Monthly Archives: August 2013

Teacher Andrew Pearson jailed for rape of pupil

Andrew Pearson

Photo courtesy of BBC News

Piano teacher Andrew Pearson was sentenced yesterday, 20th August 2013, to an extended sentence of 22 years, combining eighteen years imprisonment and a 4 year extended licence, for the rape and abuse of a pupil.

Pearson, 37, from Bradford, was found guilty of eight offences of rape and six of ‘sexual abuse’ by a jury sitting at Bradford Crown Court. News reports state he was convicted of ‘sexual abuse’ – sexual abuse is not an offence and it is unclear exactly which offences were charged for this element of the offending. It may well be one of the ‘abuse of a position of trust’ offences under Sexual Offences Act 2003 s 16-24.

The facts of the case are sparse, but is had been reported that Pearson started grooming his female victim when she was just eight years old and the abuse continued for four years.

Further reports suggest that the some 74,000 pornographic images and 5,000 videos were found on Pearson’s computers.  Pearson apparently had a fetish for soiled ladies underwear, as discovered by his wife when she found a pair of small pink knickers in his drawer, and pornography on a memory stick.

The Judge is reported to have said: “It was protracted, detailed, repeated abuse on a little girl who could not and did not understand and was ashamed, terrified, afraid to complain, afraid of you.”

Pearson is said to have forced the girl to take her clothes off and watch pornography with him.

Sentencing guidelines for the offences can be found here.  The maximum sentence is one of life imprisonment.  Pearson received an extended sentenceof 22 years, comprising of 18 years custody and 4 years on licence.

This means that the Judge decided that he was ‘dangerous’ within the meaning of the CJA 2003. The test is whether the defendant poses a significant risk of serious harm. On any view these were offences of the utmost seriousness and a finding of dangerousness comes as little surprise.

The aggravating features of the offences are the age of the victim, the length of time over which the offences were committed, as well as the fact that Pearson was in a position of trust.  Given the length of the sentence there may be an appeal; it may be that the assessment of dangerousness is challenged. Without knowing more information about the offences and the offender, it is impossible to assess. However, on the basic facts that have been reported, it seems any appeal may well be unsuccessful.

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2012 Extended Sentences (Extended Determinate Sentence)

Extended Determinate Sentences (New 2012 extended sentences)

The 2003 CJA Extended Sentences are repealed and replaced (s124) with new 2012 style Extended Sentences.

Firstly, unlike with life sentences, this is ‘retrospective’ in that it applies whenever the offence was committed.

Requirements for an extended sentence:

1. Offences

It applies to any offence that is a specified offence under the 2003 Act. A full list is here – http://www.legislation.gov.uk/ukpga/2003/44/schedule/15 which is much wider than the Sch 15A offences. For example, racially aggravated common assault.

Note – this also applies to sexual offences that were abolished by the Sexual Offences Act 2003.

2. Dangerousness Test

The Judge has to consider that the (now relatively familiar) test of dangerousness under the 2003 Act is met – ie that there is a significant risk of serious harm to members of the public.

For this, the cases of Lang etc should still apply.

Obviously, if a life sentence is required, then this won’t apply.

3. Conditions

There are two conditions that must then be met:

(a)    D has been convicted of a Sch 15B Offence at the time the offence was committed, OR

(b)   The appropriate custodial term is at least 4 years

Then an extended sentence may be passed (it is discretionary).

As is currently the position, there must be an extension period of up to 5 years (for violent offences) or 8 years (for sexual offences), not exceeding the maximum.

Issues:

  • It may still be that some people will qualify under (a) for extended sentences for relatively minor offences (as was the position under the un-amended 2003 Act). This will only impact on a very small number of people however.
  • The purpose of extended sentences is to protect the public. However, the consequences of the release provisions is that people can spend a relatively short period of time on licence which could be counter-productive?
  • Is this lawful? Is it a breach of Art 7 (no retrospective punishment)?

For example – D is convicted of indecent assault in 1980 and fined (it used to happen…). He is convicted now of indecency with children committed in 1985.

At the time, the maximum sentence for that would have been 10 years. Whatever sentence the Judge would pass, D can receive an extended sentence. This is not a sentence that he could have received at the time – is that permissible? Probably, as the actual length of the sentence is not higher (still being capped at 10). But expect this to be argued.

