Monthly Archives: October 2013

Bryan McNaught – barrister struck off for fraud

The ‘Legal Cheek’ website covered the story of Bryan McNaught, a former barrister, who was struck off (disbarred) after picking up a couple of convictions for fraud.

The first set of offences were committed between 2003 and 2009 (approximately) between Mr McNaught and his wife. It seems that there were 15 charges (to which Mr McNaught pleaded guilty) that all related to applications for loans, mortgages and credit cards where he lied about his income and job.

The total value of that fraud was just over £1 million. On the sentencing guidelines (p24) this would indicated that there would be a starting point for the sentence of about 4 years (before a plea of guilty). The actual sentence was 3 years, which is about right.

Whilst he was still in prison for that he pleaded guilty to further charges involving “defrauding their teenage children out of £60,000 of inheritance“. It’s not entirely clear what happened, but it seems that Mr McNaught’s father in law was terminally ill and was persuaded to leave money to their children, which they then took to cover their debts.

Although the value of the money was less, the appropriate sentencing guidelines are those for theft in breach of trust (p11). This would give a starting point after a trial of about three years. Both Mr McNaught and his wife pleaded guilty.

They both got 15 months. This is partly because both children were taken away from their parents. It is probably slightly lower for Mr McNaught due to the fact that he was currently serving a sentence for a similar offence and this did not add much more to that original offending (the whole sentencing regime is very complicated, so it’s difficult to know exactly the impact of a 15 month sentence in terms of how much Mr McNaught would actually serve, without having more facts).

It seems that all the money from the fraud was dissipated as when there were confiscation proceedings, they were only required to pay back £305.

This is all old news. It was reported today because the Bar Standards Board (the body that regulates barristers) finally got round to disbarring Mr McNaught. Mr McNaught had completed the BVC (Bar Vocational Course – now the BPTC) which is the vocational training required to become a barrister. Before being a ‘fully fledged barrister’ (someone who is able to practice as a barrister and call themselves one in their day to day lives) someone would have to complete a 12 month ‘pupillage’ – effectively an apprenticeship.

Due to the fact that there are many more people coming through the training to be a barrister than there are pupillages available, there are plenty of people in the position of Mr McNaught who are caught in a slightly grey area with a mass of rules as to when they can and can’t call themselves a ‘barrister’. This doesn’t appear to have arisen in this case – Mr McNaught was telling straight lies rather than any bending of the rules.

 

 

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Court TV – the downside

Introduction

I’m in favour of open justice. We need to do much, much more to open up the criminal (and civil) justice system to public scrutiny. As of Monday 28th October 2013 the Court of Appeal (both civil and criminal divisions) will be open for broadcasting. Basically, four courts will have cameras set-up permanently, and broadcasters will be able to dip in and out of 15 others in the RCJ.

The Lord Chief Justice is looking forward to it. Is this a good thing? Whilst I am not looking forward to being filmed whilst arguing a case in Court (especially if I am getting a kicking for reasons good or bad), is there any problem with it?

The arguments have generally been well rehearsed. I just want to raise two thoughts (one serious, one less so) that haven’t been much considered, two reasons why this may not be such a great step forward.

 Two thoughts

1. This isn’t particularly open

Will this help the public understand?

I have real concerns as to how accessible this will be. The Judges and advocates will have transcripts of the proceedings below, case summaries, skeleton arguments and ground of appeal. All of these are probably needed to make sense of what is going on.

A hearing in the Court of Appeal won’t start with a nice summary of the facts and the legal issues that the Court are considering. It will go straight into the argument on the basis that everyone present and involved in the hearing will have read all these documents. Without them, watching could be a very frustrating experience.

When I’ve been in the Court of Appeal (particularly on an appeal against sentence) I’ve often sat in the courtroom waiting for my case to get on. There will often be several cases before me being heard.

I’m a lawyer and frankly I often had no idea what the hell was going on. A lay person who had tuned it would, I imagine, have no clue at all. My first Court of Appeal case was an appeal against a sentence of 18 months. The hearing consisted of me standing up, the lead Judge saying “we’ve read your grounds of appeal, how about 12 months?” and me sitting down again. How helpful would that be to the public?

This isn’t an argument for not televising the courts – it’s an argument for actually having ‘open justice’ rather than talking about it.

In every case there will be, in electronic form, a Court of Appeal summary which contains the facts and the history of the case. Also, there will be typed grounds of appeal and skeleton arguments where both sides set out what their arguments are.

If we are committed to open justice, put all these online. Some cases (sex cases are an obvious one) would need redacting (as an alternative, whilst the system is getting up and running, these could be simply not posted on the web).

This would be far more useful at informing the public than televising the courts. It could go hand in hand with television, and would mean that people watching a case would be able to find out what all the folks in wigs are talking about.

Court TV is a gimmick, publishing the Court documents shows a true commitment to open justice. It’s perhaps more complicated, but if we are serious about opening up the Courts – do that as well.

2. The wrong Court?

This is just a thought. The Court of Appeal features the Criminal Justice System at its best. Everyone prepared and everything done properly (most of the time at least).

