Monthly Archives: December 2013

Wesley Williams – life for murder of ex and son

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On 11th December 2013 Wesley Williams was sentenced to life imprisonment for the murder of Yvonne Walsh (his former partner) and her seven month old son Harrison earlier this year. It seems that Mr Williams started a relationship with Ms Walsh ‘months’ before they died.

The motivation for the murders are unclear, but the news reports said “Problems between the pair began when Ms Walsh rejected Williams’ proposal of marriage“. It seems that both died due to ‘pressure to the neck‘ of the victims.

Mr Williams had pleaded guilty to both murders last week. Whilst this was not the first time the case has been in Court, it was probably the ‘earliest opportunity’ for the purposes of getting credit for the plea of guilty.

We have a factsheet on how a Judge should approach the setting of a tariff. In this case the starting point would have been 30 years because of the murder of two people.

From this the Judge would have weighed the aggravating and mitigating features before deciding on the final tariff. Here, as the credit would appear to be 5 years (the maximum for murder), the starting point would have been an increase of 4 years over the starting point.

Without knowing the sentencing remarks, we don’t know what the reasons for this are, but it will probably relate to the vulnerability of the victims.

One point which we do not know is whether Mr Williams has any previous convictions, or whether there is any suggestion that he is a perpetrator of domestic violence. That may come out in the next few days and it will be interesting to see what, if anything, that may tell us about whether ‘Clare’s Law’ would have made any difference in this tragic case.

 

BBC seek to explain murder sentences…but get the law a bit wrong

This morning, 11 December 2013, the BBC News website published an article by Jon Kelly seeking to explain the reason why three men convicted of murder received mandatory life sentences with wildly different minimum terms.

The three cases

Lee James: 18 years

Rakesh Bhayani: 27 years

Anxiang Du: 40 years

We are of course wholly in favour of greater public legal education, particularly the explanation of criminal cases featuring in the news (indeed, we have been doing it for over a year). This piece provides a good, brief, explanation of each of the sentencing decisions, with a couple of comments from two esteemed practitioners and an esteemed academic.

As a part of the article, Jon Kelly sought to explain how the starting points for the calculation of minimum terms in murder cases are calculated (while we’re at it, here is our fact sheet).

Getting the law a bit wrong

The problem is, Jon Kelly gets the law slightly wrong. Here, he states that the starting points for life apply to offenders aged 21+

 BBC Sch 21

There are three problems.

The starting points – who do they apply to?

Firstly, the Sch 21 starting points apply only to murder convictions. Jon states they apply ‘to life’. There are four types of life sentence available to the courts in England and Wales. These starting points only apply to mandatory life sentences imposed for murder.

Secondly, the starting points differ depending on the age of the offender. The correct explanation is as follows:

Whole life: Only available for those 21+

30 years: Available for those 18+

25 years: Available for those 18+

15 years: Available for those 18+

12 years: The only starting point for offenders aged under 18

[See Criminal Justice Act 2003 Sch 21 paras 4, 5, 5A, 6 and 7] The explanation as to which starting point applies to which case (e.g. bringing  a knife or other weapon to the scene, 25 years) was correct.

And thirdly, that he fails to state that the offender’s age is at the time of the offence, not conviction or sentence.

In a post seeking to explain the law, getting the law wrong is not a great start (though we applaud the desire to improve public understanding).

For the future, if the BBC wanted to have such articles etc. checked pre-publication, we would be more than willing to do so. Just drop us an email. What a service!

Tulisa Contostavlos charged with supplying Class A drugs

Taken from the ITV website

Taken from the ITV website

On 9 December 2013, the CPS announced that the singer and former X-Factor judge Tulisa had been charged with being concerned in the supply of Class A drugs.

The CPS press statement stated:

“The Crown Prosecution Service has today authorised the Metropolitan Police Service to charge Tulisa Contostavlos, 25, with being concerned in the supply of Class A drugs.

“This charge relates to an investigation by The Sun newspaper between early March 2013 and 23 May 2013 which resulted in the supply of Class A drugs to an investigative journalist.

“This decision to prosecute was taken in accordance with the Code for Crown Prosecutors. We have determined that there is sufficient evidence for a realistic prospect of conviction and that a prosecution is in the public interest.