  • If someone of good character is up for, say, a s18 where the appropriate determinate sentence is 4½ years. An extended sentence is available if the person is dangerous. However, the individual would serve 3 years rather than 2¼. On the principle that new sentences should be adjusted to ensure people serve the same period of time, if that is followed then the sentence is 3 years and 4½ months, so an extended sentence is not available. The chances of the courts buying this argument are, with the current leadership, minimal (in my view).

Youths

For someone under 18, the two strikes rules don’t apply. If a life sentence (of detention rather than imprisonment) is not required, then an extended sentence can be imposed if the determinate sentence would be four years of more (there is no exception for those previously convicted of a Sch 15B offence).

Release Provisions

If someone is serving an extended sentence, then there is automatic release after 2/3 of the sentence, unless the custodial part is 10 or more years, OR, it is a Sch 15B offence (basically), in which case they go before the Parole Board at the two thirds stage and will be released on the Parole Board’s recommendation. Given the number of IPP prisoners who stayed in post tariff however, it is likely that only a very few will be released at that stage.

Transitional Provisions

New life sentences are available only for offences committed after 3rd December whereas anyone sentenced after 3rd December can receive a new extended sentence.

IPPs (and the old extended sentences) are abolished. For someone convicted before 3rd December however, they are still available (Art 6 Commencement Order no 4) as well as the new Extended Sentence. There is no provisions for re-trials ordered by the Court of Appeal, but this will impact on so few people that the courts can probably fudge it.

Does this make sense?

The official position of the MoJ is that this is all part of a carefully constructed plan and protection on ‘transitional’ cases is provided by the extended sentences. The strong suspicion of those ‘in the know’ however is that this was a cock-up by the MoJ who didn’t implement the legislation with the care that they should have.

Man admits sex with goat

Robert Newman, 23, from Wiltshire, has admitted having sex with a goat, contrary to s.69 of the Sexual Offences Act 2003, and has subsequently been banned from every farm in the country.

Newman originally denied the offence but changed his plea to guilty and has been bailed pending the preparation of a pre-sentence report. As part of his bail conditions, he had been banned from entering any land where farm animals are kept, as well as a curfew from 7pm to 7am. His next appearance at North West Wiltshire Magistrates’ Court will be on 12th September, where he will be sentenced for the offence.

There are sentencing guidelines for the offence, which state:

Factors to take into consideration:

1. The sentences for public protection must be considered in all cases. They are designed to ensure that sexual offenders are not released into the community if they present a significant risk of serious harm.

2. This replaces the previous offence of ‘buggery’ with an animal, for which the maximum penalty was life imprisonment. The maximum penalty of 2 years’ imprisonment attached to this offence is sufficient to recognise an offender’s predisposition towards unnatural sexual activity.

3. A custodial sentence for an adult for this offence will result in an obligation to comply with notification requirements and this seems to be the most appropriate course of action for a repeat offender. The offence can be charged in addition to existing offences relating to cruelty to animals.

4. A pre-sentence report, which can identify sexually deviant tendencies, will be extremely helpful in determining the most appropriate disposal. It will also help determine whether an offender would benefit from participation in a programme designed to help them address those tendencies.

The offence carries a maximum sentence of 2 years imprisonment. The basic offence, with no aggravating or mitigating factors, will usually result in a non-custodial sentence, often a community order. Aggravating factors include recording the activity and/or circulating pictures or videos, whereas the offence being committed as a symptom of isolation rather than depravity will be a mitigating factor. Offenders will automatically be subject to notification requirements.

The CPS guidance on the offence can be found here.

The Evening Standard have linked to a “similar but unrelated” case in their article:

Father of three Nicholas Saunders was convicted of having sex with his ex-wife’s dog.

He was caught having intercourse with the four-year-old bull mastiff called Sasha in former wife Kelly Thacker’s bed.

Saunders, of Lechlade, Glos, was placed under supervision and ordered to attend a sex offenders course.

He was placed on the sex offenders register for the next five years.

He was also given a four-year restraining order preventing him from entering his ex-wife’s home without her written permission or by court order.

The specifics of Newman’s offence are unknown and so it’s difficult to predict what sentence he will receive, but we’ll update this post following sentence.

