Author Archives: Dan Bunting

About Dan Bunting

I'm a lawyer who works for myself. Legal geek, maths freak, general dullard and jack of all trades. Here’s a few views on law and occasional musings on life. Usual caveats about not relying on anything I say etc applies.

Ian Watkins – Appeal

Photo from The Mirror

Photo from The Mirror

Introduction

We have covered the case of Ian Watkins before and mentioned that, as expected, he was appealing his sentence.

This was heard on 23rd July 2014 where …

For our background pieces, see :

Appeal Ruling

T

Ian Watkins back in Court on 23rd July for appeal against sentence

Photo from the Independent

Photo from the Independent

Introduction

We have covered the case of Lost Prophets singer Ian Watkins previously on the blog. When he was sentenced, we said that it was a very, very high sentence and permission to appeal was likely to be granted. On that basis, it wasn’t a surprise when The Independent reported on 16th July 2014 that he has been given permission to appeal.

The full appeal hearing is next Wednesday, 23rd July 2014.

Here’s some of our previous pieces on the case:

 

What will happen?

The hearing will be a full appeal against sentence we understand. The Judges will have the papers, so anyone sitting in Court to watch it may well be a bit confused as they won’t have all that information.

It probably won’t actually last that long – maybe half an hour. A cynic would say that the Judges will have come to their conclusion, and even written their judgment, in advance.

There has been a move recently to have more hearings out of London, and to create a legal hub in Cardiff to represent Wales. There is a ‘Civil and Family Justice Centre’ there that can hear many cases.

Because of the need for a secure dock for Mr Watkins, this appeal will actually be heard in the Crown Court at Cardiff, even though it will be sitting for the day as the Court of Appeal.

As to the outcome? Difficult to say. Having to serve at least 19 years is one of the highest sentences ever handed out for this sort of offending. Having said that, this was a particularly horrific set of offences, and an extremely lengthy sentence was in order.

I imagine that there will be two strands to the appeal. Firstly, that an extended sentenced was not necessary. This is unlikely to get anywhere due to the nature of the offending.

Where Mr Watkins is on stronger ground is the argument that the sentence was just too long. When an extended sentence is passed, the usual need in sexual offences sentencing for public safety doesn’t apply. In light of that, I would imagine a total sentence of 30 years, with 24 years plus an extension of 6 years would have been more appropriate.

But, we’ll certainly have a look at this next week.

Robert Marshall fined for ‘setting friend alight’

BBC

BBC

Introduction

There was rather a dramatic headline on the BBC website on 15th July 2014 – “Man fined after setting friend alight in Great Yarmouth“. That seems a rather fortunate sentence for setting somebody on fire?

As always, the devil is in the detail …

 

Facts

According to the BBC, Mr Marshall was sitting at a bar when he flicked his lighter towards his friend – Sam Taylor. Unfortunately, his friend had, unbeknownst to Mr Marshall, been doused in aftershave (there’s not a whole lot to do in Great Yarmouth) and caught on fire. It was put out, but not before the friend had burns to his hand and body.

The Great Yarmouth Mercury tells a slightly different story – the group of lads “as a joke, had been splashing one another with it in a bid to scupper their chances with women.

The friends had then “flicked” a lighter towards anyone who had been splashed, which had caused no damage. But when Marshall “flashed” the lighter at his friend in Long John’s Bar on Yarmouth’s Britannia Pier the prank went “terribly wrong”, magistrates heard.

Alison Cotterill, prosecuting, said one of the group had “poured” the remainder of the aftershave over Mr Taylor – more than “just a few splashes”. She added: “Mr Marshall… gets out a cigarette lighter, ignites the flame and flashes it initially towards one of the others.

“Mr Marshall turns round and then goes over to Mr Taylor. He then equally lights the lighter to Mr Taylor’s shirt and it just goes up in flames, he’s engulfed.

 

Sentence

Mr Marshall was fined £710 with an order for £71 Victim Surcharge and £85 costs. It is quite a difficult sentencing exercise in the circumstances, but this seems fair enough.

 

Why is guilty of this?