“Ms Contostavlos will appear before Westminster Magistrates’ Court on 19 December 2013.

“This defendant is now the subject of criminal proceedings and has the right to a fair trial. It is extremely important that nothing should be reported which could in any way prejudice these proceedings.”

The offence

Supply is an offence under Misuse of Drugs Act 1971 s 4(3):

(1) Subject to any regulations under section 7 of this Act [, or any provision made in a temporary class drug order by virtue of section 7A,] 1 for the time being in force, it shall not be lawful for a person—

(a) to produce a controlled drug; or

(b) to supply or offer to supply a controlled drug to another.

(3) Subject to section 28 of this Act, it is an offence for a person—

(a) to supply or offer to supply a controlled drug to another in contravention of subsection (1) above; or

(b) to be concerned in the supplying of such a drug to another in contravention of that subsection; or

(c) to be concerned in the making to another in contravention of that subsection of an offer to supply such a drug.

The maximum sentence is life imprisonment and the offence is capable of being tried either in the Magistrates Court (maximum sentence 6 months) or the Crown Court (maximum life).

Sentencing

The following is purely for information and is not connected to the allegation made against Tulisa. Currently there has been no statement made by her representatives and she is of course innocent until proven guilty.

Courts sentencing for drug offences must have regard to the Sentencing Council’s Definitive guideline on drug offences (see the ‘Supply’ section).

The court must determine the role the offender played in the supplu and the category the offence fits into (based on indicative weight of the drug supplied). As an example of the type of sentence imposed for a very simple supply offence the starting point for supplying 5g of cocaine, in a lesser role is 18 months custody.

Law Commission – First Report published on Contempt

Introduction

We have previously looked at the consultation paper issued by the Law Commission in relation to Contempt of Court. On 9th December 2013 the first of their reports was issued.

 

What have they said?

The report is a lengthy one. The main recommendations are :

  • A new (either way offence – maximum sentence : 2 years) criminal offence that would be committed by a juror who deliberately sought out information about the trial they are hearing.
  • Additionally to that, a raft of amendments to the trial procedure including :”greater education in schools about the role and importance of jury service; improving the information provided to jurors about their obligations during jury service; changes to the wording of the juror oath to include an agreement to base the verdict only on the evidence heard in court; requiring jurors to sign a written declaration; informing jurors about asking questions during the trial; a statutory power for judges to remove internet-enabled devices from jurors where necessary and effective systems for jurors to report concerns.”
  • Exceptions to the strict rules prohibiting questioning of jurors to allow (1) jurors to inform the authorities if there is a real risk of a miscarriage of justice having occurred and, (2) for the purposes of academic research.
  • No change to the definition of ‘publication’ (on the basis that it is not practical).
  • Exemption from liability for contempt if it something that is published prior to the proceedings starting. This is unless the AG issues a notice to the relevant body requesting them to take the material down.

 

What happens now?

Some of the suggestions (particularly in relation to what is told to jurors) can be implemented without a change in the law. We would imagine that the Criminal Procedure Rules Committee will consult on this particular aspects.

Other parts (such as creating a new criminal offence) requires an Act of Parliament. The Attorney-General will have a full consideration of the report and decide which, if any, the Government will put forward to the House of Commons.

This is unlikely to be a quick process, but will probably feature next year.

 

Are these suggestions sensible?

I’m not generally in favour of the creation of new criminal offences (there are far too many already), but this does have the advantage of by meaning that an individual accused can have a trial by jury rather than by a Judge.

Whilst I can see the advantage of not defining publication further, at some point the question of how the Contempt laws deal with the internet will have to be addressed. Was this an opportunity missed?

Creating the exemption for prior publication seems a sensible one. The fact that liability will be excluded unless the AG notifies the relevant publisher (which may include an individual blogger or tweeter) indicates that this will only be in a small number of cases.

All in all, there are a modest set of proposals which can be supported. It may be said that it is not what is in the report, but what is not recommended by the Law Commission, that is of most interest. We will digest the report (and the responses) and may come back to the report later.

 

Gianni Sonvico

At the start of the paper there is a dedication to Gianni Sonvico. He was a young barrister who had worked at the Law Commission on this report and who sadly died on the 25th October of this year.

