Monthly Archives: June 2014

‘Lex mitior’ – IPP, Extended sentences and giving defendants the benefit of new, lenient, legislation

prison wing

The transcript is available here: R v Docherty [2014] EWCA Crim 1197

Shaun Docherty pleaded guilty to two charges of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. On 20 December 2012 he was sentenced by the learned judge to a term of imprisonment for public protection (“IPP”) with a specified minimum custodial term of 5 years and 4 months.

The facts are unimportant for the purposes of the case, but are recounted in the judgment, with some additional information surrounding the proceedings, at paras [2] – [13].

The probation service concluded that a) he posed a high risk of serious harm – in summary, considered him to be ‘dangerous’ – b) there was a very high risk of violent re-offending, and c) the most appropriate sentence was IPP.

The Judge had regard to that report and found that Docherty was indeed ‘dangerous’ and imposed an IPP sentence.

There was no challenge to the length of the minimum term.

The issues

Where to start? Well IPP was repealed on 3 December 2012. Docherty was sentenced on 20 December 2012, a short while before the repeal was effective.

At that time, the scheme for sentencing dangerous offenders – where a judge considers that a defendant poses a significant risk of serious harm to members o the public – was as follows:

1)      Life sentence (discretionary, under common law or CJA 2003 s.225)

2)      IPP (CJA 2003 s.225)

3)      Extended sentences or ‘EPP’ (the previous incarnation, CJA 2003 s 227)

The grounds of appeal were as follows:

a)     The judge failed to consider whether lesser restrictions, including the old style extended sentence of public protection (“EPP”) under the 2003 Act, instead of IPP would have enabled proper protection of the public.

b)      The abolition of IPP prior to the sentencing in this case obliged the court to impose an EPP rather than an IPP in order to comply with Article 7 (or Articles 5 and 14) of the European Convention on Human Rights (“ECHR”) and the international norm and principle of “lex mitior”.

In essence, the argument was that IPP was wrong in principle.

The first ground

‘The Judge failed to consider whether a lesser sentence would have enabled proper protection of the public.’

In C & Others [2009] 1 WLR 2158 the Lord Chief Justice stated that IPP was the “most draconian sentence” apart from life, and that it should not be imposed if an overall sentence package of lesser measures provides appropriate protection to the public. [20]

The Court of Appeal accepted that ‘ the judge did not expressly give reasons in his judgment for not adopting the alternative of an extended sentence, with other precautionary measures.’ [21]

However, the Court found that the reason was ‘entirely clear’, namely that:

i) the judge was unable to discern the time scale within which the danger posed by the appellant could be addressed, controlled and (hopefully) eliminated.

ii) a discretionary life sentence had been discounted (due to the availability of IPP.

iii) there was a perceived need for the parole board to assess the risk posed by Docherty (which was not available under the EPP regime). [21]

The Court concluded: ‘We have no doubt that he had the full range of options in mind, and that he gave the issues full consideration even if he did not spell them out explicitly.’ [21] and ‘The sentence of IPP was clearly suited to this case in a way that an old style extended sentence was not. [22]

The second (more interesting) ground

‘The abolition of IPP required the court to impose and EPP sentence (not IPP) as to not do so would offend ECHR article 7, 5 and 14 and the principle of lex mitior.’

The ECHR can be found here.

The Court divided the issues into two:

Article 5 and 14

It was agreed by the parties that the issue fell within the ambit of article 5 (the right to liberty and security-with listed exceptions) and so that if there has been discrimination towards the appellant on a ground encompassed by Article 14 (the prohibition on discrimination), that Article is breached in the absence of objective justification.

The basic argument was that there was no objective justification for the treatment received by Docherty since it was dictated by the date upon which he had been convicted in circumstances where a lesser penalty would have been imposed had he been convicted after 3 December 2012 (because IPP was not available), and thus prior to his date of sentencing on 20 December 2012.

Docherty claimed that the discrimination alleged did not fall into any of the listed catgeories, and so fell into the ‘other’ category.

