Monthly Archives: May 2014

Steven Peers not to be prosecuted for impersonating a police officer (by wearing a toy helmet and pig mask)

DTR_MEN_230514PEERS_01

 

We covered the case of the man, now named as 46 year old Steven Peers, arrested for wearing a toy police officers helmet and pig mask last week. Well, common sense has prevailed and Mr Peers will not be prosecuted for any offences relating to his action.

There are now more details of Mr Peers motivation. Apparently, his purpose is to perform ‘comical parodies’ of the Greater Manchester Police. Whilst wearing his faux police outfit he calls himself ‘Officer 666’ which he does to highlight ‘violence, corruption and bad behaviour’ carried out be Manchester police.

The Police haven’t stated why they won’t be prosecuting Mr Peers – whether it was felt that there was not sufficient evidence to get a conviction or there was no public interest in prosecuting Mr Peers. We would hazard a guess that it was both. At least after this was publicised and they looked ridiculous in the press …

Age of criminal responsibility – University of York research

We were contacted by a student at the University of York who is conducting some research into which social influences have led to our current juvenile justice policy with a focus on examining the age of criminal responsibility.

The age is currently 10 years old – but this is subject which is very controversial. There’s a Bill in Parliament to raise the age but that currently seems to be going no where fast.

The research seeks to examine the attitudes of the public to the age of criminal responsibility and whether it ought to be raised above the age of 10.

Can you help?

The number of participants in the research is obviously key and we’re asking whether you, dear reader, can help.

If you can spare a few minutes, please follow this link and complete the questionnaire on what is undoubtedly a very important subject.

Skullcracker gets another life sentence for another robbery

From the BBC News website

From the BBC News website

Michael Wheatley – the Skullcracker – pleaded guilty to robbery, possession of a firearm and being unlawfully at large on 7 May.

On 29 May, he was sentenced to life imprisonment with a minimum period of 10 years.

Wheatley was in prison for numerous armed robberies. He was on day release and failed to return. Predictably, he went and robbed a bank (£18,000) and was subsequently caught in east London.

Previous

As has been widely publicised, he had extensive previous. He had 23 previous convictions for robbery, two for attempted robbery and 18 for related firearms offences.

In 2002, he was given 13 life sentences for bank robberies.

Escape

He was serving a life sentence at an open prison when he failed to return from day release.

The BBC reported that ‘He had gone on the run twice in the past and each time staged a series of violent robberies before being caught and re-jailed.’

Sentence

So a straightforward life sentence? Er, not quite.

Wheatley was sentenced for the robbery and the related firearm counts. There are four types of life sentence in England and Wales:

1)      Mandatory life (murder cases only)

2)      Discretionary life (where the offender is ‘dangerous’)

3)      Discretionary life (where the offender is not ‘dangerous’)

4)      Automatic life (where the offender has particular previous convictions)

So which applies here?

Considering his previous convictions, it is undoubted that Wheatley is ‘dangerous’ within the meaning of the Criminal Justice Act 2003 which provides the power to imprison someone for life.

But also, due to his previous convictions, automatic life (also known as ‘two strikes life’) also applies. Here’s why:

a)      At the time of the new offence, Wheatley has a previous conviction (more than one actually) for armed robbery – this is a requirement under CJA 2003 Sch 15B

b)      The sentence(s) received a custodial term of either 10 years + or a life sentence

c)      He now, after 3 December 2012 (because that is when the automatic life sentence was available from) has another conviction for a CJA 2003 Sch 15B offence – armed robbery

d)     The sentence for the new offence is worth 10 years + or life

We don’t have a transcript so it may be that the Judge got it bang on. But what should have happened? The Judge should have considered dangerousness and recorded that Wheatley was dangerous and therefore was receiving a life sentence under those provisions. He should then have considered automatic life and recorded that Wheatley was also subject to those provisions.

Anything else?