Gianni Sovico -  23rd May 1990-25th October 2013

                      Gianni Sovico –
23rd May 1990-25th October 2013

 

Marine A – Sergeant Blackman – sentenced to Life Imprisonment

In setting Sergeant Blackman’s minimum term, what principles must the court consider?

Background

The case of Sergeant Al Blackman (known throughout the legal proceedings as ‘Marine A’) was sentenced today for the murder of an Afghan insurgent.

Understandably, this case attracted a large amount of media interest. The facts are well known and won’t be repeated here (see the link above for more details). It also presents an incredibly difficult sentencing exercise (see Josuha Rozenberg’s analysis in the Guardian).

The actual sentence is fixed by law – life imprisonment. The difficult part is in setting the tariff. We have a factsheet looking at the setting of a tariff for a life sentence.

On the face of it, as a murder with a firearm of a vulnerable person would attract a starting point of 30 years. However, the fact that this was a lawfully held firearm used by a soldier on active duty surely makes a difference.

There had been much discussion as to what the appropriate tariff should be, ranging from 8-10 years (Dan’s guess, amongst others) up to 25 years.

We are interested in what our readers think about the tariff imposed – is it too high? Too low?

Sentence

The sentencing remarks are here and are well worth a read – it’s a good example of how to explain the issues clearly so that people can understand them.

The ‘headline figure’ is 10 years – this is the tariff that has been set, the minimum period of time before he can be considered for release.

Our initial reaction is that, as the sentencing remarks show, this is a fair and humane way of balancing the different factors and achieving a just result in the circumstances of a case that was “unique and unprecedented in recent history“.

The facts and particularly circumstances of the case were set out. The defence had suggested that ‘Schedule 21’ – the written guidelines given by Parliament to Judges that list the relevant starting points depending on the type of murder that it is, did not apply. This was not accepted by the Court-Martial who decided that the law says that they had to start there.

They then rejected that the case should start at 30 years (due to the use of a firearm) on the basis that this is a completely different situation. This is surely right. For this reason, the appropriate starting point is 15 years. There was, of course, no credit for a plea of guilty.

The following were the aggravating features:

  • a ‘particularly vulnerable’ victim
  • the potential increase in risk to the British forces in Afghanistan as a result of this
  • abuse of a position of trust to cover up the murder

These are to be balanced against the mitigating features:

  • Provocation (in the sense of the cumulative effect of the experiences that he had been through)
  • the element of combat stress
  • personal circumstances (good character and other matters).

The board also stated that there was a need for a deterrent sentence to be passed to send out the message that this sort of behaviour. This was achieved by the sentence of life imprisonment itself, so it could be set aside in the setting of a minimum term (this is an interesting point which seems correct, although it may feature as an argument for the prosecution if there is an AG reference).

At that point, having reminded themselves that setting a tariff is not a mathematical exercise, and that the mitigating features outweighed the aggravating, concluded that the proper tariff was one of 10 years.

 

Comment

This will undoubtedly cause controversy. It may well (hopefully) reignite the debate as to whether the mandatory life sentence for murder is necessary in modern society.

We would expect that there will be calls for a pardon to be issued to remit some or all of the penalty. See here for details of how pardons work. It is possible for a pardon to be limited to quashing the life sentence and replacing it with a fixed period of imprisonment.

It is likely that there will be an appeal by Mr Blackman – it is such an unusual case that he would get permission and it is right for the Court of Appeal to consider the case. It is also a case where, looking at the guidelines, a significantly higher tariff could have been passed (as many expected). For that reason, this may be one of the extremely rare cases where there could be an appeal against sentence and an Attorney-General’s reference. Certainly one to watch…

Nigella, Self-incrimination, and taking the 5th

nigella

Introduction

The trial of Francesca and Elisabetta Grillo is going on at Isleworth Crown Court this week. As it is still in front of the jury, we are not going to be looking at any details of the case, but want to look at a point that a few people have raised – what are the legal consequences of Nigella Lawson (a witness in the trial) admitting to having used cocaine?

 

Does a witness have to answer questions that involve admitting a criminal offence?

The general rule is that a witness who is called to give evidence has to answer every question asked of them. This is even if it is embarrassing or something that they don’t wish to answer because it concerns private matters.

