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Laughter – and tears – in court - Simon Brown

Blog | By Simon Brown | May 26, 2022

Former Supreme Court Justice Simon Brown only changed a sentence twice: in a very funny case – and a very tragic one

Once a judge passes a sentence, he has 28 days to change it if he wishes. This power is seldom exercised – no doubt because judges seldom have the time or the inclination to reconsider decisions.

Only twice in my eight years on the High Court Bench did I alter sentences I had originally passed.

The first, not long after my appointment to the Bench, was a most tragic case, for which there could never have been an obviously right answer.

It was a mercy killing, by a husband of his wife. They were both old. She was incurably and painfully ill. It cannot have been a straightforward mercy killing or, under our law, it would have been murder – just as a gangland killing or any other sort of intentional killing is murder. And all murders attract a life sentence, although release dates vary widely.

The sentence I originally passed was 18 months’ imprisonment – a conspicuously light sentence, even for a killing that was provoked, or mitigated by diminished responsibility.

Judges are taught that all criminal killings are serious offences – and obviously to be discouraged. Those committing them need to expiate their guilt and come to terms with the enormity of their wrongdoing.

As the days passed, the thought of this old man, locked up in a prison cell, got to me and filled me with gloom. He was cut off from his family and friends, grieving for a wife with whom he had lived lovingly for more than half a century. Yes, he had killed her, but only because he could no longer bear to watch her suffering.

Is there really much point in being a judge if one cannot correct an injustice such as I now felt this to be? I therefore had the case relisted before me and suspended what was left of the sentence I had earlier passed.

In the other case, it was laughter, not tears, that made me reduce the sentence.

It came during one of my circuit visits to Sheffield. The defendant, an 18-year-old local lad, was pleading guilty to two counts of attempted armed robbery. On a Saturday night, in the outskirts of the city, desperate for a few drinks but with no money to pay for them, this youth had hatched his plan. On a piece of paper, he wrote, ‘I’ve got a knife in my pocket. Hand over everything in the till or I’ll kill you.’

He took this to the first place he found that was open. This happened to be a small Chinese takeaway with a single elderly Chinese gentleman at the counter. Thrusting the note at him, the defendant stood back expectantly.

What he had not counted on was that this man couldn’t read English. Assuming the note to be a written takeaway order for sweet and sour pork or whatever, he smilingly indicated he would take it upstairs to the kitchen.

Moments later, his irate son came storming down the stairs, wielding a large metal wok to attack this presumptuous youth. The defendant ran off up the street.

But not far up the street because, before long, he came to a small Turkish restaurant. There, prominently displayed on the counter, sat a large doner kebab machine. Noting again that there was only one member of staff inside (in fact, the Turkish owner), the defendant went in and showed him a duplicate copy of the one he’d had to leave behind at the Chinese takeaway.

Waiting nervously while the owner deciphered the note, the defendant failed to notice behind the counter the large, sword-like knife used for slicing meat off the doner kebab. The owner suddenly seized this and brandished it furiously at the defendant – who once again fled back out on to the street, straight into the arms of the local police, responding to the 999 call from the Chinese takeaway.

Two attempted armed robberies – even with no previous criminal record to speak of – merited at least the five-year sentence I initially passed.

But at dinner that night with my fellow judges, I couldn’t resist telling this story. We all started laughing at its absurdity and at the sheer incompetence of this aspiring robber.

As the days passed, I found myself continuing to chuckle whenever I thought of it. So I decided that a five-year term was not necessary. So gormless a youth was unlikely to progress into serious adult criminality. Surely he must have recognised by now that he really wasn’t cut out for such a career.

I had the case relisted and found a form of words – other than that the offences had reduced the judges’ lodgings to helpless laughter – to justify reducing the sentence to two years concurrent on each count.

I doubt whether anyone suffered later from such leniency on my part. And it certainly saved the taxpayer quite a lot of money.