Monthly Archives: October 2013

Michael Souter sentenced to 22 years

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Introduction

We covered the case of Michael Souter, the former BBC presenter who was convicted of various sexual offences on 17th October 2013. On 31st October, he was sentenced to 22 years for these.

 

Sentence

We don’t have the details of the offending, but there were 19 charges of indecent assault and 7 of ‘making and possessing indecent images’. Indecent Assault and the child pornography offences have maximum sentences of 10 years, so there must have been use of consecutive sentences.

We have a factsheet on historic sexual offences that gives some guidance in relation to sentencing. The sentencing remarks have not been made public yet, so all we have to go on is the news reports.

 

Comment

Without the detail of the offending it is not possible to be sure about the sentences passed in this case. If and when the sentencing remarks are released, we will return to this. All we can say at this stage is that the sentence appears, on the face of it, to be manifestly excessive.

We can say that, as it is not even in the right ballpark for offending of this nature. For example, a series of rapes of different victims (a far more serious offence with a maximum sentence of life imprisonment) has a sentencing bracket after a trial of 19 years.

It may be that the most likely explanation for this is that the reporter has got the sentence wrong and mistaken concurrent sentences for consecutive ones.

If that is wrong, then unless there is some very unusual feature that we are not aware of, the sentence looks ripe for an appeal.

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Naked Rambler – Halifax Conviction upheld

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Introduction

We have covered the case of Stephen Gough – the Naked Rambler here. On 31st October 2013 the Divisional Court gave judgment in his latest Court battle.

Just over a year ago, on 25th October 2012, Mr Gough was released from Halifax Police Station. As is his usual custom, “he was wearing only walking boots, socks, a hat, a rucksack and a compass on a lanyard around his neck. He was otherwise naked and his genitalia were on plain view“. After a short while, he was arrested and subsequently charged with an offence contrary to s5 Public Order Act 1986.

He was convicted in the Magistrates’ Court and appealed to the High Court.

Decision

The Court gave his various arguments short shrift. s5 is a very wide offence. It is committed if someone uses

threatening, abusive or insulting words or behaviour, or disorderly behaviour … within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

The Divisional Court concluded (para 15) that “the district judge was clearly entitled to conclude that, by walking through a town centre entirely naked, he was violating public order or, in the language of the case contributing “to a breakdown of peaceful and law-abiding behaviour as evidenced by the reactions of the public”: he was thus disorderly

It is a requirement of the offence that “The defendant must intend his words or behaviour … to be threatening, abusive or insulting or be aware that they may be threatening abusive or insulting or he must intend his behaviour to be, or be aware that it could be disorderly.

Again, this did not trouble the Court – “he knew full well (not least from his past experience) that many members of the public would both be alarmed and distressed by sight of his naked body whether or not others would take a more benign view and whatever the origins or psychological reasons for that alarm and distress“.

What of the defence in s5(3) of reasonableness – “it is a defence for the accused to prove … that his conduct was reasonable“? As was noted (para 17) this is closely related to the question of Mr Gough’s Art 10 rights. Ultimately, the Divisional Court felt that the Judge reached the right result in concluding that there was a “pressing social need for the restriction of his right to be naked in the context of this case“.

And so the appeal was dismissed…

Comment

Was the Court right?

As for the result in this case? It’s not particularly surprising. It is slightly frustrating to see so much money wasted on this, particularly against a backdrop of inconsistency from the various police dealings with him – sometimes he is arrested, sometimes prosecuted, sometimes just escorted away.

The UK Human Rights Blog has had a look at it, which is well worth reading. The point is made there that some people would find the sight of two men holding hands distressing, but should that mean that the conduct is unlawful?

The question will come down to reasonableness. Presumably if people are offended, then that offence is only relevant if it is reasonable. So the Court would assess that being offended by two men holding hands or kissing is an unreasonable offence.

This does raise the wider (and very interesting) question of whether I, as a citizen, have a right not to offended. I’m not sure that I do.

s5 is controversial. One way of resolving this would be to make it an either way offence, so we can let juries decided what is and isn’t reasonable. The argument against that is that it is very costly, but it may make prosecutors think more carefully before bringing charges.

What of the CPS policy?

The CPS published a policy on prosecuting naturism last month. This is obviously post Ms Gough’s conviction, but it would have been useful had the Court referred to them. It seems to me that the Court would have been entitled (in deciding the policy issues that were involved) to refer to them.

