Monthly Archives: September 2013

Bullets, Belfast and Bosnia – are our gun laws out of touch?

We have commented previously on the harshness (and, on my view, stupidity) of the current firearms law. On 24th September 2013 a case was reported that exemplifies their potential harshness. In this case common, sense prevailed and the people involved have not been prosecuted, so we are free to write about it.

The setting is Belfast, but it could easily have been London. Four actors are going to Sarajevo and Mostar to present an anti-war production. As part of their costumes, one has a jacket bought from ebay. It turned out that this had 12 live bullets sewed into the lining (which was unknown to the wearer). This triggered the security alarm, which triggered the arrest of him and three unfortunate colleagues.

As I said, in this case no harm done. Presumably it was accepted that they had no knowledge of the bullets  and decided it was not in the public interest to prosecute. But, under English law, is the lack of knowledge a defence?

The short answer is “no”. Under the way that the law has been interpreted, possession of a firearm, ammunition and related items are ‘absolute liability’ offences – if you possess it, then you are guilty, whatever your state of mind.

In this case we don’t know what sort of bullets they were, but many are prohibited under the provisions of s5 Firearms Act 1968 that mean the possessor faces a 5 year minimum sentence unless there are ‘exceptional circumstances‘ (and, as we have stated, very few circumstances are exceptional).

But, if I have a jacket (or, as a more common example, a bag) with prohibited ammunition in it, then surely I can’t be a criminal if I don’t know that it is there? Actually, you can be. An example of this is the case of Deyemi [2007] EWCA Crim 2060. Mr Deyemi had a stun gun disguised as a torch. The Judge accepted that he believed it was a torch, that he had no reason to believe it was a stun gun, and that that belief was reasonably held.

Despite that, the Court of Appeal held that they were guilty (that case there does a good job of summarising the other cases that point to the same conclusion if you are interested).

So, if I buy a jacket off ebay, I possess it. I also possess all its contents, including any live ammunition. There is no defence ,therefore I am guilty of possession of ammunition unlawfully. And if it is, for example, an expanding bullet, then I am looking down the barrel (so to speak) of a 5 year sentence.

To avoid prosecution (and even if I got a conditional discharge – it would still be a conviction that I would have to declare), I have to hope that the CPS decide not to prosecute. In this case, it was presumably easy to check out the actor’s account (and a decision to prosecute would probably have got some adverse publicity to put it mildly). And, to be honest, in most cases I wouldn’t want to rely on the CPS to do the right thing…

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Two more whole life tariffs – Smith and Newell

Following their conviction last Thursday, Gary Smith and Lee Newell were sentenced to ‘whole life tariffs’ for the murder of Subhan Anwar. Mr Smith and Mr Newell were in Long Lartin prison with Mr Anwar last year when they followed their victim to his cell. Inside, Mr Smith and Mr Newell tied Mr Anwar up and strangled him.

At their trial, Mr Smith blamed Mr Newell and vice versa. The Prosecution’s case was that they were ‘in it together’, they were both responsible. The jury, in their verdict, accepted that when they found them both guilty.

The only sentence available to the Judge was life imprisonment, and in this case it is not surprising that the order for a whole life tariff was made (see here for full detail of how a Judge should approach setting the tariff for murder offences). For someone who had previously been convicted of murder (and Mr Smith and Mr Newell were both in prison service life sentences for murder) the starting point is a whole life tariff.

Whilst the Judge is not bound by that, it is only a starting point, in this case the brutality and callousness of the murder, coupled with the lack of any mitigation, meant that the Judge had no reason not to impose the whole life tariff.

There will almost certainly be an appeal (both Mr Smith and Mr Newell have nothing whatsoever to lose) but I wouldn’t be putting any money on it succeeding. In any event, it’s all pretty academic. Given that they are already serving life sentences their chances of release unless they are in the last stages of terminal illness or something similar, are minimal whatever their nominal tariff for this would be.

