Monthly Archives: November 2013

Mairead Philpott appeal dismissed – and on tele

philpottt

Introduction

The case of the Philpotts is well known, and well documented (our coverage is here). We have looked at the history of the potential appeal and the fact that it was set to be televised.

Well, on 29th November 2013 we found out the result – her appeal was dismissed. Mr Mosely  had previously sought to renew his application  but had withdrew it.

You can at least watch the judgment and do not have to wait for it to be published. It is not particularly surprising that the appeal was dismissed – it was an awful case and one where there is no guidance that covers this sort of offending.

The sentence passed was not out of the range of manslaughter sentences and therefore, notwithstanding Ms Philpott’s lesser role in the whole business, it is not easy to say that it is manifestly excessive. Ms Philpott always had an uphill struggle, particularly in such a high profile case.

 

Thoughts on TV

The BBC article shows the judgment being given and you can see clips on many other news sites. I haven’t, I’m afraid, watched the whole thing (I do have a day job to be getting on with).

It is an impossible question to know what difference the cameras made. It could be said that the judgement was given at a slower pace than usual, but that could be just my imagination.

 

Granting permission

If you are not a lawyer you may have missed the part at the end where the Lord Chief Justice said “although because of the unique nature of this case Mr Smith [Ms Philpott’s barrister] acted very properly in bringing the appeal to this Court and therefore we should grant leave“.

For a lawyer, particularly Ms Philpott’s lawyer, this was significant. We have a factsheet on how appeals work which set out the importance, generally, of getting leave to appeal.

The appeal was dismissed so the fact that leave was granted to pursue the appeal may seem a pointless victory. There are two consequences. Firstly, this means that an application could be made to the Supreme Court for a further appeal. This will not happen in Ms Philpott’s case (there is no point of general importance which would be needed – sentencing cases almost never go higher than the Court of Appeal).

For Ms Philpott’s lawyer, this was a professional victory however. The reason is is that the Court of Appeal, having granted leave to appeal, will grant a representation order and so Mr Smith will get paid.

Coroner and solicitor Alan Crickmore gets 8 years for ‘theft from the dead’

Taken from BBC News

Taken from BBC News

On 17th October 2013 Alan Crickmore, a coroner (a Judge who is responsible for ascertaining the cause and circumstances of a death, as well as, for historic reasons, dealing with treasure trove) pleaded guilty at Southwark Crown Court to 24 counts of fraud. He was released on bail until the 28th November when he was sentenced.

After the conviction, Dan predicted that Crickmore would get “hammered”, suggesting a sentence of 6 years. On 28 November, Crickmore was sentenced to 8 years imprisonment.

Facts

Crickmore stole money from clients and the estates of deceased clients. The total value of the thefts was about £2 million.

The BBC reported that the police claimed Crickmore had spent £400,000 on his credit card since 2005, including £45,000 on restaurants, £74,000 on supermarket bills, £33,000 on holidays, and £92,000 of cash withdrawals.

There was a two-year investigation into Crickmore’s solictiors firm which resulted in the closure of the firm. Thereafter however, Crickmore continued to draw a £60,000 salary from the council for sitting as a coroner, even though he was suspended.

One of the counts represented the theft of almost £900,000 from the estate of a deceased man.

Sentencing

The maximum sentence is 10 years.

Crickmore received 8 years. The discount given for pleading guilty is not clear, however there will have been some reduction. That places the starting point towards 10 years, which, even using the fraud guidelines (which tend to have higher sentences than the theft guideline, where offences ‘fit’ into both) is high. This is so, even when taking account of the (massive) breach of trust.

An appeal may well be mounted, given that starting at around 10 years,

The prosecution stated they would be seeking confiscation proceedings under the Proceeds of Crime Act 2002 to recover about £800,000. This is presumably because although Crickmore benefitted to the tune over almost £2m, he only has £800,000 available to confiscate (why make an order which he cannot pay?).

We’ll keep an eye out for an appeal.

Ian Watkins case – breach of the anonymity afforded to victims?

This week we have covered the case of Ian Watkins (who pleaded guilty to child abuse offences) and James Baines, who received a suspended sentence for tweeting photographs purporting to be of Jon Venables.

