Monthly Archives: January 2014

It’s Insult Someone Saturday!

What are you talking about?

Let’s make this Saturday (1st February 2014) ‘National Insult Someone Day’. Or at least in England & Wales. That is the day that s57 Crime and Courts Act 2013 comes into force – pretty exciting?

Er, yes. What does that mean?

This amends s5 Public Order Act 1986 which makes it a criminal offence to use “threatening, abusive or insulting words or behaviour” by deleting ‘insulting’.

So I’ve got freedom of speech back?

Well, don’t get too carried away.

This only applies to s5 (the least serious public order offence). It is still an offence to use threatening words if you are intending to cause a person ‘harassment, alarm or distress’ or “intending to cause that other person to believe that immediate unlawful violence would be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another or whereby that other person was likely to believe that such violence would be used or it was likely that such violence would be provoked”.

Two cases to read about how Courts should approach the question of freedom of speech in public order cases are Dehal v CPS [2005] EWHC 2154 (Admin) and Abdul v DPP [2011] EWHC 247.

Why triggered this ?

Due to concerns that the restrictions on freedom of speech were unduly onerous, there was a consultation by the Home Office looking at, amongst other things) how the s5 offence should be reformed. This got 3,000 responses, mostly in favour of scrapping the prohibition on ‘insulting’ speech. This  lead to the  changes set out above.

What difference will this make?

Hard to say really. We suspect that in the final analysis the answer will be ‘not much’. It is perhaps telling that the response from the CPS included this – “the DPP subsequently considered the case law in greater depth and advised that the CPS were unable to identify any case that could not be characterised as “abusive” as well as “insulting””.

Which says it all really. There are very few scenarios where someone, without intending any offence, manages to be insulting without abusive. There is still plenty of room for silliness. You are still at risk if you call a horse ‘gay’ because this is probably abusive.

Even if the difference is purely symbolic, this may still have a positive impact. Hopefully it will cause the CPS to pause before charging offences. Also, in future cases where the Art 10 (freedom of expression) question is dealt with, the Court may take the changes on 1st February as an indication from Parliament that a more tolerant approach to speech crime should be adopted.

Well, fuck off then

Charmed. This comes into force on 1st February 2014 and, as it’s still January, I’m calling the police.

 

fuck off

Lee Rigby murderer Michael Adebolajo tries to appeal conviction


rigy

 

 

It was announced on 30th January 2014 that Michael Adebolajo, convicted last year of the murder of Lee Rigby, will be trying to appeal his conviction.

We don’t have the grounds (they are almost never released) but we imagine that one ground will be whether the Judge was wrong to rule that the jury could not consider Mr Adebolajo’s defence that he was a ‘soldier of Islam’ as this was not a defence in law. There may be other grounds relating to what happened in the trial.

We have a factsheet on how the process works. There is no appeal as of right, but given that Mr Adebolajo has nothing to lose by pursuing an appeal, we expect this to end up in the Court of Appeal one way or another, when we will return to it.

Whilst it is always dangerous to prejudge the facts, we will offer this prediction – there is basically zero chance of the conviction being quashed.

Stealing from a bin and the Vagrancy Act 1824

cpsThe men have been charged with an offence under Vagrancy Act 1824 s 4, namely that they were found in an area, Iceland, for an unlawful purpose, stealing food. In fact, it is said that they were taking food items out of a skip, prior to them presumably being thrown away.

The Guardian has a report of the story here, which is worth a read.

UPDATE: There is a press release from Iceland which makes clear they did not call the police and are seeking clarification as to why the CPS believe it to be in the public interest to prosecute.

UPDATE 2: The CPS have confirmed they have dropped the prosecution. See the press statement for details.

There are a number of issues here, which have been discussed in case law, some of it, recent. These include what does ‘found’ mean, what does ‘unlawful purpose’ mean and when does the unlawful purpose need to exist.

