The barber of Bedford should not have gone to prison

A 21 year old barber from Bedford, Abdulrahim Omar, was yesterday given an 8 month prison sentence for assault occasioning actual bodily harm. His crime was to have shaved the head of a ten year old boy as a punishment for playing with a razor. He gave him what is termed a “number 1” cut.

He was then made to sweep up the cuttings from the shop floor. It sounds like an extremely unpleasant and humiliating experience for the boy.

The Judge, HHJ Foster, the Recorder of Luton, described it as “despicable conduct” and “disgusting humiliation.” Undoubtedly Mr Omar behaved disgracefully. Yet his sentence was needlessly severe. It illustrates a great deal about the unhealthy English obsession with prison.

Let’s get the necessary caveat out of the way first. I wasn’t in court and like almost everybody else must rely upon news reports for commenting.  Perhaps there are things that have not been reported that make this a much more serious case than it appears to be. Certainly there are questions that are not answered in the relatively short reports that have been published.

But based upon what we do know this seems a needlessly severe sentence to be inflicted on a young man of hitherto good character, who admitted what he did, pleaded guilty at the first opportunity and (we have no reason to disbelieve his sincerity) was “very, very sorry” for what he did.

The law itself is reasonably clear. Assault occasioning actual bodily harm, the bread and partially hydrogenated yellow spreadable fat of Barristerblogger’s practice for many a long year, can be committed by cutting someone’s hair against their will.

The offence is complete when an assault leads to some bodily harm, which need not be permanent but must be more than “transient or trifling.” We needn’t trouble ourselves for long with whether compelling a boy to submit to an unwanted haircut amounts to an assault: in this case it did although it clearly would not always do so.

Nor need we worry about whether cutting someone’s hair can amount to actual bodily harm. That argument has been decided: it can, and the leading case is Smith [2006] EWHC 94 (Admin). A magistrates court had decided that cutting off a woman’s pony-tail could not be “actual bodily harm.” The argument was that the hair, apart from the roots, consisted entirely of “dead tissue.” The prosecution appealed and the Administrate Court allowed the appeal. Sir Igor Judge explained the law with characteristic lucidity:

“In my judgment, [rather tentatively I think the lack of an “e” in the middle of “judgment” may justify a “sic” here] whether it is alive beneath the surface of the skin or dead tissue above the surface of the skin, the hair is an attribute and part of the human body. It is intrinsic to each individual and to the identity of each individual. Although it is not essential to my decision, I note that an individual’s hair is relevant to his or her autonomy. Some regard it as their crowning glory. Admirers may so regard it in the object of their affections. Even if, medically and scientifically speaking, the hair above the surface of the scalp is no more than dead tissue, it remains part of the body and is attached to it. While it is so attached, in my judgment it falls within the meaning of “bodily” in the phrase “actual bodily harm”. It is concerned with the body of the individual victim.”

So cutting the hair was certainly “actual bodily harm.”

In Mr Omar’s case there was another issue. Prosecutor Alex Radley is reported as having said:

“The young man was proud of his hairstyle and felt that it was important to him. He suffered psychological and physical harm.”

The physical harm was the cutting of the hair.

It is less obvious that Mr Radley was right to refer to “psychological” harm. It is true that a clinical psychiatric condition – post traumatic stress disorder, for example – can amount to “actual bodily harm,” or indeed its nastier sibling “grievous bodily harm.” but unpleasant emotions such as “fear, distress or panic” cannot: see Chan-Fook (1994) 99 Cr. App. R. 147. I may be being unfair to Mr Radley, but it seems rather unlikely that forcing a 10 year old to have a haircut, even in humiliating circumstances, could have led directly to a clinical psychiatric condition. Nor is there anything in the reports of the case which suggest that it did. It is possible that Mr Radley, in a way that has become all too common in courts, has confused ordinary human emotions – humiliation and distress – with mental illness. That does not mean, of course, that a ten year old child’s distress should be ignored in the sentencing process.

By virtue of the Coroners and Justice Act 2009 S.125 sentencing judges have to follow sentencing guidelines issued by the Sentencing Council, unless “satisfied that it would be contrary to the interests of justice to do so.” The Guidelines are divide ABH sentences into three categories. Category 1 is the most serious, in which both harm and culpability are high, Category 3 is the least serious and covers cases in which both harm and culpability are low. These are the suggested sentences for each of the categories:

The guidelines are based on a sentence after a trial. However, in this case we know that Mr Omar immediately pleaded guilty, which would have entitled him to a discount of one third on what the sentence would otherwise have been. His sentence was 8 months, so it follows that the judge must have concluded that (before the guilty plea was taken into account) the case fell into, but hear the bottom, of Category 1.

(The range and subtlety of sentences for violent offences rivals that of the English class system ranging from murder at the top through causing grievous bodily harm, right down to common assault at the bottom. Just as George Orwell famously described himself as “lower-upper-middle class,” so the judge would have recognised this offence as belonging to the lower upper sentencing category of a lower middle range offence of violence.)

What are the factors that determine the degree of “harm” or “culpability” in a case like this?

The guidelines helpfully set them out. To constitute “higher harm” there are three:

* Injury (which includes … psychological harm) which is serious in the context of the offence (must normally be present)

* Victim is particularly vulnerable because of personal circumstances.

* Sustained or repeated assault on the same victim.