We noted that the names of the two co-defendants of Mr Watkins were not named. This was not an oversight in the press, but is as a result of the way the law operates to protect the victims of sexual offences (namely the children of the two co-defendants).

We also noted that the Court in the case of Mr Baines warned that breaches of Court orders are taken very seriously and almost always results in a custodial sentence.

Why are we saying this? Well, Dominic Grieve, the Attorney-General, tweeted the following today:

The law is clear. Anyone naming the co-defendants is breaking the law and may find themselves up in Court before being sent to prison. If you’re tempted to tweet or re-tweet the above information, don’t. You have been warned!

Anxiang Du sentenced – life for murder of the Ding family

Introduction

We looked yesterday, 27th November 2013, at the case of Anxiang Du who was convicted of the murder of all four members of the Ding family. He was sentenced today.

Mr Du received a 40 year tariff. This is what we predicted as the correct sentence. We suggested that the starting point was 30 years, but should be increased by 10 years to reflect the fact that four people were killed, the motivation, and the brutal nature of the murder.

Sentence

We now have the sentencing remarks. We can see that the Judge said “these were cold-blooded murders which in my judgment were premeditated and were considered acts of revenge in which you wiped out the entire family. The Judge accepted that Mr Du had ‘moderate depression’, but found that this did not make any difference to his culpability.

The Judge also noted that there were many aggravating features – that there were four murders, there was premeditation,there was a knife taken to the scene and at least two of the victims (the two daughters) were ‘particularly vulnerable’. There were none of the mitigating factors present.

For those reasons, and notwithstanding his age,the Judge set the tariff at 40 years.

Why no whole life tariff?

In deciding that a whole life tariff should not be imposed, the Judge looked at two factors. Firstly, ‘Having reflected on all the features of this case and without in any way underestimating its gravity, it does seem to me that this is not a case in which a whole life order is appropriate, although for reasons I will come to a lengthy minimum term clearly is appropriate.

Secondly, and perhaps more interestingly, he said that in agreement with ‘Sweeney J in his recent sentencing remarks in the case of R v McLoughlin, I consider that, in the light of the judgment of the European Court of Human Rights in the case of Vinter and others on 9 July 2013, particularly at [122], the passing of a whole life sentence within the current legislative framework, which gives no right of review of such a sentence, is in breach of Article 3 of the European Convention on Human Rights.

We have covered the case of Ian McLoughlin here, as well as the fact that the Attorney-General has referred that case to the Court of Appeal.

It remains to be seen whether Mr Du will be following Mr McLoughlin to the Court of Appeal having to fight off a whole life tariff. Here, we know that the Judge said that the ‘European’ issue was only one reason not to pass a whole life tariff. It may be that in light of that, Mr Du will escape the Attorney-General’s interest in this one.

As we also noted yesterday, Mr Du will be 94 before he can be considered for release. To that extent, it is effectively a whole life tariff.

Rakesh Bhayani gets life with minimum of 27 years for Caroline Waugh murder

Taken from BBC News
Taken from BBC News

Bhayani, 41, was convicted at the Old Bailey on 27 November 2013. He had previously pleaded guilty to perverting the course of justice and conspiracy to defraud. Nicholas Kutner, 48, was convicted of perverting the course of justice and had already pleaded guilty to conpiracy to defraud.

A Mr Khoury, 40, was acquitted of conspiracy to defraud.

Facts

Ms Waugh was an escort and met Bhayani through that work. The court heard that she considered Bhayani a friend and had visited him in prison. The prosecution stated that there had been an intimate relationship between the two at one point in the past.

Ms Waugh was stabbed in the neck in her central London flat. Thereafter, her body was hidden.

Ms Waugh had lent Bhayani about £40,000. An estate agent who gave evidence at the trial stated that in addition to that sum, Bhayani also owed him £17,000.

It appeared that after murdering Ms Waugh, Bhayani attempted to create the impression that she was still alive by sending text messages from her phone. These included messages to the estate agent, arranging to meet in order to hand over money owed. At the last minute, a message from Ms Waugh’s phone would be sent to the estate agent explaining that she could not attend and she had sent her friend (Bhayani) instead.

