Monthly Archives: January 2014

Neil Wilson – judgment in ‘predatory’ case

£££-Nigel-Peters-and-Neil-Wilson-2349957

Introduction

Well, as we’ve noted, it’s taken a long time but we’ve finally got there. The case of Neil Wilson is well known (our post on the initial sentence, the notification of the AG Reference and the outcome of the prosecution appeal).

Judgment

The bottom line is that the sentence was increased from 12 months suspended to 2 year immediate imprisonment.

CrimeLine has posted the full judgment, which is well worth a read. What was it that caused the Court of Appeal to make such a huge increase to the sentence?

The main issue that the Attorney-General raised (and the only error that was identified) is at para 18:

Miss Whitehouse, on behalf of Her Majesty’s Attorney General, contends that the sentences passed, and in particular that in respect of the offence of sexual activity with a child, were unduly lenient. She submits that the judge adopted an approach that was wrong in principle. Far from it being any mitigation that, on the offender’s account, the victim had initiated what happened, that was, in the Attorney General’s submission, an aggravating not a mitigating factor. Other criticisms are made of the judge’s approach to which we will refer in a moment [it seems that this related to other aggravating features which had been identified by the Judge – see para 16]”.

The Court of Appeal said that this point was ‘unarguably right’ as the “reduction of punishment on the basis that the person who needed protection encouraged the commission of an offence is therefore simply wrong“.

The Judge was “appreciated that for an offence of sexual touching of this kind a sentence of immediate custody is the sentence that should ordinarily be imposed. There may of course be circumstances where that may not be the just and right sentence. However, in this case, there were no circumstances whatsoever that justified a departure from the principle that a custodial sentence was appropriate. An immediate sentence of imprisonment should therefore have been imposed.

After noting the sentencing guidelines had a starting point (after a trial) of 2 years with a range of 1-4 years, the Court of Appeal imposed the sentence of 2 years.

Comment

Victim initiating the offence as an aggravating feature

Despite the Court of Appeal saying this is ‘unarguably right’, it is likely to prove controversial.

It is quite correct (para 19) that when Parliament passed the ss51-52 Offences Against the Person Act 1861, it’s purpose was to protect those under 12 (increased to 13 in 1875 and 16 in 1885). That is not in doubt, but it does not necessarily follow that factual (sometimes called ostensible) consent (or the background to the offending) is irrelevant.

It seems to me that where there is factual consent because of a history of grooming, this is an aggravating feature. Where the conduct is initiated by the victim without this backdrop, this lessens the culpability of the defendant (and is therefore a mitigating feature).

The Court of Appeal say (para 18) “the victim had initiated what happened was …an aggravating not a mitigating factor“. It is hard to know what to make of this. The conduct can be initiated by the defendant or the victim. Logically, a factor can only be aggravating relative to a state of affairs that is less serious, which would seem to imply that for a defendant to initiate an offence is a mitigating feature (you cannot have a situation where every way of committing an offence aggravates it).

There could, in theory, be a ‘baseline’ of it being initiated by both simultaneously, but this raises the same issue. It surely cannot be the case that a defendant initiating the offence is a mitigating feature?

It may be that (as was suggested by Lyndon Harris on twitter) where the defendant initiates the offence, this is ‘very aggravated’ but where it is mutual or initiated by the victim, it is merely ‘aggravated.

This doesn’t make much logical or semantic sense (and has shades of Spinal Tap), and most people would agree that that interpretation is wrong. It may be that the Court of Appeal meant this, but looking for example at what they said at para 20 “an underage person who encourages sexual relations with her needs more protection, not less“, it is not clear. This may have to be resolved at a later date.

Other matters

In our write up of the case when it was in the news, we wrote “Two particular things that I will be looking out for see (1) what is said about double jeopardy (an idea which, sadly, seems to be going out of fashion) and (2) the actual reasons given. I mention (2) because reading the Stuart Hall Attorney-General reference, despite it being lengthy, there was no explanation by the Court of Appeal given for the length of the actual sentence passed.

