Monthly Archives: February 2014

Graham Ovenden – Attorney-General’s reference finally published

ovenden

Introduction

We covered the case of Graham Ovenden when he had his sentence increased by the Court of Appeal on 9th October 2013. We had to wait a long time for the judgment, but, for reasons which are not clear, it was published on 7th February 2014. At the end of our piece last year, after commenting that it seemed to be much higher than we would expect, we said:

So – why is it so much higher? We will have to see the judgment to see what information the Court of Appeal had that we did not. It is to be hoped that this judgment (as well as that relating to Neil Wilson) actually gives an explanation for the increase (something which, sadly, the Stuart Hall judgment did not).

So was it worth the wait?

Facts of the offending                        

The allegations were all committed between 1972 and 1987. Mr Ovenden had a trial and was convicted on Counts 1-2, 7-8 and 10-12 :

  1. Taking a photo of SM (about 10 years old) whilst she was naked with sticky tape over her eyes
  2. Taking a photo of SM (age unknown) whilst she was naked lying on a beach
  3. CM – Acquitted
  4. Became Count 10
  5. Became Count 11
  6. Became Count 12
  7. JB (aged 6) was having a bath with Mr Ovenden’s daughter when he came into the bathroom naked with an erection and got into the bath and asked his daughter to wash his penis (which she did). Mr Ovenden came back and took photographs of them wrapped in a towel
  8. Mr Ovenden approached JB (then aged 10) from behind and cupped her breasts saying “come on, let’s have a feel” – this was the indecent assault
  9. Acquitted
  10. Photograph of EE in state of undress
  11. Photograph of EE in state of undress
  12. Photograph of EE in state of undress

Sentence

The maximum sentence for all of the offences was 2 years imprisonment. Mr Ovenden was sentenced by the trial Judge to 12 months imprisonment, suspended for two years. These were all concurrent.

These are all historic offences (we have a factsheet on how these offences are dealt with by the Courts).

What would he have got now?

Much more. Much more than the maximum. The starting point would be the Sexual Offences Sentencing Guidelines. Although it is not clear what happened with Count 7, this would the sort of offence that he would have got 3 to 5 years on.

The remaining offences were a lot less serious. The photographs would not be sexual activity and would be charged under the Protection of Children Act 1978. This would have probably resulted in a non-custodial sentence given the levels involved. Perhaps a sentence of 6 months or so on Count 1. The starting point for the Sexual Assault would be 6 months (although the actual sentence may well be lower).

If these offences were committed today, we would expect perhaps a total sentence of about 4-5 years.

Why was he charged with indecency with a child rather than indecent images?

Dunno. This is an interesting question. The maximum sentence for ‘making’ indecent images was (at the time) 3 years. There may be some procedural problem that is not immediately apparent (the consent of the DPP is needed, but that would hardly have been an obstacle), but absent such a problem, the only thing that springs to mind is that the photographs weren’t considered to be indecent.  This does not sit easily with the sentence of 9 months later passed.

Court of Appeal judgment

The meat of the reasons given by the Court are at paras 63-70. The aggravating and mitigating (mainly aggravating in fairness) features were identified. In para 69, rather than analysing whether the sentence was unduly lenient, the Court considers what would be the appropriate sentence (18 months on Count 7, consecutive to 9 months for the photograph counts and 6 months concurrent for Count 8).

It is also stated (without reasons) that “there is no basis, and there was no basis, for suspending the sentence”.

Against that backdrop, the Court concluded that the sentence was unduly lenient and increased it as set out above.

Comment

There are several points in the judgment that are unsatisfactory :

(1) Reasons

What is notable by its absence (in common with the Hall and Wilson judgments) is any real reference to the guidelines or previous authorities. Particularly in a case where the sentence that was imposed is higher than the maximum sentence, it is unfortunate that this was not done.

(2) Test for a Suspended Sentence

At para 61 it was noted that “Her Majesty’s Attorney General has submitted that the sentence was unduly lenient. The judge failed to have regard to the terms of the statute in that exceptional circumstances were required before a sentence could be suspended”.

The need for ‘exceptional circumstances’ was the test under the law prior to the Criminal Justice Act 2003. Whilst those sentences were preserved, currently (under LASPO) a sentence of up to 2 years can be suspended without exceptional circumstances. If that is right, then it is unfortunate that this submission was not corrected by the Court.

So, what is the test for whether a sentence should be suspended? The answer is that there is not one. Nearly ten years after the implementation of the 2003 Act it is surprising that this should be so. There are Sentencing Guidelines on 2003 Act sentences, but nothing is said about when a sentence should be suspended. Given the numerous opportunities of the Court of Appeal to address this, it is presumably a considered decision not to give such advice. This is, in fairness, understandable (even if it is unhelpful for practitioners).

(3) Deference to the trial Judge

At para 62 the Court referred to “the submissions of Mr Quinlan who has essentially said that the judge was in the best position to have judged the applicant; that he had been right to take into account his age and the fact that these offences were committed such a long time ago; and the fact that the applicant no longer posed a risk to children.”

