Monthly Archives: November 2013

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…

Advertisements

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…

Clare’s Law to go nationwide

Clares law image

Introduction

On 25th November 2013 it was announced that ‘Clare’s Law’ would be implemented throughout England and Wales (Scotland, of course, having different laws). This follows a pilot scheme in Manchester, Wiltshire and West Mercia.

 

What is it?

It was introduced following the murder of Clare Wood in February 2009. The main suspect was George Appleton, her then boyfriend, who killed himself shortly afterwards.

It later transpired that Mr Appleton had a history of domestic violence and had been harassing and threatening violence towards Ms Wood prior to her murder.

This lead to calls for women to be warned about potentially abuse and violent partners. As stated in the pilot :

Under the scheme women will have the right to ask the police whether a new or existing partner has a violent past. If police checks show that a person may be at risk of domestic violence from their partner, the police will consider disclosing the information.

The pilot will also look at how the police can proactively release information to protect a person from domestic violence where it is lawful, necessary and proportionate to do so

The scheme will now be implemented in all police forces shortly.

 

How does it work?

The legal basis is in s24 Crime and Security Act 2010. This creates a ‘Domestic Violence Protection Order’ that can be issued by a high ranking police officer if the officer has ‘reasonable grounds for believing that a perpetrator has used or threatened violence towards the victim and the victim is at risk of future violent behaviour‘.

There is then a hearing in the Magistrates’ Court within 48 hours to determine whether it was properly issued.

The usual conditions would be to kick the suspended offender out of his (perpetrators of domestic violence are mostly men) home and preventing him from contacting the other person for a period of time between 14 and 28 days.

It is a civil (not criminal) matter if the order is breached.

Will it work?

The Government have published the results of the pilot. This is stated as being a success, although there is an element of caution about the findings.

There are legitimate concerns. Firstly, there is a concern about the privacy implications of disclosures of this sort. Secondly, there are doubts as to whether and how people will act upon disclosures (see here for one article giving a good critique). Thirdly, it may lull people into a false sense of security that a negative check is a clean bill of health.

 

Comment

I don’t know where the figure came from, but I have often heard it said that 20% of PNC (Police National Computer) checks are wrong in one way or another. I can certainly believe it. I remember one case that I dealt with where the defendant was up for a low level financial crime. His PNC showed ‘no trace’ – in other words, no indication that there was any criminal history.

This overlooked the fact that he had been convicted of beheading a former romantic partner. That’s one (albeit an extreme) example of how the police information is not always accurate.

My own personal concern about this is that it is a gimmick that is a cheap way of looking like you’re tackling the problem, rather than actually doing anything about it.

Measures such as greater funding for refuges, social workers to provide support, better benefits (particularly for victims with children), proper legal aid so victims have proper access to family and welfare law advice, more funding for counselling/anger management for perpetrators, etc etc would, in my view, be far more effective in putting an end to domestic abuse.

This however costs money – far easier to have some kind of new ‘order’ (Governments love having more powers) than actually trying to tackle the problem. Clare’s Law is not, to my mind, a measure that shows that the government is serious about ending domestic violence, but one that shows that they are keen to be looking like they’re doing something.

Parents jailed for death of Jamie Kightley

_71257944_kightley

On 21st November 2013 Jacqueline Parker and Adam Kightley were sent to prison for seven years each for ‘causing or allowing’ the death of their baby son – Jamie (aged 7 weeks old).

In his short life Jamie was subject to what sounds like some pretty brutal violence – he was assaulted several times before the day that he died. It seems that the cause of death was that Jamie ‘had been shaken with sufficient violence to cause him to suffer bleeding to the eyes and brain damage leading to his death as a result of respiratory and cardiac arrest‘. He had over 40 fractures as well as brain damage and severe bruising when he was taken to hospital.

Both parents were on trial for murder. It is not entirely clear for the news reports what happened, but it seems that by the end of the trial the Prosecution accepted that there was not enough evidence to say which of the two parents were responsible for the death. In those circumstances, the murder charge had do be dropped and the jury considered ‘just’ the charge of causing or allowing the death. Both were found guilty.

The maximum sentence is 14 years in prison. There is some background information on the offence and the sentencing ranges here.

Cases such as these always arouse strong emotions, particularly when it can appear that the defendants have ‘got away with murder’. It’s important to note that they were not convicted of murder (or manslaughter for that matter) and therefore they cannot be sentenced on that basis.

Inevitably, therefore, the sentence will be substantially lower than if they had been found guilty of homicide. Seven years is a long sentence, but for the offences committed seems about right. There may be an appeal, but it is unlikely to be a successful one.

Jill Archer’s brush with the law

 

An elderly lady with failing eyesight runs her car into a cyclist on a country lane, causing him some slight injury and torn clothing. This will sound familiar to listeners of BBC Radio 4’s The Archers. But what does the law say about motorists who find themselves in this situation? A brief discussion of the issues.

Driving with failing eyesight

The law specifies the minimum acuity level for motorists – the standard is higher for taxi drivers and commercial drivers. The minimum eyesight standard is set out in Motor Vehicles (Driving Licences) Regulations 1999, which was amended in March 2013. You can see (or not) the standards here.[1] The DVLA will revoke the licences of motorists who do not meet the standard. Where a motorist has her licence revoked by the DVLA, she can appeal to the magistrates’ court.[2]

But what of the motorist who is in denial about failing eyesight? Those who quite naturally don’t want to lose their independence and have trouble accepting their failing health? Driving without meeting the standard is an offence resulting in 3 penalty points. The penalty points are particularly relevant to a motorist who drives without wearing their glasses, or who refuses to take an eye test.

