Monthly Archives: June 2014

‘Hapless Hitmen’ have appeals dismissed – Jason Richards and Ben Hope

Photo from ITV

Photo from ITV


We always like to come back to cases previously covered on the blog, and the Court of Appeal’s judgment on 17th June 2014 in the case of Richards & Hope [2014] EWCA Crim 1196 gives us the chance to dust off a post from February of last year when they were convicted of murder.



The judgement of the Court of Appeal sets out the facts and the evidence against the two men. In brief, the prosecution alleged that they had been recruited by a third person to kill a man who was due to give evidence against that person. In what was described in Court by the prosecution as an act of ‘staggering incompetence’ they went the wrong address and stabbed 17 year old Aamir Siddiqui and his parents several times. Aamir’s parents survived (and Mr Richards and Mr Hope were convicted of their attempted murder) but he, tragically, died and the two were convicted of his murder.


Appeal Against Conviction (Mr Richards only)

The appeal was based in part against a cumulation of various points, but mainly on the basis that Mr Hope abandoned his appeal and gave evidence accepting that he had been involved, but exculpating Mr Richards.

This is always a tricky appeal to run and very rarely succeeds. The Lord Chief Justice here quoted a previous case where it was said “ this Court will be very careful before it will admit a confession of guilt by one of two people who have been convicted by a jury of a joint offence. It would be too easy for criminals to seek to share out responsibility so as to get one of them off“.

Of course, it could also be said that someone in the position of Mr Hope has every reason to lie and have a trial in the hope that he gets off, even knowing that the man in the dock next to him isn’t guilty. This is all the more so when he is facing down the barrel of a life sentence with a very long tariff…

But still. Mr Richards had an uphill task and, as was always really going to be case (especially in a murder case) and the Court of Appeal managed to dismiss his application for leave to appeal without breaking sweat.


Appeal Against Sentence

The tariffs for both of them were set at 40 years. As we said at the time, this is one of the longest tariffs ever set. And, whilst the offences were clearly serious, it was not clear why it was that long.

Well, we have a bit more information now from the Court of Appeal. They had the sentencing remarks (which haven’t yet been published), which had distilled the following aggravating factors :

i) It was the murder of a child.

ii) It was committed before the eyes of his parents.

iii) There was a significant degree of premeditation and planning.

iv) There was a joint attempt to murder Aamir’s mother.

v) There was a joint attempt to murder Aamir’s father.

vi) Both Richards and Hope had convictions involving serious violence.

There were no mitigating features.

The Court of Appeal upheld the 40 year tariff, saying “This was an appalling series of crimes for which the minimum term of 40 years was just punishment, reflecting not only the premeditated and brutal nature of the murder and attempted murders but also a deterrent element in respect of contract killings which have no place in any civilised society“.

All the aggravating features are correct, although when one speaks of the murder of a child, it is normally speaking of someone younger than 17 and (iv) and (v) clearly overlap. We would have hoped for a bit more by way of analysis from the Court, partly because of what we said above, and partly because several of these factors are effectively incorporated into the higher starting point of 30 years.

It is also an interesting point as to what extent deterrence has a role to play in setting the tariff for murder – the deterrence is surely in the mandatory sentence of life imprisonment itself?

Having said that, the Judge heard the trial and has a wide discretion in sentencing. A tariff more in the region of 35 years still seems more appropriate to us, but sometimes you have to defer to the Judge’s assessment of the situation.

CPS Consultation on Prosecuting Domestic Violence



What do you think about the way that Domestic Violence is prosecuted? Is it not taken seriously enough, or an example of policy driven prosecuting without regard to the circumstances?

There is a Consultation Homepage where all the material is collected.



This is supposed to supplement the general Code for Crown Prosecutors. There is not necessarily anything wildly new or exciting put forward, just a consolidation and evolution.

Although it is a relatively lengthy document (some 50 odd pages) it is worth a read. Some of it is stating the obvious – the CPS state that cases should be prepared properly. Of course, saying that doesn’t make it happen, which may be a bigger issue.

There may be more controversy over the charging decisions. Cautions are effectively ruled out which may or may not be a good thing. There is a concern that there is to much of a ‘broad brush’ approach.

