particularly vulnerable", why did the judge feel the need to mention her degree when discussing her lack of "particular vulnerability"? Not that we know whether he even used the word "particularly", you've just decided that he must have done and journalists must have left it out.

What did he say and why would we believe such a person is going to tell us the truth

I was not referring to his words in court. I was referring to his reported words at the time of the assault.

Why not charge him with the more serious crime and hopefully he will admit to that. If not, how about looking at any evidence they have

You do seem to be missing something. I assumed people understood how the process works. Sorry. Assuming this was a plea bargain, the process would have been something like this:

• the CPS charge him with, say, GBH

• his lawyers inform the CPS that he will plead not guilty to GBH and will fight the charge but ask, without prejudice, if the CPS will be willing to accept a plea of guilty to ABH

• the CPS assess the evidence and conclude that there is a real likelihood that they will lose a contested GBH case so agree to accept his plea of guilty to ABH

If it was a plea bargain the CPS knew that he would not admit to a more serious offence. And they will have looked at the evidence they had before deciding whether or not to accept the plea bargain.

I think you will find that is the implication of the lack of punishment

Disagree. If he had been given an absolute discharge you might be able to draw that conclusion but in my view it is clearly not the implication of an 18 month prison sentence, even though it is suspended for 2 years.

if the victim were a judge I am guessing pleas bargaining would not have been flavour of the day

You really have no way of knowing that. The victim would have been advised of any possible plea bargain and would have been asked for her views. If she opposed the plea bargain it would be less likely to be accepted. It is quite possible that she supported the plea bargain as it meant she would not have to give evidence in court. You may find it surprising (or even disappointing) how many victims of DV are happy for their attacker to plead guilty to a lesser offence so that they don't have to give evidence.

I would say the better choice is to make laws that protect all people, no matter how vulnerable or not other people seem to think they are.

The laws do protect everyone regardless of how vulnerable other people think they are. However, most people seem to agree that the more vulnerable the victim, the higher the sentence should be. You seem to be arguing for one size fits all sentencing.

To collect evidence and prosecute and then punish people when they are found guilty, or in this case, confess to the crime

That is what we do. In this case he confessed to ABH. Unless this was a very odd charging decision by the CPS we can be certain that if charged with GBH he would not have confessed to anything. This would then have been a contested trial and he may have been acquitted. Roughly 25% of those prosecuted for DV are found not guilty.

that would mean the so called 'guidelines' are shit IMHO or perhaps not fit for purpose

We are agreed that all victims are vulnerable. But how would you distinguish highly vulnerable victims from less vulnerable victims? Or would you argue that, for example, the punishment for DV against a disabled person should be exactly the same as that for violence against a non-disabled person? I am not saying such an argument is wrong but I think most people would expect DV against the elderly, disabled, pregnant women and those who are trapped in a marriage they cannot escape should be punished more severely than DV against others.

I don't know if it helps at all but, given two cases of ABH (or any other form of assault) that are identical in all respects except that one was DV whilst the other was not, the DV case will attract a heavier sentence.

But once we have established that I am shooting at a person do we really need to know whether or not I intended to kill that person

If you were shooting at them intentionally that is pretty clear cut and a charge of attempted murder is likely to succeed - intent to kill can be inferred from the circumstances. Most cases that could be regarded as attempted murder are much less clear cut than that. And remember that the case has to be decided by a jury. The fact that many incidents that could possibly be regarded as attempted murder end up being charged as GBH or similar is due to the fact that juries have proved reluctant to find defendants guilty of attempted murder unless the evidence of intent is very clear. Note that this isn't particularly about DV - most such cases are male attacker on male victim.

Coming back to this particular case, it may be that, had he not admitted it, the CPS would not have been able to prove the bleach incident. And there is no way he would have admitted it if he knew he was being charged with attempted murder as he would then have had no chance of avoiding immediate imprisonment. It is this above all else that makes me think there must have been a plea bargain. Without one I would expect the bleach incident to attract a charge of at least GBH or GBH with intent.

how many women are attacking men unprovoked

The statistics don't go into that much detail but 19% of violent crime is committed by women and men are twice as likely to be victims of violent crime according to ONS figures here. Unfortunately the official statistics don't tell us what proportion of the attacks by women are on men, nor do they tell us what proportion of attacks by women (or by men) are unprovoked.

