Monthly Archives: May 2014

Chris Denning charged with historic child sex offences

The Guardian

The Guardian

Introduction

Chris Denning, the 73 year old former radio DJ, was charged with 41 offences on 22nd May 2014. These relate to 22 complainants (all male) between 1967 and 1985. The complainants were aged between nine and 16. This is stated by the CPS to one of the ‘Operation Yewtree’ cases.

 

Charges

The Guardian helpfully set out the full charges that Mr Denning faces:

1. Two offences of indecent assault on a boy aged 12-14 between 1967 and 1970.

2. One offence of indecency with a child and one offence of indecent assault on a boy aged 9-11 between 1969 and 1971.

3. One offence of indecent assault on a boy aged 14-16 between 1971 and 1973.

4. Two offences of indecent assault on a boy aged 14-15 in 1973.

5. One offence of indecent assault on a boy and one offence of buggery of a boy aged 13-14 between 1973 and 1975.

6. One offence of indecency with a child and two offences of indecent assault on a boy aged 12-14 between 1976 and 1977.

7. One offence of indecent assault on a boy aged 14 between 1978 and 1979.

8. One offence of indecent assault on a boy aged 14 between 1978 and 1979.

9. One offence of buggery and two offences of indecent assault on a boy aged 14-15 between 1978 and 1979.

10. One offence of indecent assault on a boy aged 12 between 1978 and 1979.

11. Two offences of indecent assault on a boy aged 13-15 between 1978 and 1980.

12. Two offences of indecent assault on a boy aged 12 between 1979 and 1980.

13. One offence of indecency with a child on a boy aged 12-14 between 1981 and 1982.

14. Two offences of indecent assault and one offence of attempted buggery on a boy aged 10-13 between 1980 and 1983.

15. Two offences of indecent assault on a boy aged 10-13 between 1980 and 1983.

16. One offence of indecent assault on a boy aged 12 between 1982 and 1983.

17. Two offences of indecent assault on a boy aged 13-14 between 1982 and 1983.

18. One offence of indecent assault on a boy aged 14 in 1983.

19. One offence of indecent assault and one offence of indecency with a child on a boy aged 11-12 in 1982.

20. Three offences of indecent assault on a boy aged 12-14 between 1983 and 1984.

21. Two offences of indecent assault on a boy aged 12-13 between 1983 and 1984.

22. Two offences of indecent assault on a boy aged 16 between 1984 and 1985.

 

Sentencing Powers

This is set out for interest, not any comment as to Mr Denning’s guilt or otherwise.

  • Indecent Assault – 10 years
  • Indecency with a child – 2 years
  • Buggery – Life Imprisonment
  • Attempted Buggery  – 10 years

We have a fact sheet on historic sexual offences.

Mr Denning will be in Court on 23rd May 2014. We will come back to this at a later stage, but won’t say anything further at this stage for obvious reasons.

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Frederick Glenister Conditionally Discharged for egging Nigel Farage

The Guardian

The Guardian

Introduction

We looked last summer at the law relating to throwing foodstuffs at politicians (further spoiler alert – it’s illegal). Well, Mr Frederick Glenister may not have read that because when Nigel Farage came to Nottingham on 1st May 2014 he let rip with an egg.

It wasn’t just that he was returning from shopping and took an egg out of his bag, he went to the local Tescos and bought a six pack. Suitably armed he returned to Mr Farage’s rally and did what any man with an egg and politician would  do.

Mr Farage was unharmed (but his suit did have to be dry cleaned for an undisclosed sum). Mr Glenister was charged with Common Assault and pleaded guilty, being sentenced on 22nd May 2014 (appropriately enough the day of the European Elections) to a 12 month Conditional Discharge.

 

Sentence

The news report from the Guardian contained some useful detail of the sentencing remarks. The starting point is the Assault Sentencing Guidelines (even though these are generally aimed at the Crown Court). Looking at page 23 and the news report, we can see that the magistrates put it in Category 3 – lesser harm and lower culpability, which must surely be right.

The starting point is a fine, with a range of a discharge to a fine. On that basis, Mr Glenister got what one would expect. One point with which I would disagree with the magistrates is where they say that the offence included “gratuitous degradation of victim“. Whilst it was embarrassing, I really don’t think that that was what the Council had in mind…

All in all, the sentence (being pretty much the lowest sentence you can get) is a fair one.

