Monthly Archives: December 2013

Robert Payne – kitten killing former councillor jailed for tax fraud

Robert Payne, who up until 2011 was a Bradford City Councillor for Keighley West was sent to prison for two years on Christmas Eve 2013 for tax fraud. It seems that he had created false documents to generate fictitious VAT or income tax return for various companies that he owned

The relevant guidelines are the Fraud Sentencing Guidelines (starting at page 27). It’s not clear exactly how it would be calculated but it is probably classified as not being fraudulent from the outset, but carried out over a long period of time with multiple frauds. On the basis that he was hoping to obtain £140,000 this has a starting point of 2 years with a range of 1-3 years.

Although, in fact, only £91,243 was obtained, given the serious breach of trust, the creation of false documents and the fact that Mr Payne had no accountancy qualifications, this raises the seriousness that may explain why a sentence of 2 years was passed, even with a guilty plea (which on the face of it seems over the odds).

The news reports aren’t entirely clear, but it seems that Mr Payne has a previous conviction for something pretty similar, which is clearly an aggravating feature.

As for the kittens? Well, in 2011 (whilst on a suspended sentence for the previous fraud) Mr Payne was sent to prison for 5 months for animal cruelty. It seems that whilst drunk (and annoyed at something) he took his frustration out on four kittens that he had recently bought. He “swung the four-month-old cats round his house [and] broke their skulls and most of their limbs and decapitated two of them.” When they attended, “Police and RSPCA officials found three kittens in a freezer and blood spread around the house”.

Mr Payne, who “was drunk when police arrived, told officers he “must have got angry about something, picked up one of the cats by its stomach and used it as a battering ram, smashed its head against something“.

This previous conviction would be an additional aggravating feature (although not as much as the previous for fraud).

Advertisements

Alan Turing Pardon – what does it mean?

Introduction

On 24th December 2013 it was announced that Chris Grayling had procured a Royal Pardon for Alan Turing. Last month we looked at what a pardon is (and is not), but we will have a quick cut and paste of that document, together with some edits, to explain what today’s announcement means.

 

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 someone who is serving a sentence 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.

In this case, Mr Turing is of course deceased. He still remains convicted of the offence in the eyes of the law, but any legal opprobrium attached to it is wiped away.

 

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.

 

Why did it take so long?

This is actually a complicated area. Under the law at the time (s11 Criminal Law Amendment Act 1885) it is clear that Mr Turing was rightly convicted. The issue now is not that he was innocent of the crime with which he was charged (Gross Indecency), but that he was prosecuted for something that should not be a crime.

The ‘powers that be’ were concerned that if Mr Turing were pardoned then this opens up the floodgates for campaigns for everyone back to Guy Fawkes and before to be pardoned.

The bigger issue though is that there are plenty of people alive who were prosecuted for these offences and there appears to be a ‘concern’ that a pardon for Mr Turing will lead to calls for all these other men to be pardoned, and claims for compensation to be made.

 

Comment

It seems to me that this is exactly what a pardon was originally designed to be for. The Court of Appeal is there to correct legal errors, the Pardon can right moral wrongs. It is important that we recognise that thousands of people still alive were convicted on the basis of laws that we today regard as indefensible (I have dealt with several people), and it seems to me that we should have started with those. But in the spirit of Christmas Cheer, I will celebrate this decision of the Government.

Denis MacShane – 6 months immediate for expenses fraud

Introduction

We have previously covered the case of Denis MacShane, formerly the MP for Rotherham who pleaded guilty on 18th November 2013 to charges of false accounting relating to his expenses claims whilst he was an MP.

He was due to be sentenced last Friday but in the end the Judge took the weekend to think about it before sentencing him on 23rd December to six months in prison. The sentencing remarks have been published and, as in all cases where this is done, are worth reading, but the headline figure was 6 months in prison.