For example, para 64 : “The police should consider cautions carefully in domestic violence cases. This is because such cases involve a breach of trust and are unlikely to be the first offence“. It is not immediately clear that this correctly states the test for a caution. Many people might find the second sentence there a bit too vague and lacking in evidence.

This is in part due to the overly wide definition of domestic violence. It may  be relevant in many cases, but an argument in a pub between two brothers is also categorised as domestic violence, where it is hard to see an abuse of trust or any evidence that it is not going to be the first offence.

It seems to me that there is a lack of proper consideration of the evidential test – particularly where many (criminal) practitioners are of the suspicion that the CPS use a lower test in practice.

The difficult question of when a complainant should be forced to come to court and/or give evidence is given, in my view, far too little consideration. But there is some good material on how to support complainants and witnesses (again, it could be said that the practice is often somewhat different from the theory).


How to respond

There is a response form which can be downloaded.

The deadline to respond is 9th July 2014.


Louise Pollard – Fake Surrogate Mother jailed for fraud




On 16th June 2014 Louise Pollard, a 28 year old Bristol woman, was jailed for three and a third years for fraud. It was a particular unpleasant one, and provides a good example of a case where the sentencing guidelines don’t apply.

There are more details in the local newspapers if you want to read up on it. In brief, she dealt with couples who were struggling to have children and offered to be a surrogate for them. She would pretend to have inseminated herself and provide a positive pregnancy test from a friend. After a period of time she then pretended to miscarry.

In total she obtained about £12,500 before suspicions were raised and the couples went to the police.



This is a confidence fraud. Looking at the guidelines for this, it is in the 4th column (under £20,000 with a starting point of £10,000). It falls most easily into “Single fraudulent transaction confidence fraud involving targeting of a vulnerable victim” for a starting point of 6 weeks with a range of a Community Order up to 6 months in prison. It could be in the category above – “confidence fraud characterised by a degree of planning and/or multiple transactions” with a starting point of 18 months and a range going from 6 months to 3 years.

It seems that the Judge gave full credit, which would indicate a starting point of 5 years – far above what the guidelines would indicate. So, does that mean that there will be an appeal?

Well, whilst there might be one, we doubt it would be successful. In this case, the substance of the fraud is such as to take it outside of the usual range and the Judge was entitled to start with a much higher sentence than if it had been £12,500 taken from a bank for example.


Is surrogacy legal?

Surrogacy is perfectly legal. The issue over whether someone can be paid for it can get a bit murky. s2 Surrogacy Arrangements Act 1985 makes it an offence for this to be a commercial arrangement. It is perfectly lawful for the reasonable expenses to be covered however.

It is unclear whether there have ever been any prosecutions under the Act.


Malcolm King jailed for walking the streets of Exeter “wearing only pink suspenders and an Alice band”


Western Morning News

Western Morning News


Last year, Malcolm King was sent to prison for going “into a McDonald’s wearing only a blonde wig, sandals and pink gloves“(offence unspecified, but we know it was Plymouth if that helps). He was released from that and on 17th March found himself at a loose end and did what any man would do – strode down the main shopping centre in Exeter “wearing only pink suspenders and an Alice band.

He was arrested and charged with Exposure (contrary to s66 Sexual Offences Act 2003), to which he pleaded guilty. On 12th June 2014 he was sentenced to three months in prison.

The explanation from Mr King appears to have been that “he had drunk a pint of cider in a pub which made him lose control of himself“which is not the most clear mitigation. Mr King is 56 and it seems that he first started offending two years ago.



There are guidelines in the Sexual Offences Guidelines. Looking at page 129 there was no ‘raised harm’ – it was half nine at night and it seems that most of the people weren’t that fussed by it. Neither was there raised culpability.

This gives a starting point (and range) of a Community Order. In this case, Mr King has committed this offence previously and had presumably been recalled having released on licence from his earlier sentence.

In these circumstances, a sentence of imprisonment was inevitable. Three months seems about right given everything. However, as the Judge said “I would like to be able to explore why your life has started to unravel after many years of being a law-abiding citizen.