An advocate who appears in the Court of Appeal will very often find themselves on the end of the mantra ‘the trial Judge heard the case, they’re in the best place to know’ when an appeal is being dismissed. Sometimes this is fair enough (Judges get things wrong after all), but here no explanation has been given as to what it was about this case that meant the usual rule did not apply. This is all the more significant given that the sentence was passed after a trial where the Judge would have had plenty of opportunity to assess Mr Ovenden.

(4) Consecutive sentences

Judges frequently pass consecutive sentences. Issues can be raised where consecutive sentences take the total sentence over the maximum for any individual offending (as the Court of Appeal did here).

The cases of Ralphs [2009] EWCA Crim 2555 and H [2011] EWCA Crim 2753 are good on this. In the latter the Court said (para 127) “We are unpersuaded that it is appropriate for consecutive terms of imprisonment to be imposed as a way of compensating for what the court believes to be an inadequacy in its sentencing powers” (in fairness, before doing just that).

In Mr Ovenden’s case there were legitimate reasons for making some of the sentences consecutive. Nonetheless, has the Court in his case fallen into this trap?

This case shows some of the problems of sentencing historic offences. In reality, had Mr Ovenden been tried and convicted of those offences at the time then he would probably have been fined for all of them apart from Count 7 (and possibly Count 8 with a harsh judge). Even then, if this had been 1984 rather than 2014 if he had gone to prison, it would have been for less than two years in total. Given that the maximum sentences for some of these offences were so woefully inadequate, it is very easy to pass a sentence too high. It would have been helpful for the Court of Appeal to have given some more of their reasoning behind their decision.

(5) Double jeopardy

In this judgment, (as in Hall and Wilson) there is again no reference to double jeopardy which is a surprising admission. It may be that double jeopardy is going out of fashion, but if this is so, it should be stated clearly.

Conclusion

The behaviour of Mr Ovenden was disgraceful. On the verdict of the jury he was guilty of serious sexual offending. But that does not relieve us, as a society, of doing him justice. Justice here (as in all cases) means not just that he is punished for his offending, but he is punished justly – he gets no less certainly, but also no more, than the law states is the right sentence.

Here, the Court of Appeal have said that the experienced Judge (HHJ Cottle has been a Crown Court Judge since 1993) got it wrong on a massive scale. After double jeopardy this would suggest the least possible sentence the Judge could have passed was about 2 years 9 months – nearly three times longer than was originally given (and immediate rather than suspended).

Of course there are cases where something goes wrong and when the Court of Appeal needs to step in (if anything, many people think that they are too shy of interfering), but when this happens everyone involved (and everyone who may be involved in future cases) is entitled to know what went wrong and why. Here, we are left at a real loss as to the reasoning of the Court on several key issues. It may be that this was all addressed in the written submissions and the arguments, but if that is correct then it is all the more reason for publishing these.

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A copper’s view of a typical Friday night – Part III

(c) Flickr / Lee J Haywood

(c) Flickr / Lee J Haywood

It’s now 11:45pm and I have a decision to make.  Before my shift finishes at 7am tomorrow morning I have to complete all of the paperwork for the prosecution of my prisoner and get a copy of the CCTV from the camera control room.  He won’t be ready to charge until about 5:30 or 6 which means I have plenty of time to complete it but it is a Friday night and I can’t spend my whole night dealing with something as minor as a drunk and disorderly case so I am going to have to manage my time well as I would need exceptional circumstances to claim overtime for dealing with this.

We grab a quick cup of tea and head back into the town centre.  The pubs have just kicked out and along with the rest of my shift we try to keep an eye on the taxi queues, nightclub queues and everyone else just milling around trying to decide what to do.  We are lucky in that the town centre is covered by CCTV with operators who are really on the ball.  They call us in on any trouble brewing and usually just the sight of the uniform is enough to settle things down.

In some larger towns, the Council along with the pubs and clubs pay for “Taxi Marshalls” but we are not so lucky.  Taxi Marshalls are usually made up of private security staff (door staff) and Police Community Support Officers (PCSOs) and Police Officers who are working overtime.  These Marshalls keep an eye on taxi queues and the surrounding area in an attempt to prevent fights from occurring.

For a Friday night, things are relatively quiet, there are a couple of arrests for possession of drugs and drunk and disorderly but not as many as usual for a Friday night.

Around 1:30am the call comes out for my shift to “take the cars over”.  As we don’t want to suddenly leave the Town Centre bereft of Officers, this is an act carried out with almost military precision.  The back shift Officers will drive into the town centre and hand over the cars to us while they gather in a van which will take them back to the Station.  For my shift it is a chance to finally warm up after hours patrolling and for the back shift it is a chance to get back and catch up on their paperwork.  It is important that this is done well before 2am when the next wave of revellers will strike.

Fortunately for me, there are no nightclubs with late licenses in the town so the last one closes at 2 and by 2:30 everyone has gone home.  After a quick bite to eat it is nearly 3am and time to start preparing the paperwork for my arrest.

As the only offence was being drunk and disorderly there is no need to interview the prisoner which is one less thing to worry about however, a “file of evidence” has to be completed before I leave and that will still take 1-2 hours at least as long as there are no interruptions.

I will have to complete a number of forms all starting with the letters “MG”.  As this is an “expedited” file for a straightforward offence, I can skip a few of these for now and only worry about them if he pleads not guilty when he appears at Court.