Bhayani told the estate agent that Ms Waugh had moved out of London in order to care for her sick mother. Thereafter, there was suspicious activity around Ms Waugh’s bank accounts and the police began to investigate. Ms Wuagh’s flat was fraudulently leased and cleared of all her belongings before attempts were made to sell it. Applications for bridging loans and remortgage were made in the sums of £250,000 and £400,000. It is presumed that these were not successful, judging by the descriptions in the news reports.

The news reports state that Bhayani was accused of taking £1m of her assets.

Bhayani had rented a lock up garage in south west London. When the garage was eventually searched, a VW Golf was found inside, inside which was Ms Waugh’s decomposed body.

The BBC reported: Det Ch Insp Justin Davies said after the case: “Bhayani is a confidence trickster who murdered her with the sole intention of stripping her assets and the belongings she had worked hard for.

Sentencing

Bhayani was sentenced to life imprisonment (the only sentence available) with a minimum term of 27 years. This means that he will not be eligible to apply to the parole board for release until the minimum term has expired.

The starting points are explained here. In this case, it is likely that the starting point was 30 years as this was a murder done for gain.

The sentencing remarks are available here. We may update the post once we have had the opportunity to digest them and there is something worth commenting on.

Rakesh Bhayani found guilty of the murder of Caroline Waugh

Taken from BBC News

Taken from BBC News

Bhayani, 41, was convicted at the Old Bailey on 27 November 2013. He had previously pleaded guilty to perverting the course of justice and conspiracy to defraud. Nicholas Kutner, 48, was convicted of perverting the course of justice and had already pleaded guilty to conpiracy to defraud.

A Mr Khoury, 40, was acquitted of conspiracy to defraud.

Facts

Ms Waugh was an escort and met Bhayani through that work. The court heard that she considered Bhayani a friend and had visited him in prison. The prosecution stated that there had been an intimate relationship between the two at one point in the past.

Ms Waugh was stabbed in the neck in her central London flat. Thereafter, her body was hidden.

Ms Waugh had lent Bhayani about £40,000. An estate agent who gave evidence at the trial stated that in addition to that sum, Bhayani also owed him £17,000.

It appeared that after murdering Ms Waugh, Bhayani attempted to create the impression that she was still alive by sending text messages from her phone. These included messages to the estate agent, arranging to meet in order to hand over money owed. At the last minute, a message from Ms Waugh’s phone would be sent to the estate agent explaining that she could not attend and she had sent her friend (Bhayani) instead.

Bhayani told the estate agent that Ms Waugh had moved out of London in order to care for her sick mother. Thereafter, there was suspicious activity around Ms Waugh’s bank accounts and the police began to investigate. Ms Wuagh’s flat was fraudulently leased and cleared of all her belongings before attempts were made to sell it. Applications for bridging loans and remortgage were made in the sums of £250,000 and £400,000. It is presumed that these were not successful, judging by the descriptions in the news reports.

The news reports state that Bhayani was accused of taking £1m of her assets.

Bhayani had rented a lock up garage in south west London. When the garage was eventually searched, a VW Golf was found inside, inside which was Ms Waugh’s decomposed body.

The BBC reported: Det Ch Insp Justin Davies said after the case: “Bhayani is a confidence trickster who murdered her with the sole intention of stripping her assets and the belongings she had worked hard for.

Sentencing

Sentencing was adjourned so that Ms Waugh’s family could attend.This is an interesting move as it perhaps demonstrates a new approach in how the families of victims may be treated in cases of homicide.Is this yet a further move to put the victim (and their family) at the centre of criminal justice?

The sentence for murder is mandatory life imprisonment. The Judge must set a minimum tariff which must be served before Bhayani can be considered for release by the parole board.

Setting the tariff is a complicated exercise. Reference will be made to the starting points listed in CJA 2003 Sch 21. More information on those starting points can be viewed here.

The starting point will be 30 years – that is because the murder was ‘done for gain’. From there, the Judge will have to assess the aggravating and mitigating factors.

The planning and  the concealment of the body are statutory aggravating factors. The Judge may also wish to take account of the fact that there was an element of breach of trust, in that Ms Waugh regarded Bhayani as a friend. In addition, the use of a knife (which in itself would attract a starting point of 25 years if taken to the scene) will also aggravate the offence.

