Ian Watkins back in Court on 23rd July for appeal against sentence

Photo from the Independent

Photo from the Independent

Introduction

We have covered the case of Lost Prophets singer Ian Watkins previously on the blog. When he was sentenced, we said that it was a very, very high sentence and permission to appeal was likely to be granted. On that basis, it wasn’t a surprise when The Independent reported on 16th July 2014 that he has been given permission to appeal.

The full appeal hearing is next Wednesday, 23rd July 2014.

Here’s some of our previous pieces on the case:

 

What will happen?

The hearing will be a full appeal against sentence we understand. The Judges will have the papers, so anyone sitting in Court to watch it may well be a bit confused as they won’t have all that information.

It probably won’t actually last that long – maybe half an hour. A cynic would say that the Judges will have come to their conclusion, and even written their judgment, in advance.

There has been a move recently to have more hearings out of London, and to create a legal hub in Cardiff to represent Wales. There is a ‘Civil and Family Justice Centre’ there that can hear many cases.

Because of the need for a secure dock for Mr Watkins, this appeal will actually be heard in the Crown Court at Cardiff, even though it will be sitting for the day as the Court of Appeal.

As to the outcome? Difficult to say. Having to serve at least 19 years is one of the highest sentences ever handed out for this sort of offending. Having said that, this was a particularly horrific set of offences, and an extremely lengthy sentence was in order.

I imagine that there will be two strands to the appeal. Firstly, that an extended sentenced was not necessary. This is unlikely to get anywhere due to the nature of the offending.

Where Mr Watkins is on stronger ground is the argument that the sentence was just too long. When an extended sentence is passed, the usual need in sexual offences sentencing for public safety doesn’t apply. In light of that, I would imagine a total sentence of 30 years, with 24 years plus an extension of 6 years would have been more appropriate.

But, we’ll certainly have a look at this next week.

Adebowale receives permission to appeal against 45-year minimum term

rigby

From the Guardian

Michael Adebowale, one of two men convicted for the brutal murder of Lee Rigby in Woolwich in 2013, has been given permission to appeal against his sentence. In January 2014, he was sentenced to mandatory life imprisonment with a minimum term of 45 years. Our write-up of the sentencing hearing can be viewed here.

It is expected that he will appeal against the length of the minimum term only, as the life sentence is mandatory.

What’s the process? 

After being sentenced, a defendant has 28 days in which to lodge grounds of appeal against sentence. Once that period has expired, a defendant wanting to appeal would have to apply ‘out of time’ and provide reasons why the application is late.

Once grounds have been submitted, the case papers are prepared by the Criminal Appeal Office and placed before ‘the single judge’ – a high court judge who sits on his or her own (hence ‘single’) and reviews the case on the papers only.

The single judge then grants or refuses leave to appeal. Granting leave means a full oral hearing will follow.  Refusing leave gives the defendant one of two options: a) leave it there – the single judge has indicated that the grounds aren’t arguable, or b) renew the application for leave. This second option means that the defendant effectively ‘forces’ an oral hearing and applies once again for leave (permission to appeal) before the full court (in sentence cases this is either two or three judges).

In a renewed application, the court will consider the application for leave, and where they decide it ought to be granted, they can (but don’t have to) deal with the appeal there and then. If they refuse leave, they can make a direction for a loss of time which means any time spent in custody between applying for leave and the hearing does  not count against the sentence. In effect, it adds on some time to the sentence that has to be served.

Adebowale

Adebowale has received leave and so a full hearing will follow. As what ever the result, he will spend a very long time in prison, it is likely to take a good few months before it comes before the court. We will of course cover it when it does.

Robert Marshall fined for ‘setting friend alight’

BBC

BBC

Introduction

There was rather a dramatic headline on the BBC website on 15th July 2014 – “Man fined after setting friend alight in Great Yarmouth“. That seems a rather fortunate sentence for setting somebody on fire?

As always, the devil is in the detail …

 

Facts

According to the BBC, Mr Marshall was sitting at a bar when he flicked his lighter towards his friend – Sam Taylor. Unfortunately, his friend had, unbeknownst to Mr Marshall, been doused in aftershave (there’s not a whole lot to do in Great Yarmouth) and caught on fire. It was put out, but not before the friend had burns to his hand and body.

The Great Yarmouth Mercury tells a slightly different story – the group of lads “as a joke, had been splashing one another with it in a bid to scupper their chances with women.

The friends had then “flicked” a lighter towards anyone who had been splashed, which had caused no damage. But when Marshall “flashed” the lighter at his friend in Long John’s Bar on Yarmouth’s Britannia Pier the prank went “terribly wrong”, magistrates heard.

Alison Cotterill, prosecuting, said one of the group had “poured” the remainder of the aftershave over Mr Taylor – more than “just a few splashes”. She added: “Mr Marshall… gets out a cigarette lighter, ignites the flame and flashes it initially towards one of the others.

“Mr Marshall turns round and then goes over to Mr Taylor. He then equally lights the lighter to Mr Taylor’s shirt and it just goes up in flames, he’s engulfed.

 

Sentence

Mr Marshall was fined £710 with an order for £71 Victim Surcharge and £85 costs. It is quite a difficult sentencing exercise in the circumstances, but this seems fair enough.

 

Why is guilty of this?

Good question. The piece from the BBC leaves a bit of doubt – if this was a harmless prank, why is Mr Marshall guilty?