You may have heard from the news that the ECHR have ‘outlawed’ whole life tariffs. This isn’t the case and, whilst the UK government will have to revisit the issue at some point, at the moment a Judge is obliged  to pass a whole life tariff in the right situation (see here for details of that case – Vinter v UK).

Mr and Mrs Reeves – 2½ years for theft of godmothers life’s savings

Facts

Having been convicted in August of stealing approximately £130,000 from her godmother, Lesley and Andrew Reeve returned to Middlesborough Crown Court for sentence on 20th September 2013.

It seems that Ms Reeve was granted a ‘power of attorney’ over 91 year Joan Killen’s affairs. This gave Ms Reeve the right to control Ms Killen’s financial affairs, including her bank account. With that power, however, comes the obligation to deal honestly and fairly with her money, and ensure that it is all spent properly on, in this case, Ms Killen.

The prosecution allegation, which the jury accepted, was that despite the fact that the Reeves would have, in due course, inherited Ms Killen’s property under her will, they decided to use her money for their own purposes. including “clear[ing] credit card debts and spen[ding] some of the cash on converting the garage of their home into a wet room and gym.

 

Sentence

The Judge described the offences as ‘selfish and greedy’ in the course of passing the sentence of 2½ years. We don’t have the sentencing remarks, but the Judge would have been working off the Sentencing Guidelines for Theft.

It is likely that the Judge would thought that Ms Reeves was in a ‘high’ degree of trust. This puts it in the top bracket for sentencing with a starting point of 3 years and a range of 2-6 years.

Given that there was a trial, this would appear to be towards the low end of the scale. This is probably because of the fact that she has not been in trouble before and the breach of trust is not as high as it could be (eg a solicitor stealing from her client would be treated more seriously). Putting it all together, it would seem that the sentence was about right.

Mr Reeves would appear to be in a different position as he did not hold a power of attorney. Is his sentence therefore too high? The Judge probably thought that this difference was a technical one, and they were both equally responsible.

This is probably fair enough given that it does seem to have been very much a joint effort. There will probably be an appeal against the sentence, but it would not surprise me if it didn’t go anywhere.

Additionally, there will be confiscation proceedings in relation to the money taken.

 

A question for law students (and others)

We don’t have the exact details, but it seems that when there was no question about her capacity, Ms Killen made a will naming the Reeves as beneficiaries. The Court could (and probably should) make a compensation order for the money recovered in Ms Killen’s favour, so any money confiscated by the Court would go back to Ms Killen.

Assuming therefore (as seems to be the case) that Ms Killen no longer has the capacity to make a will, when she dies will the money just go back to Mrs Reeves in any event? Is there anything that the Crown Court can do to stop that?

Whether or not you’re a lawyer, how do you think that court should handle this issue?

Masturbating in Public – is it legal (in Sweden)?

Introduction

We covered public nudity on 18th September 2013. The next day, we get news from Sweden of a case that poses the question ‘when is masturbating in public a crime?

 

The Court Case

An unnamed 65 year old man was brought before Södertörn District Court charged with ‘sexual assault/molestation’ (a caveat with all of this – it’s all based on English language publications, which has its inherent difficulties, before considering the fact that Swedish law is very different to English).

It seems that whilst on a beach, the man dropped his trousers and started to masturbate into the wind. At the conclusion of the trial, the Judge acquitted him saying, according to the prosecutor, that whilst it was proved that the man was in fact masturbating; “For this to be a criminal offence it’s required that the sexual molestation was directed towards one or more people“.

 

In England?

EU harmonisation only goes so far – these isn’t a green light for anyone in England. Here, the main offence would Exposure (if you’ve read the Daily Mail article, you may be surprised that they didn’t get the law 100% right. Or you may not) contrary to s66 Sexual Offences Act 2003. This requires that someone exposes their genitals intending “that someone will see them and be caused alarm or distress“.