Barrister jailed for benefit fraud – Nadine Wilson-Ellis gets 7 months

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Nadine Wilson-Ellis was convicted on 19th July 2013 of ‘two offences under the Fraud Act’. It seems that she was granted a council tenancy in Bristol in November 2009 on the basis that she was living and working in the city and was an unemployed single parent with one child. This was untrue however – she was living with her husband in Nottingham and working as a Law lecturer getting £30,000 a year (and sub-letting her Council Flat). The Council discovered that she had received about £10,000 over a period of 3 years from the fraud.

Ms Wilson-Ellis apparently owned two homes but applied for a larger house (as she had two children) in 2011 where the documents she submitted in relation to this were found to be false and the deception unravelled.

It’s not clear exactly what offences Ms Wilson-Ellis was found guilty of. It sounds as though the offences were in relation to obtaining a council tenancy that she was not entitled to. It is possible that there was a charge relating to the use of false documents.

Contrary to the popular view, the Courts tend to chuck the book at one of their own who get caught misbehaving.

The BBC News story is here.

Judges’s sentencing remarks

The Judge said:

“Your behaviour inevitably resulted in a more deserving claimant being denied the accommodation that was offered to you,”

“It was a fraud that was calculated, deliberate and planned.

“In defending yourself you brazenly lied in the fact of the most damning evidence, which fortunately the jury saw through.”

Sentence

She was sentenced to 7 months immediate custody.

There was no plea of guilty and so there could be no credit.

It seems as though the fraud was fraudulent from the outset and carried out over a significant period. These are factors which if correct, the Judge would have taken into account.

The guidelines are here and looking at benefit fraud, the range appears to be high community order – 12 months (looking at the £5-20,000 box, ‘fraudulent from the outset and carried out over a significant period or multiple frauds’).

It is presumed that she had no convictions and was of good character. That most likely made for little mitigation.

In mitigation, the courts have held that it is correct to take into account the loss of a career as a mitigating factor, however, many judges do not, as they believe that a) that is part of the punishment and b) that the offender knew that was a risk when committing the offences and were willing to ‘throw it all away’. In cases where the offender is a single parent and the argument is that the children need the parent to care for them (and so a custodial sentence should be avoided) some judges believe that is an aggravating factor because of the willingness to risk a custodial sentence.

It is difficult to assess the level of sentence as we are unsure of the offences of which she was convicted, but on a simple assessment of the criminality (as what we know from the news reports) against the 7 month sentence, it certainly appears to be in the correct bracket, with a bit of an uplift for the fact she was a barrister.

New dog laws in the wake of the death of Jade Anderson

The tragic case of Jade Anderson made headlines in March 2013 when she was killed by five dogs when she was visiting a friend’s home.

The Government have now announced plans to make it a criminal offence to allow a dog to be “dangerously out of control” on private property.  The Dangerous Dogs Amendment Bill is designed to tackle this difficult area.

The current law, under the Dangerous Dogs Act, applies only to public places, or where a dog trespasses onto private property, for example a neighbour’s garden.

The difficulty with a change in the law is that there is a fine line between allowing a dog to offer protection of their owner’s home, and ensuring that irresponsible owners who allow their dogs to attack others, are held to account.  The risk is that an elderly person, who keeps a dog not only as a pet but also as a means of protecting themselves and their home from intruders, is prosecuted when that dog frightens off a burglar.

The Bill has been discussed at length in the press.

New proposals suggest that in the future owners of dogs who kill could face life imprisonment.  There is currently a consultation on the proposals, which will run until September. The consultation seeks views on the maximum sentence for the offences.

The overview of the consultation states:

In considering that Bill, the House of Commons considered an amendment to the 1991 Act to increase the maximum sentence for an aggravated dog attack, which currently stands at a maximum of 2 years imprisonment, an unlimited fine or both.  The amendment proposed to increase this maximum penalty to life imprisonment.  (See the Parliamentary record of the discussion:http://www.publications.parliament.uk/pa/cm201314/cmpublic/antisocialbehaviour/130704/pm/130704s01.htm).