There needs to be a ‘hostile intent’ (see R v Lamb) – is flicking a lighter at someone demonstrating this? The answer is, probably, that Mr Marshall knew that Mr Taylor was covered in aftershave and was therefore reckless when waving the lighter around.

Another question is why is Mr Marshall not guilty of a more serious offence? After all, burns (even if only 7% burns) are pretty serious. Certainly Actual Bodily Harm you might think, even if not really serious harm?

It’s not clear. If he is guilty of Common Assault, he’s guilty of ABH and of inflicting the injury. We don’t have details of the injuries, but this may be an example of common sense in the charging decision by the CPS?

 

Was the BBC’s legal drama ‘Common’ a missed opportunity?

Common-BBC-cast

Did anyone watch Jimmy McGovern’s drama ‘Common’ on BBC1 last Sunday? I did, but not without serious reservations. I don’t really like TV legal dramas, particularly not the earnest, moralising ones: they tend to miss the subtle shades-of-grey ethical questions that real trials throw up, and the legal howlers in them are just too cringeable.

‘Common’ was not without mistakes. Defence counsel addressing a High Court Judge repeatedly as ‘Your Honour’ instead of ‘My Lord’ was the sort of clanger that, had it occurred in an actual court room, would have led to other counsel wanting to gnaw their wigs to ease the embarrassment.

But what put me off ‘Common’ in particular was its billing as an exploration of the legal concept of ‘joint enterprise’. To explain: since 1861 it has been the law that anyone who assists or encourages the commission of a crime can be tried just as if they had committed the crime themselves. Thus the gang-leader can be tried for the murder of a witness even though he only paid the hitman who ultimately pulled the trigger (‘encouragement’). The getaway driver can be tried for armed robbery even though he only waited outside while the rest of the gang carried the guns and grabbed the bank notes (‘assisting’). What do you do, though, when a suspect says: ‘I only thought my guy was going to beat the witness up’ or ‘I didn’t know the rest of my gang had guns’? It is when someone’s actions assist or encourage a crime, but they say they only intended a lesser offence to be committed, that the rules as to ‘joint enterprise’ come in.

And that is where, for me, ‘Common’ fell down. Because it proceeded on the basis that its protagonist, a likeable 17 year old called ‘Johnjo’, hadn’t intended that a crime be committed at all.

At the start of the programme Johnjo agrees to drive his mate Tony and others to a pizza shop where, unbeknown to him, they all plan to beat someone up. During the assault one of them, Kieran, fatally stabs a bystander. Johnjo then drives them away, still none the wiser as to what has transpired.

On the factual premise of the programme, therefore, Johnjo was not guilty of the murder, or the assault, because he had no inkling that either offence was going to be committed.

Despite that, the programme makers then used Johnjo’s predicament to include comments from various characters about how awful ‘joint enterprise’ was – but Johnjo’s case wasn’t about ‘joint enterprise’. Had a jury known all the facts and been directed about ‘joint enterprise’ correctly they would have returned a unanimous verdict of Not Guilty on him before trial counsel had blown the froth off their coffee.

The greatest shame is that it would have been so easy to rewrite the script in a way that would have highlighted the potential injustice that ‘joint enterprise’ does create.

The way to do that would have been to have written the drama from the point of view of Johnjo’s mate Tony. As I say, Tony, Kieran and others planned to beat someone up in the pizza shop. Had Tony known that Kieran was carrying a knife, and had Tony foreseen that during the assault Kieran might stab someone, intending to kill them or at least seriously injure them, then Tony would also have been guilty of the murder committed by Kieran – because Tony would have had the requisite degree of foresight and because the murder took place during Tony and Kieran’s illegal ‘joint enterprise’. That is how ‘joint enterprise’ works.

In order to be guilty of murder committed by your own hand you must intend to kill, or at least intend to inflict really serious injury. However, you can be guilty of a murder committed by an accomplice, but which you assisted or encouraged – provided you both intend to commit a crime – and you at least foresee the possibility that during that crime your accomplice might commit a murder with murderous intent.

In other words, you can be guilty of ‘joint enterprise’ murder without you yourself intending that anyone should be seriously hurt.

To what extent does such ‘joint enterprise’ liability constitute an injustice? Some might say that if you commit a crime with a homicidal maniac armed with a deadly weapon you deserve all you get. Others might say: you deserve to go to prison, certainly, but not to be convicted of murder.

But whatever the rights and wrongs, it is situations like the one I’ve just outlined, situations where people who richly deserve to spend, say three years in prison, are instead looking at sentences of, say, 20 years, that are exactly the kind of shades-of-grey moral questions that actually arise in our criminal justice system.

The sad thing is that those real-life situations are too subtle, too full of moral ambiguity, involving characters whose own repellent actions have put them too far beyond mainstream ethics, for them to be of any interest to TV dramatists.

Guest post, by David Allan, barrister.

Nadine Wilson-Ellis – disbarred after fraud conviction

Image from the Western Press

Image from the Western Press

Last year Nadine Wilson-Ellis, a barrister and law lecturer, was convicted of housing benefit fraud and sent to prison for 7 months. We didn’t actually say in that, that this would spell the end of her legal career, but confirmation of that was received on 8th July 2014 where the Bar Standards Board heard Ms Wilson-Ellis’s case and disbarred her (the highest sanction that they can impose).

This is not a surprise. Ms Wilson-Ellis hadn’t actually practised as a barrister, but will no longer be able to start her training if she had wanted to. This will not affect her work as a Law Lecturer as a matter of law, but the University may well have taken action against her.