Those wishing to do some further reading may want to look at the following cases:

L v DPP 2007 EWHC 1843 (Admin)

Smith v Chief Superintendent of Woking Police Station (1983) 76 Cr. App. R. 234

Talbot v DPP [2000] 1 W.L.R. 1102

One interesting point that appears to arise from the Smith case is that the unlawful purpose must be criminal, and not merely a wrongful act such as a tort (e.g. trespass). So consider the situation where the unlawful (criminal) purpose is said to be theft.

Does that then require an evaluation of the offence of theft?

The unlawful purpose of committing theft

Theft Act 1968 s 1 defines theft as ‘dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it’. Section 7 sets out the maximum sentence of 7 years for a person convicted of theft.

Sections 2 to 6 define the elements of the offence. All five elements must be proven in order for the offence to be ‘made out’. The only one we are really concerned with is the first.

Dishonestly’

 A person is not dishonest (for the purposes of theft) if he appropriates the property:

(a) in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

(b) in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

(c) in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

So there would be problems showing that the ‘thief’ did not believe that they had the consent of either the council responsible for emptying the bin or the supermarket who placed the property into the bin.

So if it cannot be shown that the individuals were in the area specified with the intention of committing a theft (because they believed they had the consent of the owner) then it would appear that they are not guilty of an offence at all.

CPS policy

 A final thought.

The Full Code Test, emlployed by the CPS when deciding whether to charge someone is as follows.

The evidential stage: Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge.

The public interest stage: In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.

Perhaps it is necessary to add a third limb to this test – the idiot test: ‘could someone legitimately call me an idiot for pursuing this prosecution?’ It might save a few quid (and keep the naked rambler out of jail too).

Nigella Lawson won’t be prosecuted for drugs

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We looked at the position of Nigella Lawson in relation to her alleged cocaine use in a previous post about the privilege against self-incrimination.

Well, to nobody’s surprise, it was announced on 27th January 2014 that Ms Lawson would not be facing any action from the police in relation to this.

This decision was taken by the police on ‘public interest grounds’ which would seem absolutely right looking at the CPS policy on prosecuting suspected offenders.

An additional point that the Metropolitan Police said was :

There are serious public interest concerns about the message any prosecution would send out to potential witnesses and victims in the future.

Whilst witnesses clearly cannot simply admit to any offence under oath without consequences, this has to be balanced with the requirement for victims and witnesses to tell the truth.

Further police activity may deter victims from being candid with police and in court for fear of future investigation.”

Common sense in action – good to see.

Isabella Storey & John Nimmo jailed for Criado-Perez and Creasy tweets

nimmo

Introduction

We have previously looked at the case of Isabella Storey and John Nimmo who pleaded guilty on 8th January 2014 to an offence under s127 Communications Act 2003. They were sentenced on 24th January after pre-sentence reports had been obtained.

The tweets that were sent have not been published, but a flavour of them can be obtained from the press reports as well as the sentencing remarks:

Isabella Sorley… Between 10.14 and 14.46 on 28TH July you posted 10 tweets in an account your own name and traceable to you. These are a background, and not the subject of the charge. Between 02.25 and 02.55 (so in the early hours) of 30TH July 2013 you posted six more tweets on another account … In summary these tweets said: “Fuck off and die…you should have jumped in front of horses, go die; I will find you and you don’t want to know what I will do when I do… kill yourself before I do; rape is the last of your worries; I’ve just got out of prison and would happily do more time to see you berried; seriously go kill yourself! I will get less time for that; rape?! I’d do a lot worse things than rape you.

John Nimmo, you posted 20 tweets on the topic. They started on 27TH July at 22.31 and continued until 29TH July at 11.50. Five different accounts were used. Among the messages were: “ Ya not that gd looking to rape u be fine; I will find you; come to geordieland (Newcastle) bitch; just think it could be somebody that knows you personally; the police will do nothing; rape her nice ass; could I help with that lol; the things I cud do to u; dumb blond bitch.

It is presumed that these are a fair representation of the tweets that were sent.

Sentence

Here, the sentencing remarks have been published, which is a very welcome development.

