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.

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?

 

Have Wonga commited a criminal offence?

Wonga.com_company_logo

Introduction

You may know Wonga from their cheery TV ads featuring knitted OAPs. Hopefully you don’t know them from borrowing money off them, given that their APR gets up to 5853%. They offer payday loans at huge interest rates. Whilst it may not be part of their official stchick, there is a general view that they target people who are the most vulnerable and cannot access finance from more mainstream financial institutions.

Well, on 25th June 2014 they got into a bit of trouble with the Financial Conduct Authority (‘FCA’) for sending letters who were in arrears with their payments from organisations that appeared to be solicitor firms. The names included “Chainey, D’Amato & Shannon” and “Barker and Lowe Legal Recoveries”. According to the BBC,  “The plan was to make customers in arrears believe that their outstanding debt had been passed to a law firm, with legal action threatened if the debt was not paid.” To make matters worse, “In some cases Wonga added fees for these letters to customers’ accounts.

You can read the FCA report here in full. They have given Wonga a firm rap round the knuckles and directed that the people affected be compensated to the tune of £2.6 million.

This is all a bit embarrassing  for Wonga, but is it more than that? As Stella Creasy, the MP for Walthamstow asked on twitter :

 

.

So. Are there any criminal offences here?

 

Possible Offences

Fraud

The Fraud Act is always a good start. What about s2 – Fraud by False Representation? Someone commits fraud if they dishonestly make a false representation, intending to make a gain for themselves or cause a loss to another, when they know that the representation is false and misleading.

Looking at that, under s2(5) “For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention)“. It is probable that a headed paper implying that a letter comes from a law firm is a false representation, so we can tick that box.

What about the fact that, under the contract with the customer, they were owed the money? There is a very wide definition of ‘gain’ and ‘loss’ in s5. It is likely that this would fall into the section, with the safety valve being the requirement of dishonesty. For that reason, subject to the question of whether Wonga were being dishonest, this offence would appear to be committed.

 

Impersonating a solicitor

There are two possible offences here. Firstly, under the Solicitors Act 1974. There is an either way offence of acting as a solicitor when not being one (s20), but it is likely that there was nothing done here other than send the letter implying that it was from a lawyer.

It is also an offence (under s21) for someone who “ wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is, qualified or recognised by law as qualified to act as a solicitor“. This is summary only which looks like a problem (as there is normally a six month time limit for bringing proceedings and Wonga’s practice here stopped in 2010).

s26 extends this time period, but not by enough in this case – proceedings in respect of any offence under section 21 may be brought at any time before the expiration of two years from the commission of the offence or six months from its first discovery by the prosecutor, whichever period expires first“.

There is an offence of pretending to be entitled to carry out a reserved activity under s17 Legal Service Act 2007. This can get a bit complex, but it may well apply if the bogus letterhead said, as an example, ‘Commissioner for Oaths’ as oath taking is a reserved activity.

So, although this offence looks good on paper, it’s actually pretty unpromising. A further issue is that whilst pretending to be a solicitor is a criminal offence, stating that someone is a lawyer is not.

 

Blackmail

This is an offence under s21 Theft Act 1968 :

A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—

   (a) that he has reasonable grounds for making the demand; and

   (b) that the use of the menaces is a proper means of reinforcing the demand.

The fact that Wonga is entitled, under the general law of contract, to the money does not of itself mean that a threat to sue cannot be a ‘menace’ (although it may be hard to persuade a jury of this) or that a threat to sue (especially if it is using a fake law firm) is unwarranted. It is clear that ‘gain’ includes ‘getting money to which you are entitled to’.

So, whilst ‘blackmail’ conjures up connotations of masked men making a ransom demand after a kidnapping, this may well be close.

 

Harassment of Debtors

This is a little known offence under s40 Administration of Justice Act 1970. It is committed when someone:

with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he—

(a) harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;

(b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;

(c) falsely represents himself to be authorised in some official capacity to claim or enforce payment; or

(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

There is a general defence (s40(3)) if what was done was reasonable. It seems that the case against Wonga under either (c) or (d) is a pretty strong one. The difficulty here is that this offence is also summary only, with no extension period, and so it would appear to be time-barred.

 

Comments

Wonga was never one of those brands that is thought of highly by the public, but this won’t have done anything to help it. Have they broken the law? It’s an interesting question. It is unlikely that the police or CPS would get involved. If Ms Creasy wants to launch a private prosecution however, then she is perfectly entitled to…

 

From the Telegraph

From the Telegraph

Susan and Christopher Edwards – life for murder

BBC

BBC

Introduction

We looked at the case of Susan and Christopher Edwards who were convicted of the murder of Ms Edwards mother and father (Patricia and William Wycherley) on Friday. A life sentence was guaranteed – we predicted a tariff of 22-25 years how did we do?