The Judge should probably have made an order for Wheatley to pay £120 victim surcharge, although due to sloppy legistlative drafting this is not entirely clear.

A point of note

The way in which the automatic life sentence works means that in very rare cases, someone could receive a life sentence for an offence which does not carry life as its maximum. Here’s why:

The list of offences in Sch 15B contains offences which do not carry life as a maximum – making etc. indecent images of children (10 years) for example. If a person had a conviction for rape (max sentence life) and received 12 years, and then subsequently was convicted of the indecent images offence, and would (but for the automatic life provisions) receive the maximum 10 year sentence, automatic life would apply and they would be  in line for a life sentence, even though the new offence a) wasn’t ‘worth’ a life sentence and b) the maximum sentence for the new offence wasn’t life imprisonment.

Funny huh?

So why doesn’t life mean life?

We had a look at this issue previously, here. In essence, the ‘life’ in life sentence refers not to the imprisonment, but the sentence as a whole, being made up of a custodial term, and the life licence which the offender is subject to upon his or her release.

 

More trouble for the UK? Whole life tariffs in the ECHR again – Magyar v Hungary

Photo from Channel 4

Photo from Channel 4

Introduction

Back in February we had a look at the case of McLoughlin as the Court of Appeal turned to the question of whether whole life tariffs are lawful and it was concluded that they were. In it, we opined that it was not the end of the argument, but just (yet) another step along the way.

Well, on 20th May 2014 the ECHR had another look at the issue in the case of Laszlo Magyar v Hungary [2014] ECHR 491.

 

Judgment

Mr Magyar was convicted of three murders committed during the course of numerous burglaries of elderly people – the sort of case that might well attract a whole life tariff her. For this he received a life sentence where eligibility for parole was excluded.

The only possibility for release was by a Presidential Pardon. The Court re-iterated their conclusions in Vinter v UK saying (para 50) –

in determining whether a life sentence in a given case can be regarded as irreducible, the Court has sought, for the reasons outlined in Vinter (cited above, §§ 110-118), to ascertain whether a life prisoner can be said to have any prospect of release. Where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 (see Kafkaris, cited above, § 98). Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds (see Vinter, cited above, § 119).

Further (para 53) in terms of when the breach arises “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. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration“.

The Court held that as the Presidential Pardon did not require consideration of whether the “continued imprisonment is justified on legitimate penological grounds. Although the authorities have a general duty to collect information about the prisoner and enclose it with the pardon request (see section 597(5) of the Code of Criminal Procedure, cited in paragraph 21 above), the law does not provide for any specific guidance as to what kind of criteria or conditions are to be taken into account in the gathering and organisation of such personal particulars and in the assessment of the request“.

Because the law did not “allow any prisoner to know what he or she must do to be considered for release and under what conditions.” there was a breach of Art 3.

 

Comment

The Court confirms what they said in Vinter. There is no consideration (unsurprisingly) of McGloughlin. The difficulties thrown up by the ECHR was resolved in a carefully worded compromise by the Court of Appeal relying on s30 Crime (Sentences) Act 1997.

We know that Mr Newell applied for permission to appeal to the Supreme Court, this being refused in April. It is anticipated that he will shortly be putting an application in to the ECHR.

What will Strasbourg make of it? Whilst of course s30 is different to a Presidential Pardon, we would suggest that the fundamental problem with s30 is (as stated previously) it does not give sufficient clarity or certainty. To say that this provides a sufficient safeguard because somebody can be released if the continued detention is a breach of Art 3 is to beg the question.

What does a prisoner, sentenced today to a whole life tariff, have to do to get considered for release in due course? The answer is ‘we don’t know‘. For this reason, it seems pretty clear to me that the UK’s system of sentencing with respect to whole life tariffs is contrary to Art 3.

The Lifer Manual has not been rewritten and, contrary to what the Court of Appeal think (para 31), it is highly doubtful that ‘exceptional circumstances’ is sufficiently clear. It may be that there could be sufficient clarity so as to make it compatible, but I imagine that even if this happens there will still be problems ahead that it is a decision of the Executive not an independent Judiciary.