Whilst the amendment before the House was withdrawn, Government undertook to take soundings, before the next Parliamentary stage of the Bill, on a change to the maximum sentence for allowing an aggravated dog attack i.e. where a person or an assistance dog is injured or killed by a dog.

In responding to the debate on the amendment, the Government signalled that it considers life imprisonment for allowing an aggravated dog attack to be a severe sanction. In the circumstances it would appear disproportionate to the offence. As a comparison, the maximum sentence for causing death by careless driving is 5 years, and for causing death by dangerous driving, 14 years.

So it would appear that the prospect of the maximum sentence being raised to life imprisonment is somewhat slimmer than many tabloids and radio stations would lead you to believe.

Do take time to respond.

Stuart Hall – Att-Gen’s Ref judgment released

Stuart Hall, very publicly, had his 15 month sentence for 14 counts of indecent assault, increased to 30 months by the Court of Appeal last month.

The judgment has now been released and is available here: Stuart Hall AG’s Ref

The court spent a great deal of time going through the facts of the indecent assault and to save time, space and because they were well documented, I wont rehearse them here. In the judgment, they are at paras 3 – 63.

Having had a chance to skim the report, I noted a few interesting points. I copy the paras from the judgment and paste them below. The numbers refer to the paragraphs of the judgment.

None of the comments are intended in any way to defend Stuart Hall’s actions. This is an examination from a legal view point, on the comments made by the Court of Appeal and the way in which they approached the sentencing exercise.

 Hall’s very public denial of the offences

66. We take the view that what we are about to describe is a serious aggravating feature of these crimes.  The offender made a public statement to the media on the steps of the magistrates’ court.  He proclaimed his innocence:

“May I say these allegations are pernicious – callous, cruel and, above all, spurious.  May I just say I am not guilty and will be defending these allegations.

67.  Whatever legal advice the offender had by then been given, he knew the truth.  He knew that he was guilty of molesting the complainants.  As we have said, this deliberate falsehood is a seriously aggravating feature.

This was an indication of what was to come. The strength of the words used by the LCJ leaves no doubt that the end result was going to be an increased sentence. The court took a very dim view of the comments made by Hall. Presumably, the effect of the comments was aggravated by the public nature of the case – is that something for which he should be punished? If you or I were charged with a series of offences, the media probably wouldn’t be interested in hearing a statement setting out our disappointment and anger at the ‘false’ allegations. If they were, it probably wouldn’t make the headlines.

There was always going to be media attention because Hall is a public figure. Are we content with punishing celebrities merely because they appear(ed) on the telly?

Dan Bunting asked the interesting question as to whether the CPS should not make statements after charging someone. His opinion piece for Criminal Law and Justice can be seen here.

68.  The offender was an expert in the ways of the media.  He was fully alert to the possible advantages of manipulating the media.  At that date he was hoping to escape justice and he was, as we see it, attempting to use the media for the purpose of possibly influencing potential jurors.  He was traducing thirteen adult women who had been sexually assaulted by him in different ways 20 to 30 years ago.

To my mind the judgment goes too far here. To suggest that Hall’s statement was an attempt to influence a potential jury seems to lack sufficient grounding in any evidence. He knew the media were listening and interested, but, as Dan asked in his article, does Hall not have the right of a response after the CPS have made their statement? Further, is the approach taken by the LCJ one which fails to appreciate the nature of celebrity? Is it not necessary for celebs to make strong statements denying any wrongdoing for fear of the press and public whispering ‘well he didn’t deny it’ etc? In the 21st century, PR is an important concept. Firms, individuals, governments spend vast amounts of money on projecting the right image. I do not defend the comments made, but I question whether it is correct to a) find that it was an attempt to influence jurors and b) punish Hall for that.

69.  Whatever it may or may not have done to influence any potential juror, we have a clear idea of what it did to some of the victims.  One victim describes how the offender’s outburst “absolutely incensed” her.  She felt furious about his blatant lies.

This is undoubtedly a good point, but again is based on the idea that Hall is to be punished for being a celebrity. The statements were more widely disseminated because of who he is. Is it right to punish him because his job places him in the public eye and the public want to hear what he has to say?

The mitigation

73.  We note that the last incident occurred in 1986 and that there is no further offence recorded.  The offender no longer represents a risk or threat to children or young women.  His age and level of infirmity, too, are relevant to the sentencing decision, but need to be approached with a degree of caution.