Good question. The piece from the BBC leaves a bit of doubt – if this was a harmless prank, why is Mr Marshall guilty?

There needs to be a ‘hostile intent’ (see R v Lamb) – is flicking a lighter at someone demonstrating this? The answer is, probably, that Mr Marshall knew that Mr Taylor was covered in aftershave and was therefore reckless when waving the lighter around.

Another question is why is Mr Marshall not guilty of a more serious offence? After all, burns (even if only 7% burns) are pretty serious. Certainly Actual Bodily Harm you might think, even if not really serious harm?

It’s not clear. If he is guilty of Common Assault, he’s guilty of ABH and of inflicting the injury. We don’t have details of the injuries, but this may be an example of common sense in the charging decision by the CPS?

 

Nadine Wilson-Ellis – disbarred after fraud conviction

Image from the Western Press

Image from the Western Press

Last year Nadine Wilson-Ellis, a barrister and law lecturer, was convicted of housing benefit fraud and sent to prison for 7 months. We didn’t actually say in that, that this would spell the end of her legal career, but confirmation of that was received on 8th July 2014 where the Bar Standards Board heard Ms Wilson-Ellis’s case and disbarred her (the highest sanction that they can impose).

This is not a surprise. Ms Wilson-Ellis hadn’t actually practised as a barrister, but will no longer be able to start her training if she had wanted to. This will not affect her work as a Law Lecturer as a matter of law, but the University may well have taken action against her.

Common – (Legal) Review of BBC Drama

Common-BBC-cast

Introduction

Jimmy McGovern is an absolutely cracking writer, as anyone who has seen his work can tell you. On Sunday 6th July 2014 he turned his hand to the controversial ‘joint enterprise’ law with a drama called ‘Common‘.

We have a factsheet on joint enterprise, which is a notoriously complex area of law, if you want a bit of background.

 

Plot

The drama opens as Johnjo borrows Patrick (his brother) car to drive a cousin, Tony, and two friends (Kieran and Colin) for a pizza, an ordinary night out for many people up and down the land, when Kieran stabs another boy – Thomas Ward. Johnjo drives them away as he and the others realise what has happened, and that Thomas was not going to live.

We then switch to the family of Thomas, who have to deal with their loss. But he (and his family) is not the only victim of the events of the night – Johnjo and his family are about to be ripped apart as well. He is a decent lad, and wants to go to the police to give his side to the story before the police come to him (good advice), but is warned about grassing,

He then finds out from his cousin that the other three were going to the pizza place with the aim of ‘sorting out’ (but not killing) someone. This wasn’t the one who was killed, but a different one. Kieran, one of the four, had a knife and stabbed Thomas.

It doesn’t take a great deal of detective work before the police begin to crack the case. CCTV shows that it was Patrick’s car and he is arrested. His alibi checks out and is quickly released, but he now knows that Johnjo was involved somewhere along the line and this blows up.

Johnjo’s Mum gives the worst advice imaginable – you’ve done nothing wrong so you don’t need a lawyer. His Dad is a bit more sensible (although he seems to think you wouldn’t get a good criminal lawyer on a Sunday).

Unfortunately for Johnjo, he listens to Mum and goes off to the police station to reveal all, on his own, without a solicitor or appropriate adult. DI Hastings does the ‘good cop/bad cop’ routine all by himself. Johnjo reveals all that happened. His Mum was wrong – the police don’t thank him for assistance and telling the truth and send him on his way … he is charged and kept in custody.

The other boys are picked up and all, sensibly, say ‘no comment’ in their interview. The guy in the pizza place (Hugo Davis) is asked to do an ID parade, but there’s an ulterior motive – he’s in the frame too, due to a phone call from him to Tony before and after the killing and is charged with murder.

We then get to see, finally, what happened in the pizza place – they all pile in to get Albert Flanagan, there’s a bit of violence, but the and Kieran sees Thomas eyeing him up and stabs him.