 

Why was he prosecuted? Why wasn’t he cautioned?

This seems to have featured in the mitigation (where his lawyer asked for an absolute discharge). Looking at when you caution someone, it would seem that this is a suitable case fora caution. Mr Glenister may not have any remorse (and may in fact be proud of what he did) but that doesn’t stop the fact that he did admit his guilt.

It is possible to challenge the prosecution on the basis that it is an ‘abuse of process’ as the public interest test is not met, although this is nigh on impossible (see Adaway [2004] EWCA Crim 2831 as one example that would probably not succeed nowadays). We don’t know why this was prosecuted, but it was probably not such an outrageous decision that should mean that the court should have intervened.

The defence asked for an absolute discharge. This can only be given where there is no moral blame. In this case, whilst some may have applauded Mr Glenister, what he did was illegal and he knew it. For that reason, an absolute discharge would not have been appropriate.

 

Did the Guardian get the story right?

Well, it wasn’t perfect… the news report said that Mr Glenister had to pay ‘£200 costs’. Later in the story, it was clarified to say that ‘£200 costs order included £100 compensation to the victim‘. We suspect that that is also incorrect.

A standard costs order for this sort of case in the magistrates court would be £85. There is a mandatory £15 Victim Surcharge for a Conditional Discharge. This makes £100. Add in the Compensation and that makes £200. We guess that that is how the financial orders were broken down.

We have a fact sheet on Compensation Orders – the fact that the compensation was £100 doesn’t mean that the suit cost that much to dry clean. It could be more than that and Mr Glenister is not a wealthy man, or it could be less than that and Mr Farage got a bit of bonus for the embarrassment of being pictured in public with egg on his face.

 

Guardian

The Guardian

Marine A (Sergeant Blackman) – Conviction upheld, sentence reduced

BBC Photo

BBC Photo

Introduction

We looked at the case of Sgnt Blackman when he was convicted of murder last year, and the inevitable appeal that followed.

We predicted that he would lose the appeal against the conviction for murder, but have a couple of years knocked off his 10 year tariff, taking it down to 8.

On 22nd May 2014 we found out what happened …

 

Judgment

The Court of Appeal gave a written judgment, which is well worth reading.

The conviction appeal tackled the legality of the Court Martial head on, saying (para 16) “it is a fundamental feature of the system of criminal justice in England and Wales, emblematic of a democracy, that those facing serious criminal charges are entitled to be tried before 12 members of the public and can only be convicted by a majority of at least 10 of the 12” which is not the case in a Court Martial.

The most interesting part of the argument put forward, to me at least, was “A simple majority conviction is said to be inherently unsafe because it demonstrates sufficient doubt to defeat the criminal standard of proof.“This was always going to be a tricky argument to run, as it had been considered (and rejected) in the case of Twaite [2010] EWCA Crim 2973.

The attempt to get round this used Art 14 ECHR (non-discrimination). The Court of Appeal had little difficulty in knocking that one on the head. They did raise the question of whether Mr Blackman should have been tried by a civilian jury, but did not go much further than that because he didn’t object to a Court Martial.

Of more concern to the Court was the appeal against sentence. There was no challenge to the mandatory life sentence, the only issue was the tariff. The Court of Appeal concluded (para 75-76) that greater weight should have been given to the combat stress in the circumstances of the case. More interestingly, they concluded that there was no need for any element of deterrence in the sentence, given all the factors.

For this reason, the tariff was reduced to 8 years.

 

Comment

The appeal against conviction was always doomed to fail. It does, to my mind, raise some important questions. If 10 out of 12 members of a jury (or 2 out of 3 magistrates, or 3 out of 5 members of a Court Martial) are sure of an individual’s guilt, how can one say that the jury (or bench or panel) is sure?

This is a conceptual problem that arises with majority verdicts that has always troubled me. I completely understand the rationale for majority verdicts, but if at least 17% of the people hearing the case do not believe that the person before them is guilty can we really say that that person’s guilt is proved beyond a reasonable doubt?