 

What happens now? Further Comment 

If (or when) the Courts in England and Wales come to reconsider this, I imagine that they will try to uphold the current position based on the difference (that undoubtedly exist) between s30 and a Presidential Pardon. It may be that greater clarity will be given to the Life Manual.

Will this work? I suspect that the answer will be, in the long run, no – the answer to the Court of Appeal’s conclusion in McLoughlin will be ‘close but no cigar’. They have staved off the ECHR, but this is a temporary reprieve rather than a permanent victory for the UK.

Of course, the UK could save us all a lot of money and time by allowing for a judicial review after 25 years or anyone with a longer tariff.  The refusal to do this smacks of childishness on the part of the Government.

Edward McKenzie-Green, Oxfam Fraud officer, jailed for fraud

Photograph from the Telegraph

                 Photograph from the Telegraph

Introduction

We covered the case of Edward McKenzie-Green, the Oxfam Fraud Officer who pleaded guilty to defrauding Oxfam of £64,612.58 (up from £62,857.58 as it was previously stated to be) last month.

On 27th May 2014 Mr McKenzie-Green was sentenced to 2 years and 5 months imprisonment (29 months) for this.

 

Analysis

We said that, looking at the Theft Guidelines, the starting point would be just over 3 years which would be reduced for the plea of guilty. The actual sentence would appear to be about what we predicted – if you start at just over three years and reduce it by a sixth then this would be about where we ended up.

For that reason, we would not expect any appeal to be successful. We imagine that there will be confiscation proceedings against Mr McKenzie-Green in due course.

Man wearing pig mask and toy police officer’s helmet arrested for impersonating an officer

 

 

From the MEN

From the MEN

Well, where to begin with this one?

A dis-grunt-led Steven Peers was arrested on suspicion of impersonating a police officer. He was in Manchester City Centre wearing a toy police officer’s hat, a pig mask and a hi-vis jacket.

Why?

The MEN reports:

Steven Peers said he has often donned the mock outfit to perform ‘comical parodies’ of Greater Manchester Police after becoming unhappy with how officers behaved during the Barton Moss anti-fracking protests.

He was reportedly filming sketches when he was stopped by an officer who asked questions about his outfit. He was arrested (without resistance so no need for a hambulance) detained for 8 hours and then bailed. The outfit was confiscated.

Peers huffed and puffed and said: ‘It’s ridiculous’…’ It’s just a parody making fun of GMP. I’ve dressed like this at Barton Moss, in front of Swinton police station and in front of the force HQ in Newton Heath. Other officers have laughed it off.’

What’s the offence?

Police Act 1996 s 90 created offences relating to the impersonation of a police officer:

(1)  Any person who with intent to deceive impersonates a member of a police force or special constable, or makes any statement or does any act calculated falsely to suggest that he is such a member or constable, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(2)  Any person who, not being a constable, wears any article of police uniform in circumstances where it gives him an appearance so nearly resembling that of a member of a police force as to be calculated to deceive shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3)  Any person who, not being a member of a police force or special constable, has in his possession any article of police uniform shall, unless he proves that he obtained possession of that article lawfully and has possession of it for a lawful purpose, be guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale.

We shan’t comment on which we think it is most likely he will be charged with – if at all – but all three offences are triable only in the Magistrates’ Court with only subsection (1) having a custodial sentence available.

Comment

We’re rather limited as to what we can say about this for obvious reasons, but we’ll certainly return to this as and when it pops up in the news.

Let’s hope he has a good brief to save his bacon (sorry-couldn’t resist). We would imagine that, given the pig mask, it is unlikely that a member of the public would have mistaken that for a genuine police officer.