The Court did not agree. The decision in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 held that classification as a prisoner was insufficient to amount to “other status” for the purposes of Article 14. [29]

Interestingly the European Court of Human Rights came to the opposite conclusion in Clift v UK [Application 7205/07] however, relying on Kay & Others v Lambeth LBC [2006] 2 AC 465, it was clear that domestic courts  are bound by the House of Lords precedent. [30]

The Court also expressed doubts as to whether there had ‘been unjustifiable discriminatory behaviour. The mere fact of an anomaly arising from the introduction of LASPO would not of itself constitute unwarranted discrimination – see paragraph 33 of Clift (H of L).’ [31]

The Court commented that whether legislative change was effective from the date of the offence (CJA 2003), the date of sentence (CJIA 2008 amendments) or the date of conviction (LASPOA 2012), there would inevitably be different treatment. [32-33]

The conclusion in relation to Articles 5 and 14 was as follows:

Given Parliament’s legitimate desire to reform the legislation relating to dangerous offenders, we doubt in the circumstances whether asserted incongruities of the sort arising in this case properly fall within the ambit of Article 14 discrimination, but even accepting that they do, it is hard to see how, unless the appellant is successful on the Article 7 point, the State could fail to establish the necessary objective justification.

The same conclusion applies to the appellant’s further submission asserting a violation of Article 14 within the context of Article 7. [34-35]

Article 7

The complaint was that there was a failure to comply with Article 7 of the ECHR and the international principle of “lex mitior”.

Lex mitior – the Rome Statute of the International Criminal Court defines it as: ‘In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.’ (Article 24(2))

Article 7(1) of the Convention reads as follows:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than one that was applicable at the time the criminal offence was committed.”

The Court commented: Clearly, on its face there was in fact no breach, because the penalty of IPP was available at the time when the offences were committed. There is nothing in Article 7 which expresses the concept of “lex mitior”. [39]

Interestingly, Article 7 is in contrast with other international instruments:

International Convention on Civil and Political Rights (ICCPR) Article 15 states:

“(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If subsequent to the commission of an offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.” (emphasis added by the Court)

It was suggested that the modern law of the ECHR applies more widely than the express wording of Article 7, relying on  the decision of the Strasbourg court in Scoppola v Italy (No.2) [2010] 51 EHRR 12, the facts of which are as follows.

The applicant murdered his wife on 2 September 1999; the offence was punishable by life imprisonment. On 18 February 2000, he agreed to be tried under a summary procedure. It lacked some of the safeguards of a full trial but carried the advantage of reducing the available sentence to 30 years. That provision came into force in December 1999. On 24 November 2000 he was found guilty and sentenced. The court noted his liability to a life sentence, but imposed a 30 year term, honouring the terms of the summary procedure. On the same day a new legislative decree took effect. It amended the provision relating to summary procedure which reduced life to 30 years. It provided that in the event of trial under the summary procedure life imprisonment could be imposed in place of life with daytime isolation. On an appeal hearing in January 2002, the applicant was sentenced to life imprisonment pursuant to the amending legislation. Further domestic appeals by the applicant against his life sentence were dismissed.

The applicant’s Article 6 and 7 challenges were upheld and the 30 year term reinstated. [41-42]

In so deciding, the European Court decided to depart from its earlier decision in X v Germany [Application No 7900/77] that Article 7 did not guarantee the right to a more lenient penalty provided for in a law subsequent to the offence. [43]

The basis for that decision was in essence that ‘a consensus had gradually emerged in Europe and internationally around the view that application of a criminal law providing for a more lenient penalty, even one enacted after the commission of the offence, has become a fundamental principle of criminal law.’ Additionally, Italian law had recognised the principle since 1930. [para 106 of the Scoppola judgment]

Further, the absence of recognising lex mitior in Article 7 was not decisive when viewed in light of the developments in attitude to the principle. [para 107 of the Scoppola judgment]

Inflicting a heavier penalty for the sole reason that it was prescribed at the time of the commission of the offence would mean applying to the defendant’s detriment the rules governing the succession of criminal laws in time. In addition, it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State – and the community it represents – now consider excessive. [para 108 of the Scoppola judgment]