Analysis

Mr MacShane’s case is different to those of the other MPs and peers who have been convicted of fraudulent expenses claims in that this did not involve a gain of money to which he was not entitled to. There was a ‘basis of plea’ that was accepted by the Prosecution and the Judge :

(i) …the false invoices submitted were intended to recoup some expenses genuinely incurred in respect of the defendant’s business as a Member of Parliament;
(ii) there was no intention on the part of the defendant to make a financial profit from the submission of these invoices;
(iii) the Crown accept that there was in fact no such personal profit in the defendant’s case;
(iv) The defendant’s record keeping was chaotic and the reclaiming of expenses was not regarded by him as a priority, not least since in the period during which such invoices were submitted he was under significant personal pressure

The starting point is the Fraud Sentencing Guidelines (although the offences were charged as false accounting, this is the essential offence), but it was made clear that for Parliamentarians, these are of little relevance. The key case is that of David Chaytor [2011] EWCA Crim 929.

This gave a starting point of 12 months imprisonment, which would be reduced to 8 to take account of the personal mitigation and then a discount of 25% for the plea of guilty. This gives a sentence of 6 months.

The Judge considered whether it could be suspended, but concluded that it could not “in all the circumstances, particularly given the deliberate and the prolonged nature of the dishonesty involved, it is not appropriate to suspend that sentence”.

The usual release provisions apply and Mr MacShane will probably be released on a tag after six weeks.

How can you be dishonest if it was money you were entitled to?

On the face of it, this does seem odd. The offence of False Accounting is under s17 Theft Act 1968:

Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another,—

(a)destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or

(b)in furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false or deceptive in a material particular;

he shall, on conviction on indictment, be liable to imprisonment for a term not exceeding seven years. 

But, here ‘gain’ and ‘loss’ is defined in s34:

(a)“gain” and “loss” are to be construed as extending only to gain or loss in money or other property, but as extending to any such gain or loss whether temporary or permanent; and—

(i)“gain” includes a gain by keeping what one has, as well as a gain by getting what one has not; and

(ii)“loss” includes a loss by not getting what one might get, as well as a loss by parting with what one has;

Still. Does a gain include money that you’re entitled to?  The Court of Appeal has said that is does (AG Ref  number 1 of 2001 [2002] EWCA Crim 1768). So, although in the vast majority of cases there will be a loss to someone, if there is not then someone can still be guilty of false accounting.

In the case, the Judge said that Mr MacShane was “required to act with probity and transparency in the making of expenses claims; you deliberately created misleading and deceptive invoices and then used them in order to procure payments of public money; by doing so proper scrutiny of the legitimacy of the expenditure and the amount of the expenditure was avoided – indeed made impossible; the deception used was calculated and designed to avoid suspicion falling on your claims; and those claims were intended to mislead the House of Commons authorities as to the true nature of the expenditure and the true identity of the supplier of the services.

Comment

This case has divided people in a way that the previous expenses cases had not. My (Dan’s) view on this is that as there was no loss, given all the other factors in this case the sentence should have been suspended, but plenty of people (including Lyndon) think that the sentence was a fair one. It seems that Mr MacShane has said that he will not appeal however, so we will not have the Court of Appeal’s view. What do you think?

Review of 2013

Below is a list of ten of the bigger stories of the year, covered on UK Criminal Law Blog, predictably involving sex and death.

Ashley Charles

ashley chareles

The murder conviction of Ashley Charles was a popular post this year. Mr Charles plunged a broken bottle into Phillip Sherriff’s neck after an innocuous argument in a bar. He received a life sentence with a 14-year tariff. He appealed against conviction and sentence and both were dismissed.

Conviction

Appeals against conviction and sentence dismissed

Chris Huhne

Hune

This case attracted obvious interest; after getting himself flashed by a speed camera, then lying about it, then getting his then wife to lie about it, then cheating on his then wife…it all came tumbling down around Chris Huhne, the ‘disgraced’ former MP.

Huhne and Pryce – the key information

What’s Huhne’s future in politics?

Ian Watkins

Watkins date set

This was a very popular story on the blog. Ian Watkins, former Lost Prophets singer, pleaded to a series of child sexual offences including conspiracy to rape a baby and attempted rape of a baby. He received a 35-year extended sentence.

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

What happens to Ian Watkins royalties now?

Ian Watkins sentenced – 35 year extended sentence (29 yrs + 6 yr licence)

Jeremey Forrest

Regs

“No sex with students. It is sort of a rule”

Jeremy Forrest, a former school teacher, ran away with a 15 year old student with whom he had had a sexual relationship. After an adventure in France, Forrest was arrested and brought back to the UK.