First of all there is the MG3 which is a report to the prosecutor.  Some of this is automatically completed when the person is charged however there are still parts for me to complete.  Already printed in this report are the person’s name, and date of birth, the case unique reference number and the date of the person’s first Court appearance if they have not been remanded in custody.  I add to this details of which forms I have included in the file along with any “points of note” I have for the prosecutor.  In this case I will advise that I have obtained CCTV evidence of the offence which my colleague kindly picked up when I was preparing the file.

The MG4 is the charge sheet which is automatically generated when the person is charged.  Before being charged, the prisoner is cautioned again and after being charged they are asked if they have anything to say.  Usually, there will be no reply to charge as this can be used as evidence against them however there is always one who thinks it is funny to reply “stop hitting me, I’ll admit anything you say” knowing that this will be recorded and read out in Court.  Fortunately, the Courts are wise to this and in the case of a jury trial, Judges have been known to advise the jury to disregard such a comment or refuse to allow this to be read out at all unless there is a genuine belief that the accused has been assaulted.

Next up is the MG5 which is a summary of the case.  As all details of the case are included in the statements of me and my colleague I can skip this.  If I had interviewed him or the case was more complicated details would be added here.

Then comes the dreaded MG6s.  There are 5 different MG6 forms in total appended with the letters A-E.  Each form contains confidential information including Officer’s disciplinary records, lists of sensitive material and details of anything that might assist the defence or undermine the prosecution.  As this should be a straight forward case I only need to complete the MG6A stating that there is no confidential material to disclose at this stage of the case.

As there is no need to request that the prisoner be remanded in custody I do not need to complete the MG7 “Remand Request Form”.

I add the statements (MG11s) completed by myself and my colleague and then add a printout of the prisoner’s previous convictions.  Fortunately I am one of the two people on my shift who can actually print this out.  Although everyone on the shift can view previous convictions, cost issues mean that only a select few on the shift can actually print them out.

Having to print out previous convictions for all of the other 14 people in the cells awaiting charge takes me nearly 45 minutes but it is something my colleagues rely on me for so there is nothing I can do about it.  The only other person who can do this is currently in interview so I also print out the previous convictions of her prisoner too while I am at it.

The final form I complete is the MG20 Further Information Report.  On this report I advise the prosecutor that in addition to the town centre CCTV, CCTV will be available at the club for a further 28 days should it be required and that my colleague has the details of the door staff involved should statements be required from them too.

These statements are not taken as routine for a simple drunk and disorderly case due to the sheer quantity and time it would take.  An average Friday or Saturday night will see somewhere between 15 and 30 arrests for drunkenness offences so as well as employing a “statement taking” team to deal with this, it would mean that there would be no staff left to cover the doors.  Besides, as most of the people involved in these cases plead guilty at Court there is no need for additional statements.

By Officer X

See Part IV soon.

A copper’s view of a typical Friday night – Part II

(c) Flickr / Lee J Haywood

(c) Flickr / Lee J Haywood

The man doesn’t walk 30 yards before he starts banging on the shutters of a closed bakery.  Although he is not banging hard enough to cause any kind of damage he is shouting extremely loudly that he wants a steak bake and once again, every other word is a profanity.

I know that I can’t let this continue and with a very heavy heart I head towards him knowing that I have no choice but arrest him.  He’s had enough chances and I can’t let him carry on like this.

As I approach him he starts to run or should that be stagger.  He repeatedly turns round and gives me various hand signals accompanied by more abuse until we catch up with him.  As I grab him he makes a half hearted effort to fight me off but in his intoxicated state all he manages to do is fall on the floor in a heap.  As I put him in handcuffs I caution him and tell him that he is under arrest for being drunk and disorderly.  In the state that he is in, I could not count his feeble attempts as “resisting arrest” which is a separate offence entirely.

The next job is to use my radio to call for someone to transport us (me, my colleague and the arrested male) to the Police Station.  Even though the station is only a few minutes walk away it is illegal for me to walk the prisoner there through the streets.

After receiving a lift to the Custody Suite, the booking in process begins.  The first thing I need to do is make a note of the time we arrive at the Police Station as this time plays part of what is known as the “custody clock” which relates to the amount of time someone can spend in custody along with determining when reviews of detention must be carried out.

As it is a Friday night and there are a number of people waiting to be booked in by the Custody Sergeant I have to remain with my prisoner for about 30 minutes.

During this delay I take all items of property from him along with his belt to prevent him from harming himself.  All of these items are recorded and placed into a bag which is sealed with a cable tie which has a unique number on it.  I don’t need to confiscate his shoe laces as his shoes are left outside of his cell.

I ask the prisoner if he would like to sign to confirm that I have placed all of his items in the bag however he tells me in no uncertain terms what I can do with my sheet and the bag.  My colleague countersigns my signature to confirm that I have placed all of the prisoner’s property into the bag and that he refused to sign when asked.

Eventually it is my turn to present the prisoner to the Custody Sergeant.  I outline brief details of the offence to the Custody Sergeant and the prisoner provides his name, address and date of birth (he actually is 23).  Often someone who is drunk or under the influence of drugs refuses to give their details until they have sobered up and until their details are ascertained they are entered into the system as “Uknown Unknwon”.