We then start the courtroom drama properly. Johnjo’s barrister does what appears to be an ‘application to dismiss’ to get him out of the case which is, needless to say, unsuccessful. There is then a meeting of all the defendants and lawyers downstairs in the cells. And at this point is gets a bit more dubious legally – a plea bargain is on the table – Kieran pleads to murder and all the others to GBH and that would be enough.

Johnjo’s Dad says take it, his mum says no. Johnjo is under pressure from all sides and, after some not too unsubtle threats from his codefendants, agrees to take the deal. Kieran gets life with a minimum term of 24 years. Colin and Anthony get 6 years and Johnjo 5 years 4 months.

 

Legal Issues Raised

A couple of problems you’d have spotted if you were a lawyer (and some you would have if you weren’t):

  • DI Hastings wouldn’t have told Margaret Ward that an arrest was imminent, and certainly would have said who it was.
  • As soon as Johnjo started the conversations with DI Hastings, he should probably have stopped and cautioned him (but, this doesn’t always happen)
  • As Johnjo is 17, an appropriate adult is compulsory (the law on that changed relatively recently however – you can see the High Court judgment here)
  • Johnjo would not have been allowed to keep his phone with him in the police interview
  • Threatening to arrest Johnjo’s parents is not something the police should do. It’s something that do do, but wouldn’t do in an interview which is recorded
  • A Magistrates’ Court is not able to grant bail and the Court would not adjourn for two weeks back there – it would go straight off to the Crown Court
  • The ID parade was not conducted properly – having DI Hastings there with a bit of a prompt and threat, as well as the other safeguards not being there, means that it should be ruled inadmissible (it’s a murder though, so who knows?)
  • The police don’t charge, and then uncharge, people, at least in the way shown in the interview.
  • It’s pretty rare nowadays that you’d get four people wearing a suit
  • The barrister for Johnjo would have been slapped down pretty quickly with his speech on joint enterprise
  • The Judge is a High Court Judge and is called ‘My Lord’ not ‘Your Honour’
  • The families of the victim and the defendants would not be wondering around the same cafe together, certainly not in a murder case
  • The High Court Judge seems to think that joint enterprise is a rule made by Parliament, which it never has been – it’s a judge-made law that can be unmade by Judges
  • Lawyers aren’t allowed mobile phones in the Court cells
  • The Prosecutor would not come down to the cells to engage in plea bargaining at all. Ever. Not in a million years.
  • The High Court Judge almost gets the name of the statute right when sentencing – it’s the Powers of Criminal Courts (Sentencing) Act 2000

But, notwithstanding that, it was actually a pretty accurate view of how a criminal case works, and didn’t (as many criminal TV shows do) make me cringe when watching it.

 

Review

This isn’t a documentary and, as I’ve said before, a legal drama that was based on real life would be incredibly dull. It’s a tightly written drama (as you’d expect) and very well acted and directed. It’s certainly one that tugs on your heartstrings.

It was good that they showed the story from both sides, and the pain that the victim’s family went through isn’t glossed over in any way (even if the reconciliation at the end was a bit twee (or as twee as it can be on a northern council estate).

Joint enterprise isn’t a ‘new’ thing (although it has been used a lot more recently) and whilst it applies to every crime, it is disproportionately used in murder cases. It is also more acute due to the fact that murder carries a mandatory life sentence and you can be found guilty of murder not only without intending to kill, but in some cases without intending to cause really serious harm – merely foreseeing that death might happen is sufficient.

Anyone with experience of the criminal justice system knows the unfairness that can be caused by joint enterprise, but this didn’t need to be stated quite so clearly all the time (I got a little sick of the words ‘joint enterprise’ by the end).

 

Is it accurate?

Yes. Sadly. Knowing what happened in the pizza place, it is clear that Kieran is guilty of the murder of Thomas and GBH of Albie. Tony and Colin are guilty of GBH. Johnjo is not guilty of anything.

Actually, the most unrealistic aspect of this is the prosecution agreeing to drop the murder charge against  the three in return for pleas to GBH. In a case such as this, I would imagine that it would go to trial  and it would not surprise me if Kieran, Tony and Colin were found guilty of murder. Johnjo might be luckier, but I wouldn’t be that surprised if he was convicted also.