The Grand Chamber felt it appropriate to depart from the decision in X v Germany and reinstated the 30-year term. [para 109 of the Scoppola judgment]

Counsel for Docherty sought to claim the benefit of this ruling and urged that, in consequence, the IPP having been abolished by the date of sentence for convictions recorded on or after 3 December 2012 and the new style extended sentence only being available for convictions on or after that date, the lesser sentence of an old style extended sentence should have been imposed. [45]

The Court of Appeal considered the Scoppola decision and the possible arguments for not applying it [46]

a)     The lesser sentence sought cannot be the one provided for by the new legislation (LASPO) since the new style extended sentence can only be imposed in post 3 December 2012 cases. What Mr Rule sought to obtain is the imposition of the old style extended sentence under the 2008 Act which was repealed by LASPO from 3 December 2012, as were the provisions relating to the sentence of IPP, and retaining both sentences as available to a court where a conviction had occurred before that date. Thus, while it is sought to consign the IPP to history in advance of the date provided for by Parliament, it is sought to retain the benefit of a closely-related provision which was repealed in the same way. To do so is not impossible, if Scoppola were applied, but there is an anomalous feel to it.

b)     There is a tension between the phrases “it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction” (paragraph 108), and “differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered” (paragraph 109). The latter phrase is repeated at paragraph 119. The difference between conviction and sentence was irrelevant in Scoppola: it is central in this case. The applicant’s conviction was recorded prior to the commencement date for the relevant provisions LASPO, and prior to the making of the relevant commencement order.

c)     The reference in paragraph 108 to “foreseeability of penalties” as an essential element of Article 7 is hard to follow in the present context. The available penalties for the appellant’s crimes were clear and certain at the date of his offence. Uncertainty is only a function of retrospectivity which is prohibited by Article 7. If anything the possibility of some later, more lenient legislation applying retrospectively introduces uncertainty instead of applying foreseeability of penalties.

d)     The decision in Scoppola was by a majority of 11 votes to 6 with a strong dissenting judgment in relation to Article 7. The Article 6 violation was clear and was found unanimously. The case could have been decided on that basis alone. The Article 7 decision required the setting aside of longstanding authority.

e)     In Scoppola, there had been in place since the 1930s a provision of the Italian Criminal Code which contained the lex mitior principle.

Did Scoppola have to be followed?

The Court said:

Noting that Scoppola is a decision of the Grand Chamber, we do not consider that it can be said that the judgment represents a misunderstanding or overlooking of a significant feature of English law or practice which would or could lead to a review by the European Court. Any argument that Scoppola does not represent a “clear and constant” line of authority will founder since the decision is one of the Grand Chamber. Thus the obligation is to follow the Scoppola interpretation, subject to its application to the particular facts of the case. [51]

In essence, yes it had to be followed unless the Court considered it did not apply to the facts of Docherty’s case.

Legislative changes and domestic law

The court commented:

As our domestic law currently stands, it is clear that the subsequent legislative changes in the criminal law are presumed not to have any retrospective effect (Section 16(1)(d) and (e) of the Interpretation Act 1978), and it is well established that legislation enacted after the conviction and sentence does not affect the correctness of anything done under the law as it stood and was properly applied at the time of trial: Bentley [2001] 1 Cr App R 21, at 24 by Lord Bingham CJ. Even a later interpretation of the common law that is favourable to a convicted person does not in itself confer a right to an extension of time for appealing to the Court of Appeal: see, for example, Hawkins [1997] 1 Cr App R 234. [48]

The LASPO regime

The effect of the LASPO changes (after 3 December 2012) was that the hierarchy of sentences available prior to LASPO had changed:

Formerly, Life, IPP and EPP were available. Post 3/12/12, the sentences available were now Life and EDS (the new extended sentence).