After answering a series of questions about his health, if he wants anyone informed of his detention and asking if he wants a solicitor (he does) his detention is authorised until he is sober enough to be dealt with.

Once the prisoner has been taken to his cell by a Detention Officer, the Custody Sergeant gives me the bad news.  My prisoner has a long record with a number of convictions including two in the last 6 months for being drunk and disorderly meaning that he is not eligible for a caution or Penalty Notice for Disorder and as such he will need to be charged to attend Court at some point in the future.  I am going to have a lot of paperwork to do before I get back out on the streets properly.

After arresting someone it is best practice to write up my statement as quickly as possible to prevent any accusations of tampering with or creating evidence.  At one time, the practice would have been to write the events up in my pocket note book and then write a statement based on that.  Common sense eventually prevailed and it was decided that writing a statement alone was good enough.

With my colleague we find a space and write up our statements.  Although it was a minor offence, the statements take up nearly 3 pages each.  If we miss anything out of the statements now, we can’t add to them at a later date without serious questions being asked so we have to be as thorough as possible.  You can imagine how long the statement would have been had he actually resisted arrest.

By Officer X

See Part III here.

Whole Life Tariffs – Court of Appeal Judgment in McGloughlin & Others

hands on prison bars

Introduction

The question of whole life tariffs has been in the Court of Appeal again today. It has been a long saga – see here for our overview piece on the case today.

So, is this sorted then?

No. Far from it. It’s another step in what may be a long journey …

Judgment

 

The full judgment is here and is worth reading.

In brief, the Court of Appeal said that whole life tariffs, as currently in force, are lawful.

The Court sets out a handy analysis of the history of the life sentence (paras 1-8) before turning to the key issues.

The Court asked four questions:

 

1. Is a whole life tariff compatible with Art 3?

The Court concludes that “there are some crimes that are so heinous that Parliament was entitled to proscribe, compatibly with the Convention, that the requirements of just punishment encompass … a whole life order” (para 15)

This is essentially a political question and is resolved in favour of the 2003 Act. After reciting some further caselaw, the Court concludes (para 18) “no specific passage in the judgment nor the judgment read as a whole in any way seek to impugn the [principle that a Judge can pass a whole life tariff]”.

This is (presumably) implicitly subject to the fact that an irreducible whole life tariff will be a violation of Art 3.

My reading of Vinter is slightly less optimistic than the Courts. Whilst they upheld whole life tariffs, it is not clear to me that they are overly happy with them. For example, in para 122 Vinter it was stated “a whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought”.

 

 

2. Does there have to be a review mechanism in place when the sentence is passed?

This is slightly confused, but the Court seem to accept that this is the case (para 22).

 

3. Does the system of review under s30 make a whole life tariff compatible?

This is s30 Crime (Sentences) 1997. Currently, this provides :

The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds

 

This raises two immediate conditions. Firstly, given that ‘exceptional circumstances’ are needed for a release to be directed under s30 – when are circumstances exceptional? The Court states “the term ‘exceptional circumstances’ is of itself sufficiently clear.” This is almost certainly optimistic – exceptional circumstances is generally a moveable feast. It means what you want it to mean in any particular case. Compassionate grounds are again not entirely clear.

 

The ECHR thought that this was not sufficiently clear or certain. The Court of Appeal dealt with this swiftly (para 28) and said that they disagreed – the law of England and Wales is clear.

 

Ultimately the question would appear to be whether the continued detention of any particular prisoner is a violation of his rights under Art 3. Presumably this will be when there is no longer any ‘legitimate penological grounds’ for detention, having regard not just to punishment but also deterrence, public protection and rehabilitation.

 

4. If whole life tariffs are incompatible with Art 3 what can a sentencing judge do about it?

The Court decides that the legislation is sufficiently clear that even if a whole life tariff is unlawful, a sentencing judge is still obliged to impose one if the circumstances are right (para 23). Given the conclusion of the Court that whole life tariffs are lawful, not much consideration was given to this. I would question whether a Court can ever pass a sentence which it believes is actually unlawful. The only truly mandatory sentence is the life sentence for someone convicted of murder, in every other case there is a ‘safety valve’ for exceptional cases.

 

 

What happens now?

The real question is whether the Court’s answer to the third question is right. There will probably be an application by Mr Newell to take the cases to the Supreme Court. This would be very unusual on a sentencing case, but we would imagine that, one way or another, the case will end up back in the ECHR.

Whatever happens, we imagine that the issue will end up back in front of the ECHR one way or another. To the extent that this is a ‘dialogue’, is there anything in paras 29-36 that would cause the ECHR to change its view? On the face of it, it would appear not. The ECHR in Vinter had the benefit of the full analysis in Oakes

We would imagine that the first out of the blocks will be Jeremy Bamber, as he has already served over 25 years in prison. The mechanism suggested is that he applies to the Home Secretary for release under s30. This will be considered in light of all the circumstances and be decided in line with Art 3.

Theresa May does not like the ECHR in general, and Art 3 in particular (unless it’s a case where the public like the beneficiary such as Garry McKinnon), so we would not be surprised that this is refused. There will then be a Judicial Review, and we will see what happens at that stage.