Jeremy Forrest Sentenced – 5½ years (updated)

How long will Jeremy Forrest serve?

Marine A

Court martial

The Marine A case came to a head in late 2013 with the conviction for murder of one of the five who originally were charged. Marine A, who later had his anonymity lifted, executed an injured insurgent who had been firing at him and his men.

Marine A – Sergeant Blackman – sentenced to Life Imprisonment

Naked Rambler

Naked-Rambler-Stephen-Gough-1967430

Stephen Gough, aka the Naked Rambler, likes walking around wearing nothing but a backpack, a hat and compass attached to lanyard. So what? Well the authorities don’t take kindly to it and the saga between Gough and the CPS (which has rumbled on for years) continued in 2013.

CPS Issue policy on prosecuting naturism

Naked Rambler, Stephen Gough, back in jail

Naked Rambler – Halifax Conviction upheld

 

Neil Wilson

cps

The Neil Wilson case was famous, not because of what the defendant did (although that was obviously a part) but because of the barrister and judge said (or didn’t say, in the event).

Neil Wilson’s sentence referred to Court of Appeal by Attorney-General

Neil Wilson (‘predatory’ case) has sentenced increased

Sgt Nightingale

nightingale

Sgt Nightingale made the headlines in 2013 for possession of a firearm and ammunition. The sequence of events went something like: plea of guilty, sentence appeal, application to vacate the plea, plea of not guilty, trial, conviction. Phew! After a lengthy and expensive legal battle, he was really no better off.

Retrial

Convicted after a retrial. Sentence deferred.

Abuse of process application

Conviction appeal

Conviction quashed  – retrial ordered

Sentence appeal

CMAC says it’s just and fair to reduce his sentence

Successful appeal against sentence – immediate release

Original conviction

Background information

Stuart Hall

stuart hall

One of the bigger stories of the year was the conviction and sentence (and subsequent Attorney-General’s Reference) of the former BBC broadcaster Stuart Hall for child sex offences.

Stuart Hall sentenced to 15 months

Stuart Hall – Attorney General’s Reference against ‘lenient’ 15 month sentence

Stuart Hall – Att-Gen’s Ref judgment released

Whole life tariffs 

Ministry-of-Justice-006

This is an issue which seemed to come to the fore in 2013 – though whole life tariffs have been around for ages, in 2013, we saw more defendants receiving them. There is a dispute between Europe and the UK Parliament as to their lawfulness, and even the Judges can’t decide whether at the moment (before the Europe issue is decided) it is okay to impose a whole life sentence!

Whole Life Tariffs

Whole Life tariffs unlawful – Vinter v UK in the ECHR

Whole Life Tariffs for Police Killers?

Ian McLoughlin – no whole life tariff?

Mark Bridger to appeal against sentence

We think it has been an interesting year in terms of the criminal law. Let us know some of your favourite posts/stories if they don’t feature on the list above.

Oh, and don’t forget about the podcast – a 40 ish minute chat each week between Lyndon, Dan and Kim (with some occasional guests) about the topical criminal law stories. Thanks for reading. See you in 2014.

Batman Escapes Jail

_71878161_batman

Earlier this year we looked at what happened when Batman lent a helping hand to the Bradford Police. He was later charged with burglary (along with the man who he had taken into the Police Station).

We said that we would come back to it, so just to keep up with the latest developments, on 20th December 2013 we learned that Batman escaped a jail sentence. Details are (very) scant, but Stan Worby (the civilian name for this Batman) was found guilty of the burglary and was today sentenced to six months in prison, but suspended for a year on condition that he carries out 200 hours of unpaid work.

Lee Rigby’s killers guilty of murder

rrigby

Introduction

Michael Adebolajo, 29, and Michael Adebowale, 22 have been convicted of the murder of Lee Rigby (but not guilty of the attempted murder of a police officer). We had a quick look previously at the case, but because the incident is still ongoing, we did not go into too much detail.

Sentence

The mandatory sentence for murder is one of life imprisonment (see here for a factsheet on this). The question is how long the ‘tariff’ will be.

Looking at the guidelines, this is “a murder done for the purpose of advancing a political, religious, racial or ideological cause” and therefore the starting point is a whole life tariff.