Bhayani’s previous convictions, of which we know little, are unlikely to have a great impact upon the sentence.

Anxiang Du convicted of four murders

Facts

On 27th November 2013 Anxiang Du (after a surprisingly short trial) was convicted of the murders of the Ding family. The facts are quite horrible – Mr Du had been involved in a protracted legal battle with Mr Ding that he had lost, leaving him with a legal bill of £88,000 and a burning sense of grievance.

On 29th April 2011, the day after he received an injunction relating to the legal dispute, Mr Du went to the Ding family home to ask Mr Ding for money ‘When [Mr Ding] refused, Du stabbed him 23 times, his wife 13 times, Xing 11 times, and Alice four times.‘.

After (somewhat bizarrely) sleeping in the house that night, Mr Du stole their car and drove to London, before fleeing the UK. He was arrested in Morocco last year and extradited.

At the trial Mr Du accepted carrying out the killings, but denied being guilty of murder on the basis of loss of control and/or diminished responsibility. The jury rejected both claims and convicted Mr Du.

What will he get?

Sentence has been adjourned until tomorrow. Mr Du will be sentenced to life imprisonment as that is mandatory for the crime of murder.

The Judge will have to set a ‘tariff’ – the period of time that Mr Du will have to spend in prison before he can be considered for release. The link above gives more details as to how the Judge will approach this.

Mr Du is in line for a ‘whole life’ tariff on the basis that it is the murder of ‘two or more people’ that potentially involved ‘a substantial degree of premeditation or planning‘ as well as ‘sadistic conduct‘ (the repeated stabbing).

Without hearing the evidence it is difficult to say how much planning there was. I would imagine that it is stretching it to call is sadistic (barbaric perhaps, but not sadistic).

On the facts in the news reports we would suggest that the starting point is 30 years, but it would be aggravated by the number of people killed and the manner of the deaths, This would give a starting point higher than 30 years – probably 40 years being the appropriate sentence.

Whether he gets a whole life tariff or 35, or 40 years, it’s all pretty academic. Mr Du is 54 and will almost certainly die in prison whether it is mandated by a whole life tariff not.

We will look again when Mr Du is sentenced tomorrow …

James Baines gets suspended sentence for ‘Bulger’ tweet

Introduction

Images purporting to show photographs of Jon Venables and Robert Thompson (who killed Jamie Bulger when they were ten years old) as they are today have been circulating on the internet for a while.

The issue with this is that both boys were given new identities on their release from prison and there is a worldwide injunction prohibiting publishing anything that might reveal their new identity.

 

Facts

On 14th February 2013 James Baines tweeted an image that claimed to be a photograph of Mr Venables as he appears now. On 27th November, he admitted being in contempt of court by doing so.

Mr Baines was sentenced to 14 months in prison, suspended (probably for a year) as well as being ordered to pay £3,000 in costs.

There are no sentencing guidelines for Contempt, but the Courts take it very seriously, for obvious reasons (the CPS have some guidance here). A custodial sentence is pretty much inevitable.

I was (pleasantly) surprised that the sentence was suspended. We will have to see what the full sentencing remarks are, but I would imagine that it was his plea of guilty that saved him from being locked up immediately.

We do have the judgment in the case of Neil Harkins and Dean Liddle who posted photographs of Mr Venables and Mr Thompson to Facebook and Twitter respectively on 12th February 2013.

This sets out the following potential aggravating features:

  • Potential consequences to Mr Venables and Mr Thompson (and others who may be mistaken for them) were severe
  • Knowledge of the injunction (so a deliberate breach)
  • Being part of a concerted internet campaign to breach the injunction

There were the following mitigating features:

  • Removal of the images when contacted by the authorities
  • A prompt apology

In Mr Baines case it seems that all of the aggravating and mitigating features were present (save for evidence of there being a concerted campaign).

Mr Hawkins and Mr Liddle received sentences of 9 months each. However, due to the mitigation available and the fact that they did not fully appreciate the seriousness of what they were doing, these were suspended for 15 months.