It is not clear whether s30, which deals with the right of release, gives a sufficient right of review. For example someone who is 25 years in to a whole life sentence may not be safe to be released (and it may not be sufficient punishment) but it may be that the appropriate tariff is now considered to be 30 years. An application to the Home Secretary won’t trigger a reduction in the tariff, even if one is required to avoid a breach of Art 3.

Some points that come out of the ruling. Firstly, does this not apply to any life prisoner? Someone who has a tariff of 40 years is able, on this ruling, to apply to the Home Secretary after serving 20 years on the grounds that there are no penological reasons for his continued detention.

Secondly, it must be the case that whilst punishment is appropriate to considering this, it can never ‘trump’ the other factors. It must follow that there are no cases where the circumstances of the offending mean that a whole life tariff is and always will be necessarily a just punishment. To that extent, at least, this may not quite be the victory for the UK that it seems.

 

 

Should the Home Secretary be deciding this?

Probably not. This is moving perilously close to setting the tariff which should be done by a Judge, not the Court. If this withstands further challenge then at some point it will have to go off to a High Court Judge to decide.

 

Does someone have to wait 25 years?

On what the Court of Appeal have said, then yes. This is not entirely free from difficulty.

Generally, a prisoner on a life sentence will have to complete various courses and move through the system. How does this work for someone serving a whole life tariff? We don’t know. The problem is that with someone who is never to be released, they won’t necessarily be doing the courses and other matters needed.

It does not take a great leap of imagination to imagine that someone five, or ten, or whatever, years into a whole life tariff will go to the courts in order to force the prison service to provide the same opportunities to them as to other prisoners.

 

Bit of a blow for ‘human rights’ and the Europeans eh?

Well, yes and no. The Court of Appeal seem to have shifted their position since Oakes in favour of the ECHR. If (or when) the ECHR say that s30 does not provide a sufficient safeguard, then it will be hard for the Courts to go back to the position that an irreducible life sentence is Art 3 compliant.

But, in relation to the interpretation of s30, it seems that the Europhiles can take a bit of comfort.

In relation to immigration cases, Theresa May is busy passing all manner of policies and executive action telling judges how to deal with Art 8, this is a welcome reminder that that should not succeed. It would be pleasing to any European to see that the Court of Appeal use Art 3 to cut through the ‘Lifer Manual’ with ease and that there is no margin of appreciation to the Executive.

 

 

The individual cases

There were two actual people before the Court, let’s not forget about them.

 

Ian McGloughlin

Mr McGloughlin did not resist the application of the Attorney-General. In fact, he sent a letter saying “I believe I deserve the whole life tariff which the AG is seeking and that the family of Graham Buck deserves to know officially that I will never be released”. This is perhaps welcome candour from Mr McGloughlin, but not the best start to opposing it. His lawyer appears to have been told not to oppose the application.

The Court concluded (paras 48-50) that they “must consider the matter afresh” and that “just punishment required a whole life order”. This rendered the 40 year tariff unduly lenient.

I still maintain that a tariff of 40 years to a man of 55 is, in all the circumstances, so akin to a whole life sentence that to say it is ‘unduly lenient’ is absurd.

It may be that the idea of considering the case afresh is a new development. The general view would be to see if the sentence was outside the proper range and then impose the least sentence that could be justified. Here, had Sweeny J decided that he could pass a whole life tariff but a 40 year tariff would be appropriate, would the Court have intervened? Could they? What if there had been David Cameron’s super-tough 100 year sentence imposed instead? Would that be unduly lenient?

 

Lee Newell

The reasons for dismissing the appeal are set out in para 58. The aggravating features are set our and the Court concluded that the Judge was right in making the whole life order. Whilst the reasons could perhaps have been more full, if whole life tariffs are lawful, then the argument that one is not manifestly excessive is a strong one.

 

Conclusion

So, they we are. As predicted, the principle of whole life tariffs have been upheld. This saga will run and run and will go off to the ECHR again.

This is undoubtedly a modest victory for the Government, but they should be too cautious before celebrating it.

I am willing to bet that before Mr McGloughlin gets to what would have been the end of his tariff, whole life will be a thing of the past. The view across Europe is clear and is set against that form of punishment (there’s not even agreement in the UK, had Mr McGlouglin committed the offence in Scotland he would not have been able to get a whole life tariff).

This has already cost us millions of pounds and, while the litigation is ongoing, will cost us millions more. It is very simple for a review mechanism to be put into legislation. This would not involve a change from any historic ‘British’ justice norms and it can hardly be objectionable for such a mechanism to be in place. A responsible and mature government would have put those changes in place. It’s not too late to happen now.

prison wing

Notorious gang member Sean Bradish faces further life sentences having committed another spate of robberies

Sean Bradish, 46, is facing another life sentence following the commission of four armed raids between April and September 2012.