The trial Judge is Sweeny J, who was the sentencing judge for Ian McGloughlin. He, of course, ruled that a whole life tariff was unlawful and therefore he could not impose one (see here for some discussion of this).

If Sweeny J sticks to that, then there will still be a very long tariff. I would have a guess at 50 years, but we shall watch it with interest.

What was the defence?

The defence seems to have been that they were ‘Soldiers of Allah’ and therefore acting lawfully. For a killing in English war to be murder it has to be ‘under the Queen’s Peace’ – in other words not during a war.

The defendants stated that there was a war, with the killing being a military operation, and therefore they could not be guilty of murder.

The Judge however ruled (completely unsurprisingly) that this could not, in law, amount to a defence.

Why was there a trial then?

This has been the focus of much discussion. The law is simple. In England in a trial at the Crown Court the decision on guilt and innocence can only be taken by a jury.

A Judge does not have the power to direct a guilty verdict. He can tell the jury that there is no defence, but even if that is the case, the jury still has the final decision (see here for our post on Jury Nullification which explains this in more detail).

Whilst this may seem strange, this is an important constitutional protection for us citizens. It offers the last line of protection against arbitrary power and unfair laws.

So, whilst in this case it seems like a waste of time and money, they had an absolute right to have this trial, even if it looked to many that they were making an unmeritorious political point.

Another reason (that may well not have been a consideration in this case) is that there is, generally, less point in pleading guilty to murder as opposed to other offences, for reasons that we explained here.

Ian Watkins sentenced – 35 year extended sentence (29 yrs + 6 yr licence)

Ian-Watkins3

Introduction

We covered the case of Ian Watkins (and two women, named as A and B) who pleaded guilty on 26th November 2013 to various child sex offences. His case was adjourned for sentence. We had said that (on the information that was in the news reports) that the likely sentence was in the region of 20-25 years, and that he was in line for a sentence of life imprisonment.

Offences

Mr Watkins pleaded guilty to 13 offences. Unfortunately the press have not definitively what the charges are, but we believe them to be :

  • 2 attempted rapes of a baby
  • 4 sexual assault (by touching) of a one year old
  • 6 child pornography offences
  • 1 Possessing extreme pornography a  involving a sex act with an animal  

Woman A pleaded guilty to:

  • 1 attempted rape of a baby
  • 2 sexual assaults
  • 1 making an indecent image of a child

Woman B pleaded guilty to:

  • 1 conspiracy to rape a child
  • 3 sexual assaults
  • 4 making indecent images of a child

In each case of the women, the children referred to were their own children.

It was reported that Watkins held 27TB of data. To put that in context, 1TB is 1000 GB. 1 TB can store 17,000 hours of music, 320,000 high resolution photos, 1000 hours of digital video or 250 dvd movies. In short, 27TB is absolutely enormous.

Telephone calls whilst in prison – LOLz

Some more details came out of the sentencing hearing (Wales online seems to have the best coverage if you want more details), including telephone calls Mr Watkins made from prison which appeared to downplay the seriousness of it.

He is reported having said “I’m going to put a statement on the 18th now just to say it was megalolz, I don’t know what everyone is getting so freaked out about.” And in another conversation –“I’m not a paedophile, I’m not. You know I plead (sic) guilty just to avoid a trial, not realising ‘Hang on, that makes me look a bit guilty’ but I would never harm anybody.”

Mitigation

Ian Watkins:

a)      His late plea of guilty, therefore avoiding a trial.

b)      A suggestion that obsessive fans had somehow ‘set him up’, after bombarding him with sexual attention (including, allegedly, messages of extraordinary depravity).

c)       His drug addiction resulting in him being out of control.

d)      Watkins could not remember the events depicted in the videos. He could not believe that he had done the acts in the videos when he saw them.

e)      The fact that the victims will have no memory of the events because of their ages.

f)       In relation to the attempt, no force was used on the child, it was an attempt (not the full offence) and the touching was minimal.

g)      It was claimed that Watkins had been vilified and much of the comment was sensationalist.

h)      That Watkins did not groom woman A and woman B into producing their children for abuse; it was a joint enterprise.

i)        A psychiatric assessment indicated that Watkins was preoccupied with sex generally, not specifically sex with children. It was claimed it was co-incidental that children were involved in the offending. He has no sexual preference in children.

j)        A PSR indicated he had a medium risk of reoffending.

k)      Other mitigation: how much the proceedings had affected him and his good character.

