Anatomy Of A Hypothetical Criminal Case: Regina V Will Smith
What could happen to Will Smith had he slapped Chris Rock in the face during a televised awards ceremony in the UK?
Any prosecution would more than likely have to begin with Mr Rock making a statement of complaint to the police, and the police choosing to take matters forward by investigating a criminal offence. The most obvious offence that Mr Smith could be investigated for is battery, an offence that is committed when a person either intentionally or recklessly inflicts unlawful force on another.
Once the police received the complaint and decided to proceed with an investigation, they would need to question Mr Smith in an “interview under caution” to give him an opportunity to give his account of the incident. In order to secure Mr Smith’s attendance for the interview, the police would need to decide whether to go out and arrest Mr Smith to bring him to a police station or invite him in to the station for a voluntary interview. Once Mr Smith is at a police station, he can then be interviewed. In the interview, Mr Smith would have an opportunity to put forward his account of the incident.
Assuming Mr Smith has no recent previous convictions for similar offences, were he to admit to committing a criminal offence against Mr Rock he would be eligible for a caution. This is an “out of court disposal” that means that the case would not proceed to court but Mr Smith would have a criminal offence of battery recorded against him. A caution can either be a “simple” caution or a “conditional” caution, the latter disposal having conditions attached to it (for instance, a letter of apology) which, if unfulfilled within a certain amount of time, would mean that the option of a caution would no longer be on the table and the matter would proceed to court. The police could decide to deal with the matter by way of a caution themselves, although if they took the view that proceeding to court might be appropriate then the matter would probably be referred to the Crown Prosecution Service (CPS) for a charging decision.
The CPS review the evidence
The CPS would then review the evidence in order to assess whether it was sufficient to provide a realistic prospect of conviction and, if so, assess whether it was in the public interest to prosecute the case. Were the CPS to decide that there was sufficient evidence and the prosecution is in the public interest, the matter would proceed to court.
If the CPS were to decide the matter should proceed to court, the offence that Mr Smith would most probably be charged with would be one of battery. This offence is a “summary only” offence that can only be dealt with in the Magistrates’ Court (it cannot therefore be sent to the Crown Court to be dealt with), and which has a maximum sentence of 6 months’ imprisonment. Mr Smith would either be charged at the police station and given his court date or he would receive a letter in the post, known as a “Postal Charge Requisition”, specifying the offence he is charged with and the time and date of his court hearing, which he would have to attend or risk a warrant being issued for his arrest and a separate charge of failing to surrender to bail being brought against him.
Prior to attending the Magistrates’ Court, Mr Smith could instruct his own solicitor to attend court with him (as Mr Smith is unlikely to satisfy the means test for legal aid funding, he would probably have to pay privately for his defence) or use the services of the duty solicitor at court, free of charge.
At court, Mr Smith’s legal representative will have obtained the prosecution case papers before the hearing and gone through them with him in detail to take his instruction on them. The Crown would doubtless be relying upon the footage of Mr Smith slapping Mr Rock as the main piece of evidence in the case and the footage would be supplemented by Mr Rock’s witness statement explaining the incident from his point of view. We can assume that Mr Smith’s instructions to his legal representative would be similar to his acceptance speech, and would be along the lines of expressing remorse for what happened but had been provoked by Mr Rock’s comments about his wife and that “love will make you do crazy things”.
Mr Smith would be advised about the elements of the offence of battery that that the Crown have to prove and about the availability of any defences. He would be advised specifically that provocation is not a defence to battery. He would also be advised that the court would be expecting him to enter a plea to the charge today, either guilty or not guilty, and the decision as to which plea to enter was ultimately his to make. It would also be explained to him that were he to plead guilty today he would be entitled by law to maximum credit for that. This means that he would be entitled to an automatic reduction by 1/3 of the sentence that he would receive were to plead not guilty, take the matter to trial, and be found guilty by the court.
Assuming Mr Smith gave instructions that he wished to plead guilty, his legal representative would inform the usher that the case was ready to the called on before the bench sitting that day. Once the case is called on, the charge would be read to Mr Smith and he would be asked what his plea to the charge was. He would then say the word “guilty” and he would stand convicted of the offence and the court would proceed to sentencing phase of the hearing.
The sentencing phase of the hearing would begin with the prosecutor outlining the facts of the offence and making observations on where the offence falls within the sentencing guidelines for the offence of common assault (which can be found on the Sentencing Council website). A prosecutor would more than likely conclude that the offence fell into category B2 in the guidelines because none of the factors indicating “high” culpability are present and in all probability only minor physical harm and/or distress was caused to Mr Rock. The Crown’s position therefore might be that the sentencing stating point should be a low-level community order with a range of a Band C fine to a high-level community order. Having made observations on the starting point and range, the prosecutor would then be entitled to highlight any aggravating factors which the Crown say increase the seriousness of the offence so as to justify an upward departure from the starting point.
Once the prosecutor completes their submissions, the defence advocate will then have an opportunity to make a “plea in mitigation”, the objective of which will be to persuade the sentencing bench to pass the lowest possible sentence.
Were I mitigating in this case, I would begin by highlighting the fact that Mr Smith entered a guilty at the first to opportunity and he should be given maximum credit for that. I would also highlight the fact that, prior to this offence, Mr Smith was a man of positive good character (Wild Wild West and Bad Boys 2 notwithstanding) and the consequences of this offence are already particularly onerous for him given the fact that he has now lost that good character (in the sense that he now has a criminal conviction recorded against him).
I would also make the point that the incident overshadowed the fact that he had in fact won the best actor award on the night. I would then attempt to place the offence in its proper context by explaining that Mr Smith was significantly provoked into his actions by the fact that Mr Rock had mocked Mr Smith’s wife’s Mrs Jada Pinkett Smith’s appearance in a highly public setting. Mr Rock made a joke referencing the fact that Mrs Pinkett Smith has very short hair, in effect mocking her for having the medical condition alopecia (a fact that Mr Rock would be unable to claim realistically to having been unaware of given the fact that Mrs Pinkett Smith has often spoken publicly about having the condition). I would then go on to highlight the genuine remorse felt by Mr Smith for the incident, as evidenced by the fact that he had already publicly apologised to Mr Rock.
I would then argue that the offence fell within category B3 in the sentencing guidelines, with a starting point of a Band C fine and a range of a discharge to a low-level community order. I would make it clear that Mr Smith was a man of significant means and would be able to immediately satisfy any financial penalty that the court saw fit to impose, but given the significant mitigating features in the case – early guilty plea, previous good character, significant provocation and genuine remorse – the most appropriate sentence would be a conditional discharge. Such a sentence would mean that Mr Smith would not face any punishment on that day but the court would set a period, usually 12 months, within which were to reoffend he could be sentenced to a harsher penalty for this offence, as well as being sentenced for the new offence.
The sentencing bench would then retire to consider their decision, whilst those in court all await the outcome…