Defending justices

15-year-old youth who almost killed a York man by punching him in the face.

NO way is this justice, declared the Evening Press in its comment on Monday, referring to the case of the 15-year-old boy who escaped custody after very nearly killing York man Chris Gregory by punching him in the face.

The newspaper wasn't alone in holding this view.

Mr Gregory himself, who now faces a triple heart bypass operation, described magistrates' decision to give the youth a 12 month referral order as 'beyond belief'. "It has sent a message out to people that they can do what they want," he said.

Even York MP Hugh Bayley said it was "hard to believe justice had been done".

York man Charles Rushton, whose letter appears opposite, describes the magistrates' decision as "disgraceful."

It is not the first time magistrates in York and North Yorkshire have been criticised for being too soft.

The decision by York magistrates not to issue Criminal Anti Social Behaviour Orders (CRASBOs) against two notorious shoplifters which would effectively have banned them from stores in the city also sparked howls of protest.

There have been other such cases: enough to leave many law-abiding people feeling the law these days is just too soft on criminals.

As the Evening Press asked in its leader on Monday: "When a boy who nearly killed a man is given a community order, the rest of us are left to ask: what will it take to see a yob locked up?"

So what are our magistrates thinking of? And why did they treat the boy who assaulted and nearly killed Mr Gregory so apparently leniently?

Gordon Lees is the first to admit that sometimes magistrates do make mistakes.

As Clerk to the Justices for North Yorkshire and a legal professional with 40 years experience behind him, his role is to advise magistrates, he says, not defend them.

"If they have done something wrong or stupid we will admit that," he says. "Very often it is a mistake that could be put right by appeal."

In the case of the youth who punched Chris Gregory, however, he insists that magistrates got it right.

How can that be?

One thing magistrates must never do, Mr Lees says, is let themselves be swayed into doing something against their better judgement simply because they know a decision may be unpopular.

It is easy for people who were not in court to criticise decisions when they do not know all the facts. Magistrates dealing with the case of the 15-year-old boy were placed in a very difficult position in deciding what punishment to give him, and the boy escaped custody by the "skin of his teeth".

He says there were very good reasons why magistrates took the decision they did. "In similar circumstances if I had been a magistrate I would probably have done the same as they did."

There was no doubt about the seriousness of the case, he says. After being punched Mr Gregory's heart stopped and he fell to the ground. He could easily have died had it not been for the fact that off-duty GP Dr Andy Field happened to be passing, says Mr Lees.

"The incident was a very serious assault. There are no two ways about that."

Had Mr Gregory died - as he came so near to doing - the boy would not have been standing in front of magistrates at all. He would instead have been in a crown court facing charges of murder, manslaughter or at the very least grievous bodily harm with intent.

Thankfully, Mr Gregory did not die. And when the case came before magistrates in the youth court, says Mr Lees, one of the factors the bench had to take into account was that it was not the boy's punch that caused Mr Gregory's heart condition.

"He (already) had the heart condition," Mr Lees insists. "It has not been suggested by anybody that this defendant hit this man (Mr Gregory) so hard that he caused him to have this heart problem."

It was also the boy's first offence. He had already been cautioned by police for throwing a bicycle at 57-year-old Doug Unwin on October 22, when, as in the assault on Mr Gregory, he had been with a gang of youths.

Magistrates were told about the earlier incident. A police caution, however, does not constitute a previous conviction in the eyes of the law, says Mr Lees and magistrates had no choice but to treat the assault on Mr Gregory as the boy's first offence.

Given that the boy admitted a charge of wounding Mr Gregory, magistrates were left with just three sentencing options under Government sentencing guidelines for first-time young offenders.

They could grant him an absolute discharge; give him a referral order; or give him a custodial sentence of anything between four months and two years.

The absolute discharge was ruled out straight away as being inappropriate, says Mr Lees.

Magistrates were then left weighing up whether to go for a referral order or custody.

It was a very close call. But in the end, they came down on the side of a referral order. Why?

There were several reasons. First the boy himself. The magistrates were presented with reports from the Youth Offending Team and York Training Centre about his behaviour, and with a letter from his mother, all of which indicated he was making a serious attempt to stay out of trouble.

The boy had signed an Acceptable Behaviour Contract, which committed him to breaking contact with the other youths he had been with at the time of the assault on Mr Gregory.

The boy also stood up in court and told magistrates he wanted to make amends to Mr Gregory, says Mr Lees.

Magistrates actually instructed him to pay £3,500 compensation to Mr Gregory: something they could not have done if he had been sent into custody.

Overall, says Mr Lees, the court "was persuaded on the day that he was definitely going to change his ways."

Then there was their belief that simply putting a youngster behind bars is not the best way of stopping him from offending again in the future - a view shared by the Government, which has made clear that, where appropriate, courts should look at 'community options' rather than custody.

"Magistrates have to visit penal establishments, and they are godforsaken places," says Mr Lees.

"A 15-year-old who has been in some trouble, when he comes out, if he did not know how to break into a car before, he would certainly know how to do that afterwards.

"Much of the information that persuaded the Government to change the law in relation to the treatment of offenders (by encouraging courts to look at alternatives to custody) suggests that people were going into custody and coming out worse criminals."

Magistrates therefore decided to give the boy a chance, believing he could change - and that keeping him out of custody was best for him, and best for the community too.

But how did they know he was sincere about changing his behaviour, and wasn't just putting on an act to impress magistrates?

What about the message their 'leniency' sent out to other young criminals?

Time will tell whether he was sincere, says Mr Lees. If he comes back before the courts for breaching his referral order or committing another offence, he will have nailed his colours to the mast. "So he has a chance, and it is entirely up to him now."

And the message sent to other young criminals?

There is a risk, Mr Lees admits, that they might get the impression it doesn't matter what they do.

But that would be to misunderstand the nature of a referral order.

"The impression has been given that it is a let-off," he says. "It is not."

Under the terms of the order, the boy and his parents will have to attend regular meetings of a youth offending panel and take part in a programme of activities and education designed to address his offending behaviour.

In many ways, Mr Lees insists, it will be much more challenging than simply being banged up for four months - and there is a real chance that the boy's behaviour could be turned around.

He accepts that some people will disagree. But magistrates were in a very difficult position and made the decision they thought was best, he says.

Only the boy himself can now prove them right.

Or wrong.

Updated: 09:20 Friday, May 14, 2004