The mitigation might have received a few more paragraphs than the brief reference above. The LCJ did recite the main points made by Hall’s counsel, however the brevity with which the mitigation was dealt with was a further indication that Hall was fighting a losing battle. Age and health are two recognised factors which can – and do – reduce a sentence. These points appear to have been given short shrift.

The passage of time

73. In reality the offender has got away with his offending for decades.

With the amount of public anger in relation to historic offences at the moment it was unsurprising that this point was underlined.

Hall the celebrity

75. The offender’s successful career provides no mitigation.  On the contrary, it was the career that put him in a position of trust which he was then able to exploit and which contributed to his image as a cheerful, fun-loving, fundamentally decent man.  This contributed to the view that he could be trusted; and second, if he could not be trusted, effectively he was untouchable.

I have trouble with this point. The successful career of a convicted criminal is relevant in my view as it represents a fall from grace in public opinion. It may also represent the end of a career and a destruction of one’s character. None of that is undeserved but I think it is relevant to the individual circumstances. The LCJ has often said that cases are fact specific and sentences must reflect the specific features of a case.

Frequently, the Court of Appeal has noted that loss of career and reputation (albeit usually in the local community etc.) In R v Cornwall 2012 EWCA Crim 1227, 2013 1 Cr App R (S) 30 (p 158)The court said that the Judge had wrongly rejected the loss of D’s career as a mitigating factor. I question whether this point was wrongly made.

The guilty plea

78.  We must specifically address the issue of the discount for the guilty plea.  The offender did plead guilty – not at the first opportunity, but, more important, not before he had publicly and deliberately attacked the victims.  There are two ways of approaching what we have already described as a seriously aggravating feature of the case.  We can either reduce the appropriate discount by 25% taken by the judge to allow for the unusual feature that preceded the indication of a guilty plea; or we can add the aggravating feature to our starting point and then apply the appropriate discount to whatever sentence we think right in the light of the aggravating feature.

79.  We consider that the appropriate course consistent with current sentencing practice is to reflect this distressing behaviour in the assessment of the sentence and then discount from it to allow for the guilty plea.

This is exactly the approach expected to be taken. Though I disagree with the calculation and amount of deduction for the comments made and the apparent influence of a potential jury, I agree with the process of making the deduction taking account of those factors.

Double jeopardy

88. The double jeopardy principle does not apply.  The appellant is in custody; he has been sentenced to an immediate custodial term; and he has known that the Attorney General proposed to refer the sentence to this court.

I am not a huge fan of the double jeopardy principle – the idea that because a defendant has the stress of being sentenced twice, he or she should receive a little bit of a discount.

The deductions for double jeopardy where a defendant received a non-custodial sentence at the Crown Court, but the Att-Gen referred it to the Court of Appeal and the Court of Appeal impose a custodial sentence, are  – for obvious reasons – significant.

To simply say that because Stuart Hall was in custody and he knew the Att-Gen wished to refer the case is over simplistic in my view and ignores the obvious stress of having to go through the process again, with the additional media coverage, knowing that the sentence could have been doubled, trebled or worse.

Approach taken by the sentencing judge

80.  The judge decided, and we agree with him, that, notwithstanding the features of mitigation, an immediate custodial sentence was appropriate.  He proceeded to examine each offence in meticulous detail, and we acknowledge the care that he took.  He then applied the totality principle with which again we agree.

There is a notable lack of criticism of the Judge. They court approved his approach and indeed declined to rearrange the sentences when they could very well have done so.

In fact, they implicitly approved the sentences given on each count (because they didn’t increase them) but disagreed only with the totality point, that the overall total of 15 months was commensurate with the seriousness of the offences.

Arriving at the sentence

81.  The question for us is stark: In the context of the aggravating and the mitigating features, which we have identified, did a total sentence of 15 months’ imprisonment sufficiently reflect the cumulative effect of the offender’s criminality?  We cannot interfere with the sentence unless we are satisfied that it was unduly lenient.

82.  After a careful consideration of the facts and the detailed material, we are so satisfied.  We must keep the seriousness of the offences in proper perspective, as the Attorney General did… All of the offences were real assaults.