Bradish poses with champagne after a spate of robberies in 2002

photo courtesy of BBC News

The first life sentences

Bradish was originally convicted in 2001, following a trial, of four offences; conspiracy to rob, 2 offences of having a firearm with intent to commit robbery and an offence of having an imitation firearm with intent to commit robbery.  He was sentenced to three automatic life sentences, to run concurrently, with two years concurrent for the imitation firearm.  The sentencing judge fixed a notional determinate sentence of 15 years and a specified minimum term of six years and seven months, having taken into account the 10 months he spent on remand prior to trial.

The second life sentences

A second trial took place in 2002, where Bradish was convicted of four offences; conspiracy to rob, conspiracy to possess firearms with intent to commit robbery, and two offences of robbery.  He received four life sentences, to run concurrently.  The sentencing judge fixed a notional determinate sentence of 28 years, and a specified period of 13 years and 5 months’ imprisonment, having taken into account time on remand.  In sentencing, Judge Forrester said:

“The robberies themselves were carried out with ruthless efficiency and determination, usually to the terror of the public, who were threatened with guns, forcing the staff to hand over money. Not only the public, but the bank staff and the guards manning security vehicles, you made victims of all of them.

… It can be said … that no one was seriously, physically injured — and I stress physically — that is true, although a firearm was discharged on one occasion. You had no need to discharge your loaded firearms … The reason you had no need was because you got what you wanted by the threats at the point of a gun.”

Steven Roberts, a fellow member Bradish’s gang, gave evidence against Bradish in these earlier trials and received a reduced sentence of 8 years.  He gave an insight into the offending in an interview with The Observer in 2002:

‘I first met the Bradish brothers in 1993 when I was drinking in a pub off the Stonebridge Estate [a notorious north London area] which was frequented by at least 18 well-known armed robbers. I was making a living from robbing drug dealers, something I’d started with a couple of old school friends a few years earlier.

‘We had become quite sophisticated. I’d got hold of a police badge and walkie-talkie. I would knock on the dealer’s door, show them the badge, explain there had been an accident, and ask if I could use their phone because my radio wasn’t working.

‘As soon as they opened up a bunch of us would rush in, tie them up and threaten them at gunpoint until they told us where the drugs and money were.

‘It was a good living. One time we came away with £46,000 in cash, another time we got a kilo of cocaine. It was the perfect crime because they couldn’t go to the police.’

‘He [Bradish] asked if I wanted to come along on the robbery and I agreed. We parked around the back of the Thomas Cook in Edgware. He went in first and I followed, locking the door behind me. Sean then shouted at the cashier: “Open the fucking door!” She turned round and said “Oh God, not you again” – he’d already robbed the place five times before.

‘We were in there for less than 20 seconds and came away with £24,000. It was incredible.’

‘After that we’d go to the nearest shop and buy a whole new outfit. Everything we had [worn during the robbery] would be thrown away so there would be no forensic evidence. We always bought designer clothes – everything had a label.

‘Then it would be off to the pub for a bit of dinner. By 6pm we’d start taking the cocaine and then go out. We wouldn’t be back until Monday morning, and would easily spend £3,000 on drink and drugs over the weekend. Sometimes we would do two robberies a week.’

In 2012 Bradish was released from prison and raided four banks across London between April and September 2012.  In each raid he brandished an imitation gun and left each bank with over £40,000.

The third life sentences

On 14th February 2014 at the Old Bailey, Bradish pleaded guilty to six robberies, one attempted robbery, and seven counts of possession of an imitation firearm with intent.  Judge Nicholas Cooke QC adjourned sentence until February 20, but warned Bradish that he will receive an automatic life sentence.  See the Evening Standard news report for more details.

Sentencing comments courtesy of Westlaw

interview quotations courtesy of The Observer

Celeb sexual offence trials: The CPS can’t win

Crown CourtOh dear, it seems the police and the Crown Prosecution Service can’t win. First they were villified for not bringing a case against Jimmy Saville during his lifetime. Now they are being criticised because they did bring ultimately unsuccessful cases against Dave Lee Travis and Bill Roache. Meanwhile Operation Yewtree, the police enquiry set up in the wake of the posthumous Saville allegations, is being derided as a celebrity “witch hunt”.

The Saville, Roache and Lee Travis cases of course all depend on their own circumstances. I’m not going to comment on the merits of individual cases. What I do want to discuss is the basis on which decisions to prosecute and not prosecute are made, and in particular, the significant influence of the High Court over the way such decisions are made in sex cases.

Generally, decisions whether to commence criminal proceedings are made on the basis of at test laid down in the Code for Crown Prosecutors, the “Evidential Stage test” or “the realistic prospect of conviction test”.

It provides that a case must only go ahead if prosecutors believe an “impartial and reasonable jury… acting in accordance with the law is more likely than not to convict the defendant…”.

In other words: the chances of a conviction have got to be 51% or better. But note the other very important element to the test: it requires prosecutors to assume the jury will be impartial and will act in accordance with the law. In cases involving well-loved celebrities and historic allegations from what might be described as a bygone age that might be a big ask.

In any event, that is the test prosecutors must apply. However, in relation to sex cases, since 2009 it has been given an additional “spin” by the Queen’s Bench Division of the High Court.  It arises out of the case of R(FB) v DPP.

“FB”, as it is known, was a very sad case. The complainant, FB, who has never been identified, was the victim of a serious attack: his ear was bitten off. He went to the police, identified his assailant and picked him out on an identity procedure.