How have the Court of Appeal measured up to this? Sadly, on both points it has to be said ‘not particularly well’.

Nothing at all was said about double jeopardy (the completion of part of the Community Order, as mentioned at para 29, is a separate matter) which is strange.

The sentence that the Court of Appeal passed indicates a sentence after a trial of 3½ years (after the guilty plea and double jeopardy, which always is more significant when a defendant who received a non-custodial sentence is imprisoned). This is right at the top of the range of sentences that could be passed, especially as it appear that Mr Wilson was of effective good character.

This may well be right, but there is not a great deal of analysis to explain the reasoning, which is unhelpful for later cases that try to apply the principles.

It may be that this case, like the Stuart Hall one, is a result of the specific nature of the case, and should be confined to it’s own facts.

Wells-Burr murder – Petition launched to prevent prisoner transfer

polish

Introduction

Say what you like about the Daily Mail, but it is consistent in their inconsistencies. They have previously decried that, despite the provisions to allow Polish prisoners in the UK to be transferred back to Poland, none have. A mere 4 days ago they were at this story again, bemoaning the fact that the UK is paying to house Polish prisoners.

So when it was announced on 17th January 2014 that the three people who were convicted of the murder of Catherine Wells-Burr (our story on her murder is here) may be transferred to Poland, this was good news, right? Wrong.

Why? Well as was shouted by the Daily Mail headline “could have their sentence for murdering a British graduate cut by SEVEN YEARS“. There is even a petition been set up asking the MoJ to block the transfer in case this happens.

Is this right?

Well, we’re not experts on Polish law, but it is important to note the first word in the headline ‘could’. ‘Could’ implies something that may happen, but how likely is it?

It should be noted that fans of accuracy may not enjoy the Daily Mail article (it is riddled with problems), but everything seems to point to the fact that they won’t get any reduction in sentence.

Poland has life imprisonment, and the general rule is that someone convicted of murder has to serve a minimum of 25 years (where the 7 year ‘discount’ in the news seems to come from).

The Court can, however, set a higher minimum tariff (up to a maximum of 50 years) and there are several prisoners serving such tariffs in Poland currently. The sentence of life imprisonment with a 32 year tariff is one that can be imposed in Poland.

In other cases the Polish Courts have been quite capable of upholding sentences imposed by English Courts. There is nothing to indicate that (despite the fact that the killers would have got a lower sentences had they been dealt with by a Polish Court) they will not get a tariff of 32 years.

Conclusion

We don’t know how the Polish courts will deal with this, but there is nothing to suggest that they will have their sentence ‘cut’ on a return to Poland (their sentence wouldn’t actually be cut anyway, it will still be a life sentence). This appears to be irresponsible reporting. Even if it is not, there are a few points of concern here.

Leaving aside the fact that it is hard to say that life with a minimum sentence of 25 years is disproportionately lenient, I am uncomfortable with this potentially being debated in Parliament (Bills of Attainder have been effectively abolished for good reason). The rules on prisoner transfer are sensible and humane and it is to be hoped that this won’t cause too much of an uproar, especially as it appears to be based on a lot of factually inaccurate information.

But in the meantime, just enjoy the sight of the Daily Mail campaigning to keep foreign criminals inside the UK.

Driving ban reduction – Justices’ Clerks Society and Sentencing Council go to war (sort of)

Sentencing-Council-logo

When someone is convicted of a relevant drink offence (see below), there is the option to reduce the period of mandatory disqualification if they successfully complete a drink drive rehabilitation course.

This power is found in Road Traffic Offenders Act 1988 s 34A(3).