You can’t help but feel that there is more to this than meets the eye, in particular some sort of mental health issues. This case is different to the Naked Rambler in that here there is a requirement that Mr King intended “that someone will see [his genitals] and be caused alarm or distress.” which does make it more serious.

At some point here it seems that intervention from Probation will be needed to help Mr King in whatever issues that he has – it is very rare for someone to start offending at 54 without some underlying trigger.

For that case, whilst an amusing case perhaps, it’s also quite a sad one.

Secret Trials – initial decision in AB & CD



There was a flurry of interest last week when reporting restrictions were lifted to reveal that there was an application for a whole trial trial to be held in secret. The issue had reached the Court of Appeal before a previous gagging order that prohibited the reporting of the gagging order was lifted.

The idea of a whole trial proceeding without the ability of members of the public to know anything about it, or potentially that it is even happening at all, is a novel one. This is the first time (that we know of) that this had been proposed since 1640. The Kings and Queens of old asserted (to sometimes strong opposition) the right to have trials in secret. This was settled, somewhat dramatically and adversely to him, on 27th January 1649.

Since then, whilst parts of a case has been held in camera (the case of Wang Yam is a good example of this) the principle of open justice has always meant that there has been some information in the public domain.

The trial is scheduled to start on 16th June 2014 and the Court of Appeal reserved judgment until the 12th June 2014.



We have a transcript of what was handed down on 12th June 2014. That’s slightly more convoluted than saying ‘judgment’; because there is a curiosity straight off in para 1 : “Today, we give our Decision on the recent appeal of the media, accompanied by a brief overview. This is not our Judgment; our Judgments (plural, as will be explained presently) have been reserved and will be given in due course

The Court of Appeal allowed some, very limited, aspects of the trial to be held in public. These are:

  1. Swearing in of the jury.
  2. Reading the charges to the Jury.
  3. At least a part of the Judge’s introductory remarks to the Jury.
  4. At least a part of the Prosecution opening.
  5. The verdicts.
  6. If any convictions result, sentencing (subject to any further argument before the trial Judge as to the need for a confidential annexe).

Frankly, this is not all that much. The important thing to see will be how much of the opening is public. This will tell us something at least. Of course it is often the case that the evidence as it comes out during trial is different to that contained in the Prosecution Opening.

We are also allowed to know their names – no longer AB and CD, but Erol Incedal and Mounir Rarmouc-Bouhadjar. As was recognised by the Court at para 21 “We express grave concern as to the cumulative effects of (1) holding a criminal trial in camera and (2) anonymising the defendants. We find it difficult to conceive of a situation where both departures from open justice will be justified. Suffice to say, we are not persuaded of any such justification in the present case.

Mr Incedal is charged with Possessing Bomb Making instructions and preparing acts of terrorism. Mr Rarmouc-Bouhadjar only with the first of those offences, but a separate offence under the Identity Documents Act.

The core finding is at para 14, the Court was “persuaded on the evidence before us that there is a significant risk – at the very least, a serious possibility – that the administration of justice would be frustrated were the trial to be conducted in open Court; for what appears to be good reason on the material we have seen, the Crown might be deterred from continuing with the prosecution“.

Importantly, a small number of journalists will be attending the trial in full (apart from some very sensitive parts). They will be allowed to keep notes but these will be kept by the Court at the end of each day, and at the end of the trial subject to any further order.


Why is it being held in secret?

Well, if we were to know that in detail it would defeat the purpose of the application …


Will the jury be vetted? Is that allowed?

Perhaps surprisingly, this is allowed. It is only in exceptional cases concerned with issues of national security, and requires the permission of the Attorney-General personally. The AG has issued guidance as to how this is conducted.



The idea of trials being in secret is a repellant one. Having said that, there will clearly be cases where a derogation from full openness is required. That is something that most people would agree on, it’s the question of where the line should be drawn that is the difficult one.

Here, without knowing more details (which may or may not be in the judgment), it is hard to say how necessary this is. But it will certainly cause debate.


