Monthly Archives: December 2013

Nathaniel Flynn jailed for life

We looked at the case of Nathaniel Flynn, who pleaded guilty last month to the murder of his grandmother, as well as stabbing a boy in a separate incident the next day, was sentenced on 18th December 2013. We remarked that it was a strange and unexplained attack and that it would be likely that he would get a tariff in excess of 15 years due to the brutal nature of the attack and the attempted murder of the boy.

The sentencing remarks have been published. It seems clear that the exact motivation for the  attack is still not known. Mr Flynn had various complex issues and he stated that the murder was effectively a ‘mercy killing’ which was rejected as being correct (the Judge saying that the only conceivable motivation was that he found her a nuisance).

The Judge took the starting point as 15 years (which is correct). He then took account of the vulnerability of the victim, the ferocity of the attack, and the fact that there was some level of premeditation. The only mitigation available was that he pleaded guilty (and had indicated that he had killed her at early stage).

The sentence for the Attempted Murder would have been 14 years, so the Judge added the 7 years of that on to the tariff (perhaps slightly discounted to factor in ‘totality’). Doing our best to guess, we would imagine that the Judge increased the minimum term from 15 to about 20 years to reflect the aggravating features, then reduced that by 10% to reflect the plea of guilty, before adding 6 years for the Attempted Murder. But, as we say, there is a fair amount of guesswork in that.

Our view is that that is on the high side, whether because the starting point was too high, or insufficient credit was given, but I would expect that there would be an appeal.

 

******************************************************************************************************** Note – this is how the piece originally ended. Shows what we know …

The sentencing remarks have not been published, so we are none the wiser as to what the motivation was. It has been reported that the tariff was set at 24 years. That is slightly higher than we were expecting (around 20 years) but there may be matters that we don’t know about.

We will look again at the sentence if the sentencing remarks are published. This is unlikely however (it tends to be only in high profile cases) which is unfortunate as it makes it difficult to give any real explanation at to why the sentence was passed. How are the public expected to understand the criminal justice system if details about how it works are not accessible?

Advertisements

What happens to Ian Watkins royalties now?

Watkins date set

Introduction

If you hadn’t heard of Ian Watkins, or the band Lostprophets of which he was the lead singer, before last month, you will have now. Mr Watkins pleaded guilty in November to 13 (or 11, depending on which newspaper you read) child sex and child pornography offences.

He will be sentenced on 18th December 2013. In the lead up to that, it was reported that since his arrest he had earned about £100,000 in royalties. This has gone down quite badly in some quarters, as you can imagine.

Ironically, there was a spike in earning when the pleas were entered (which will be repeated when he is sentenced) because each time clips of the Lostprophets are played on the news, he will collect a fee. It will be small, but it all adds up.

What can the criminal courts do?

The Judge at sentencing can make three different financial orders. Firstly, he could be directed to pay the costs of the proceedings incurred by the prosecution in bringing the case against him. Secondly, he can be fined as well as being sent to prison. Thirdly, he can be ordered to pay compensation to his victims.

Generally, someone who is going to prison for a very long time (as Mr Watkins will be) won’t be ordered to pay any financial penalty as it’s pretty futile. Here it may be different however. I would expect an order for costs to be made, but it will be difficult for the Judge to decide whether a fine is appropriate and how much compensation should be paid. Also, in relation to compensation, it is not clear if all of the victims have been identified.

Because some of the offences (if not all) pre-date the 1st October 2012, he won’t have to pay the £120 Victim Surcharge that would otherwise be mandatory.

What the Judge cannot do is make a general order ‘confiscating’ Mr Watkins’ right to royalties in the future. Even if there is not going to be much deliberate airplay for the Lostprophets in future, there will still be royalties from other sources (see here for more details).

There is a partial exception to this general rule under the Forfeiture Act 1982. This provides that a Judge must (in cases of murder) and may (in cases of other unlawful killings) prohibit someone from inheriting from a person that they have killed. So, if a man murders his wife, he can’t under the common law or a will inherit her property, but he won’t lose any property that he already has.

Can the civil courts do anything?

In short, no. The victims of the offending can sue Mr Watkins, and may well do so (although there are various issues with some of the child pornography offences where different issues would apply).

Again though, the court would have to set an actual figure to be paid, and, once that is paid, any royalties that Mr Watkins does earn will go to him.

But if he’s a paedophile doesn’t he forfeit the right to this money?

That is one point of view and I wouldn’t be surprised to see some outrage in the press about it, along with a backbench MP (probably Tory ones) popping up to say something should be done about it.

But, it doesn’t work like that. Someone who is a prisoner doesn’t lose all their rights. It may not be popular (and Mr Watkins may not be a sympathetic cause) but he did earn the money (and the right to earn money in the future off the back of it) and he is entitled to it, less anything that the court may order him to pay.