But what if you are, as in the Swedish case, not directed it at anyone? We don’t know enough about the facts of the case, but it is likely that if someone were to give the account to an English jury that they weren’t intending anyone to see or be alarmed or distressed, the jury would give them short shrift, even though on the facts, they may be entitled to an acquittal (of that offence at least).

The other offence (which is probably easier to prove) is outraging public decency, which we looked at here. That was the offence that Vlasdimil Kepr was charged with after he cycled a bike through a shopping centre in Leeds, one hand on the handlebars whilst he used the other to perform a ‘solo sex act’ as the local newspaper coyly put it. For this he got a Community Order and a Sexual Offences Prevention Order banning him from the shopping centre and any female toilets or changing rooms, as well as a requirement to be on the Sex Offenders Register.

 

CPS Issue policy on prosecuting naturism

Of all the pictures, in all the world, this is the one we chose for a piece on nudity.

We have covered the case of Stephen Gough, the ‘naked rambler’ and his various travails with the legal system. Courtesy of CrimeLine today (18th September 2013) we saw that the CPS has issued guidance on the prosecution of naturists

It’s not, frankly, of great assistance to anyone, and is pretty much just a re-statement of the general prosecutorial policy (with a bit of common sense thrown in). 

It starts by recognising that the desire to be nude is a legitimate part of an individual’s freedom of expression that needs to be balanced against the right of the wider public to be “protected from harassment, alarm and distress”. After this, it turns to the specific offences, concentrating on s5 Public Order Act.

The gist of it is that if it is done for sexual pleasure, or there was an intent to annoy other people (especially if children are present), or this is an oft-repeated offence, then this points away towards a prosecution. In the absence of those, then it may well not be in the public interest for the individual to be prosecuted. 

Interestingly, in relation to ASBOs, the guidance says “Although naked behaviour may fit the anti-social rather than the criminal category, an ASBO carries with it the risk of an early and repeated breach followed by prosecution and ultimately imprisonment. It is questionable whether such an outcome is proportionate either in terms of the cost to the CJS or the penalty incurred. Very careful consideration needs to be given before an ASBO is sought. It should be regarded as a last resort.

Looking at Mr Gough’s case, none of the above will provide him with too much comfort as, given his lengthy history with the Criminal Justice system, it would probably indicate that a prosecution would be in the public interest.

We await to see whether it will actually make any difference …

 

Sex Offenders & Bank Accounts – case comment on Prothero

Introduction and Issue

Christopher Prothero lost his battle at the High Court relating to the requirements of the Sex Offenders Register on 18th September 2013. Mr Prothero was released from prison in February 2012 after having served a 4½ sentence for sex offences. One of the requirements (that was added in 2012) is a requirement to disclose to the police details of any bank account and credit cards that the person holds.

Mr Prothero was unhappy with this and challenged this requirement as being unlawful under Art 8 European Convention on Human Rights (the right to a private life). His stated objection was the risk that his personal financial details would be unlawfully passed on. The application was resisted by the Government on the basis that if a sex offender went on the run, then knowing their bank account details was the best way of tracking them down.

The Court’s Ruling

It will come as no surprise that the Court dismissed the claim. In a short judgment, the Judges rehearsed the arguments and concluded that although there was (as everybody accepted) an interference with the individual’s private life, there was “little doubt but that the requirements are very valuable in achieving the legitimate aims and are both necessary and proportionate for the achievement of those aims“. For this reason, the application was dismissed.

Comment Although I am not surprised by the outcome, it seems to me that there is quite a lot of doubt that the requirements are ‘necessary and proportionate’ in achieving the aim of protecting the public.

There is nothing wrong with a judgment being short – it is to be welcomed when the Court sets out the issues and their conclusions concisely, as long as it covers everything. To my mind, it would have been better had there been more discussion as to whether a blanket requirement is compatible.