The gap left by the IPP repeal did not mean that defendants who formerly would have received IPP would automatically receive a life sentence, but it was accepted that the repeal would mean that more life sentences would be imposed. (See R v Burinskas and our blog in December 2012)

The question for the court was whether there was a real possibility of Docherty receiving a life sentence if he was sentenced after the LASPO changes were in force (3 December 2012 onwards). [57]

The Court said: a judge under the new sentencing regime could properly and reasonably consider a life sentence as a real possibility. [58]

The sentencing judge himself recognised this in his sentencing remarks. He did not consider that a life sentence was needed when an IPP was available to him. However he went on to comment that “the position may well change with the changes in the law”. [59]

Therefore (even if it were to be recognised in English law) lex mitior did not apply as there was a real possibility that Docherty would have received a life sentence (more severe than his EPP sentence) had he been sentenced under (what he considered the benefit of) the new LASPO regime.

The appeal was dismissed.

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N-Dubz singer Dappy fined for assault by beating

 

 4Music Tumblr

4Music Tumblr

Dappy (real name Dino Costas Contostavlos) aged 27 was convicted of common assault on 19 June 2014.

What happened?

On 27 February in the early hours of the morning, Dappy, was making a public appearance at Chicago Rock Cafe in Chelmsford, Essex. He claimed he was abused three times by George Chittock.

The Daily Mail reported:

The prosecutor ‘told the court the pair were in a smoking area along with Contostavlos’s minder and two of the club’s own door staff at about 2am when he was seen to slap Mr Chittock. The incident was caught on CCTV. Witnesses claimed Contostavlos had consumed half of bottle of vodka that night.’

When closing the case before the Magistrates, the prosecutor said:

‘Whether Mr Chittock called this defendant a mug is neither here nor there.

‘You may think what he is really saying is that he was provoked – provocation is no defence.

‘It is no defence for anybody, celebrity or otherwise, to say “I lashed out because he was rude to me”.

‘It is not reasonable to slap somebody when surrounded by bodyguards because somebody says to you “Oi, what?”.’

Dappy claimed he was acting self-defence but was disbelieved by the Magistrates.

The Mail reported:

Asked if he feared he was going to be stabbed on the night of the incident, he added: ‘Yeah of course, I’m always concerned about that.

‘I was scared someone was going to put a hole in me.’

During cross-examination, the performer said he was ‘a million per cent’ sure that it was Mr Chittock who called him a ‘mug’.

‘It was a violation,’ he said. ‘Tesco, Asda, everywhere I go, there’s always one person to make a rude remark. This is a stitch-up. This is what’s happening in this case.’

In an odd twist, ‘comedian’ Jim Davidson claimed he had offered his services as a character witness but that Dappy’s defence team had declined. The pair were in the Celebrity Big Brother house together. But I suppose it is always nice to have friends, eh?

Previous

Dappy has previous convictions including affray and assault in February 2012 when he received a 6-month suspended sentence.

Mitigation

On Dappy’s behalf it was said that ‘It was no doubt a regrettable incident but one that was over very quickly and left a person red-faced and very, very angry.

‘He is a polarising figure who is clearly liked by a great many people but he is equally disliked by many others.’

Further, in relation to his financial means, the defence said that Dappy was well paid but his earnings are sporadic and he is currently awaiting a five-figure payment and that his finances were limited by a recent tax settlement.

Sentence

He was fined £800 with £930 in costs and the mandatory £80 surcharge (representing 10% of the fine up to a maximum of £120)

The Magistrates would have considered the Assault guidelines for common assault (p23).

As we don’t know Dappy’s Relevant Weekly Income (on which the level of fine is calculated) it is hard to say how this offence was categorised. However, we can say that a fine seems to be the most appropriate disposal.

It is likely the court would have increased the fine from the starting point to take account of his previous, and reduced it to take account of the mitigation, such as the limit provocation.

All in all, it sounds like a decent result for Dappy – he can afford the fine and it is unlikely he will be appealing.

Note: When writing this I searched for some N-Dubz song titles to include throughout the post. Unfortunately, I could see no way of including:

  • Na Na
  • Toot It and Boot It
  • Duku Man Skit
  • Sex
  • Papa Can You Hear Me

If any readers are more creative than I, please make any suggestions below!

