No, Lavinia Woodward didn't avoid jail because she was posh, clever and pretty

Headlines like “Toff Justice” recycle the nasty myth that money confers mental health immunity.

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To read the coverage of the Lavinia Woodward case, you'd be forgiven for thinking that she was let off with a slap on the wrist after stabbing her boyfriend with a bread knife because she was “too clever” to be sent to prison. That the judge was bowled over by the fact that she was pretty and blonde and white and rich, and was an Oxford medical student with pretensions to becoming a (non-ironic) surgeon. That he imposed a suspended sentence of imprisonment in circumstances where anyone from any other background would have been met with a stiff helping of chokey.

Truly this is, as our best-selling red top succinctly put it, with a we’ve-got-a-blank-headline-and-first-edition-is-ready-to-go-so-let’s-grasp-for-a-pun-that’s-not-quite-there flourish, Toff Justice.

If you have heard, read or watched anything about this case, odds are it will be along those lines. Since Woodward pleaded guilty to unlawful wounding in May of this year and the judge deferred her sentence to September, indicating as he did that he was not minded to impose immediate custody, the commentary has been gushing in one direction. Yesterday, as the judge imposed a 10 month sentence of imprisonment suspended for 18 months, the presses were already poised to spew out repeat copy bemoaning the privileged little rich girl and treacherous judicial indulgence.

Sadly, before arriving at the conclusion that the judge was wrong, few pop-up commentators have paused enquire what the law actually is, or even what the judge actually said. Had they done so, they would have found a far more prosaic and less salacious story lying at the heart of what is, on any sensible reading, a sad and difficult case.

Lavinia Woodward pleaded guilty to unlawful wounding at an earlier hearing at the Crown Court. The facts, as set out in the judge’s sentencing remarks, were as follows:

"Having met a few months before, in October 2016 you [the Defendant] began a relationship with a student from Cambridge University. Sadly, you were still suffering from the effects of a very damaging previous relationship with another who had introduced you to class A drugs. You clearly had both drug and alcohol addictions. On 30 December 2016, your partner paid you a visit in your accommodation in Christchurch College in Oxford. It rapidly became clear to him that you had been drinking. He tried to discourage you from continuing your drinking without success. As the evening progressed, you became increasingly volatile. At one stage your partner contacted your mother over Skype in order to seek her assistance over what to do about you. When you discovered this, you became extremely angry, starting to throw objects around. It is clear from the transcript of the 999 call that your partner summoned the help of the police before you picked up a bread knife which was in the room and struck a blow with it to his lower leg. In the course of the incident two of his fingers also received cuts. Your partner managed to partly restrain you, albeit you then started to turn the knife on yourself and he had to further disarm you to prevent further self-harm. When the emergency services arrived it was abundantly clear that you were intoxicated, deeply distraught and mentally disturbed. You were taken to a police station in a very distressed state.

"Fortunately, the wounds that your partner received were relatively minor. The two 1 cm cuts to the fingers were treated at the scene with steri-strips and the cut to the leg was closed with three stitches."

The judge, having heard submissions from her barrister, decided to defer sentence. This is a specific legal power used where a judge wants to give a defendant an opportunity to save themselves from immediate prison – often in cases where a defendant’s offending behavior is rooted in substance abuse or mental health problems and the judge wants to see if they will respond to treatment before sentence is decided. If a defendant complies with the requirements that a judge imposes during the deferral period, they can legitimately expect to stay out of prison come the sentence date.

In Lavinia Woodward’s case, HHJ Pringle QC explained that he had deferred sentence for two reasons:

"[F]irstly, to allow you to continue with your counselling; secondly, for you to demonstrate over a lengthier period of time that you had truly rid yourself of your alcohol and class A drug addiction."

Four months passed, and Ms Woodward returned to court yesterday, and having satisfied the judge with her conduct during the deferral received a suspended sentence of 10 months’ imprisonment. In order to assess how unusual this sentence is, let’s look briefly at how the sentencing exercise was carried out. 

The offence was unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861, which carries a maximum sentence of 5 years. When sentencing, courts are required to follow the Sentencing Guidelines for assault, produced by the Sentencing Council (unless it would be contrary to the interests of justice to do so). 

First, the court works out what Category the case falls into, by looking at what specified features of harm and culpability are present. The judge formed the view that this was a Category 2 offence. There was lower harm due to the relatively minor nature of the injuries in the context of this type of offence - note that no-one is saying that wounds caused by a knife are not serious; but it's all relative. An offence of unlawful wounding covers a wide range of injuries, from small breaks of the skin right up to life-threatening, body-scarring lacerations. A 3cm cut to the leg, closed by three stitches, and minor cuts to fingers treated with steri-strips, while undoubtedly horrible for the victim, are minor in the context of wounding offences. Looking at culpability, there was higher culpability by virtue of use of a knife.

Category 2 provides a starting point of 18 months' imprisonment, with a range of 18 months' imprisonment up to 3 years. In order to work out where a defendant falls in this range, the court looks at and applies appropriate weight to other features of aggravation and mitigation.