The Court finished with the following warning ‘We must however conclude by saying that for the future if there is a similar publication on the internet or through the social media then we consider that there will be little prospect of such a person – if the publication occurs after the date of this judgment – escaping from a substantial custodial sentence without there being any prospect of suspension

Mr Baines had, by then, already sent his tweet. If it happens again, whoever is next taken to Court can expect to be leaving in a prison van.

 

Comment

Dominic Grieve has been proactive in enforcing the rules on contempt and we can expect more of this.

The internet is a game changer in most areas of life. It is clear that this judgment is not going to stop people tweeting and sharing whatever they like, but hopefully it will make some think twice before doing so.

I can see that there is an argument that the internet makes the injunction redundant (and should therefore not be enforced) especially as the Courts in England and Wales don’t have jurisdiction abroad. I do think that it’s important that Court orders are obeyed, so I would not support that.

There is a good argument for a full debate as to how Courts should approach the internet, but this must be done via a public discussion rather than individuals taking the law into their own hands.

 

What about freedom of speech?

Freedom of speech, particularly in relation to court proceedings, has also been a very important feature of British justice. It does have limits and given the real danger that Mr Venables and Mr Thompson would be placed in if their identities were known, this encroachment into the usual rules is clearly justifiable.

Of course, if we were a bit more civilised, and a less blood thirsty society (perhaps more like Norway) then the need for the injunction may be much less…

Ian Watkins, Lostprophets singer, pleads guilty to child sex offences

ian_watkins

Introduction

On 26th November 2013 Ian Watkins, the (former) lead singer of Lostprophets (a popular music group as a court reporter should call it) was due at Cardiff Crown Court to stand his trial on 24 charges of child sex offences.

He changed his pleas on some counts to guilty. These were attempted rape and sexual assault of a child under 13 (but not guilty to rape) and he “also admitted three counts of sexual assault involving children and six involving taking, making or possessing indecent images of children and one of possessing an extreme pornographic image involving a sex act on an animal“.

Mr Watkins was charged along with two women (known as A and B) : “

Woman A, admitted the attempted rape of a baby after denying rape and two charges of sexual assault as well as taking and distributing an indecent photograph of a child.

Woman B pleaded guilty to conspiring to rape a child, three sexual assault charges and four charges of taking, possessing or distributing indecent images.

The sentencing hearing will be on 18th December.

Facts

These have been reported (with some details missing) in a fair amount of detail. We won’t recite them all here, but they were mostly acts of great depravity that involved very young children.

The very best that Mr Watkins can hope for is a lengthy (20-25 years) determinate sentence. The starting point is the Sexual Offences Sentencing Guidelines (p25). It would seem to be in the highest category (so a starting point of 15 years with a range of 13-19 years after a trial). The young age of the victims and the exploitation involved, when coupled with the other offences to which Mr Watkins pleaded guilty, take us above that.

There will have to be some ‘credit’ for the plea of guilty, although that will probably be small, about 10%. For that reason we would suggest the bracket of 20-25 years, probably towards the bottom end of that when the guilty plea is taken into account.

It may well be that he receives a life sentence (on the facts in the news so far, I would not be surprised). as for the two women, the press reports have been focussing on Mr Watkins and so there is a lot less detail, so it is not possible to comment on this stage.

It seems that the two women, possibly a the instigation of Mr Watkins, abused their own children and filmed it for the benefit of him (as well as making their children available for him to abuse).

Sentencing

Sentencing was adjourned, presumably for full reports to assess whether a life sentence should be imposed.

We will return to this, but until then, here is some further reading:

Robin Hood pardoned by the Sherriff of Nottingham

Sherrif Robin hOood

Eh? What are you talking about?

It was a news story that caught our eye. Apparently, ‘the real Sheriff of Nottingham (Cllr. Ian Malcolm) has not only pardoned Nottingham’s Official Robin Hood for all of his outlawry but actually appointed him official Under-Sheriff of Nottingham’. Which is nice for him.

 

How does this work?

It is perhaps a bit of a surprise. Not least because Robin Hood is either a fictional character or long dead, he had never been convicted of anything, and it’s not clear that a Sheriff has any power to pardon anyone.

 

What does a pardon do?

