On 3 June 2015, the Daily Mail ran a story about Zija Lushi, an Albanian man who had entered the UK illegally. Lushi who the Mail says did not have a licence, drove to buy some cigarettes when en route he hit cyclist Michael Dixon, resulting in his death.
The Mail reported that Lushi “lost control of a poorly maintained silver Citroen with dangerously worn tyres which he had borrowed from his brother. He swerved across the road, hitting Mr Dixon, before crashing into a hedge.”
The outrage – as is plain from the headline “Illegal immigrant with no licence who ran over and killed grandad could be freed from prison in just FIVE months” – stems from the length of time it appears Lushi will spend in prison.
As is often the case with reports of legal cases in the Mail, this is wholly misleading.
1. The sentence
Lushi pleaded guilty to causing death by careless driving, while driving without a licence and without insurance. He received a sentence of 14 months’ imprisonment. That represents a starting point of somewhere around 21 months – nearly two years. It is notable that the top bracket in the guidelines (“Careless or inconsiderate driving falling not far short of dangerous driving”) has a starting point of 15 months with a range of 36 weeks to 3 years. Sushi’s sentence therefore was placed in the highest category towards the top of the range.
We can see therefore that, irrespective of one’s view about the length of sentences for death by driving cases, this sentence was very much in accordance with the guidelines and by no means lenient.
2. The time spent in prison
The Mail exclaims that Lushi “could be freed” in 5 months, suggesting that for some (unspecified) reason, he will serve less than half of his 14 month sentence. This simply isn’t true. The general rule is that prisoners serve one half of determinate custodial sentences (there are circumstances in which prisoners can be released a few months early and placed on Home Detention Curfew, but that would appear not to apply here). So Lushi will be required to serve 7 months of his 14 month sentence – so why does the Mail say he’ll be out in 5 months? Well they have conveniently omitted to mention the fact that he would have spent some time on remand waiting to be brought to court and waiting to be sentenced. That time is deducted from any eventual sentence and so in this case, it seems overwhelmingly likely that he spent circa 2 months on remand, has another 5 to serve before he is released on licence.
3. The issue of deportation
The Mail also expresses some outrage at the fact that “questions remain over whether the judge’s order to deport him on release will be enforced”. Notwithstanding the fact that the Mail does not state what these questions are and why there may be an issue with his deportation, let’s try and tidy this up…
For the purposes of this blog, there are two schemes for the deportation of foreign criminals; a) automatic deportation and b) recommendations for deportation.
The Automatic deportation regime is triggered by custodial sentences of 1 year or more, however the Secretary of State’s policy is not to order the deportation of EU citizens unless the sentence received is 2 years or more. Albania is not in the EU (however it is preparing for membership).
Lushi received a sentence of 14 months: we dont know whether that was a single sentence on the careless driving count, or consecutive sentences across all three counts . If it is the former, then automatic deportation applies, if it is the latter, then automatic deportation does not apply as no single sentence is above 12 months and so the automatic regime is not triggered.
The position is therefore that either, the judge should have told Lushi that automatic deportation DID apply, and the Secretary of State would determine whether to deport him, or it DID NOT apply and the judge made a recommendation for deportation, and accordingly the Secretary of State would consider whether or not to deport him.
Under both regimes, deportation is not set in stone, however the policy under the automatic regime is to deport foreign criminals, subject to European convention rights. In each case automatic deportation or a recommendation for deportation exposes the foreign criminal to a liability to be deported.
Whether the Mail has wilfully misled its readers, or the inaccurate article is the product of poor understanding and poor research, we don’t know. But as far as we are concerned, neither is acceptable. The author of the article, Chris Greenwood (Crime correspondent) could have got in touch with us to clarify matters. We’d have been happy to help…