However, there has been a very long rule that a witness is not required to answer questions if the answers are liable to expose them to a prosecution. If you like your latin, then “Nemo tenetur seipsum accusare” – ‘no one is bound to be their own accuser’.

A classic statement is given by LCJ Goddard : “the rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for.” (Blunt v Park Lane Hotel [1942] 2 KB 253).

This rule is not absolute. There must be some risk of a prosecution in the UK (foreign proceedings wouldn’t count) so if a Judge concludes that there wouldn’t be a prosecution, then the privilege can’t be claimed (Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547). There are also various statutory exceptions.

A defendant who gives evidence cannot use the privilege to avoid answering questions for charges that he is standing trial (for obvious reasons).

The privilege has to ‘claimed’. That means that the witness has to ask the Judge to be excused from answering a question. If he doesn’t, and gives incriminating answers, then these can later be held against him. If the Judge wrongly refuses a claim for privilege however, then this wouldn’t be the case.

There is no legal obligation on a Judge to warn a witness that they have this right (although most do, at least nowadays).

 

Is this ‘taking the 5th’?

Yes. Although saying that in a UK courtroom may not go down particularly well. Taking the 5th comes from the Fifth Amendment of the US Constitution – “No person shall … be compelled in any criminal case to be a witness against himself“. In this area, English and American law are pretty closely aligned.

Although this comes up in American films and TV shows, it is not a recent invention. It comes from England of the 17th Century (and probably before) when ‘Freeborn John’ Lilburne was hauled before the Star Chamber and refused to enter a plea.

 

What happened in Nigella’s case?

The short answer is that we don’t know. We will have a look at this in more detail when the trial has concluded.

 

 

Pleading-the-Fifth-Podcast1-237x237

MPs wasting YOUR money on hopeless criminal justice legislation

Last week, I read a blog written by barrister Matthew Scott. It concerned the proposed Sentencing Escalator Bill. It is a Private Members Bill sponsored by Philip Hollobone MP, the member for Kettering.

You can read the Bill here (it won’t take long). Its essence is that where a person is convicted of the same offence on a second (or subsequent) occasion, the Bill would require that the sentence for the second (or subsequent) offence be longer than the original sentence.

You can read Matthew’s blog here. Matthew concisely and effectively demolishes the proposal. Aside from further limiting judicial discretion – the idea that judges who preside over trials or have access to the case papers are best placed to know what the proper sentence is, surprising I know, – (as Matthew very concisely and eloquently explains) the Bill would create a number of anomalies.

One such anomaly would be thus. An offender is convicted of a nasty s47 ABH, receiving 4 years. He is subsequently convicted of ABH. The Bill would require that he receives a lengthier sentence than on the first ABH, notwithstanding that the second ABH might be very minor and in realty warrant a 12 month sentence. Matthew highlights that if the first conviction was for GBH, and the second was for ABH, then the Bill would not require that a lengthier sentence be imposed. The Bill would, as he states, target those who had been fairly nasty in the past, but not those with a very nasty past.

Consider where an offender is convicted of theft from their employer, involving vast amounts of money and a sophisticated method. They receive 6 years. If they were then convicted of stealing a Mars bar from a shop, the Bill would require that they receive a lengthier sentence. (Thanks to Dan Bunting for that example).

Nonsense.

Another Private Members Bill sponsored by Phillip Bone MP is the Young Offenders (Parental Responsibility) Bill. You can read it here. Again, it won’t take long.

If enacted it would basically mean that where a child or young person commits an offence, their parents are responsible for it. Doesn’t sound too bad you say? The effect would be that where a child commits an offence, but isn’t charged or subjected to a penalty (the meaning of which is unclear), the person(s) with parental responsibility for the child also commit and offence and are liable for the same punishment as the child would have been.

Sound fair?

The purpose of this post was not to rehash Matthew’s excellent blog but to highlight the fact that some of the people who we pay £65,000 per year (plus expenses) to represent us are wasting public time and money on idiotic proposals which will never make it onto the statute book.

If any readers live in Mr Hollobone’s constituency, and you agree with Matthew’s conclusion, and our concerns, about Mr Hollobone’s Bills and the waste of time and money he is responsible for, why not write him a letter. We’d be happy to publish it (and any reply you received).

Either way, let us know your thoughts.

Follow Matthew on Twitter @BarristerBlogger