The accident

In The Archers, Jill Archer collided with a cyclist (her grandson), knocking him off his bike. Is there any liability here?

Careless driving

Careless driving is an offence under Section 3 of the Road Traffic Act 1988, which can result in disqualification from driving. The question would be whether Jill’s driving fell below the standard expected of a competent and careful driver. If Jill knew that her eyesight was failing, it would tend to support the prosecution case that she was not being a careful driver: she told David, ‘I just didn’t see him.’ Ultimately, we don’t know anything about the road layout, sight lines, driving conditions, weather, Jill’s speed, or the behaviour of Josh the cyclist as he pulled out, so advising on liability for this offence is impossible at this stage. Suffice to say, the question would be whether a competent and careful driver would have had the same collision as Jill.

Failing to report

The law states that a motorist who has had an accident must stop immediately[3] and be prepared to supply their name and address. There’s no technical definition of ‘accident,’ but knocking someone of their bike is pretty obviously encompassed.

In Jill Archer’s situation there’s no practical requirement for her to give her name and address to her grandson, but is she obliged to report the accident to the police station? That’s always a thorny issue, because the motorist may well think to herself, ‘If I tell the police I’ll only make it worse – I may be prosecuted!’ In fact, failing to report an accident is the most serious of the three offences considered, and is imprisonable.

Since there is no injury to Josh, there is no requirement for Jill to make a report to the police or produce her insurance documents. Although she might yet be prosecuted for driving with poor eyesight or careless driving, it’s unlikely that her family members would tip off the DVLA or police, and very unlikely that Josh would support a prosecution of his grandmother. In the circumstances, Jill’s had a very lucky escape. Of course, she should resist the urge to tweet about it.

Jon Mack is a barrister at Blackfriars Chambers, and tweets @JonDMack


[2] Road Traffic Act 1988 s.100

[3] Hallinan v DPP [1998] Crim LR 754, DC

Lie Detectors to make an appearance?

Polygraph-simpson

Introduction

Lie detector (polygraph) test have historically been inadmissible in Court (so even if someone take one, a jury is not allowed to hear the results). This is primarily because there are doubts about their reliability.

On 20th November 2013 Shuan Wright, the Police and Crime Commissioner for South Yorkshire, announced that they will be used in limited circumstances.

 

When will they be used?

They will be offered to offenders and potential offenders on a ‘voluntary basis’. It will be used as ‘a risk assessment and investigative tool for known sex offenders … as part of probation or bail conditions‘.

 

How much will it cost?

According to the Guardian, Mr Wright will spend £35,000 on the equipment and sending two police officers to be trained on using it to Texas (it’s a hard life).

 

Is this legal?

ss29-31 Offender Management Act 2007 provides for polygraph tests to be used as part of determining licence conditions for someone who is released from prison.

This was upheld (during a pilot scheme) as being lawful (in the sense of not being a breach of Art 8 ECHR) by the High Court in the case of C v MoJ [2009] EWHC 2671 (Admin)). It is probably not surprising as it was voluntary and the challenge doesn’t fit particularly well into Art 8.

If there was a situation where release from prison would be conditional on taking a polygraph test, then this would be a different matter (and the courts would probably not allow that).

As for bail conditions? Under s3 Bail Act 1976, the Court may impose  ‘such requirements as appear to the court to be necessary to‘ prevent him committing any offence on bail. This would be wide enough to cover the imposition of a polygraph test, but it would then be made a mandatory requirement which would involve different considerations.

My gut reaction is that there is a very good chance that this would be unlawful (under Art 5 ECHR), but time may tell.

The press release from the Commissioner indicates that he thinks it will be used for pre-charge bail in cases such as child pornography offences where there are often long periods of time before a charging decision is made. Again, I imagine that this would be challenged and be found unlawful.

 

But no harm really done, even if they don’t work?

That’s the question. Wikipedia has a good overview of how polygraphs work and how reliable they are.

The problem is that if they are unreliable, then why use them? It may get some questions right, but there are Type 1 and Type 2 errors. It will mean that people are wrongly labelled a greater risk than they actually are, which will impact on their liberty. More significantly (for the Commissioner) is that people who ‘pass’ a polygraph when they shouldn’t may not be identified as the risk that they are.

Whilst it is said that it will just be one part of a tool to get an overall view, the risk (as I see it) is that these tests will be administered by two officers who have been picked as ‘specialists’ in this area and have been sent to America to be trained in this. In light of that, there is a real danger that they will place too much reliance on the results.

 

Conclusion

This may just be a gimmick, but if I was in South Yorkshire I would be unhappy about my crime Commissioner spending money on pseudo-science.

The blanket ban on polygraph testing did not just mean that prosecutors were barred from using tests that implicated defendants, but the accused could not use tests that appeared to clear them. Currently, there are plenty of people in prison who state that they are victims of a miscarriage of justice who have passed a polygraph test. If a crime Commissioner is allowed to use them, why can’t they?