Well. The actual tariff was set at 25 years when sentence was passed on 23rd June 2014.

 

Factual Background

The murders date from 1998 when (probably) Mr Edwards killed Ms Edwards’ parents at her instigation. They buried the bodies in the back garden and then started on a sophisticated series of frauds.

This was started by taking £40,000 out of the Wycherley’s bank accounts the day after the murders. Since that date the Edwards pretended that the Wycherleys were alive and well and living in (variously) Ireland, Blackpool and Morecambe in order to collect a further £245,000.

Most of this money seems to have gone on, bizarrely, celebrity memorabilia. They gave themselves up last year after having run out of money. At that point, they stated that the bodies were in the back garden, which were duly found.

 

Sentence

We have the sentencing remarks which, as always, repay reading. We have to say that the single thing that would help the public understanding of the criminal justice system is more publication of what happens in Court.

Anyway, the Judge sets out clearly what the starting point was – in this 14 years because of the time that they were committed. She states that it was a planned and premeditated murder, done for gain and carried out with a firearm (although the latter was not of such concern in 1998). The Judge accepted that the animosity from Ms Edwards to her father stemmed from the fact that he had sexually abused her, however it could not be said that that was the cause of the murder.

The tariff was increased by 11 years to 25 years to reflect all the aggravating features.

 

Comment

As we said last week, the starting point now would be over 30 years. Given that this offence pre-dates the huge increases in sentencing introduced by the Criminal Justice Act 2003, a much reduced term would be expected.

The tariff set  was at the top end of what we had suggested. Reading the sentencing remarks, it is a very strange and sad case, and presents a somewhat more mitigation than seemed at first sight. For that reason, we would have thought that a tariff of 20 years would have been more than sufficient.

For the reasons previously stated, we would have thought that whilst there will be an appeal, we would not expect it to be successful.

Susan and Christopher Edwards guilty of murder

BBC

BBC

Introduction and Facts

In 1998 Patricia Wycherley (63) and her husband William (85) were shot dead by their daughter, Susan Edwards (assisted by her husband Christopher) and buried in their back garden.

Mr and Mrs Edwards then took £40,000 out of the Wycherley’s bank accounts. Since that date the Edwards pretended that the Wycherleys were alive and well and living in (variously) Ireland, Blackpool and Morecambe in order to collect a further £245,000.

Most of this money seems to have gone on, bizarrely, celebrity memorabilia. They gave themselves up last year after having run out of money. At that point, they stated that the bodies were in the back garden, which were duly found.

 

Trial

At the trial, the couple admitting stealing money from the Wycherleys and obstructing the coroner. Mrs Edwards stated that her mother had shot her father which provoked her into shooting her mother after she found out. She was therefore not guilty of either murder, but guilty of the manslaughter of her mother. Mr Edwards came to help dispose of the body.

This account was disbelieved by the jury, who found them both guilty of murder on 20th June 2014. Sentence has been put off until Monday.

 

What will they get?

There will be the mandatory life sentence for murder, with concurrent, fixed length, sentences for the other offences. The key question is what the length of the tariff will be.

If these murders had been committed in the last ten years then it would be a murder of two people which puts it in the 30 year starting point. It is probable that the Court will find that it was a murder for gain, which is another reason that puts it in the 30 year starting point.

The two together would mean  a starting point above the 30 years. The disposal of the bodies, and long period of time where it was pretended that the parents were still alive, is a further aggravating factor.

For this reason, this is probably a case where the starting point would be about 35 years. Susan Edwards is 56 and Christopher 57, which means with that tariff they would be in their early 90s before they can be considered for release. In effect, then, that would be a whole life tariff.

However. These murders pre-date the Criminal Justice Act 2003. At the time, sentencing was a lot more lenient – the starting point would have been about 16-18 years. Even so, with the aggravating features, there would be a higher tariff – about 19-20 years. In reality, sentencing for these historic cases are a bit inflated nowadays, so we would predict a tariff of 22-25 years.

 

No whole life tariff?

The starting point is a whole life tariff if there is the murder of two people where there is “a substantial degree of premeditation or planning“.Would this have applied here? Possibly. We would to need to know more about the facts to see whether there is the evidence for that. All we would say is that this doesn’t ‘feel’ like a whole life tariff, even under the new law.

We will have a look at this on Monday when they are sentenced.

 

 

Independent

Independent

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.