Other cases

A quick Google led me to these three idiots:

To get donuts

Directing traffic

At a funeral

 

 

Stuart Hall sentenced to 2.5 yrs for two counts of indecent assault

 

Photo from the Mirror

Photo from the Mirror

Introduction

We covered the case of Stuart Hall who was acquitted of all charges of rape and all but one of indecent assault last Friday. He fell to be sentenced for the one offence of indecent assault that he was convicted of as well as one that he had pleaded guilty to at the start of the trial.

These offences were committed against the same victim.

Count 19 – Indecent assault – Guilty plea

The victim was aged 13. Hall was invited to supper at the victim’s parents house. The victim, with Hall’s son, consumed a quantity of alcohol and was sick. She went to bed and Hall entered her bedroom and digitally penetrated her with his fingers. At one point he tried to get on top of her but eventually desisted. He had also indecently assaulted the victim’s friend, who was also present. He pleaded guilty to that count last year and was sentenced to 15 months.

Sentence: Starting at 18 months. 6 months discount for pleading guilty. 12 months

Count 21 – Indecent assault – Convicted

Hall had admitted having a sexual relationship with  the victim, aged then 15. He would buy her champagne and presents and take her to football matches on which he would commentate. He was convicted of one count of indecent assault; the jury found that oral sex occurred between Hall and the victim. Because the offence of unlawful sexual intercourse can no longer be prosecuted due to a time bar, the intercourse cannot be prosecuted unless they are indicted as rape. The jury returned not guilty verdicts on those counts and so this offence has to be prosecuted as indecent assault.

Sentence: 18 months

Sentencing remarks

The Judge’s remarks are available here. They are worth a read if you want to understand the nature of the offences and the way in which the Judge arrived at his final decision as to sentence.

What about the sentences Hall is already serving?

Stuart Hall was sentenced to 12 months and 18 months consecutive, making a total of 2 1/2 years. That is to be served consecutively to the sentence of 2 1/2 years he is already serving.

The Judge considered that because the victims of these two offences were separate from those in respect of which he pleaded guilty last year, notwithstanding that one offence occurred on the same evening against a different victim, consecutive sentences were appropriate.

Analysis

The starting point is the Sexual Offences Guidelines and the sentence that would be passed if the offences were committed today (see our fact sheet here).

Indecent assault has a maximum sentence of two years for these offences and so the Judge had to work within that maximum.

The primary issue for the Judge to consider was totality both in respect of the sentences that Hall is currently serving and in relation to the two counts against the same victim.

Concurrent or consecutive with one another?

Where offences are committed against the same victim, often courts will pass concurrent sentences, ensuring that the total is proportionate to the overall offending. In this case, the Judge made the sentences consecutive. That is because the two offences were very different in nature and committed at very different times – one when the victim was aged 13 and one when she was aged 15. That analysis appears to me to be correct.

Concurrent or consecutive to his current sentence?

The Totality guideline suggests that where offences were committed before the previous sentence was imposed, the approach should be to consider what the sentence length would have been if the court had dealt with the offences at the same time and ensure that the totality of the sentence is just and proportionate in all the circumstances. If it is not, then an adjustment must be made to the sentence.

The Judge obviously felt that had these two counts been sentenced at the same time as the offences to which Hall pleaded guilty last year there would have been an additional 2.5 years added to the sentence and so no adjustment was necessary.

So, is it too long?

Previously, we would have expected this sentence to have been reduced for totality on the basis that 5 years for all the offending (these two and the ones he pleaded to last year) was too long based on the old law. However, practice is changing and sentences for historic sexual abuse are getting longer. For that reason, we will not be pinning our colours to the mast as to whether an appeal would be successful. Having said that…

Will Hall be off to the Court of Appeal?

I would think he is likely to receive permission to appeal. The outcome of the Max Clifford sentence appeal will be instructive as to whether a complaint such as this about the length of the sentence for historic sexual offences is likely to result in any reduction in sentence…so we will refrain from committing ourselves either way just yet.