88.  We have come to the conclusion that, making every allowance that can reasonably be made for the matters of mitigation, this sentence was inadequate. 

89.  In our judgment this sentence should be increased from 15 months’ imprisonment to 30 months’ imprisonment.  The objective will be achieved by ordering that the sentence on count 15, which was ordered to run concurrently with the other sentences, should now be ordered to run consecutively.

This section is the most disappointing feature of the judgment; it fails to give the reasoning as to why the sentence was doubled, save for the fact the court felt 15 months was too low. Some reasoning as to why 30 months was right and 15 months was wrong might have been useful.

Sentencing is not a mathematical exercise, but it is helpful for counsel and for judges to see how a sentence has been reached.

Conclusion

I still believe 30 months is too long, based on the law as it then was, the factual background and some of the points noted above.

One might also ask what purpose it serves doubling his prison sentence when the court noted that he no longer poses a threat to anyone.

A view from… the police interview room

My view from the Police Interview Room, by Tracey McMahon

Police interview

Image from West Midlands Police

I’ve always had an interest in law and the wheels of justice. I’ve watched crime dramas such as The Bill, Prime Suspect and a plethora of television programmes. I have commented on many forums reviewing such shows. I’ve read court reports, followed high profile cases and shouted with the rest of them when a case which raises hackles is presented to the public by the media. I can tell you first-hand that being on the wrong side of the law is nothing as it portrayed by drama serials.

I am known as an offender. This is the modern-day; politically correct term for a criminal. I’ve had my name in the press, on Twitter, on Facebook and well, I wouldn’t be surprised if my name doesn’t crop up on some people’s lips as they have their morning cup of tea. Particularly those who I have done harm to; my family.

I was never arrested as procedures have now changed. I was ‘invited’ to attend the police station on a voluntary basis. Had I not accepted this invitation then I would likely have been arrested and brought in for questioning. Off I marched at 10.00am on Monday 12 March to my police interview, dressed as if I was going to be sitting on the board of a global conglomerate.

My police interview room was a small room without a window. The devil inside me tells me it’s so we cannot escape. I remember the smell too; a musty smell that permeated through me. I did feel dirty and I saw evidence of other people who had been there before me etched into the table. The police officer who interviewed me was respectful, kind and guided me through the list of allegations which had been made against me. I had an A4 piece of paper with my rights listed placed in front of me as they were read out to me. The officer placed the tapes into the huge machine and introduced herself and asked me my name, my date of birth and my ethnic origin. Then she proceeded with the interview and I answered the questions accordingly. Looking back I was foolish. I was of the mind and it is a myth, “I’ve done nothing wrong therefore why would I need a solicitor’ I’ve since learned to take everything that is your right. This is not to say that I don’t trust the police,  I do. It’s purely and simply to protect each person who is being questioned. It also protects the police. We all know that we are now living in a litigious society, any person can say anything and while everything is taped, words can still become a matter of ambiguity.

I was calm, yet upset. I don’t think any person could ever possibly anticipate what it is like to be questioned about allegations that have been made against you. How many times do we hear the words ‘I was treated like I was a criminal?’ I was treated as a human being; this is what I am and still am. In fact no person becomes a ‘criminal’ until the day they are The interview took around an hour and then I was taken for my fingerprints and my photograph. I was expecting it to be like it is on those American shows, with a board in front of you. It is not like that. It’s like being in a hospital x-ray department. Couple of snaps and you’re done. I even had my lip gloss on. If I’m going to be in the depths of a Police National Computer, you can be sure I am going to look my best. I was scared, frightened and feeling as though I wanted my dad. It’s daunting and just writing about the experience has made me feel the same sense of emotion and fear I felt on that day. After the fingerprinting and photograph session, I was taken past the custody suite (The word suite still makes me smile now) where I saw a pair of trainers outside a door. I found myself staring at those trainers and wondering who was behind the large, heavy door.

I was waiting for the words which I knew were ultimately coming: “We will send the tapes to the CPS who will make a decision on whether you will be charged. You can now go. We will be in touch”

Then the purgatory begins…

By Tracey McMahon

About the author: Tracey McMahon is a 45 year, copy writer/transcriber/translator. She’s also a contributor on ex-offender.co.uk. She is a convicted offender and is currently serving her sentence.