It applies to offences under Road Traffic Act 1988:

s 3A(1)(a) (causing death by careless driving when under influence of drink or drugs),

s 3A(1)(b) (causing death by careless driving with excess alcohol)

s 3A(1)(c) (failing to provide a specimen where the specimen is required in connection with drink or consumption of alcohol)

s 4 (driving or being in charge when under influence of drink or drugs),

s 5(1)(a) (driving or being in charge with excess alcohol)

s 7(6) (failing to provide a specimen)

s 7A(6) (failing to allow a specimen to be subjected to a laboratory test)

where the court disqualifies the offender for a period of 12 months or more. The offences to which this applies all carry mandatory disqualification except the section 4 offence.

The offender must agree and must be over the age of 17.

How much of a reduction?

Subsection 3 of the Act states:

The reduction made by an order under this section in a period of disqualification imposed under section 34 shall be a period specified in the order of not less than three months and not more than one quarter of the unreduced period (and accordingly where the period imposed under section 34 is twelve months, the reduced period shall be nine months).

As readers will know, the Sentencing Council, or its predecessor the Sentencing Guidelines Council, create guidance for courts for various offences. It also provides guidance on related matters. The relevant guideline here is the Mags Court Sentencing Guidelines p 186.

At para 21 it states:

The reduction must be at least three months but cannot be more than one quarter of the total period
of disqualification:
• a period of 12 months disqualification must be reduced to nine months;
• in other cases, a reduction of one week should be made for every month of the disqualification

[Therefore a 24 month disqualification would be reduced by 24 weeks.]

Confusion

In the Magistrates’ Court, when there is a lay bench (ie, non-legally trained magistrates) they sit with a legal advisor. They are members of the JCS – the Justices’ Clerks Society – which also issues ‘Legal Advice Notes’.

Recently, it issued one such note effectively advising the legal advisors to advice their magistrates to ignore the Sentencing Guidelines Council’s guideline (specifically para 21) as it is inaccurate, and to follow their note, which, they consider complies with the statute.

The Legal Advice Note states:

The legislation at Section 34A(3) Road Traffic Offenders Act 1988 specifies the reduction at not less than 3 months and not more than one quarter. The courts have generally offered the one quarter reduction. In the case of a disqualification for 24 months the reduction would therefore be 6 months or 26 weeks (not 24 weeks as set down in the Sentencing Guidelines). In the case of a disqualification for 36 months the reduction is 9 months or 39-40 weeks (not 36 weeks as set down in the Sentencing Guidelines).

Though the difference is marginal, for some defendants that difference is very important to them. As a result my advice is that magistrates’ courts should continue to offer the full one quarter reduction and not follow the Sentencing Guidelines.

So the advice of the Justices’ Clerks Society is to ignore the guidelines in favour of a practice which has developed in the courts. Why?

Why?

The Note states:

The reason for departing from the Sentencing Guidelines is that it deprives the defendant of the fullest possible reduction which the court can offer.

That seems pretty poor justification to me. The guidelines are flexible and departing from them is allowed.

Aside from that, it would surely have been far better (and less embarassing?) if the JCS had contacted the Sentencing Council to discuss the matter. It seems as though the JCS have very much parked their tank on the Sentencing Council’s lawn!

To my mind, the proper approach would be to follow the guideline unless there is a reason to give a greater discount. Circumstances might be such that the court wishes to give the full 25% discount, and in such a situation, they should, but statute requires that courts have regard to the guidelines. This legal advice would arguably make such a sentence unlawful.

To make matters more interesting many Magistrates use the Sentencing Guidelines App on an iPad or tablet which performs the calculation of reduced disqualification dates. Thereby you’ll have the Bench insisting it follows dates consistent with The Sentencing Guidelines in conflict with a Legal Advisor bound by a Legal Advice notice from their own body.

One final thing…

The Note states:

 I see no need for a court to record its reasons for departing from the Sentencing Guidelines in this respect. 

This is simply bad practice. There are requirements that a court explains its reasons when making or not making where they could, certain orders. This is not one of them, but it is obviously good practice to explain to the defendant (and his or her representative) why a decision was made so that a) everyone concerned better understands the decision and b) they can decide whether they wish to appeal.