Picking one case that I have read recently , Mitchell & Ballantyne [2011] EWCA Crim 2552 shows that the scenario in ‘Common’ is not in any way fanciful.

The other issue that it did raise is the iniquity than can sometimes be seen by ‘plea bargaining’. Officially it doesn’t exist in England and Wales, in practice it is rampant. Here, Johnjo had no real alternative but to plead guilty – out in 2½ years at the age of 20, with the possibility of building something of your life at least, versus life with a 20 year tariff (as he was 17 at the time) – meaning, in reality, that he would not be out till he was in his early 40s (if he was lucky) with no real chance of building any kind of life.

Faced with that, who wouldn’t take it?

 

Rolf Harris Sentenced – 5 years, 9 months

an-rolf-harris-mugshot-300x0 Introduction

Rolf Harris was convicted of 12 counts of indecent assault on 30th June 2014. Sentence was adjourned to the 4th July in order for a medical report to be obtained. We gave our guess as to what sentence he would receive here.

Prior to sentencing ‘Victim Impact Statements’ were read to the Court, where the victims set out how the abuse had, as the name suggests, impacted on them. There was then mitigation where the obvious factors in mitigation – Mr Harris age, good character and the fact that he is the carer for his ill wife, were put forward.

In the end, Mr Harris was sentenced to a total of 5 years and 9 months in prison. The full sentencing remarks can be read here and are, of course, vital reading in understanding the sentence.

 

Offences

Mr Harris was convicted of the offences as follows:

  • Count 1: Indecent assault between 1/1/68 and 1/1/70 on a girl A, aged 7-8

Sentence : 9 months

Details :A was queuing for Mr Harris’s autograph. “When she reached the front of the queue, Harris “twice put his hand up her skirt between her legs and touched her vagina over her clothing“. She said she had initially thought it might have been an accident but then he touched her again.”

  • Count 2: Indecent assault on a girl B, 14, between 1/1/75 and 1/1/76

Sentence : 6 months (consecutive)

Details:B was working as a waitress at a charity event when Mr Harris put his arm around her and down her back and over her bottom. “squeezing her left buttock a number of times“.

 

  • Count 3: Indecent assault between 5/4/80 and 4/4/81 on girl C aged 15
  • Count 4: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 5: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 6: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 7: Indecent assault between 1/1/84 and 1/1/85 on same girl, then aged 19
  • Count 8: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 9: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15

Details: C was a childhood friend of Mr Harris’s daughter and they lived close by. The offending started when she was aged 15. A summary of the offending is :

  • 3 – digital penetration of C’s vagina by spitting on his finger and putting it under her jeans for a minute – 15 months consecutive 
  • 4 – digital penetration of C’s vagina by spitting on his finger and putting it under her dungarees for a minute and a half – 15 months concurrent
  • 5 – digital penetration of C’s vagina whilst C was staying with Mr Harris daughter (whilst she had left the room) – 15 months concurrent
  • 6 – oral penetration of C’s vagina on the same occasion as Count 5 – 12 months concurrent
  • 7 – digital penetration of C’s vagina whilst C was staying with Mr Harris daughter whilst she was asleep in the same room – 15 months consecutive
  • 8- oral penetration of C’s vagina on the same occasion as Count 7 – 12 months concurrent
  • 9 – digital penetration of C’s vagina whilst she was in Mr Harris swimming pool – 12 months consecutive

The news reports indicate that C was aged between 13 and 15 at the time of the offences. Some of this (seemingly the earlier parts) was behaviour that was alleged to have occurred outside of England and Wales, and so cannot be tried in this country. We don’t know if the jury accepted that evidence or not, and so Mr Harris should not be sentenced on the basis that the abuse started when C was 13.