Walter Compton not to be prosecuted for giving his wife morphine




Manchester Police PR Department are not having the best of months. Last week, Manchester Police said that they wouldn’t be prosecuting a man who was obviously not a police officer for impersonating a police officer. On 11th June 2014 they decided not to take action in the case of Walter Crompton. This would presumably be welcomed by many who felt that he should not have been even arrested.


Mr Crompton, aged 83, was visiting his wife Eileen in a Care Home when he gave her a morphine patch for pain caused by arthritis. He was presumably not authorised to do this, and it seemed to relate to medication previously prescribed to Ms Crompton for a different condition.

This was back in April and after initially being bailed with condition not to visit his wife, the police relented and allowed him to visit provided he was accompanied by a social worker.

It is not stated in the news piece, but it is understood that there was no adverse effects on Ms Compton.

What’s the offence?

It is presumably one contrary to s24 Offences Against the Person Act 1861. The offence requires some to “unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve, or annoy such person“. Here there has to be the intention to cause some harm which was obviously lacking.

Morphine is a Class A drug and illegal to possess, unless prescribed by a doctor. Here, the morphine was for Mrs Compton’s use and she legally possessed it. Mr Compton would have a defence under s5(4)(b) Misuse of Drugs Act 1971 – “that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of delivering it into the custody of a person lawfully entitled to take custody of it and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to deliver it into the custody of such a person.

It’s a bit of a stretch, but if there had been a prosecution, the I’m sure that a jury would do the right thing. It is clear that the CPS would (or better to say ‘should’ as they’re not always reliable) not prosecute in those circumstances in any event.

Should he have been arrested?

There were more reasons to investigate here than with Mr Peers (who was not impersonating a police officer) at least. One can see why it was necessary to check that this was not an attempt by Mr Compton (well intentioned or otherwise) to end his wife’s life.

These sorts of cases can require a bit of investigation, so whilst it seems wrong on the face of it, it was necessary for the police to take some time to make sure. They should probably have been more sensitive in the bail conditions perhaps, and it is not clear whether it was necessary to have arrested him (rather than interview under caution) with all the implications that that has (the Care Home could have only allowed Mr Compton supervised access for example).

Why wouldn’t a defendant give evidence?

D giving evidence


You’ve all seen the films. One of the more dramatic parts will be the defendant ‘taking the stand’ (this is an Americanism – in England and Wales you’d just say ‘give evidence’) and batting off the prosecution lawyers questions with ease. Or get caught out lying as the case may be. You’ve probably also heard of people ‘taking the fifth‘ (again an Americanism).

The basic rule in a criminal trial is that a defendant has an absolute right to give evidence in his own defence. He also has a complete right not to. This idea that he does not have to give evidence was historically unfettered, and was considered to be a fundamental human right. Until 1994. Now, although no-one can force a defendant to give evidence, there are consequences if he doesn’t.

The Law

This is governed by s35 Criminal Justice and Public Order 1994 (part of Michael Howard’s ‘tough on crime’ policy). This states that, provided there is no physical or mental reason why a defendant shouldn’t give evidence, then if they don’t “the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question“.

This has given rise to a huge amount of case law looking at when this applies, and what the Judge should tell the jury when a defendant doesn’t give evidence. The Crown Court Bench Book has the following guidance which judges should make sure the jury are aware of:

  1. The judge will have told the jury that the burden of proof remains up on the prosecution throughout and what the required standard is.
  2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. The right of silence remains.
  3. An inference from failure to give evidence cannot on its own prove guilt.That is expressly stated in section 38(3) of the Act.
  4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.
  5. If, despite any evidence relied upon to explain his silence or in the absence of any such evidence,the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.