It would be far more illuminating to go down to the local Crown Court on a Friday and film the PCMH list – files lost, legal aid not in place, PSRs not produced on time, CPS not complying with Court Directions, prisoners taken to the wrong place, Judges trying to case manage based on a two page case summary, etc etc.

That way the public could really see what is going on in their name in the bulk of criminal cases. They would be truly appalled.

Televising the Court of Appeal to start

Come next Monday, 28th October 2013, you will be able to watch live and edited highlights of many proceedings in the Court of Appeal (both criminal and civil divisions).

Arguments in the Supreme Court have been broadcast for a few years and it hasn’t caused any problems (I’m not clear what the audience figures are.

Is it a good thing? A bad thing? Background from the MoJ on the issues are here.

We will hold fire on commenting until we see how it works (or doesn’t). Look out for a review next week …

Stuart Hall charged with 16 offences

On 23rd October 2013 it was announced by the CPS that Stuart Hall (the 83 year old former television presenter) has been charged with 16 sexual offences against two separate complainants.

These are 7 charges of rape against one complainant (alleged to have been committed between 1st January 1976 and 30th September 1978, when she was aged between 14 and 16).

Further, there is one charge of rape and one charge of indecent assault on a different complainant who was aged 11-12 (dating from 1st January 1976- 1st January 1977) and 7 charges of rape on the same complainant from when she was aged 13 to 16 (between 1st January 1979 and 1st January 1981).

Mr Hall will appear at Preston Magistrates’ Court on 8th November 2013.

Here is our factsheet on the prosecution of historic sexual offences.

If a couple perform a sex act in a lift but no one sees/hears, do they make a sound?

Well they probably make a sound, but do they commit an offence?

Erm, what are you talking about?

BBC News reported that a man and a woman had attracted the attention of the police recently after apparently engaging in a sex act in a lift. The British Transport Police Press Centre statement said:

PC Kirk Smith said: “A man and a woman were seen to enter the lift which connects the station’s main subway and ticket barriers to platforms 4 through to 7. They remained in the lift for more than ten minutes and, during this time, the woman performed an indecent act on the man.

“This is particularly concerning, as the station was very busy at the time and other passengers could have entered the lift at any time.

“We have conducted a number of enquiries and isolated CCTV images of a man and woman we believe may have important information in relation to this incident.

“If you recognise either individual, or have any information that could assist the investigation, I would urge you to contact police.”

The police have released CCTV images of the pair and are attempting to track them down.

I’ve got some questions…

Yes. Well, there are some holes (oi, keep it clean) in the news report at the moment.

Was there any CCTV in the lift?

If not, how do the police know that an ‘indecent act’ was performed?

How can the police possibly think an offence was committed if no one saw/heard the alleged act?

Isn’t this thoughtcrime? I don’t want to end up in Room 101…

So have they committed an offence? 

There is no offence of having sex in a lift.

But to many it feels like the sort of thing that should be a criminal offence. But when we had a little think about it, we struggled to see exactly what offence would have been committed.

The following can be discounted:

Exposure – Sexual Offences Act 2003 s 66 –

(1) A person commits an offence if—

(a) he intentionally exposes his genitals, and

(b) he intends that someone will see them and be caused alarm or distress.

the couple would not be guilty of this offence because they would of course not have been intending that someone saw them and/or that person be caused alarm or distress.

Sexual activity in a public lavatory – Sexual Offences Act 2003 s 71

(1) A person commits an offence if—

(a) he is in a lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise,

(b) he intentionally engages in an activity, and,

the activity is sexual.

 This, unsurprisingly, only applies to public lavatories. There is no offence of having sex in a lift.

 Harassment, alarm or distress – Public Order Act 1986 – s 5

(1) A person is guilty of an offence if he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

It is unlikely that this would be considered to be disorderly behaviour, but in any event, if no one witnessed ‘the indecent act’ then no offence is committed. In any event, it is a defence that the person(s) had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress (POA 1986 s 5(3)(a)).

So, the most likely candidate…

Outraging public decency – Common law

This offence is somewhat controversial and the Law Commission in the 1970s recommended it be abolished as it was unsatisfactorily defined.

In Rose v DPP 2006 EWHC 852 a homeless man engaged in ‘an intimate act’ with his girlfriend in the foyer of a bank. No one witnessed the event until the bank manager viewed the CCTV footage the following day. Was the bank manager a witness? Was the offence made out? The Magistrates’ Court held that the offence was made out as a bystander could have witnessed the act if he/she had walked passed. The High Court held that that was insufficient; a notional bystander was not enough. The offence had to be witnessed, and that there had to be others actually present who could see the act. 

In R v Hamilton 2007 EWCA Crim 2026 [an outraging public decency case where a barrister had used a video camera angled to record up women’s skirts) the court considered the following (courtesy of the New Law Journal):

In the judgment of the Court of Appeal, … 19th century cases established that for the offence to have been committed, it was incumbent on the prosecution to prove: 

– that the relevant act was of such a lewd character to outrage public decency; and

  • that the act took place in public and must have been capable of being seen by at least two people who were present, even if they had not actually seen it (known as the ‘two person rule’)

In the judgment of the Court of Appeal, “the purpose of the two person rule was to provide a basic requirement that had to be satisfied before it could be said that the offence was of a sufficiently public nature for it to be an offence”. Accordingly, since the court was “not applying a statutory provision, but a rule of law derived from legal principles and judicial precedents”, there was “no reason to confine the requirement more restrictively and require actual sight or sound of the nature of the act”.