The sentence appeal is fair enough, although still perhaps too high in my mind. What it does show (to me at least) is the iniquity of the mandatory life sentence. Mr Blackman committed this murder in unique circumstances and I believe that a life sentence is unjust. Mandatory sentencing always gives rise to injustice, and this is a good demonstration of that -and would be a perfect case to tackle the sentencing laws for murder.

If, as in some jurisdictions, juries had a role in sentencing and had the option to impose a life sentence or not, then I have no doubt that one would not have been imposed. Maybe this is a step that could be taken?

Finally, if Mr Blackman had had a trial in a Crown Court would he have been convicted? He is undoubtedly guilty of murder, but this is a prime case where a jury may have found a way out, possibly by convicting him of manslaughter rather than murder.

It would be nice if this case gave rise to a public debate over the issues raised.

Big win for Government in Operation Cotton

Chris Grayling this morning (Huffington Post)

Chris Grayling this morning (Huffington Post)

Introduction

One of the talks of the legal world (at least the legal aid world) recently is the case of Operation Cotton. The question of the lawfulness of the legal aid cuts (although this is not what it is stated to be, that is the effect) came to the Court of Appeal.

For some background reading:

 

Judgment

The judgment was handed down on 21st May 2014. It is worth reading in full.

In essence, the Court accepted that any issue as to conflict had been resolved by the PDS Code of Conduct being changed to allow for representatives to act where there is a conflict.

The Court dismissed the Judge’s view that, as the prosecution was an arm of the same state that had caused the lack of representation by cutting legal aid rates, this was an important factor, saying “In our judgment, it is quite wrong, for present purposes, to seek to link, effectively as one, the FCA as prosecuting authority and those responsible for the provision of legal aid or to speak of “its own failure” as if there was a joint enterprise in which both were involved” (para 29).
 

What the case came down to there’re was “Is there a realistic prospect of competent advocates with sufficient time to prepare being available in the foreseeable future?” (Para 46).

The Court held that the Judge’s finding of fact was unreasonable (normally a very high threshold). In fact, there may be a resolution with the bar, but even if not, the PDS can expand to fill the gaps.

For that reason, the stay was overturned and it’s back to Southwark they go. The MoJ will now be in a race against time to make sure they have enough PDS advocates to deal with this one as well as the two other VHCCs coming in September.

Comment
This is a very important case. There is a lot to be said about it, but am currently at court and doing all this off my phone, so will return to it later. Until then, if you have any views, feel free to post them in the comments section.

 

 

From the Times

From the Times

Sgt Danny Nightingale refused permission to appeal conviction

nightingale

Introduction

On 20 May 2014, Sgt Danny Nightingale was refused leave to appeal against his conviction.

What does that mean?

When someone wants to appeal against conviction or sentence, they have to apply for permission. This is reviewed by the Single Judge (a High Court judge who looks at the case papers but doesn’t hear any oral argument) and permission is either granted or refused.

If permission is refused, the appellant has the opportunity to ‘renew’ the application before the full court. This means that the application goes before the court (in front of two or three judges, as appropriate) for an oral hearing. At that hearing, the appellant must apply for permission to appeal again. If it is granted, the court then hears the appeal, if it is refused, that is the end of the line.

We have a fact sheet on the appeals process which contains further details.

Ok, so remind me of the history of the Nightingale case…

Well, where to start? But in essence…

  • He was charged with possession of a prohibited weapon and ammunition.
  • He pleaded guilty and was sentenced.
  • We have a short post on the basic background up to this point here.
  • He appealed against his sentence, and was successful.
  • See here for a post about the sentence appeal.
  • He then applied to vacate his plea (withdraw it, essentially) so that he could plead not guilty and have a trial.
  • He then made an abuse of process application – an attempt to stop the trial from proceeding. See our post on that, here.
  • He was tried and was convicted at the retrial. We have a fact sheet on that here.
  • He was then sentenced (again).
  • It now appears that he appealed against his conviction, again. See here for an ITV news report.

So what happened?

It is our understanding that Nightingale applied for permission to appeal and was refused by the Single Judge. We then believe that he renewed that application before the full court, led by the Lord Chief Justice.

That application was refused – Nightingale failed in his attempt to have a full hearing about his appeal.