Further guidance to Judges is also given :

  • The question whether a section 35 direction should be given and in what terms should be discussed with the advocates before speeches. The defence might well be reminded of the rule that no reason may be advanced to the jury for the defendant’s decision not to give evidence without evidence to support it.Equally, if the judge concludes that no adverse inference is fairly and properly available, the jury should be explicitly directed.
  • In the majority of cases there will be specific issues raised by the evidence for the prosecution,either the truth of the facts asserted or the conclusion to be reached from circumstantial evidence. The immediate inference available for the jury from the defendant’s choice not to give evidence is that the defendant has no answer to give and, accordingly, that the fact or the conclusion, as the case may be, is true. However, it may not follow that a legitimate adverse inference must imply guilt and, where it does not, the jury will be assisted by an explanation to that effect.
  • It maybe, for example,that the defendant’s silences will support the prosecution’s case that he participated in relevant acts. It may or may not, depending on the jury’s view, support the prosecution case as to his specific intent.
  • Where the defendant has given an explanation in a written statement or during interview under caution the jury should consider it as evidence of the truth of its contents. Where the defendant relies upon an interview which consists partly of admission and partly of denial or explanation, discussion with the advocates may be required to identify which parts of the interview are self serving. The judge may make legitimate comment to the effect that a self serving statement was not made under oath and has not been tested by cross-examination.In the rare case when the statement is wholly exculpatory it is admissible as evidence of the defendant’s reaction when first challenged but not in proof of the matters stated.Whether the statement is wholly exculpatory should be judged against the real issues as they appear at trial.

Haven’t you got a right to silence though?

Yes, sort of. That’s why this was so controversial. Nowadays you can’t be forced into giving evidence or speaking in a police interview, but if you don’t then this can be held against you. The legislation is a large inroad into this historic right.

But why wouldn’t you give evidence if you weren’t guilty?

Plenty of reasons. Giving evidence can be very stressful and it is very easy for someone to be made to look guilty. Sometimes there may be valid tactical reasons for someone not to give evidence, even though they are vehemently denying it.

See this (quite amusing) video from America on why you should never speak to the Police.

Government propose to increase level of fines in Magistrates’ Courts

On 10 June 2014, the Government published a draft statutory instrument (an order made by the government upon permission of an Act of Parliament) to raise the levels of fines in the Magistrates’ Court.

This had been in the offing for some time.

In the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Government enacted a provision to remove the cap – currently at £5,000 – on the level of fines imposed by a Magistrates’ Court.

What are the changes?

In essence, fines rise 300%. The current scale is as follows:

Level 1            £200

Level 2            £500

Level 3            £1,000

Level 4            £2,500

Level 5            £5,000

They will increase to:

Level 1            £800 (e.g. not exhibiting an excise licence)

Level 2            £2,000 (e.g. railway fare evasion)

Level 3            £4,000 (e.g. using or keeping an unlicensed vehicle)

Level 4            £10,000 (e.g. failure to produce an insurance certificate or speeding on a motorway)

Level 5            Unlimited (e.g. defective brakes on a goods vehicle)

This does not apply to children and as such the maximums will remain at £250 (under 14) and £1,000 (under 18)

There are exceptions such as importing goods in contravention of prohibitions or restrictions etc. under the Customs and Excise Management Act 1979 and knowingly misusing marked oil under the Hydrocarbon Oil Duties Act 1979. See Schedule 1 of the draft SI for the full list.

Schedule 2 substitutes sums for those offences excluded from the rise. The two offences listed immediately above have their maximums increased to £20,000.

The increase will not affect cases where the offence was committed before the commencement of the section.

Will the changes have a big impact?

Fines have to be proportionate to the offence, but also are measured by the offender’s ability to pay the fine. For example, if you earn £400 per week after tax, a fine of £10,000 for speeding on the motorway is likely to be considered grossly disproportionate to the offence, but also wrong in principle based on your ability to pay – it would take months and months for you to pay that fine.

So what is the result? Either, fines increase and the courts will be imposing fines which represent a greater proportion of an offender’s weekly income (thereby making fines more onerous) – with the result being that many will be unable to pay and are consequently sent to prison in default of payment of the fine, increasing the already bulging prison population, at greater expense – or the level of fines imposed won’t really increase, save for those of very high net worth such as celebrities and footballers.

That is so until the Sentencing Council revises the Magistrates’ Court Sentencing Guidelines (see numbered page 148, or 165 of the PDF) which provides the guidance on the level of fines in particular cases. This is based on a percentage of relevant weekly income.

What is relevant weekly income? “Where an offender is in receipt of income from employment or is self-employed and that income is more than £110 per week after deduction of tax and national insurance (or equivalent where the offender is self-employed), the actual income is the relevant weekly income.”