Woman A:

a)      She claimed that she had been manipulated by Watkins to “facilitate his sexual desire”

b)      She was deeply remorseful and felt “disgusted” by what she did and was “frightened of losing” Watkins.

c)       It was claimed that Watkins introduced Woman A to drugs and injected her with heroin.

d)      She was described by her barrister as vulnerable.

e)      Woman A’s barrister reportedly stated that there was nothing to reduce her culpability and that she accepted full responsibility.

f)       It was said that Woman A was not an obsessive fan seeking attention but was exploited by Watkins having allowed herself to be.

g)      Woman A’s barrister closed by asking the judge to look at the planning of the offences, commenting that it was chilling. That presumably referred to the planning and manipulated by Watkins.

Woman B:

a)      She was a fan of Watkins. She had 1,200 images of him on her iPod Touch.

b)      She said to Watkins ‘You are a big deal, you are Ian Watkins’ and he told Woman B ‘I am. You and your daughter now belong to me’.

c)       There were traces of meth amphetamine in Woman B’s child’s hair. It was submitted that it showed the child was exposed to the drugs, but not taken by the child. The judge reportedly replied with ‘I find that a little hard to swallow’.

d)      Woman B’s barrister disputed the view taken by the Judge that it was ‘obvious’ to see the enjoyment the mother gets from the abuse of her child.

e)      The Judge reportedly said that this was a classic case where there should be no credit for a guilty plea.

f)      She was described as ‘a very immature young woman’ suffering from an undiagnosed personality disorder and post natal depression when she first met Watkins.

Rupert Evelyn, a journalist for ITN, was tweeting live from the court room. You can see his twitter feed here.

The Daily Mirror live reported from the hearing. Their account can be viewed here.

Sentencing remarks

Here is a PDF of the sentencing remarks. Woman A is referred to as ‘B’ in the sentencing remarks, and Woman B is referred to as P.

The following exceprts were taken from news reports.

The Judge said:

‘This case breaks new ground. What the three of you did plumbs new depths of depravity.’

On Watkins:  ‘Watkins had power and knew he could use that power to partake in insatiable lust.’ and ‘he clearly had delight in engaging in sexual activity with children’

On Watkins: Mr Justice Royce said: “I am satisfied that you are a deeply corrupting influence. You are highly manipulative…You are a sexual predator. You are dangerous. The public, and in particular young females and children, need protection from you.”

On Woman A’s behaviour: ‘You are mother, your infant was 10 months old, a mother naturally loves… cherishes… you totally betrayed that trust”

On the planning between Woman A and Watkins: ‘could there be a greater betrayal?’

On Woman A and Watkins’ activities: ‘What you are doing is sickening and incomprehensible’ and ‘”In all it’s a dreadful catalogue of abuse of a previously innocent boy to satisfy your own interests and lusts.”

On Woman B and Watkins: Watkins told Woman B about the child: ‘that’s all she will know. A life of filth’

On the messages between Woman B and Watkins: ‘They defy belief’

On Watkins and Woman B’s child: ‘Watkins viewed the child as a sex object’

Dangerousness

The Judge said he had no doubt that there was a serious risk to the public posed by Watkins. This required either a life sentence or an Extended Sentence.

In the event, the Judge imposed an extended sentence on Watkins and determinate (ordinary) sentences on both women.

Guilty plea discounts

Woman A: Full 1/3 credit for early plea of guilty

Woman B: 10 %

Watkins: 10 %

The Judge said it was arguable that Woman B and Watkins should receive no credit at all because the case was so overwhelming.

Sentence

The Judge adjourned over lunch and said he would pass sentence at 2pm.

When he returned, he imposed the following sentences.

Ian Watkins:  35 year extended sentence: 29 years imprisonment, 6 year extended licence

He will serve 2/3 before he can apply for parole. He will then serve the remainder of the 29 years on licence, then an additional 6 years on licence.

Woman A: 14 years determinate

Woman B: 17 years determinate

Both women will serve half of their sentences in custody and the remainder on licence.