The concern I have is that there is no individual tailoring of the requirements of the register – no Judge looks at the individual and considers whether notifying bank details will offer any protection to the public.

This all relates to a wider concern I have, and that is whether the Register is a good thing or not. There is no evidence from the UK that it works to prevent crime and, (as mentioned in our post on the Register) some evidence to suggest that it is, in fact, counter-productive.

Before saying whether it is necessary and proportionate, I would want to know the following (as a minimum) – (1) how many people are subject to the register, (2) how many people go ‘missing’ from it, (3) how many of those have committed offences after, and (4) how many of these were tracked by their bank account details. I have strong doubts that the numbers would support the Government’s case on this point.

Further, if someone really does want to go to ground, then will this really help the police? The offender knows that they have disclosed these details and can be tracked via it, so will they just go and take out cash and disappear off? Or, it they are intending to hide from the police, will they just declare some accounts and leave one hidden (which they then use)? This may provide a false sense of security rather than any real protection.

These arguments may or may not be persuasive. But, it’s for the Government to show that the measures are proportionate and, on the face of the judgment, they didn’t produce enough evidence to persuade me.

Man sentenced after admitting sex with goat

Robert Newman, 23, from Wiltshire, previously admitted having sex with a goat, contrary to s.69 of the Sexual Offences Act 2003. He was bailed until sentence and the conditions of his bail prohibited him from entereing any land where farm animals were kept. There was also a curfew from 7pm to 7am.

The offence

Sexual Offences Act 2003 s 69

(1)A person commits an offence if—

(a)he intentionally performs an act of penetration with his penis,

(b)what is penetrated is the vagina or anus of a living animal, and

(c)he knows that, or is reckless as to whether, that is what is penetrated.

(2)A person (A) commits an offence if—

(a)A intentionally causes, or allows, A’s vagina or anus to be penetrated,

(b)the penetration is by the penis of a living animal, and

(c)A knows that, or is reckless as to whether, that is what A is being penetrated by.

Sentence

The maximum penalty is 2 years (at the Crown Court). When sentenced at the Magistrates’ Court, the maximum sentence is 6 months.

ITV reported that Newman was imprisoned for 6 weeks. The report continued to state how his representative Anne Ellery read a statement to the court. It said:

I don’t want to be this bad person any more. I just want to get on with my life and do good.

I want to stand before you and say I am sorry and I just want to be back with my family.

However, we understand that Newman changed his plea from not guilty to guilty and so it is likely that he will not have received a full 1/3 discount for doing so.

Further, the Telegraph reported that Newman was in breach of an 8-week suspended sentence imposed for burglary.

That sentence was activated in full.

Newman was then sentenced to 6 weeks for the animal intercourse offence, which would be served concurrent (at the same time) to the activated suspended sentence.

The total sentence was therefore 8 weeks.

We do not know the facts of the incident with the goat and so it is difficult to assess. We understand that it was an isolated incident at night.

Reasons

Gail Chilcott, chair of the bench told Newman:

“Mr Newman you have repeatedly breached all court orders handed to you.

“This is your second breach of your suspended court order.

“We are therefore activating the suspension and you will go to prison for eight weeks.

“For this offence today you will serve six weeks. That will be concurrent rather than consecutive because we accept this is an isolated incident.”

Victim impact statement

The court reportedly heard a victim impact statement from the owner of the goat.

Guidelines

The guideline only has one category, labelled ‘basic offence as defined in SOA 2003 with no aggravating or mitigating features’. The starting point is a community order and so it is hard to see how a 6 week custodial sentence would be justified, if there was a plea and the offence was an isolated incident.

Appeal?

It may well be that there is an appeal. We do not know how much of the suspended sentence had been complied with, however the fact that this appears to have been a second breach will not have helped matters. There may be an argument to say that the suspended sentence should not have been activated in full and so the sentence should be shorter.

If we hear any news regarding an appeal, we’ll be sure to update you all.