We can rule out any question of a repeated assault, this was a one off. And although a haircut may take several minutes, it seems unreal to describe it as a “sustained assault.”

Without some evidence of serious psychiatric harm it is impossible to regard a haircut as “serious in the context of the offence,” so the seriousness of the injury can probably be excluded too.

[There is another wrinkle here: the phrase “must normally be present” has been described by a judge as “not pellucid,” which is judge-speak for “incomprehensible.” If it means anything at all, it means that “normally” only ABHs in which the injuries are particularly serious should qualify for the higher harm designation. Anyway, it turns out that it doesn’t really mean that (see Fadairo [2012] EWCA Crim 1292), although to me, at least, even with the help of the Court of Appeal, its meaning still tends more to the opaque than the pellucid.]

It seems, therefore, that the boy was regarded as “particularly vulnerable because of circumstances.” That seems reasonable: any ten year old child is likely to be considered “particularly vulnerable” so far as responsible adults are concerned. That was enough to put the case into the higher category of harm.

How it got into the higher category of culpability is easy. If there is a significant degree of premeditation the guidelines say that that indicates “higher culpability.” This was not your typical ABH flaring up in the immediate aftermath of a spilt alcopop or an ill-judged comment. Even if Mr Omar did not sit his victim in the chair, theatrically stropping his razor while contemplating the appropriate punishment it is hard to see how anyone can shave a boy’s head without some significant premeditation. In fact the consequences might have been much worse if he had set about wielding his blade in a hot-blooded temper, but as far as the guidelines are concerned premeditation made it more serious.

So it is quite understandable that the judge thought, and correctly thought, that this was a case that demanded a “Category 1” sentence. The guidelines suggest a range of from 1 to 3 years imprisonment. The judge placed it at the bottom of the range, 1 year, and he gave Mr Omar the appropriate one third reduction for his early guilty plea, thus arriving at the sentence of 8 months.

No doubt at that point most of the lawyers in court were quietly thinking to themselves “wily old judge, he’s terrifying the defendant with prison before delivering the feather duster in the tail.”

“The sentence is therefore 8 months imprisonment.

[Pause for maximum dramatic effect]

However, in all the circumstances I am just persuaded that it is possible to suspend the sentence ….”

Justice would have been done, Mr Omar could have been given hundreds of hours of unpaid work; cutting the hair and trimming the beards of Luton’s homeless population would have been appropriate, although I doubt that it is something that the Probation Service would arrange. He could have been made to pay a fine, or even (although this might not be so straightforward with a child victim) to pay some compensation.

Instead there was no feather duster. Just a cold “take him down.”

There are, in fact, yet more guidelines for judges to consider when deciding whether a sentence can be suspended.

There was no suggestion that Mr Omar presented any risk to the public and as a man with no convictions one could not say that he had a history of poor compliance with court orders. He was a young, generally law-abiding man and there would seem to be every reason to suppose that he would not offend again. All these would seem to be factors pointing towards a suspension of the sentence.

Yet the judge obviously felt that “appropriate punishment could only be achieved by immediate custody.”

So there we have it. A young, generally law-abiding and remorseful young man sent to prison. There would seem to be very little chance of him committing the same crime again. Even if he were to remain at large, visitors to Bedford would be most unlikely to be seized off the street and subjected to a forcible tonsure.

Instead of making Mr Omar put something back into society we will have to pay for guarding and feeding him for the next few months. We don’t, of course, know exactly what the consequences will be. The chances are that he will come out after serving his time a chastened character who will be able to pick up his career where he left off.

But surprisingly enough spending hour after hour for month after month in a verminous cell does not always turn out well either for the prisoner or society as a whole. Mr Omar may lose his job, his home or his relationships, all of which are things that tend to tip otherwise law-abiding people into further criminality. Imprisonment may bring on mental health problems that would otherwise never have troubled him, or us. He may develop drug problems that he never had before. He may meet embittered young men who could lead him further astray. And of course he will run all these risks at our expense, and while using up incredibly scarce resources that could be better spent on trying to reform the bad people who, unfortunately, really do need to be in prison.

At the moment England and Wales has a prison system designed to hold a maximum of just under 76,000 prisoners, and a prison population of nearly 84,000. We imprison 142 or 143 people per 100,000, the highest in Western Europe, apart from Gibraltar which we govern anyway, and Greenland which isn’t really a comparable society and not really in Western Europ. In the World league we do a little better, managing to beat Myanmar by two places. As a nation – or rather a pair of nations – are we really so badly behaved that it has to be like this? Or should we not aspire to reduce our prison population to the level of places like France (102 prisoners per 100,000), Germany (77), or even (surprisingly perhaps) Northern Ireland, which has many similar problems to England and Wales, as well as some additional ones of its own, and yet manages to get by with just 76 out of every 100,000 inhabitants in prison?

Holland has done so much to reduce its once relatively vast prison population that it now has empty prisons to spare which can be used to house refugees.

Yet in England and Wales the prison population only ever seems to increase. Sentencing guidelines, designed to produce consistency in sentencing, seem to have added to the problem, producing consistency in ever more severe sentences.

Instead of constantly thinking up new reasons to lock people up, maybe we should look at what our European neighbours are doing and learn from them. If we did, it would not just be people like Mr Omar who would benefit; we all would.