There are a number of offences where some defences are more likely to be accepted if the accused is a woman. I don't know of an internet source for figures on that but it is true. In murder cases, for example, the defence of loss of control (which reduces the offence to manslaughter) is much more likely to be accepted by the jury if the defendant is female.

I sound like an angry person, I know, but I am not angry with you

I know. Just to be clear, I harbour no ill feeling towards you either. And I agree that we need to do better for victims of DV. From what you have posted I think I disagree with you as to what changes are needed but I agree that change is needed. The problem with focussing on single cases like this, especially when we don't know all the facts, is that it can result in rash changes to the law which do not have the desired effect. But, putting this case to one side, the entire justice system needs to do a better job for victims of DV.

A question the lawyers out there. Would it have been possible to charge the offender with more than one count of ABH and for sentences to run consecutively or do all the incidents have to be taken as one?

I was referring to his reported words at the time of the assault

And, having checked again, it seems the report I read (in which his words were along the lines of, "I'll kill you if you do this again", which suggests that the attack was not intended to kill) was incorrect. Given the words now being reported ("I want you to kill yourself") it sounds like a clear case of attempted murder.

This adds to my feeling that the CPS felt they would be unable to prove this charge if the accused pleaded not guilty. She took photos of the injuries to her neck caused by him grabbing her by the neck but it sounds like there was no physical or witness evidence of the bleach incident. That means it would have been her word against his. He would have denied it and may even have claimed that she was trying to commit suicide by drinking bleach and that the marks on her neck were due to his attempts to stop her. It would then be down to which of them the jury believed - the accused or the victim. Much as I hope they would have believed the victim, realistically I have to accept that there is a significant chance they would have believed the accused.

Would it have been possible to charge the offender with more than one count of ABH and for sentences to run consecutively or do all the incidents have to be taken as one

Yes, he could have been charged separately for each incident. The reports are unclear as to whether there was a single charge of ABH or multiple charges.

If someone is convicted of multiple offences the sentences can run consecutively or concurrently. If, as in this case, the offences are broadly of the same kind, and especially where they are committed against the same victim, concurrent sentences will normally be used. However, the sentence will almost always be higher than any of the individual charges would have attracted on its own - in a case like this the sentence would definitely be higher than the individual charges would have attracted. This is known as the totality rule - when sentencing for more than one offence the sentence must reflect all the offending behaviour regardless of whether it is structured as consecutive or concurrent sentences.

Thank you.

If the sentencing guidelines are so clearly defined as to rule out anyone who isn't disabled, pregnant or incapacitated in some way as someone not "particularly vulnerable", why did the judge feel the need to mention her degree when discussing her lack of "particular vulnerability"? Not that we know whether he even used the word "particularly", you've just decided that he must have done and journalists must have left it out.

No, I have not decided that he must have done. I hope he did because that is the phrase in the sentencing guidelines so it is what I would expect a judge to say. If he did not I profoundly disagree with him.

Some groups are clearly defined as particularly vulnerable but the guidelines also talk about a more vaguely defined group who for "cultural, religious, language, financial or any other reasons... may be more vulnerable" because these issues make it almost impossible for them to leave a violent relationship. Any victim may be frightened to leave a violent relationship but this guideline is asking the court to identify those who would have real difficulty leaving. Rightly or wrongly, the general view of the courts is that well educated women are usually in a better position to leave the relationship than uneducated women and are less likely to be tied for financial, etc. reasons. Note that the courts only regard this as an indicator, not as definitive. An educated woman may be classed as particularly vulnerable but it is a little less likely than an uneducated woman. I'm not saying I agree with this but I understand the reasoning.

For what it is worth, male victims of DV are generally only classed as particularly vulnerable if they are old or disabled. This particular section of the sentencing guidelines provides a way for some women to be classed as particularly vulnerable in a way that is generally not available to men.

Rightly or wrongly, the general view of the courts is that well educated women are usually in a better position to leave the relationship than uneducated women and are less likely to be tied for financial, etc. reasons

Wrongly. It's a damaging myth. And it's victim blaming. Women don't usually stay in coercive violent relationships for financial reasons. Then do so because they are broken down by their abuser over time, and often terrified of what they will do. The abuser manipulates the victim emotionally to the point where they think no one will believe them and often separates them from all possible sources of support.