What next for Mr Gough?

Presumably more nudity, more prosecution, more prison time… But, it is interesting that one of Mr Gough’s cases is going to the ECHR. No details are given, but this is one to watch out for.

In this war between Mr Gough and the state it is clear that Mr Gough is not going to bend. And the state is not likely to back down either. We’ve reached a stand off, and it is hard to see how that will be broken. For myself, I would rather that we backed down, banked the millions that we have spent on prosecuting him, and just let him get on with his life.

But in this war, one side has the full armoury of the state at their disposal. Mr Gough is armed with a hat. I know who my money is on.

Newcastle United player admits using fake driving licence

Tiote

Picture from the BBC

Cheick Tiote admitted buying a fake Belgian driving licence for 15,000 euros (£12,800) the BBC reported yesterday. It is likely this was an offence under Identity Documents act 2012 s 4 (possession of false identity documents etc with improper intention). Tiote, an Ivory Coast international, joined Newcastle in 2010.

He also admitted driving whilst otherwise in accordance with a licence but pleaded not guilty to driving with no insurance. That matter will be dealt with at the magistrates’ court at a later date. No evidence was offered on a count of making a false statement to obtain insurance.

Tony Hawks (not the skateboarder) prosecuting, said that the footballer had tried to use the fake licence to apply for a UK driving licence from the DVLA. “The licence was a very good forgery but there were a number of features that showed it was a forgery,” said Mr Hawks.

Sentence

He was sentenced to 7 months suspended for 18 months, with 180 hours of unpaid work. He also received a £600 fine and six points on his licence after admitting driving whilst otherwise in accordance with a licence.

He was ordered to pay prosecution costs of £3,795 and a £100 victim surcharge.

The Judge, HHJ James Goss QC, said that Tiote’s guilty plea had saved him from an immediate custodial sentence, and:

 “In that way you will be punished and I have no doubt that, using your considerable talent, you will be able to assist others in the community by encouraging them and passing on your skills that way.”

Was the sentence right?

In R v Hoxha 2012 EWCA Crim 1765 the Court of Appeal said that there was nothing wrong with a short custodial sentence of 4 months for a man who had a false Albanian licence, who had not passed his test but had obtained a UK provision licence.

Cases where false ID documents are used to obtain employment or to make asylum claims are undoubtedly serious. To my mind, in cases such as this, there is no point in sending Mr Tiote to prison.

But looking at the sentence, is it wrong in law? The way in which a judge is supposed to determine sentence is as follows:

a)      If the custody threshold is passed, determine the appropriate length

b)      If that length is less than 2 years, can the sentence be suspended?

With a sentence of 7 months, credit for the plea would have been in the order of 4 months, making a starting point of around 11. Cleary the sentence of 7 – or 11- months could be suspended but it cannot be said that the plea enabled the sentence to be suspended (e.g. the starting point was more than 2 years, but the plea brought it below 2 years which enables it to be suspended). The judge appears to have treated the plea as a factor which enabled him to suspended the sentence.

Arguably wrong in law but taking a pragmatic view, the right sentence.

Derek Osbourne – Council leader sent to prison for child pornography

Introduction

On 29th October 2013 Derek Osbourne, the former Lib Dem leader of Kingston Borough Council, was sent to prison for two years for offences relating to child pornography. As a result of this conviction, Mr Osbourne will have to register as a sex offender for the next 10 years. All in all, it is a crushing fall from grace from a man who once had Parliamentary ambitions.

The facts aren’t entirely clear. It seems (from the Mirror) that the criminality was:

  • Downloading 2,844 still images, and 293 movies, of children
  • Sharing with others23 stills and seven movies
  • Possessing 152 extreme images

Offences

It seems that the offences were as follows :

  • 7 x Making indecent images of children
  • 4 x Possessing an indecent image of a child
  • 6 x Distributing an indecent image of a child

The first and third of these offences are contrary to s1 Protection of Children Act 1978. The maximum sentence for all these offences is 10 years imprisonment. The second offence is under s160 Criminal Justice Act 1988, with a maximum sentence of 5 years (as of 11th January 2001)

These would have been ‘specimen counts’ – this means that a sample of the images would have been charged (it is not practical to have an indictment with several thousand counts on it) on the understanding that Mr Osbourne would have been sentenced for all the images.