Up until 1814 the position was different. The general rule was that anyone convicted of a felony (broadly equivalent to a crime that would be tried in the Crown Court) forfeited all their goods and lands, and whilst gramophone sales weren’t huge at the start of the 19th Century, they would have been included.

This idea, related to the idea of the ‘corruption of the blood’ was chipped away at in the appropriately named Corruption of Blood Act 1814, before the principle that forfeiture of property as a result of a conviction for a felony, was finally abolished in 1870.

Personally, whilst I can understand the outrage at Mr Watkins actions, I do not believe that he should lose all his rights. Therefore, as unpalatable as it may seem to some, it is right that general ideas of forfeiture, or making someone an ‘non-person’ (which is sort of what used to happen) don’t apply. Whilst there may be calls to change the law, we would be going back 200 years.

Burglar trapped hanging over toilet says “please help. call the police”

Daniel-Severn_2763507b

Taken from the Telegraph website

Daniel Severn, aged 27, broke into a house intending to steal its contents to sell to fund his heroin addiction. He was carrying a bag and wearing marigolds.

The occupier had gone to bed leaving the bathroom window open so that his cat could get into the house.

At 5.30am he went to the bathroom as he was about to get ready for work. He heard moaning coming from inside the bathroom. As he opened the door, Daniel Severn was “dangling” from the bathroom window, his foot evidently becoming stuck as he attempted to gain entry.

Severn reportedly said to the occupier “Please help. Call the police.”

The police were called and Severn told them that he had been trying to call them as he had been stuck for over an hour. It appears he had dropped his phone in the bath.

Previous

He had 80 previous convictions and, according to the Telegraph (where most of the details in this post come from) “was not very good at crime”. He had previously received an 18-month suspended sentence for burglary in 2009.

Plea

Severn pleaded guilty to a burglary, possession of an offensive weapon and possession of 260 diazepam tablets.

Sentence

He received 2 years and four months.

It is likely that this qualified for the minimum sentence for a third domestic burglary. See our fact sheet here on mandatory sentences for a brief explanation.

In those circumstances, the minimum sentence can be discounted by up to 20% of the 3-year minimum. That means that 2 years 4 months (4.8 technically) is the least sentence that could be imposed on the burglary count.

We have no facts about the other two offences and it is likely that because of the principle of totality that any penalty imposed on the other offences were made concurrent (served at the same time) not consecutive (served one after the other) to the burglary sentence.

Let’s hope he gets some drug treatment whilst in prison.

Ashley Charles – Appeal against conviction and sentence dismissed

ashley chareles

We have covered the case of Ashley Charles, who was convicted of the murder of Phillip Sherriff and sentenced to life imprisonment with a minimum term of 14 years on 9th November 2012. Last May we tried to find out a bit more information as to what was happening with any appeal, and were told that there would be a full appeal hearing this year.

Well, on 16th December 2013 the Court of Appeal heard the application to appeal against the conviction, as well as an appeal against the length of the tariff (a factsheet on appeal is here). The judgment is not out yet, but the news reports indicate that the appeal against conviction was (unsurprisingly) dismissed as was, perhaps more surprisingly, the appeal against the sentence.

We will return to this case when the judgment of the Court of Appeal is published. In brief though, the question of whether this was murder or manslaughter was very much one for the jury and the Court of Appeal will always be very reluctant to interfere with what a jury has decided.

The sentence appeal did seem to have a lot more merit as the circumstances were such where a tariff of about 12 years would have been appropriate. It seems that the Court of Appeal said of the trial Judge’s decision that 14 years was the right tariff  “On any view that assessment was a perfectly proper one. We see no grounds for this court to interfere.

This is now, in reality, the end of the legal road for Mr Charles. As stated, we will give a bit more analysis when the judgment is published.

Mark Bridger to appeal against sentence

Mark Bridger-1357652

On 16th December 2013 it was announced that Mark Bridger, who was sentenced on 30th May this year to a ‘whole life tariff’ for the murder of April Jones would be trying to get the Court of Appeal to hear his application against the sentence imposed on him.

The grounds of the application have not been made public, but one of them is likely to revolve around the question of whether whole life tariffs are lawful under Article 3 of the European Convention following the ECHR judgment in Vinter v UK this summer (see here for our analysis of it).

Since then, two Judges (Sweeny J in the case of Ian McLoughlin and Flaux J in Anxiang Du) have declined to make whole life tariffs in part because of the Vinter judgment (one of these cases, Mr McLoughlin, has been referred to the Court of Appeal as being ‘unduly lenient’). This is an issue that is not a straightforward one (although given recent speeches from many of the judiciary, we can guess which way the judicial wind is blowing) and so it would be expected that Mr Bridger gets permission to appeal so that this can be resolved (see here for a factsheet on how the Court of Appeal works).