I wonder if the Sentencing Council are aware…

Man jailed for Buckingham palace trespass – but is trespass an offence?

buckingham

David Belmar, aged 44, from Haringey, London, was sentenced today, 15th January 2014, for breaking into the grounds of Buckingham Palace with a knife.

BBC News reported that Belmar ‘jumped a vehicle barrier on 14 October 2013 in an attempt to see the Queen.’ (The Queen wasn’t present). ‘After police brought Belmar to the ground and searched him, they found a kitchen knife wrapped in a plastic bag in his jacket pocket.’

The offences

Belmar entered guilty pleas in October 2013.

What were the offences? Well that has caused some confusion on Twitter (and no doubt among some of the more alert journalists). Newspaper reports stated that Belmar was sentenced for two offences:

a) Possession of a bladed article

b) Trespass

Bladed article

Possession of a bladed article is an offence under Criminal Justice Act 1988 s 139. For a bit more information see the CPS legal guidance, specifically the section which tells you whether a screwdriver or a butter knife is or is not a bladed article.

The offence is triable either way – i.e. in the Magistrates or the Crown Court.

Trespass?

Those with perhaps more than a rudimentary knowledge of the law will have spotted that trespass isn’t a criminal offence.

It is a tort which gives rise to a cause of action in the civil courts – basically, you can sue someone for it providing you can prove someone owed a duty to act in particular fashion, they breached that duty. Unusually for tort law, it is not necessary to prove that as a result of the breach, you have suffered some loss in order for the cause to be actionable (i.e. for you to be able to sue). Remedies include damages (to compensate for any loss) or an injunction to prevent further trespass.

So if trespass isn’t a criminal offence, did the papers get it wrong (again)?

No. Well, not really.

The offence [I presume] he pleaded guilty to was an offence under Terrorism legislation, which, among other things, protects Crown property, government and parliamentary sites.

Under Serious Organised Crime and Police Act 2005 s 128, it is an offence to trespass on a protected site.

(1)A person commits an offence if he enters, or is on, any designated site in England and Wales or Northern Ireland as a trespasser.

(2)A “designated site” means a site—

(a) specified or described (in any way) in an order made by the Secretary of State, and

(b) designated for the purposes of this section by the order.

(3) The Secretary of State may only designate a site for the purposes of this section if—

(a) it is comprised in Crown land; or

(b) it is comprised in land belonging to Her Majesty in Her private capacity or to the immediate heir to the Throne in his private capacity; or

(c) it appears to the Secretary of State that it is appropriate to designate the site in the interests of national security.

This gives the secretary of state a discretion to, under secondary legislation (a statutory instrument not requiring the full scrutiny of parliament), designate sites where his or her office considers appropriate to do so.

Protected sites

Originally, the sixteen designated sites were as follows:

  • 85 Albert Embankment, London
  • Buckingham Palace, London
  • Ministry of Defence Main Building, Whitehall, London
  • Old War Office Building, Whitehall, London
  • St James’s Palace, Cleveland Row, London
  • Thames House, 11 and 12 Millbank, London
  • The Chequers estate, near Aylesbury, Buckinghamshire
  • 10 – 12 Downing Street site as well as 70 Whitehall
  • Government Communication Headquarters (GCHQ), Harp Hill, Cheltenham
  • GCHQ, Hubble Road, Cheltenham
  • GCHQ, Racecourse Road, Scarborough, North Yorkshire
  • GCHQ, Woodford, Bude, Cornwall
  • Highgrove House, Doughton, Gloucestershire
  • Palace of Westminster and Portcullis House site, London
  • Sandringham House, Norfolk
  • Windsor Castle, Berkshire

Subsequently, MoD nuclear sites were added to the list.

The permission of the Attorney General must be obtained before commencing a prosecution for an offence under this section.