A pardon ‘removes from the subject of the pardon all pain, penalties and punishments ensuing from the conviction but does not eliminate the conviction itself’ (R v Foster [1985] QB 115). This means that they will be freed from prison or whatever sentence they are serving, but the conviction is still there. So, if someone is pardoned for a drink drive offence, and is convicted of another one within 10 years, they will be liable to the ‘enhanced’ 3 year minimum ban rather than the ‘usual’ 12 month one.

So, whilst he is not at being sent to prison, Robin Hood’s acts are still technically viewed as criminal.

 

 

Can people still be pardoned? Isn’t that what the Court of Appeal is for?

There is no doubt that the ‘prerogative of mercy’ – the ability to issue a pardon, still exists. It is used a lot less nowadays than before.

It is hard to get exact figures as to who has been pardoned in the last 30 years and why. In 1985 (see the case of Foster above, sadly not online) it was stated that in the 10 years after 1973 there were 2,296 pardons issued. This seems very high (after all, you don’t hear of it very often) but all but 12 were issued for people not in prison. Almost all of these were for road traffic offences (it seems that this was a course of action where something had gone wrong with a breathalyser for example).

Michael Howard had a slightly awkward moment after he authorised the pardoning (11 months into an 18 year sentence) of two gangsters due to information that they had supplied the authorities. It turned out that the two may not have been entirely honest in their dealings with the Home Secretary (and were later jailed for further offences, some relating to this). Mr Howards cousin was an associate of them.

But it is fair to say that they are very rare in serious offences. They are getting all the more so now that the Criminal Cases Review Commission has a statutory authority to refer convictions that may be unsafe to the Court of Appeal.

We have commented previously on the injustice that can be caused by the mandatory sentencing regime. As far as we are aware there have not been (m)any applications for a pardon in these sorts of cases, but we would suggest that some of those people may be able to apply. It may not get anywhere, but would be interesting to see.

 

Who can issue a pardon?

The Queen. But the Queen tends to be busy nowadays opening hospitals and the like, so she’s delegated the power to the Home Secretary (and Theresa has probably passed this on to Chris Grayling at the Ministry of Justice). In Scotland, whilst it is in theory done from Westminster, it’s probably now the sole responsibility of the First Minister (likewise in Wales and Northern Ireland).

It is clear that the King had a power to pardon at the time that Robin Hood was strutting around Sherwood Forest (in 1249, a four-year-old child, Katherine Passcavant, was imprisoned and not executed: in opening a door she had accidentally pushed a younger child into a vessel of hot water with fatal results’ which is an early example of a partial pardon)

Nowadays (and since 1st July 1536 in fact) it is only the Queen who can pardon someone. Henry VIII, like the politicians of today, didn’t like the idea of anyone other than him having power. So in between criminalising the theft of Hawks eggs and increasing the ‘Punishment of Welshmen attempting any Assaults or Affrays upon any the Inhabitants of Hereford, Gloucester and Shropshirehe got Parliament to pass the Jurisdiction in Liberties Act 1535, ensuring “that no person or persons, of what estate or degree … shall have any power or authority to pardon or remit any treasons, murders, manslaughters or any kind of felonies, whatsoever they may be [other than the king]”.

This act of Parliament is applicable to any ‘pardonings’ thereafter, so the Sheriff of Nottingham has no power in 2013 to pardon anyone for anything.

Can you pardon someone who is dead?

Definitely. 306 soldiers executed for ‘cowardice’ offences in the first world war were pardoned by an Act of Parliament (s359 Armed Forces Act 2006). The exact legal status of this is unclear as it specifically states that it is separate to the prerogative of mercy and is stated not to ‘affect any conviction or sentence’.

There are other examples – Timothy Evans who was pardoned in 1966, sixteen years after he was executed for murder, when it was clear that he was innocent and Derek Bentley who was conditionally pardoned in 1993 (relating to the sentence of death only). In 1998 his conviction was overturned posthumously by the Court of Appeal. That judgment is a good one to read if you want more information on the history of this area of law.

 

Aren’t you taking this a bit seriously – it’s just a PR stunt?

Well yes. But it’s a good way to talk briefly about this comparatively unusual area of law. It’s also something that may be in the news next month with the sentencing of ‘Marine A’. He will get a life sentence – expect calls for a Royal Pardon shortly afterwards…