From the news reports it seems that there was some illegal images involving adults, but this was not reflected in the charges as set out above.

Sentence

There are five different categories of child pornography (taken from the case of R v Oliver & Others [2002] EWCA Crim 2766) depending on the activity that is depicted:

(1) images depicting erotic posing with no sexual activity;

(2) sexual activity between children, or solo masturbation by a child;

(3) non-penetrative sexual activity between adults and children;

(4) penetrative sexual activity between children and adults;

(5) sadism or bestiality.

Here, the levels are treated as being increasingly serious, and therefore attract a higher sentence,

It is not clear what Levels Mr Osbourne’s offending involved, but it seems that some at least were at a higher level.

There are Sentencing Guidelines for this offence (starting at page 108). Normally, we would look at the offending and see how that fits with the sentence. In the absence of further details about the Levels, we have to work backwards from the sentence.

It would seem to fall in the second category – distributing Level 4 or 5 images. This has a starting point of 3 years in prison. Given that Mr Osbourne pleaded guilty and received full ‘credit‘ this would tally with the sentence that was passed.

Why was he charged with ‘making’ an indecent image?

The Judge said ‘Of course you did not perpetrate that abuse directly yourself‘. Given that he did not ‘make’ the images (at least in any normal sense of the word, why was he charged with that offence?

This comes from a bit of creative judging. The offence dates from 1978, not only pre-internet, but pretty much pre-computing, as well as pre-taking child abuse as seriously as we do now.

In 1999 the Court of Appeal dealt with the case of R v Bowden [1999] EWCA Crim 2270. Mr Bowden’s computer was found with various indecent images on it. At that time (and until 11th November 2001 – hence the inclusion of that date above) the offence was summary only.

This meant that the maximum sentence was only six months (and it had to be charged within six months from the commission of the offence). How do you get round that?

By holding that when a person copies or downloads an image from the internet (whether or not he prints it out) he ‘makes’ it. Problem solved.

When Parliament changed the law to increase the maximum sentence for possession, the criminal justice system was stuck with the Court of Appeal’s decision on ‘making’ (see, as examples, Smith [2002] EWCA Crim 683 and Harrison [2007] EWCA Crim 2976).

For this reason, Mr Osbourne had no option other than to plead guilty to making the images that were found on his computer. Of course, someone who downloads an image will (rightly) receive a lower sentence than someone who makes the image (as in taking the photograph), as the latter offence is clearly more serious.

Christopher Symons – life in prison for murder of business partner

Christopher Symons was convicted on 25th October 2013 of the murder of Patricia Goodband. On 28th October he was sentenced to life imprisonment.

Mr Symons and Ms Goodband ran a haulage and agricultural business together. It was alleged (and the jury accepted) that Mr Symons, in order to get his hands on Ms Goodband’s share of the business, murdered her on 22nd December 2012 and threw her body down a well.

There were other people involved – Jennifer Creasy (Mr Symons partner) was convicted of Assisting an Offender and sentenced to six months and Robert Taft (a friend of Mr Symons) received 10 months for Perverting the Course of Justice. It is not clear, however, what their roles were.

Mr Symons was given the mandatory sentence of life imprisonment. The tariff was set at 27 years. Why so long?

An explanation of how tariffs are set is here. The key to why it was such a lengthy sentence is the motivation of Mr Symons. It was alleged by the Prosecution, and must have been accepted by the Judge, that the murder was ‘done for gain’. This normally attracts a starting point of 30 years.

Here, there was no plea of guilty, so no reduction in sentence because of that. As to why the minimum term was 27 rather than 30 years? We don’t know, but it may be, in part, that Mr Symons had never been in trouble before.

More significantly, he is now aged 63. In 27 years time, he will be 90 years old. Old age would normally require some reduction in sentence and so this may explain it.

There are few, if any, nonagenarians in prison. Clearly Mr Symons will be no longer an effective risk long before that. Whether such a long tariff is needed for punishment or protection of the public, or is a good use of public money, is not clear. But it is likely that the Judge could not have gone much lower without attracting an Attorney-General’s Reference.

John Larsen : Ex-Mayor sentenced to 18 years for bombing campaign.

Mayor

Facts

When John Larsen, the former mayor of Denbigh in Wales, retired from public office he had a slightly unusual way of spending his time – indulging his ‘active interest in pyrotechnics’ by setting off bombs is his local area (one of which, apparently, “sent ball bearings and metal shrapnel flying up to 90 feet away”.