Defence to trespass

Home Office guidance:

Section 128 (4) provides that a person charged with a trespass offence may use as a defence the fact that he did not know, and had no reasonable cause to suspect, that the site to which the offence was alleged to have been committed was a protected site.

It is for the defendant to prove this defence. This is viewed as appropriate because in such a case the facts to be proved would be within the defendant’s own knowledge.

Sentencing regime

The bladed article offence has a maximum sentence of 4 years and/or a fine. The CPS guidance can be seen here. There are no sentencing guidelines for the Crown Court, but the guideline case of R v Povey established some principles:

The effect of Povey is that a court’s primary sentencing principles for this offence are protection of the public, and reduction of these offences by courts passing deterrent sentences. In clear terms this guideline case establishes an obligation on courts to pass severe sentences, for public policy reasons, on those who carry offensive weapons, especially knives, because of the increased prevalence of such offences.

The trespass offence is a summary only offence meaning it can only be tried in the magistrates’ court and that it has a maximum sentence of 6 months and/or a £5,000 fine. However, Belmar was sentenced in the Crown Court because this summary only matter was linked to (i.e. arose out of the same facts as) an offence which can be tried in the Crown Court. Due to the seriousness of the bladed article offence, it is almost certain that the Magistrates’ Court considered that their sentencing powers were insufficient for the bladed article offence and so ‘sent’ both offences up to the Crown Court.

There are no guidelines.

Belmar’s sentence

Belmar received 16 months. We haven’t seen any reports stating the break down of the sentence, but one can presume it would have been either 16 months for the knife, with a concurrent sentence for the trespass, or 12 months for the knife and 4 months for the trespass. Taking account of the guilty pleas, the court would have started at around 24 months.

We don’t know too much detail about the case and so predicting an appeal is rather difficult, however it might be that a custodial sentence of 16 months might enable Belmar to receive some mental health treatment, which the judge said he or she felt was necessary – At a hearing in October the judge said that Belmar was “a danger not just to himself but to others”.

Not quite Open Justice, but a step forward?

Hacking cctv

We haven’t really covered the ‘Phone Hacking’ trial for the same reason that we didn’t look at the Lee Rigby case whilst it was ongoing. When it is finished, we shall certainly take a longer look at it.

One thing we did look at last year was the televising of the Court of Appeal and whether this could truly be considered to be ‘Open Justice’.

Well, on 14th January 2014 those two issues came together (slightly) with the release of some of the CCTV footage from the Phone Hacking trial. This is not that unusual (although it often happens at the end of a trial), but makes following what is happening in the Old Bailey that little bit easier.

It is also, in this technological age, a pretty straightforward exercise. And, without wishing to sound too critical, just shows how much more could be done to make the criminal courts more accessible to the public.

Another case from the last week shows the way. The Mark Duggan inquest was a model of transparency. If you go on to their website there is almost all of the evidence there to read, along with transcripts of the evidence as it unfolded. That is a brilliant resource, and should be followed by the criminal courts. It is long, long overdue.

Of course, whilst we say ‘the public’ as if this is some disinterested group, you are paying for what happens there and the proceedings are being taken in your name, you have every right to know what is going on.

Mark Bridger drops appeal against whole life tariff

Mark-Bridger-1360966

Introduction

We reported on 16th December 2013 that Mark Bridger was to appeal against the whole life tariff imposed on him for the murder of April Jones last year.

Whilst looking at that, we commented that ‘Mr Bridger has nothing to lose by trying‘ to appeal (see here for a factsheet on how the Court of Appeal works) and that an appeal was to be expected. There is, literally, nothing that the British state can now do to Mr Bridger by way of additional punishment.

The question of the legality of whole life tariffs will be considered by the Court of Appeal on 24th January 2014 (see our analysis here) and Mr Bridger’s case was to be heard then.

On 13th January 2014 it was announced (somewhat to our surprise) that Mr Bridger had dropped his application to appeal against the sentence.

What happens on 24th January?