The total sentence for offences relating to C is 42 months

  • Count 10: Indecent assault on 31/5/86 on girl D, aged 14
  • Count 11: Indecent assault on D on same day
  • Count 12: Indecent assault on D on same day

Details:

  • 10 – putting his hand on her thigh over tights and knickers whilst she was sitting on his lap in public – 9 months concurrent
  • 11 – putting D in a ‘forceful bear hug‘ and putting his hand down her top into her bra and playing with her breasts for 30 seconds – 9 months concurrent
  • 12 digital penetration – 12 months consecutive 

Sentence : Unclear

Note – D has been widely named as it is reported that she has waived her anonymity. There is (probably) no power for her to do this, at least without having a waiver for this blog, as so we won’t name her as this would be a criminal offence. Clearly, all the other news outlets don’t agree with that!

[Information courtesy of the Daily Mail and BBC].

 

Sentencing Powers & Approach to sentence

The maximum sentences on Count 1 is 5 years, for Counts 2-9 it is 2 years on each count. The maximum for Counts 10-12 is 10 years each. We have a factsheet on sentencing in historic sexual abuse cases. Also worth a read is this on sentencing for multiple offences. The rule nowadays is that you start with the sentence that would be passed had the offences been committed today, before making allowances (sometimes) for the maximum sentence at the time. For that reason, the first port of call is the Sentencing Guidelines for Sexual Offences 2014.

It is perhaps best to group the offences by victim :

  • A – 6 months
  • B – 9 months
  • C – 42 months (3½ years)
  • D – 12 months

Having seen the details of the sentencing, we would say that for offending today Mr Harris would receive as follows :

  • A – 12 months
  • B – 9 months
  • C – 120 months (10 years)
  • D – 24 months (2 years)

Totality would come into play of course, and we would have thought that the total sentence would have been about 11 years, so double the actual sentence. That is before some discount for his age, health and other circumstances.

 

 

What about the child pornography?

Eagle eyed readers of the news will remember that Mr Harris was at one point charged with four offences relating to indecent images of children. This then dropped off the radar, why was that?

The Guardian has a very good explanation of why these allegations did not feature in the trial. We may do a longer piece on the issues round this but, in brief, Mr Harris denied the allegations and there were various investigation ongoing to establish the ages of the people depicted (a difficult area). The Guardian reports that these would not be completed by the time of the trial and, for that reason, they were separated to be tried at a later date.

Presumably they were not referred to in the media before then as it was felt that they were unduly prejudicial to the main trial.

The prosecution decided that there was sufficient public interest in pursuing the indecent images and so they have been left to lie on the file.

 

Other Orders

  • Mr Harris will be required to sign on to the Sex Offenders Register for the remainder of his life
  • He will have to pay costs – that will be assessed later, but will be substantial
  • The provisions of the Safeguarding Vulnerable Groups Act apply automatically
  • There was no order for compensation

 

Conclusion

There will be an appeal – Mr Harris has nothing to lose. One thing about sentencing for historic offences is that nobody is satisfied. On the one hand it is lenient, in that it is around half of what he would get now. On the other hand, it is very severe, as it is probably about four times or so what he would have got had he been sentenced at the time.

 

Rolf Harris leaving his house by boat on the day of sentence - Independent

Rolf Harris leaving his house by boat on the day of sentence – Independent

Alan Crickmore – Court of Appeal refuse permission and BBC get it wrong

BBC

BBC

We çovered the case of Alan Crickmore, the coroner and former solicitor who pleaded guilty to stealing about 2 million pounds from dead clients. When he entered his plea, we predicted (correctly) that he would get hammered, but incorrectly gave a guess of about 5 years.

When he was sentenced, he actually got 8 years. We indicated that we would keep an eye out for an appeal and, on 1st July 2014, the Court of Appeal heard an appeal against sentence. Or at least that’s how the news report reads.

In fact, this was an application for permission to appeal. Openshaw J said that the sentence was ‘just and appropriate’ and refused permission. Mr Crickmore can, and probably will, renew his application to appeal. This means he has an oral hearing before the full court where the court considers again whether he should have permission to appeal. We will have a look if and when this happens.

We originally thought this was a written application (as is common) although someone at the Judiciary very helpfully pointed out that in fact, there was an oral hearing. That said, it was still a permission hearing – not an appeal.