However, FB had a history of mental illness. An expert said he suffered from hallucinations. It’s clear the CPS wrestled for some time with its conflicting obligations to disclose to the defendant’s legal team material which might assist him; to protect FB’s privacy, including his confidential medical records; and to put the defendant through a trial only where the case passed the Evidential Stage test. The deeply unfortunate result was that FB attended court on what was intended to be the first day of the trial only to be told the case had been dropped and a verdict of Not Guilty returned against the defendant.

FB instructed solicitors who went to the High Court. The court found that the CPS’s decision to drop the case had been “irrational” under their own guidance, and had breached the state’s duty to provide protection to persons suffering ill-treatment at the hands of others. FB was awarded £8,000 compensation. The Not Guilty verdict returned against the defendant remained, of course, unaffected.

The significance for the CPS’s future practice was twofold: first of all it established that  decisions not to pursue those suspected of criminal offences were susceptible to judicial review. Secondly, the High Court said that the CPS’s Evidential Stage test must be interpreted differently in certain types of cases. The relevant part of the judgment is worth quoting in full:

“49. There was also discussion whether in applying the “realistic prospect of conviction test” a prosecutor should adopt a “bookmaker’s approach” (as it was referred to in argument) or should imagine himself to be the fact finder and ask himself whether, on balance, the evidence was sufficient to merit a conviction taking into account what he knew about the defence case. In many cases it would make no difference, but in some it might. Mr Perry QC submitted that the latter was the correct approach…I agree with Mr Perry. 

50. There are some types of case where it is notorious that convictions are hard to obtain, even though the officer in the case and the crown prosecutor may believe that the complainant is truthful and reliable. So-called “date rape” cases are an obvious example. If the crown prosecutor were to apply a purely predictive approach based on past experience of similar cases (the bookmaker’s approach), he might well feel unable to conclude that a jury was more likely than not to convict the defendant. But for a crown prosecutor effectively to adopt a corroboration requirement in such cases, which Parliament has abolished, would be wrong. On the alternative “merits based” approach, the question whether the evidential test was satisfied would not depend on statistical guesswork.”

In other words: in certain types of cases, where prosecutors know from their experience that on the evidence before them the jury is likely to acquit the defendant, but where the prosecutor nevertheless believes the complainant, they should proceed with the case – notwithstanding that on the balance of probabilities they expect that the jury will ultimately find the defendant Not Guilty.

The High Court having authoritatively interpreted the Evidential Stage test in this way the CPS has had no choice but to incorporate it into their official guidelines in dealing with sex cases.

It’s worth comparing the words of the High Court in FB with the note sent to the trial judge by the jury in the Dave Lee Travis case after two days of deliberations, and before returning Not Guilty verdicts on 12 out of 14 counts:

‘…[the prosecutor], in summing up, said if we believe that the complainant was telling the truth, then we must find the defendant guilty. Can you give us any guidance on how that should be weighed with the lack of supporting evidence and the passage of time so we are sure beyond reasonable doubt?’

It seems to me therefore that the Dave Lee Travis jury was troubled by precisely the same doubts – i.e. lack of corroborating evidence – that the High Court said prosecutors should ignore when deciding what cases to bring.

Personally I’m not sure that the gloss put on the Evidential Stage test by the High Court in FB is correct or helpful. My worry is that it may lead to the running of weak cases when allegations of sexual misconduct are concerned. The High Court described the alternative as the “bookmakers approach”. If that means, as well as can be done, a cool and objective estimation of whether the chances of success are 51% or above, and if not, dropping the case; perhaps that is not such a bad thing. Let me explain why:

First of all it seems anomalous to have one test for whether to charge defendants in the general run of cases, and what amounts at least to a “different interpretation” of the test for sex cases.

Secondly, with respect, I’d suggest that the High Court risked engaging in a little “statistical guesswork” itself when saying that convictions are hard to obtain in certain types of cases. Certainly no empirical evidence to this effect was referred to in the judgment. In my opinion, it is not that convictions are hard to obtain in certain types of cases, it is that convictions are hard to obain in cases where the evidence is essentially one person’s word against another – and sex cases are more likely that others to fall into that category. But they are not the only kind of case where this problem applies: FB itself wasn’t a sex case, but one of wounding with intent, the kind of case that is a staple of CPS work. It’s hard therefore to see why the problem of the evidence being one person’s word against another should be treated differently depending on the nature of the allegation.

A point made by the High Court was that prosecutors should not adopt what was described as “a corroboration requirement which Parliament has abolished”. I’m not quite sure to what this was intended to refer. There was an old rule requiring corroboration, but it applied to a very narrow category of cases, not including rape or indecent assault.

The wider corroboration rules, which is what I believe the High Court had in mind, did not concern whether cases should be brought or not, but simply required judges to warn juries in cases where there was no corroboration. They were abolished in 1995.

My point, therefore, is that adopting a “probability-based” interpretation of the Evidential Stage test would not be to restore a corroboration requirement as abolished by Parliament, because, in relation to rape and indecent assault certainly, there never was such a corroboration requirement in the first place.

