Monthly Archives: September 2013

Fathers 4 Justice case ‘thrown out’ – bad prosecuting or bad reporting?

The BBC reported (on 30th September 2013) that HHJ McCreath had “thrown out the case” against Paul Manning who was accused of Criminal Damage to Constable’s classic painting The Hay Wain. The allegation was that Mr Manning, as part of a Fathers4Justice campaign, glued a picture of a young boy on to the painting.

Whilst you could, if you’re a lawyer, pick out the reasons from the news report, it wasn’t particularly helpful at explaining what had happened in Court, and what the consequences were.

The key to it is in the value of the damage. Criminal Damage is an either way offence – which means that it can, in general, be tried in the Magistrates’ Court or the Crown Court (see here for our post on Classification of Offences).

But, if the value of the damage is less than £5,000 then it can only be tried in the Magistrates’ Court (unless it is charged with another offence in certain circumstances – it can get a bit complicated legally).

Here, it seems that the Prosecution originally stated to the Court at the first appearance that the damage was £30,000. For this reason, the magistrates would have treated it as being a ‘proper’ either way offence and (in all probability) sent it to the Crown Court for the trial.

What happened today was that the amount of damage (here this would be determined by the amount that it would cost the museum to fix the damage) was assessed £3,436 rather than £30,000. The result? The above provisions kick in and the Crown Court, where HHJ McCreath sits, does not have the jurisdiction (power) to hear the case.

For that reason, the Judge ‘quashed the indictment’, meaning that he said that there was no power for the case to be there, and he would have sent it back to the Magistrates’ Court where the trial will happen.

To me, saying that the case was ‘thrown out’ means that it was dismissed. This isn’t the case – there is no bar at all on a trial happening, it just has to happen in the Magistrates’ Court.

This makes a big difference to the potential sentence however. If Mr Manning had been convicted in the Crown Court then the maximum sentence is 10 years in prison. In the Magistrates’ Court, three months.

That then appears to be what has happened. In fairness the BBC is generally pretty good at reporting. It does seem here that they could have made had happened a bit clearer to the reader.

Burglar sent to prison after failing to kayak to France

But stealing one is … (courtesy of Canoe London)

Background

In 2011, Paul Redford stole “a laptop and £1,500 in rent money from flats where he was living in Darlington” (presumably a burglary) and also “stole goods worth £1,145 from a friend’s house in Blyth” (this seems to have been charged as a theft). He was charged with these offences but, instead of going to Court, he then went to ground, down south, for a couple of years.

Having got himself ‘clean’, earlier this year he found himself, on the south coast, penniless and hungry. With 27 previous convictions for 83 different offences (many of burglary and theft) he felt that he had no prospects for the future and decided to head off to France in the only thing available – a kayak (which he stole from outside a holiday home – theft number two).

He didn’t get too far in his bid to freedom – concerned bystanders thought that it may be a suicide bid and called the emergency services. A RNLI boat picked him up after he’d gone about a mile and brought him to land, where he was later arrested.

Sentence

Mr Redford was sentenced to a total of 2 years and 5 months. We don’t have the sentencing remarks, or the breakdown, but as a professional guess we would go for this being a ‘third strike’ burglary, so the minimum sentencing provisions apply. This means a minimum sentence of 3 years, with a discount of 20% (the maximum permissible in that case) for a plea of guilty.

Normally, an offence of failing to surrender to bail would attract a consecutive sentence (see here for the sentencing guidelines), but in a case like this, where the Judge would probably have given a lower sentence, but for the mandatory provisions, it is not a surprise that the sentence was concurrent.

The theft offences were less serious and so probably got a lower, and concurrent, sentence.

As to the sentence for the burglary? Looking at the guidelines, it would seem that Mr Redford has little to complain about.

Territorial Waters

If someone makes a bid for France, are the police allowed to chase after them to make an arrest, like what they do in the films?

It doesn’t seem to actually apply in this case as when the RNLI turned up, they were there to rescue, not arrest, him. Had he declined their services, they wouldn’t have had the power to detain him.

The police have a general power of arrest within the ‘inland water’ (anywhere up to 12 nautical miles from land – this comes from s2, Art III, UN Convention on the Law of the Sea 1958 (1982 Annex), as implemented by s1 Territorial Sea Act 1987).

A nautical mile is more than a ‘landlubbers’ mile (1,852m) and so Mr Redford was never in danger of causing a headache for the police by getting out of the ‘internal waters’ of the UK.

At this point, it can get into very murky and interesting territory legally (see the history of Sealand, where a High Court Judge ruled that various weapons charges couldn’t be prosecuted against a Mr Bates, the self-declared King of Sealand, as it was outside the UK’s territorial waters), but we will have to wait for another day, with a more ambitious canoeist, before looking at that…

Shoplifter jailed for faking daughters death to get bail

In July 2013 Andrew Gwndaf Jones appeared in the Magistrates’ Court charged, not for the first time, with shoplifting. Like many defendants in that position, he wanted to get bail. His story was a bit more creative, and more of a tug on the heart strings, than the usual “I’ve got a job starting on Monday”. Mr Jones begged the Court to grant him bail so that he could attend the funeral of his daughter.