What do we know about the mitigation and aggravation in this case? 

As far as aggravating features are concerned, the judge said: 

“[T]here is one non-statutory aggravating feature, namely that at the time of the offence you were heavily under the influence of alcohol. Whilst that in part was as a result of a previous and highly damaging relationship, you were old enough and intelligent enough to realise that over-indulgence would severely affect your behaviour."

But it was the mitigating features that gave the judge the most to say:

“When I turn to look, however, for mitigating features the picture is very different. There are many mitigating features in your case. Principally, at the age of 24 you have no previous convictions of any nature whatsoever. Secondly, I find that you were genuinely remorseful following this event and, indeed, although it was against your bail conditions you contacted your partner to fully confess your guilt and your deep sorrow for what happened. Thirdly, whilst you are clearly a highly intelligent individual, you had an immaturity about you which was not commensurate for someone of your age. Fourthly, as the reports from the experts make clear, you suffer from an emotionally unstable personality disorder, a severe eating disorder and alcohol drug dependence. Finally, and most significantly, you have demonstrated over the last nine months that you are determined to rid yourself of your alcohol/drug addiction and have undergone extensive treatment including counselling to address the many issues that you face. In particular, you have demonstrated to me since I adjourned this matter in May a strong and unwavering determination so to do despite the enormous pressure under which you were put and which has been referred to by your learned counsel.”

A further matter advanced in mitigation by the defendant's counsel (as reported by the BBC) was that she had suffered domestic violence in a previous relationship, which contributed to her substance misuse.

Taking these strands of mitigation together, it would appear that the judge considered that the starting point should be adjusted downwards from 18 months to 15 months. I say that because it seems that the defendant pleaded guilty at an early stage of proceedings, which would attract "credit" or a discount on her sentence of up to one third. Judges like starting point sentences that are easily divisible by three, so it stands to reason that, although he does not explicitly state as such in the published remarks, he took 15 months and reduced a third to arrive at his final sentence of 10 months' imprisonment.

As for the decision to suspend the sentence, there is no strict test for suspending a sentence of imprisonment, but the guideline offers the following pointers:

On the facts, it is difficult to say that any features on the left hand column are made out; but it can be argued that at least two if not all of the factors on the right apply. The court must have regard to the statutory five purposes of sentencing – punishment, reduction of crime (including by deterrence), reform and rehabilitation of offenders; protection of the public; and making reparations – and will need to assess the appropriate emphasis in any given case. While stabbing with a bread knife is plainly serious, where the injury is not particularly grave, and the court is of the view that more can constructively be achieved by avoiding sending a promising young defendant to prison and shattering their future life prospects, instead offering in the first instance a sentence focussing on rehabilitation to address deep-rooted problems laying behind the offending, then it is arguably in service of those five principles that a suspended sentence of imprisonment, with punitive and rehabilitative requirements attached, might be imposed.

The features of mitigation identified - the mental health difficulties, the efforts to address drug and alcohol abuse, the good character, the genuine remorse - would all further support the decision to afford a defendant a chance on a suspended sentence.

Indeed, this further colour, in particular the mental health dimension, shifts the perspective significantly. It's not just a rich white girl getting a let-off; it's also a victim of domestic violence with severe mental health and substance misuse problems being given a chance to rebuild her life. You may not care for that latter interpretation, but it's no less valid than the former preferred by today's front page "Toff Justice" tabloid headlines, implicitly recycling the nasty myth that money confers mental health immunity.

When we trace the sentencing exercise through, it is plain that there doesn't appear to be anything unusual in this sentence. You may disagree with its merits; you may think that all violent knife offences should result in immediate prison regardless of circumstances or personal mitigation. You may think there should be more women with mental health problems clogging up our prisons rather than receiving treatment in the outside world and trying to forge careers for themselves. But from a legal point of view, there's little out of the ordinary. Not based on what we see in the courts in practice, with defendants of all races and social backgrounds.

The reality is that where a defendant who has never been in trouble is facing a custodial sentence of two years or under, and where they have the prospect of employment, education or caring responsibilities, judges will often strive to avoid passing a sentence of immediate imprisonment. That is not to deny that unconscious social or racial bias plays a part in judicial decisions; basic psychology teaches us that it does, to some degree at least. But the suggestion that this exceptional course is only ever reserved for the Prom Queens (or whatever our British equivalent is) is tired and lazy. The reason you don’t hear about the suspended sentences handed down for less photogenic defendants – for the 19-year-old lad starting his apprenticeship, or the 48-year-old mobile hairdresser – is mainly because the media tends not to report on them.

As a final observation, the Telegraph reports that Ms Woodward's QC invited the court to consider imposing a conditional discharge - the lowest form of sanction that a court can impose. The judge refused, clearly of the view that a sentence of imprisonment was required. Had the judge acceded to that invitation, the complaints that the sentence was inexplicably lenient would carry more force. As it is, for the reasons above, there appears nothing unusual, and indeed much humane, about the approach taken in this case.