Rape and other sexual offences are horrible crimes that can damage people for life. Having read the heart-rending accounts of many complainants in such cases I don’t need anyone to convice me of that. I can also speak with some authority on the subject of how difficult it can be to make a decision to prosecute or not prosecute a case. It is very tempting, when reading moving accounts from complainants, to feel that not to take on their case would be a betrayal of them. It’s very tempting to think “Well, we’ll let it run and see what happens”. That is why the strictures of the Evidential Stage test are so important: it really does no-one any favours to build up a victim’s hopes, to put them through months of anxiety about giving evidence, to oblige them to relive their experiences in the witness box, where there is not even a 50/50 chance of a conviction – whatever the type of case and the good intentions of the prosecutors.

The CPS works within the confines of our criminal justice system and part of that system is that juries are instructed in the firmest terms: unless you are sure the defendant is guilty you must acquit him. That is obviously what was concerning the jury in the Dave Lee Travis case.

I don’t know the details of the Bill Roache or Dave Lee Travis cases: whether they were apparently weak cases, strong cases or somewhere in between. Whatever the merits, they at least serve as an opportunity to consider the guidance given to prosecutors in such cases. In my opinion there is an argument that such guidance should be consistent with guidance in other cases: that everything must be done to build a case, to gather all available evidence, but once that has been done – if there is not a better than evens chance of achieving a conviction that case should not be run.

By David Allan, a barrister specialising in the criminal law.

Follow David on Twitter: @DavidAllanLegal

A copper’s view of a typical Friday night – Part I

(c) Flickr / Lee J Haywood

(c) Flickr / Lee J Haywood

It’s a Friday night and I’m on night shift.  My shift officially starts at 10pm however at 9:40pm I am in my uniform with my radio and CS gas sitting in a briefing with the rest of my shift.

The briefing starts by covering any major overnight crime patterns such as a spate of burglaries or car thefts.  Next up is the list of people who are under curfew and who must be checked to ensure that they are at the correct address.  We will be informed of any “targets” to keep an eye out for.  These “targets” are usually prolific offenders who are often wanted on warrant, for breach of bail or are suspected as being involved in a crime and are to be arrested and interviewed about the offence if seen.

The final point is to tell me who I will be working with that night.  The Force has a “safe crewing” policy.  This means that my supervision (usually a Sergeant overseen by an Inspector) has made a risk assessment and decided whether it is safe for us to be on our own (single crewed) or teamed up with someone (double crewed).  As it’s a night shift, it is almost certain that everyone on the shift will be double crewed.

By 9:55pm on a normal night shift, the call would be made over the radio to “call the cars in”, in other words have the back shift return to the station to hand the cars over to the night shift.  The back shift are usually due to finish at midnight so the last two hours gives them a chance to catch up on their paperwork.

Tonight is a Friday night so, just like a Saturday night, the back shift are working until 3am in the cars whilst we patrol the town centre on foot providing a “high visibility” presence.  In other words, the big bosses know that it looks good in the press if Officers are patrolling on foot rather than sitting in cars all night.

The station is only five minutes walk from the town centre and soon a whole shift of around 16 Officers are patrolling along a half-mile stretch of road trying to stay warm and keeping an eye out for trouble.

Within 15 minutes I am waved over by a doorman (they do not like to be called “bouncers”) at a nightclub.  As I approach the club I can see and hear someone waving their arms and shouting at the staff.  One doorman tells me that they have refused entry to the man as he does not have any ID on him.  The man who looks like he is in his mid-teens is obviously not happy about this and my arrival does not calm him down.

He is obviously drunk and in between a LOT of swearing and with accompanying arm gestures, he tells me in no uncertain terms that his girlfriend is already in the club and that he should be allowed in to see her and they (the door staff) are threatening his relationship.

Although he already fits the criteria to allow me to arrest him for being drunk and disorderly ie he is in a public place, he is drunk and his behaviour is disorderly, I really don’t want to spoil his night just because he does not have any ID on him so I start out on my three stage course of action: ask, warn, then if all else fails, arrest.  About 9 times out of 10, this will defuse the situation without me having to arrest anyone and ruining someone’s night.

To begin with, I ask him to calm down and stop swearing.  He takes a deep breath and stops waving his arms about.  So far so good.  I ask him how old he is.  After another bout of swearing, he eventually tells me that he is 23 and holds up his fingers in case we don’t know what the numbers 2 and 3 look like, making sure that he makes the ‘V’ sign for the 2.

Although he is shouting, swearing and waving his arms again, he is not really bothering anyone or getting in anyone’s way so I go to the next step in an attempt to diffuse the situation.  “I’ve asked you to stop swearing and calm down, now I’m telling you, stop swearing and calm down or you will be arrested”.  That’s the warning and hopefully that will make him see that it really is time to calm down.

He looks me and my colleague up and down and appears to accept that he is not going to get in to the club tonight.  As he walks away he glances over his should and tells us: “I pay your wages, this is a disgrace”.

Ah, the old “I pay your wages” line.  If I had a penny for every time I had heard that one I would have retired after a year in the job.  There are always comebacks to that line however I have always found it best just to ignore it completely as it only fans the flames and every now and then you get a bona fide comedian who just makes you look stupid.

By Officer X

See Part II here