Anyway, the BBC. The headline states “Coroner Alan Crickmore loses appeal to reduce sentence for £2m theft“. For the reasons stated, this is wrong. A better headline would have been “Coroner Alan Crickmore refused permission to appeal sentence for £2m theft“or something like that. Perhaps it is picky…but in law, without detail, we are nowhere.

Rolf Harris – What sentence will he get?

Photo from the Express

Photo from the Express

Introduction

On 30th June 2014 Rolf Harris, everyone’s favourite children’s TV entertainer of old, was convicted of 12 counts of Indecent Assault. Sentence was adjourned until Friday, 4th July.

What sort of a sentence will he get?

 

Offences

  • Count 1: Indecent assault between 1/1/68 and 1/1/70 on a girl A, aged 7-8

Details :

A was queuing for Mr Harris’s autograph. “When she reached the front of the queue, Harris had touched her inappropriately with his “big hairy hands”, she told the jury. She said she had initially thought it might have been an accident but then he touched her again.”

 

  • Count 2: Indecent assault on a girl B, 14, between 1/1/75 and 1/1/76

Details:B was working as a waitress at a charity event when Mr Harris put his arm around her and down her back and over her bottom.

 

  • Count 3: Indecent assault between 5/4/80 and 4/4/81 on girl C aged 15
  • Count 4: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 5: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 6: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 7: Indecent assault between 1/1/84 and 1/1/85 on same girl, then aged 19
  • Count 8: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 9: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15

Details:

C was a childhood friend of Mr Harris’s daughter. The news reports indicate that C was aged between 13 and 15 at the time of the offences. Some of this (seemingly the earlier parts) was behaviour that was alleged to have occurred outside of England and Wales, and so cannot be tried in this country. We don’t know if the jury accepted that evidence or not, and so Mr Harris should not be sentenced on the basis that the abuse started when C was 13.

We are told that “The court heard that the abuse began when she had been on holiday with the Harris family at the age of 13. Later, the woman said Harris had performed a sex act on her at the Harris family home, with Bindi [Mr Harris’s daughter] asleep in the same room.

Further assaults took place at the Harris home and in her bedroom at her own home while her parents were downstairs, she said

The exact details are not clear, but it seems that the most serious is the ‘sex act’ (although it is not clear what that sex act is.

 

  • Count 10: Indecent assault on 31/5/86 on girl D, aged 14
  • Count 11: Indecent assault on D on same day
  • Count 12: Indecent assault on D on same day

Details:

The allegation, as reported by the BBC, is that Mr Harris “asked her to sit on his lap before moving his hand up her leg and assaulting her. He was moving back and forth rubbing against me,” she said. “It was very subtle, it wasn’t big movements.”

The jury heard that Harris had then patted her on the thigh and moved his hand upwards. She said she had “started to panic” and rushed to the toilet. When she came out, she said, Harris was waiting for her and gave her “a big bear hug” before putting his hand down her top and then down her skirt.

Note – D has been widely named as it is reported that she has waived her anonymity. There is (probably) no power for her to do this, at least without having a waiver for this blog, as so we won’t name her as this would be a criminal offence. Clearly, all the other news outlets don’t agree with that!

[Information courtesy of the Daily Mail and BBC]

Sentencing Powers

The maximum sentences for Count 1 is 5 years, for Counts 2-9 it is 2 years on each count. The maximum for Counts 10-12 is 10 years each.

 

Approach to Sentencing

We have a factsheet on sentencing in historic sexual abuse cases. Also worth a read is this on sentencing for multiple offences.

The rule nowadays is that you start with the sentence that would be passed had the offences been committed today, before making allowances (sometimes) for the maximum sentence at the time.

For that reason, the first port of call is the Sentencing Guidelines for Sexual Offences 2014.

 

So. What’s he going to get?

We think that the ‘sex act’ was digital penetration. Today, this would be charged as assault by penetration (s3 Sexual Offences Act 2003).

Count 1 would be Sexual Assault on a girl under 13 (s7 Sexual Offences Act 2003). The remaining offences would be Sexual Assaults (s3 Sexual Offences Act 2003).