The news was given by the police to the family of April Jones today in Australia (hopefully not in person in this time of austerity) who reportedly expressed their outrage and surprise at it. Whilst it must be upsetting for them, it is not unsurprising and one would have hoped that they would have told that an appeal was inevitable. Mr Bridger has nothing to lose by trying.

It is likely that this issue of whole life tariffs will be the next judicial battleground over the ECHR (in relation to crime at least). I would not be in the least surprised if whole life  tariffs are upheld by the Court of Appeal (and the Supreme Court is unlikely to take up a straight appeal against sentence). But that is not the most interesting part, when (and it’s a when, not an if) the issue goes back to the ECHR, that is when it gets much more interesting.

Eugenio Freitas banned from every supermarket in the UK

Photograph from the Daily Mirror

              Photograph from the Daily Mirror

Facts

On 8th July 2013 Eugenio Freitas went to his local Sainsburys to do some shopping, as one does. Whilst in the meat aisle however, he unfortunately “became overwhelmed by his “excessive sexual drive.”” and spent ten minutes masturbating himself (under his clothing).

At first he was given the benefit of the doubt, but after a while security were alerted and Mr Freitas was arrested. He later pleaded guilty to outraging public decency (see here for some background on this offence).

 

 

Sentence

12th December 2013 he was sentenced to six months imprisonment, suspended (seemingly) for 18 months. Attached to this was an unusual condition – not to enter a supermarket unless accompanied by an adult (probably the first time such an order has been made).

Mr Freitas has engaged in this sort of behaviour before. As a result of that, he has an indefinite SOPO against him, although the terms aren’t completely clear.

But if he goes into a supermarket (which may, or may not, be easy to define) he will be ‘breached’ – this means he will be brought back to Court and can be re-sentenced. This mean he would be able to get up to 6 months in prison

 

Comment

It is not entirely clear what power the Judge used to bar Mr Freitas from the supermarkets. Usually, this would be a term of a SOPO (or possibly an ASBO). but there the Judge seems to have attached it to the Suspended Sentence (so breach of it will not be a criminal offence in and of itself).

The two potential conditions that could apply are a Prohibited Activity Requirement and an Exclusion Requirement. It is probably the first of these. There is nothing in the law that says you can have a conditional condition (ie, not go somewhere, or do something, unless you are with another person). But then there’s nothing to say that you can’t. And most Judges are nothing if not flexible.

 

 

Alan Watts jailed for 5 years for manslaughter

_71674858_alanwattsatbedfordmagscourt-asdadeath

Facts

On 3rd August 2013 Brian Holmes, a 66 year old man who had just been given the ‘all clear’ from cancer, got into an argument with Alan Watts (a 65 year old man) over disabled parking in ASDA. During a minor altercation (the sort that happens up and down the land every day) Mr Watts punched Mr Holmes twice. Mr Holmes fell to the floor and fractured his skull. He died the next day.

Mr Watts stood trial for manslaughter and on 12th December 2013 was found guilty. He was sentenced that day to 5 years in prison.

 

Why manslaughter?

In this case the Prosecution never alleged that Mr Watts had ‘murdered’ Mr Holmes. It was accepted by Mr Watts that he had punched him, the issue for the jury was whether Mr Watts was acting in self-defence, ie did this as an act of aggression rather than to ward off an attack? The jury were obviously sure that this was not self-defence.

The difference here between murder and manslaughter is the intent. For it to have been murder, Mr Watts would have had to intended to kill or cause ‘really serious harm’ to Mr Holmes. It seems clear from the fact that this was never an issue.

 

Why 5 years?

I was surprised that the Judge passed straight to sentence without calling for a Pre-Sentence Report, if for nothing else, but to assist with how long any prison sentence should be.

But, in any event, this sort of offending is very hard to sentence. The Court of Appeal has said that when the case is one of manslaughter because of a lack of intent to cause death or really serious harm, the widest range of sentences are in play.

Some further guidance was given in the case of AG Ref (no 60 of 2009) [2009] EWCA Crim 2693 where it was said that sentences should be higher than they previously were (no surprises there – despite what the tabloids say, sentences generally always go up).

For that reason, the sentence of 5 years, whilst it was more than Mr Watts would have received 10 years ago, is one that a Court of Appeal is unlikely to interfere with. I would expect there to be an appeal against sentence as it is right that the Court of Appeal should consider the matter. My view is that in a tragic case such as this, given that Mr Watts is (we understand) a man of good character, a sentence of about 3 years would have been appropriate. Having said that, if I were Mr Watts, I wouldn’t be holding my breath.