Mr Larsen was convicted after a trial of three charges of arson, one of causing an explosion likely to endanger life and a fifth of possession of explosives with intent to endanger life. We don’t have details of exactly what happened, but do know that he had blown up (someone else’s) car and was behind ‘a string of explosions which had been causing fear in the community’. Fortunately, whilst property was damaged and people were understandably concerned, it does not appear that anyone was hurt.

He was sentenced to a total of 18 years imprisonment on 24th October 2013. We don’t know if (and if so, then how) this was broken down between the five offences.

Offences

There were three separate offences :

There are no guidelines or guideline cases that exist (there’s some rough guidance from Banks on Sentencing here).

Comment

What is entirely lacking from the news reports is any idea as to why Mr Larsen committed this offence. It does not

However, whilst no-one was injured, it is worth noting that one of the offences was possessing explosives with the intention of endangering the life of another, which may indicate a more sinister motive than is suggested in the news reports.

The rough guidance would suggest that, without an intent to endanger life, the sentence is too long (and a sentence of between 8-12 years would be more appropriate). It is worth comparing with the case of Pavlo Lapyshyn who received a 12 year sentences (on a plea of guilty to ‘terrorist’ bombings).  The increase to 18 years could be justified because of the intent to endanger life, but only if there was something akin to a specific threat to an individual – ie, the Prosecution had proved that Mr Larsen had a target that he was intending to kill.

So, on the face of it, it seems not just a very long sentence, but a sentence that is so long, it is too long. There will (hopefully) be an appeal, where all the facts will be set out and we will be able to Judge whether the sentence was a fair one or not.

Pavlo Lapshyn sentenced for murder and terrorism offences

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Image from Birmingham Mail

On 25 October 2013, Lapshyn was sentenced at the Old Bailey for various offences.

He pleaded guilty to the murder of Mohammed Saleem, aged 82 and

Mohammed Saleem was on his way home from evening prayers in Birmingham in April when Lapshyn followed him and stabbed him three times. In the following months, he was responsible for planting bombs at three mosques in Walsall, Wolverhampton and Tipton, in the Midlands.

He later admitted to the police that he held racist views, wished to increase racial conflict, and that his motivation was racism.

Terrorism

Lapshyn was setting off bombs near mosques in the West Midlands.

BBC News reported:

‘The first, hidden inside a child’s lunchbox, exploded outside Walsall’s Aisha Mosque on 21 June. Worshippers were inside at prayers and nobody was hurt but it still led to the evacuation of 150 people from nearby homes.’

No one was hurt in the Wolverhampton bombing either, although the device did detonate.

The bomb at the Tipton mosque was packed with 600grams of nails and was the most powerful of the three.

We understand that Lapshyn entered pleas as follows:

Walsall bomb – Guilty to preparing acts of terrorism, not guilty to causing an explosion likely to endanger life

Wolverhampton bomb – Guilty to causing explosions

Tipton bomb – Guilty to causing explosions

Murder – Guilty

Offences and maximum sentences

Terrorism Act 2006 s 5 – preparation of terrorist acts (max life imprisonment)

Explosive Substances Act 1883 s 2 – Causing explosion likely to endanger life or property (max life imprisonment)

Sentence

The mandatory sentence for murder is life. Here is an explanation of how judges approach sentencing in murder cases. The use of a knife takes the starting point to 25 years but the racial motiviation raises that to 30 years. There are obvious other aggravating features and so purely on the murder count, he is looking at a lengthy minimum term.

Of course in this case there are the terrorism offences to consider.

Lapshyn is, so many of the press have stated, in line for a whole life tariff. The sentencing judge, Mr Justice Sweeney, is the judge who sentenced Ian McLoughlin earlier in the week and held that he could not pass a whole life tariff as the European Court had ruled it to be unlawful.

We covered that issue here. We have some misgivings about that decision, however, in this case, it is likely that the judge will remain of that view. To decide that a whole life tariff is available notwithstanding the decision of the European Court in Vitner would require the judge to re-list the McLoughlin case under what is know as the slip rule, whereby judges can amend mistakes made when sentencing, so long as they are spotted within 56 days of the decision.

That would appear unlikely.

Lapshyn therefore is looking at a mandatory life sentence with a very long minimum term.