The most serious offence is Assault by Penetration. This would be (page 14 Guidelines), probably a Category 2A Offence, giving a starting point of 8 years with a range of 5-13 years. Count 1, we would imagine, would be a Category 3A Offence, with a starting point of 1 year, with a range going up to 2 years.

The other offences differ in seriousness. Count 2 is probably 3B – giving a Community Order and Counts 10-12 are probably 3A, so 6 months or so.

The other offences on C are less clear, as the details are hazy. Of course, we have to remember that there is the assault by penetration.

On that basis, the sentence today for each complainant would be about :

A – 1 year

B – 9  years (8 years for the penetration, 1 year for the other offences)

C – Community Order

D –  6 months

It would not be right to roll all these sentences together. Stepping back, a sentence of about 9 years in total would appear to be about right. This would probably be achieved by shortening the sentence on B and making the other sentences consecutive (and giving a short custodial sentence for C).

But. But. The maximum sentence for the most serious offences is two years – how will the Judge square that circle?

On principle, there ought to be a reduction to take account of that. We would have thought that the appropriate sentence is about 2-3 years (before reduction for his age and good character). However, we got the sentence badly wrong in Max Clifford when we made the same approach, so who knows?

I would doubt the need to send him to prison, given his age and personal circumstances. We live in more draconian times however, and being a celebrity means his chance of getting a non-custodial is lesser. It would not surprise me if he were to get a sentence in the range of 4-5 years.

 

Conclusion

It is always difficult to predict a sentence, especially when you are relying on the newspaper to give the facts. That is before you even begin to consider that sentencing, as is often said (particularly by the Court of Appeal when dismissing an appeal against sentence) ‘is an art, not a science‘.

For that reason, this should be taken with a large pinch of salt. It’s not a definite guess, more a guideline to the parameters, and the approach that the Judge will likely take.

Is biting someone serious? Obligatory World Cup shoe horn post

Photo from the Huffington Post

Photo from the Huffington Post

Introduction
Apparently, there’s some sort of sporting contest between gentlemen underway in the Southern Hemisphere, where one participant has behaved in a less than Corinthian-like way (allegedly).

 

Facts

During the Italy v Uruguay game there was an ‘incident’ between Giorgio Chiellini and Luis Suarez. The case against Mr Suarez is that during a clash in the Italian penalty box he bit Mr Chiellini on the shoulder.

This is backed up by not just the word of the Italian fellow, but by replays of the thousands of tv cameras in the stadium. There is also the aftermath of the alleged bite on the said italian’s neck.

There are two sides to every story of course. Mr Suarez has now put his forward. In his own words – “I lost my balance … falling on top of my opponent … I hit my face against [Chiellini], leaving a small bruise on my cheek and a strong pain in my teeth“.

It’s the sort of defence that any self-respecting magistrate would dispatch in an instant. And FIFA did not appear that troubled by it, banning him for nine matches and ‘any football related activities’ for four months. There was also a fine of £65,000 – small change to him.

There is an appeal mechanism but this ruling seems to be safe. Whilst there have been calls for a prosecution, there is no realistic possibility of that.

 

 

What would happen under English law?

We have a factsheet on the difference offences against the person. Whilst this is a ‘wound’ and could be charged as the more serious offences under s20 or s18 Offences against the Person Act 1861, it would be charged in practice as causing Actual Bodily Harm.

The Sentencing Guidelines for Assault would be, as always, the starting point. It’s slap bang in the middle, we would suggest, giving a sentence of six months after a trial.

Biting is taken very seriously by the courts – it is seen as being the same as an attack with a weapon (Attorney-General’s Reference No 7 of 1994 [1995] 16 Cr App R(S) 300) and would be seen as a severely aggravating feature.

Conclusion
People can be prosecuted for their actions on a pitch, although such prosecutions are rare.

If this were to happen in England then, despite the often trigger-happy nature of the police and CPS, it wouldn’t be prosecuted in a way it would be if it happened outside a nightclub on a Saturday night.

Is that right or not? Is it time the authorities clamped down on such behaviour by making an example of someone, or is it better to leave it to the FA and other relevant bodies to police?