In short, a person may be convicted of the offence of outraging public decency even where the relevant obscene or lewd act has not actually been witnessed; it is enough that there were people present and the act was capable of being seen.

Conclusion?

So the key question is, was the ‘indecent act’ capable of being seen? We know from the police press statement that the station was busy and there were people around.

So might they be guilty? Well, perhaps, if someone was to call the lift and the doors opened. It may be that these two are in for a visit from the rozzers and an embarrassing court appearance. 

If you have any other suggestions as to offences which the pair may have committed, do get in touch. Otherwise, watch this space for an update as and when the police catch up with these two…

Stuart Hall to be stripped of his OBE

The case of Stuart Hall has been extensively covered, both in the news and here on the blog. As is well known, he is now serving a 30 month prison sentence. Could things get worse for him? Well, as the BBC reported on 22nd October 2013, he is now to be stripped of his OBE.

How does this work? We had a look at the procedure on our post about Rohan Pershad (maybe QC) earlier this year. Basically, there is an Honours Forfeiture Committee that meets on an ad-hoc basis.

The test that they will apply is whether “retention of the appointment or award would bring the honours system into disrepute. There are no set guidelines for cancellations, which are considered on a case-by-case basis.” The deliberations are confidential, but we can guess what they said. Clearly, convictions for multiple child abuse would bring the system into disrepute.

There is no appeal for Mr Hall. It is an interesting question as to whether he would be able to Judicially Review the decision. We would guess not, but it’s unlikely to arise in practice.

People with convictions for fraud and perjury can sit in the House of Lords. Does this not bring the system into disrepute? Well yes. But peerages are in a different category and aren’t covered by the Honours Forfeiture Committee. We’re sure that they’ll get round to kicking criminals out of the House of Lords at some point. It’s early days. After all, it’s only been around for 700 years…

 

(Don’t) Get me to the church on time – Neil McArdle jailed for bomb hoax

Facts

Neil McArdle (36) was so in love with Amy Williams (29) that he asked her to marry him. She agreed, they had a fairytale wedding (actually at the Registry Office in St George’s Hall in Liverpool) and then they lived happily ever after.

At least, that was the plan. As anyone who has got married can testify, weddings can be a bit stressful. There are so many things to organise, people to invite, suits to buy, etc, and it’s easy to forget something.

On 23rd April 2013, there was less than 24 hours till they were due to wed, when Mr McArdle realised that he hadn’t completed and sent in the paperwork to actually book the venue. That’s a position no man wants to be in, it’s hard to see any way round it.

Mr McArdle did the only thing he could think of – on the morning of the wedding he slipped out to a phonebox on his road and phoned in a bomb threat to the venue, saying “There’s a bomb in St George’s Hall and it will go off in 45 minutes“.

As a result of this, when the wedding party got to the Registry Office, they found it being evacuated. Job done. Sort of. After a few hours when the venue re-opened, the bride to be discovered the fact that she was not booked in to get married that day, and the deception unravelled.

Mr McArdle was arrested later that day and made full admissions to the police, pleading guilty at the earliest opportunity.

Sentence

Mr McArdle was sentenced to 12 months immediate imprisonment on 22nd October 2013.

The Judge said that it was an ‘extremely serious’ matter with (immediate) custody ‘the only fitting option’.

The Law

The offence is one under s51(2) Criminal Law Act 1971 – “A person who communicates any information which he knows or believes to be false to another person with the intention of inducing in him or any other person a false belief that a bomb or other thing liable to explode or ignite is present in any place or location whatever is guilty of an offence.

The offence is an either way one, with the maximum sentence being seven years. There are no Sentencing Guidelines, or guideline cases. As the CPS guidance correctly says (quoting Archbold), this offence is normally met with an immediate custodial sentence in the range of 1-2 years (see Cook [2006] EWCA Crim 780 and Philipson [2008] EWCA Crim 1019 for some guidance).

The offence is taken so seriously because of the widespread disruption and fear that it can cause. This was clearly a stupid thing for Mr McArdle to have done, but it was not motivated by malice or an intention to cause harm or fear, but a slightly desperate action (which was doomed to fail).

I imagine that Mr McArdle will appeal (as there’s very little to lose). It may that, in all the circumstances (early guilty plea, genuine remorse and no malicious reasons) the Court of Appeal would reduce the sentence to 6 months immediate custody which, to my mind, would have been sufficient to mark the criminality.

Happily Ever After?

Mr McArdle and Ms Williams are, happily, still together, although they have yet to set a new date for the wedding. If they do, I imagine that Mr McArdle will be checking the paperwork carefully. Being a Best Man can often be a tricky task, at least this one will have plenty of material for his speech.

The Registry Office at St George’s Hall