The court will have reviewed the grounds of appeal – the reasons why Nightingale says his conviction is unsafe – and decided that the conviction was safe.

And what happens next?

Well, that will most likely be the end of the line for Nightingale. There is an avenue to appeal to the Supreme Court but that has to be on the basis that there is a point of law of general public importance. On the information we have seen, it would appear that this is not such a case. Further, this can only be a possibility where the Court of Appeal grants leave to appeal and then dismisses the actual appeal. Here, it seems that the Court of Appeal simply refused to grant permission to appeal.

So Nightingale is left with a conviction for firearms, and thousands upon thousands of pounds of public money (to pay for the court time) and Nightingale’s supporters’ money (to pay for his lawyers) has been spent.

Jayne Rand : Handbag thief to repay £117,171

Photo from the Express

                           Photo from the Express

Introduction

We covered the case of Jayne Rand who was sentenced to 18 months imprisonment last October after having stolen 905 handbags, some to order. As we noted at the time, Ms Rand had made about £88,000 from a buying and selling business on ebay “which may well be the subject of confiscation proceedings in due course“.

Well, in due course was the 20th May 2014 as the BBC reported that Ms Rand had been made the subject of a Confiscation Order in the sum of £117,171.

 

What is a Confiscation Order?

We would direct you to our fact sheet on confiscation, but er, we haven’t got one. It’s now on our to do list.

The theory is that if people make money from a criminal activity then they should not be able to keep it and so a Confiscation Order can be made to deprive them of the benefit, not as an additional punishment.

The practice is different – it is a fiendishly complicated area of law and often works to be grossly unfair on some individual cases (this isn’t my view – it’s pretty much well acknowledged). In this case, without knowing more details, it is not possible to say where this falls.

 

Did she appeal?

At the time of the sentence we opined that the sentence may be a bit too long. We have searched the caselaw databases and can’t find any record of the Court of Appeal having heard an appeal against sentence by her. That is not definitive, but it appears that if Ms Rand did try to appeal, she did not get very far …

Royal Marine escapes jail after biting head off a pigeon

Photo from Wales online

Photo from Wales online

Introduction

It’s been a good few years since I’ve had a night out in Cardiff. There are various reasons for that, one being that I am simply not hard enough.

Proof of that, if proof were needed, is given by Commando Adam Karmali, a 33 year old Royal Marine. After possibly having drunk too much, Mr Karmali posed with the pigeons head in his mouth for pictures to be taken by his friends.

Mr Karmali seemingly got a bit carried away at that point and bit his (or her, the reports aren’t clear) head off before spitting it out. This did not impressive some other people who were out and about and the police were called. In something you’d expect to see in a CSI programme, the police obtained a DNA sample from the bodiless pigeon head which lead to Mr Karmali.

On 15th May 2014 after having pleaded guilty, Mr Karmali was given a 12 month Community Order and required to undertake 150 hours unpaid work, as well as paying the Victim Surcharge of £60 and £85 costs.

 

What was the offence?

It was reported as being not taking all reasonable steps to ensure the needs of an animal he was responsible for were met“. This would be an offence under s9 Animal Welfare Act 2006. This would require that Mr Karmali was ‘responsible’ for the bird.

Although it would appear that the pigeon was a free spirit, untamed by human hand, by virtue of s3 Animal Welfare Act 2006,

(1) In this Act, references to a person responsible for an animal are to a person responsible for an animal whether on a permanent or temporary basis.

(2) In this Act, references to being responsible for an animal include being in charge of it.

Mr Karmali would have been ‘responsible’ for the pigeon from the moment he picked it up. I would have thought that an offence under s4 – causing unnecessary suffering – would have been a more obvious charge.

It is unclear whether the pigeon’s death was painful or not, but it would be an ambitious ask to run a trial on the basis that no injury was caused (have a look at a case of a squirrel shooter last year).

 

Comment

There are the Magistrates’ Court Sentencing Guidelines (page 40). This doesn’t fit too comfortably in the three brackets, but it would not be wrong to put it in the most serious category – it’s a pretty gruesome offence after all. We wouldn’t expect an appeal from this one.

 

 

Homing_pigeon