The appeal will carry on without Mr Bridger. Because there are other cases listed, it will be possible for the issue to be resolved.

Why would he abandon his appeal?

We don’t know (to put it shortly). As stated, there is nothing that he has to lost by appealing. It may be that he thinks (or was advised) that there was little chance of success. Whilst that is true, because there is little consequence in carrying on, this doesn’t quite explain it.

What happens if the other appeal are allowed?

This question  of when a change in the law initiated by Judges can be retrospective is a very complicated one. In relation to this it may be more straightforward.

Whilst we expect the Court of Appeal to uphold whole life tariffs, by the time it could be remotely relevant for Mr Bridger (at least 25 years from now), we would anticipate that the law in the UK will have changed. This will probably be by allowing for a review after 25 years.

This will have to apply not only to people sentenced after that date, but also to people like Mr Bridger. For that reason, it may be that Mr Bridger thought that whilst there was nothing to lose, there is nothing to gain by appealing either.

Spies to be permitted to speed

bond

Yesterday, 12 January 2014, the BBC News website ran a story stating that ‘Spies are to be allowed to speed under changes to the UK motoring laws.

The piece explained that MI5 and MI6 officers, who currently have to abide by the rules of the road, e.g. not speed, not run red traffic lights etc., will soon be granted the same exemptions as police officers and other emergency services staff.

Why the need for the change? 

Well under the current system, as the article states, MI5 and MI6 officers must abide by the road traffic laws. This means that, for example, where national security is at risk and a chauffeur needs to drive Judi Dench back to MI5 as quickly as possible, or Bond needs to drive carelessly to impress a lady, they have two choices, a) break the speed limit and drive carelessly, or b) drive at 30mph and risk the world ending.

(On a policy point, it is plainly sensible that MI5 and MI6 officers have the same exemptions as the police, who are permitted to break the law in certain circumstances.)

The current situation

If the driver chooses option a), he or she is in line for some penalty points (or more), a fine disqualification from driving (depending on the seriousness of their transgression).

For a wide number of offences, the courts have the ability to disqualify drivers if they deem in appropriate (known as discretionary disqualification). For a number of offences, the court must disqualify the driver (known as obligatory disqualification).

If the driver has other points on their licence, they may be in line for disqualification via the totting up procedure (where a driver has 12 points or more on their licence).

Can they be excused?

The courts have the ability to ‘excuse’ a driver from disqualification where their offence is one which carries obligatory disqualification

The power is under Road Traffic Offenders Act 1988 s 34 and courts can choose not to disqualify, or disqualify for a period less than the period determined by statute, a driver who has committed an offence carrying obligatory disqualification. This is called finding special reasons.

The test which the court must apply comes from a case from the 1950s; R v Wickins.

Wickins held that a special reason must:

  1. be a mitigating or extenuating circumstance,
  2. not amount to a defence in law,
  3. be directly connected to the offence, and
  4. be a matter which the court ought properly take into account.

Of course not every mitigating feature will amount to a special reason.

Offences/Circumstances

Failing to provide a specimen of breath – it is highly unlikely that special reasons will be established for this offence (i.e. dont bank on it)

Driving a very short distance – this can be a special reason, but it would be unusual.

Driving at the request of a policeman – this can be a special reason but only in limited circumstances.

Driving not impaired by alcohol (e.g. you were driving over the limit but there was nothing wrong with your driving) – this cannot be special reason (for obvious reasons).

Driving in an emergency – this can be a special reason but only in limited circumstances.

Driving in a medical emergency – this can be a special reason

Personal hardship – this cannot be a special reason (it does not relate to the offence)

Ignorance of the law – this cannot be a special reason (think of everyone trying it on!)

Drink was laced (the offence of drink driving) – this can be a special reason

So there are some examples – the circumstances in which special reasons can be found are (sensibly) narrow. As for Bond and Judi Dench, they would probably get away with it under the ‘driving in an emergency’ category, but the reasons for extending the exemptions to them seem like common sense.