So until that guidance is revised, don’t expect the levels of fine to rise, save in those exceptional cases.

We’ll update you as and when the change is brought into force.

David Mitchell – another whole life tariff for murder of Robert Hind?

Photo from the BBC

Photo from the BBC


In 1991 David Mitchell received a life sentence for murdering his girlfriend. He had progressed through the prison system and was in an open prison in 2012 when he went AWOL. He was at large for less than 24 hours before being recaptured.

It’s not entirely clear when he was re-released, but in December 2013 he was in the community (whether on day release or otherwise) when he killed Robert Hind, a convicted sex offender.

On 9th June 2014 Mr Mitchell pleaded guilty to murder. Sentencing has been adjourned. Details are sketchy as to Mr Mitchell’s motives and exactly how the murder occurred, but we do know that Mr Hind ‘had died of head injuries and strangulation‘ and his remains were found in a river a few days after he had been killed.


What sentence will Mr Mitchell get?

Well, the mandatory sentence for murder is the life sentence. The key question is what tariff will Mr Mitchell get. Looking at the different starting points, because Mr Mitchell has a previous conviction for murder, the starting point is a whole life tariff.

The Judge will not be bound to pass a whole life tariff, but that will be the starting point. We don’t know why the sentence was adjourned – it could be to get psychiatric or other reports to see whether a whole life tariff is needed.

We will have a look when he is sentenced, but Mr Mitchell is now 46. If he doesn’t get a whole life tariff, he will get a tariff of around 40 years we would imagine. Either way, he won’t be going anywhere soon, and we imagine that he would only be released at the end of his life if he is terminally ill.


Does this show that people who get a life sentence shouldn’t be released?

No. You can’t extrapolate from one case to a general penal policy.

Stephen Lee – snooker player fined for fraud


Photo from the BBC


On 9th June 2014 snooker player (or former snooker player may be more accurate) Stephen Lee pleaded guilty to fraud and was fined £110 with an order to pay £1,600 compensation to a Marco Shek, the victim of the fraud. No mention was made of the victim surcharge which should have been £20, but one should have been made.



It seems that Mr Lee was in the habit of selling some of his memorabilia on his Facebook page. At some point he had offered his cue for sale for £1,600. A gentleman in Hong Kong was interested and agreed to buy it, transferring the money to him.

There was then presumably a delay whilst  Mr Shek waited, prompting at times. After not receiving his cue, he contacted the police. The police noted that Mr Lee was still using the cue that he had sold and so nicked him for fraud.

Seemingly whilst on police bail, Mr Lee emailed Mr Shek saying that if the charges were dropped then he would personally deliver not just the cue, but also some signed photos. No deal, said Mr Shek, and so the prosecution continued.


What was the offence? Isn’t this a civil matter (or perverting the course of justice)? 

Almost certainly an offence under s2 Fraud Act 2006. Sometimes it is obvious what is a business problem and what is a fraud, other times less so. If Mr Lee had made the arrangement intending to honour it, then the fact that something went wrong would not make it a criminal offence – the law isn’t there to punish people who are bad at business, or have good intentions, but just get caught up in problems outside of their control.

By his plea of guilty, Mr Lee must have accepted acting dishonestly in relation to his dealings with Mr Shek.

As to the email asking Mr Shek to drop the charges? Mr Lee was on dangerous territory here – depending on the circumstances you could get on the wrong side of a Perverting the Course of Justice charge for an email of that nature. Here this would not appear to be an issue. Even if it had been on the wrong side of the line, then it would probably not be in the public interest to pursue such a charge.



The relevant guidelines are the Fraud Guidelines. It doesn’t really fall neatly into any of those categories, but we’d say it was (if anything) a fraud of the ‘confidence’ variety (page 20), although very much at the lower end of the scale (“Single fraudulent transaction confidence fraud not targeting a vulnerable victim, and involving no or limited planning“).

All in all, assuming that there was dishonesty (as the basis of plea admitted), the sentence seems fair enough. It is a merciful one, but ensures that the offending is marked, which draws a proper balance between the two.