The District Judge was guided by the Magistrates’ Court Sentencing Guidelines (page 40 for the s127 offence). You can see that these are fairly out of date (referring mainly to telephone calls), but by analogy it is in the highest category – “Single call where extreme language used and substantial distress or fear caused to receiver; OR One of a series of similar calls as described in box above“.

The starting point is 6 weeks custody with a range of a Community Order to 12 weeks custody. Because these were a series of tweets, a sentence towards the top end of the bracket would be expected.

The Judge noted that the effect on Ms Criado-Perez and Ms Creasy was substantial. An aggravating feature was the fact that the tweets were anonymous.

There was a further aggravating feature in relation to Ms Sorley. This was the fact that she has 25 convictions since November 2010, all alcohol related, and most for being drunk and disorderly.

The Judge was rather hesitant in ascribing any mitigating features to either of the defendant.

After giving full credit for the plea of guilty, Ms Sorley was sentenced to 12 weeks imprisonment and Mr Nimmo 8 weeks. The difference is primarily due to the fact that Mr Nimmo had not been in trouble before.

The Judge then considered whether the sentence could be suspended, but concluded “the serious harm caused by the offending behaviour makes it inappropriate to impose anything other than an immediate custodial sentence“.

A Compensation Order was made in the sum of £800 for each defendant. There was no order for costs and the Judge stated (correctly) that the Victim surcharge does not apply when a Magistrates Court passes an immediate custodial sentence.

Comment

The sentences are, on the guidelines, understandable and about right. I do have concerns about the sentence however.

I think that the Judge was wrong to rule out suspending either case. Both are clearly people with ‘issues’ and for Ms Sorley there is a clear history of alcohol misuse that needs tackling. Mr Nimmo has never been in trouble before and the court’s should be very reluctant to send a first time offender to prison, particularly for such a short period of time.

The reasons given by the Judge aren’t particularly great. There’s no rule that a sentence can’t be suspended if the offence is serious, and I would suggest that whilst it is a perhaps a factor, it is one of many (and not the most important one).

One problem is that whilst suspended sentences under the Criminal Justice Act have been in force for ten years, it is notable that the Court of Appeal have not given any real guidance as to when a sentence should be suspended. Cynically this is to stop a flood of appeals. And whilst that may be understandable, this is an area that is in need of guidance.

Both these are people who should have had far greater consideration given to whether the sentence should be suspended and it seems to me that this is little point (as well as being counter-productive) in ordering a term of imprisonment to immediate. It may be that there will be an appeal, and we will see what happens there.

I’m also concerned as to the compensation. The Judge recognised that it will take about three years for the payment to be made. as a general rule of thumb it should be possible for the financial penalties to be paid in a year. It is also very rare to order compensation to be paid by someone who is not well off if they are being sent to prison.

Emma Wilson – life for murdering her son

Emma Wilson

Introduction and facts

Emma Wilson (25) was convicted in December 2013 of the murder of Callum, her 11 month old son, in March 2011. On 24th January 2014 she was sentenced. The only sentence that could be passed was life imprisonment, but the Judge set the tariff at 14 years.

Callum died to a brain injury. It is not clear exactly how this was inflicted, but additionally, “Callum had suffered fractures to nine ribs, his right arm and left leg and had bruising across his face and body.” At the trial, Ms Wilson claimed that these had been caused by Callum’s elder brother, but this was rejected by the jury.

The motive for the murder is unclear and it seems that Ms Wilson had been a good mother to her older son. The prosecution accepted that Ms Wilson did not intend to kill her son (but instead to cause him really serious harm). There was (perhaps surprisingly) no indication of mental illness.

 

Sentence

Our factsheet on life sentences is here. The starting point would be one of 15 years (and there was no discount for a plea of guilty). The violence and breach of trust would appear to be an aggravating feature. Ms Wilson had never been in trouble before which, whilst a mitigating feature, has been said to be of little significance in cases such as murder.

For that reason, it is not clear why the tariff was reduced by one year. Given that Ms Wilson will be in her 40s by the time that she is released, it is unlikely that she would present a threat to anyone, but the sentence would appear to be a merciful one. If there is an appeal (or the sentencing remarks are published) we will re-visit this one to go into more detail.