Presumably being a decent man, the Judge, DJ Shaw took pity on Mr Jones and granted him bail whilst a report for his sentencing hearing was prepared for the Court by a Probation Officer. All would probably have been well had Mr Jones lived in, for example, London, but his home town is the sort of place that still has a local news reporter in Court, who duly wrote up the story.

When it appeared in the paper, the tragic story was read by his former partner. And their daughter, who was very much still alive. After various people had contacted them to offer their condolences, the police were contacted.

After initially denying it to the police, Mr Jones accepted that he had put forward (or told his lawyer to put forward) the story a fake story to the Judge in order to get him out on bail. As a result he was charged, and pleaded guilty to, Perverting the Course of Justice. He was sentenced to 10 months in prison (presumably from a starting point of 15 months, to allow for the plea of guilty).

This was an unusual case of perverting – a search of the databases doesn’t throw up another case where someone was prosecuted for lying in order to get bail. Although it would be somewhat naive to pretend that it has never happened before, it must be pretty rare to get caught.

The criminal courts really, really don’t like this sort of behaviour, and so it is not surprising that Mr Jones got a custodial sentence, and one of some length. The closest case we are aware of is Mackenzie [2012] EWCA Crim 2088, where a step-father pretended to be his step-son who had to be electronically monitored. The Court of Appeal said the proper starting point was two years.

That case was more serious than that of Mr Jones because this enabled a person to escape punishment, rather than get out on bail when they otherwise would. Whilst there was no real harm done in Mr Jones’ case (in reality, mainly some wounded pride for the Judicial system), the sentence was what would be expected, if not a little less. For that reason, we would not expect an appeal to be successful.

If you’re a lawyer reading this, it may be one to bring up with certain clients, just as a gentle reminder …

 

 

 

Two men dressed as Oompa Loompas admit drunken affray

oompa loompaMr Gelinas, 20, and Mr Wright, 20, pleaded guilty to affray. Wright also admitted an unrelated assault. (They were not dressed as oompa loompas while in court)

Affray is an offence under the Public Order Act 1986 s 3, which states:

(1)A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

(2)Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

(3)For the purposes of this section a threat cannot be made by the use of words alone.

(4)No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5)Affray may be committed in private as well as in public places.

(6)A constable may arrest without warrant anyone he reasonably suspects is committing affray.

(7)A person guilty of affray is liable on conviction on indictment to imprisonment for a term not exceeding 3 years or a fine or both, or on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both.

The CPS guidance states:

It must be proved that a person has used or threatened:

  • unlawful violence;
  • towards another;
  • and his conduct is such as would cause;
  • a person of reasonable firmness;
  • present at the scene;
  • to fear for his personal safety.

The maximum sentence is 3 years.

Facts

The Huffington Post reported that the prosecutor, when opening the case to the judge, said:

“somewhat ironically” the men had targeted their victims because of what they were wearing. He added: “The two defendants together with another man were in fancy dress as Oompa Loompas – fictional characters from Loompa Land which end up being preyed upon by Whangdoodles, Hornswogglers and Snozzwangers.

“They are in fact peaceable characters who Willy Wonka employs in his factory to keep them away from trouble.

“Far from keeping out of trouble, these men got into what was initially a verbal altercation, were abusive, calling one of the men ‘gay’, and ended up pushing the men resulting in facial injuries to one of them.”

The victim, a man aged 28, suffered cuts and bruises. The incident was captured on CCTV.

Mitigation

Jonathan Morgan, mitigating on behalf Gelinas, said: “Clearly they were not dressed for trouble.

“My client’s braces were hanging down so it is easy to tell on the CCTV which of the Oompa Loompas he was.

“He did not start the violence and is seen walking away.”

Wright’s barrister, Ian James, described Wright as a “hard-working and busy” young man who is training to become an electrical inspector.

“He had taken drink and believed that one or other of his friends, by way of the unusual way they were dressed, was involved in a confrontation and he involved himself,” he said.

Sentence

Gelinas was sentenced to a community order with 240 hours of unpaid work whilst Wright was sentenced to 10 months detention in a young offender institution.

An explanation of youth custodial sentences is available here.

Caroline Lucas to be prosecuted for protesting

Introduction

On 25th September 2013 the CPS announced that Caroline Lucas, the MP for Brighton Pavillion, and the only Green Party MP in the UK, will be prosecuted following her attendance at an anti-fracking protest last month.

 

Charges

Ms Lucas faces two charges –

1. Failing to comply with a direction given by the Police

Under s14 Public Order Act 1986, if the police consider that, in all the circumstances, a public assembly :

(a) may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

(b)the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,”

then they can give directions as to the location, duration, or maximum number of attendees at a protest.

There are three separate offences that this section creates, depending on the individuals role in the protest. A protester that fails to comply with the direction can be fined (maximum Level 3 fine). Someone who is organising the protest, or someone who incites others to breach a direction, can be sent to prison for a maximum of 3 months or a Level 4 fine.