Kevin Nunn Case – Supreme Court application dismissed

Photo from EADT

Photo from EADT

Introduction

After someone has been convicted, to what extent is there a duty on the prosecution to disclose material to the defence? That, in a nutshell, was the question that Kevin Nunn posed, firstly to Suffolk Police and later the Courts, that was answered by the Supreme Court on 18th June 2014.

Background

Kevin Nunn was convicted on 20th November 2006 of the murder of Dawn Walker in February of the year before and sentenced to the obligatory life imprisonment (with a tariff of 22 years). He appealed the conviction, but this was unsuccessful. He has always maintained his innocence.

A good overview of the facts that lead to the conviction and the proceedings since can be found in the judgment of the Divisional Court here. In essence, Mr Nunn requested the police to hand over to his lawyers certain material and exhibits to be tested or further tested, particularly in light of the developments in forensic evidence since the trial.

The police refused and Mr Nunn applied to the High Court to force them to do so, but they sided with the police on that point. Permission was later granted to the Supreme Court.

Supreme Court Judgment
It is a short and unanimous judgement that is worth reading in full.

They set out the question above and answer it by saying that there remains a duty on the prosecution post-conviction, but it is a lower one than during a criminal trial. In essence, if the police come in to possession of material (for example a confession by a third party) that casts doubt on the conviction then this is disclosable.

Other matters, such as the requests in this case, were not generally disclosable. Whilst this may seem harsh, the ‘safety valve’ identified was that the CCRC could investigate and order further testing and collecting of further evidence in suitable cases.

For that reason, the appeal was dismissed.

Comment

One of the oddities of the case could be thought to be this : the cost to the public of defending the Judicial Review in the High Court and the Supreme Court would have been monstrous. We haven’t got a figure, but it will be well over six figures. The cost of allowing the scientists instructed by Mr Nunn (he was willing to pay for it) was minimal. On that basis, what was the point in opposing it?

The Supreme Court points out that in a case of this nature there will often be huge amount of material and it is often costly to sift through it all. That is certainly a fair point, although if you are in prison, having been convicted of a crime that you didn’t do, you may not be too impressed by it.

Also, is it right to stand by the letter of the law, if that were the case? What is at issue here is whether an innocent person has been condemned to a life in prison, whilst a murderer has gone free. In those circumstances, the stakes couldn’t be much higher.

Where is the harm in allowing the material to be tested? If you’re right, then fine – the testing will back you and no harm done. But if you’ve got it wrong, the truth will out at some point and you are going to look not just ridiculous, but also malicious.

That is a separate point and as the Supreme Court make clear, the police and CPS do sometimes do this in certain cases. One where, in their view, the results of the testing would be determinative of guilt is an example.

The key issue will be how effective and co-operative the CCRC are. One concern here is that they are hugely under-resourced with a large backlog of cases.

But if they do, this is not the end of the matter. This judgment makes them the arbiter of whether there should be further testing or investigation. Fine if they agree to what you ask for, less so if they refuse.

The remedy would then be a Judicial Review with a very high threshold (and great expense) which means, inevitably, that good cases will slip through the cracks.

Disclosure is a perennial problem. Non-disclosure of one sort or another is generally at the heart of every miscarriage of justice. It is clear that there are currently failings in the way that the disclosure system operates in most cases and that these will get worse as the cuts to defence, courts and CPS bite.

I have experience of cases that have collapsed after the start of the trial when material that has been described as non-disclosable has finally been teased out, showing that a defendant is innocent.

Those are clear cut cases. There are many others where disclosure would not be a knock out blow, but may well have made a difference to the verdict. The case of Mr Nunn is one of those. Whilst I can understand the Supreme Court judgment, it does leave me uneasy.

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

Photo from ITV

Photo from ITV

Introduction

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.

 

Facts

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

StickerDVawareness

Introduction

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.

 

Proposals

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

BBC

BBC

Introduction

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.

 

Sentence

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

Introduction

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.

 

Sentence

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.

 

Comment

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.