There are no sentencing guidelines.

 

2. Obstructing the Highway

This is an offence under s137 Highways Act 1980. Someone is guilty of an offence if “without lawful authority or excuse, [they] in any way wilfully obstructs the free passage along a highway“.  The maximum sentence is a Level 3 fine.

 

Defences

As well as ‘factual defences (as in “it wasn’t me”), there are potentially arguments over the reasonableness and lawfulness of the behaviour of the police and the protesters, as well as arguments relating to the ECHR and the right to peaceful protest. We will look at those in detail when the case has finished.

 

What happens now?

She is due for a first appearance at Crawley Magistrates’ Court on 9th October. Although these offences will conclude in the Magistrates’ Court and there won’t be a jury trial, we will refrain from saying anything more about it until the case has concluded.

 

Peru Drugs case – what would McCollum and Reid get in England?

Introduction

The case of Michaella McCollum and Melissa Reid, the two British twenty year old women accused of drugs smuggling in Peru, has been very high profile in the British press. It looks like it is heading to a conclusion, after they both pleaded guilty to attempting to smuggle 11kg of cocaine.

 

What sentence will they get?

As a result, they will both be sentenced to 6½ years imprisonment. On the basis that the guilty plea was under Art 297 Penal Code (‘Serious Drugs Smuggling’) then they will have to serve the whole amount. This is equivalent to a sentence of 13 years in prison in England.

If they pleaded to ‘Minor Drug Smuggling’ as part of some sort of plea agreement, then they would be eligible for Parole after 1/3 of that – just over two years (although this appears to have been abolished).

 

What would they have got in England?

The starting point is the Sentencing Guidelines for Drug Offences. On the basis that this was done for financial gain (which seems to be the case on the plea that was entered) as well as a result of some coercion, they would be classified as having a ‘Significant Role’.

The amount of drugs involved – 11kg – puts it well into Category 1. The starting point (after a trial) would be 10 years in prison, with a range of 9-12 years. The quantity of drugs would probably be balanced out by their youth and lack of previous offending to give a sentence of about 10 years.

They would get ‘credit’ for having pleaded guilty. In this day and age, that would probably knock 25% off the sentence (as they did not enter the pleas straight away and they were ‘bang to rights’). This would give a sentence of about 7½ years imprisonment, so about half (after the release provisions are taken into account) of the sentence that they will receive in Peru.

 

Comment

On the face of it the two women will have to serve about double the time in prison than they would had they committed the offence in the UK. Given that the UK is, in general, far more punitive than most countries, this is surprising on the face of it. However, due to various reasons, many South American countries have sentencing laws even more severe than the UK’s.

Dirty protest in Doncaster – Conviction appeal fails

Dirty protest

We became aware of a story about a man from Doncaster who staged a dirty protest at a police cell. The Star reported  that Allen Vincent appeared in court for a two-day hearing in front of a judge and two magistrates.

Putting the scraps of information together, we can safely assume that Allen Vincent appealed against his conviction (in the Magistrates’ Court) for criminal damage. 

Vincent suffers from autism, Aspergers syndrome and bilateral permanent hearing loss. He appeared at the court wearing a ‘not guilty’ label stuck to his forehead. 

The facts

Vincent was arrested in February for breaching bail conditions and was detained at Doncaster police station. A nurse attended to assess his fitness to be detained by the police but he refused to co-operate. The next morning, it was reported that he was found naked and had covered himself with excrement and written on the walls (presumably with excrement). 

He swore and threw excrement at a duty officer and urinated on a cell door. He also refused to clean himself up. The Star reported that he did not accept that he had damaged the cell and had been unlawfully arrested several times. 

The offence

Criminal damage is an offence under the Criminal Damage Act 1971. Section 1(1) states:

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

The fact that the cell would not have been permanently damaged does not preclude a conviction for criminal damage (Roe v Kingerlee [1986] CLR 735 – smearing ‘mud’ on the wall of a police cell that had to be cleaned off was criminal damage).

The appeal

We can assume then that upon pleading not guilty in the Magistrates’ Court, he was convicted after a trial and appealed his conviction. 

That appeal is to the Crown Court in front of a circuit judge (a crown court judge) and two magistrates (from the magistrates’ court – but not the same magistrates as presided over the trial). There are more details available here about appeals from the Magistrates’ Court to the Crown Court. 

Because Vincent has difficulties communicating, he was permitted to submit in writing his complaints. We understand those complaints relate to what Vincent considers to be his unlawful treatment. 

The Judge said he had sympathy with Vincent but that Vincent knew what he was doing.

The result

The appeal appears to have been successful in part. Unfortunately for Mr Vincent, the successful part did not relate to the conviction. 

The conviction appeal was rejected, presumably on the basis that Vincent’s assertion that he did not ‘damage’ the cell was rejected. 

The order for costs (£405) and a compensation order (an unspecified amount) were quashed. 

The community order (12 months in length) remained. It is unclear the requirements which were attached.