Author Archives: Lyndon Harris

Adebowale receives permission to appeal against 45-year minimum term

rigby

From the Guardian

Michael Adebowale, one of two men convicted for the brutal murder of Lee Rigby in Woolwich in 2013, has been given permission to appeal against his sentence. In January 2014, he was sentenced to mandatory life imprisonment with a minimum term of 45 years. Our write-up of the sentencing hearing can be viewed here.

It is expected that he will appeal against the length of the minimum term only, as the life sentence is mandatory.

What’s the process? 

After being sentenced, a defendant has 28 days in which to lodge grounds of appeal against sentence. Once that period has expired, a defendant wanting to appeal would have to apply ‘out of time’ and provide reasons why the application is late.

Once grounds have been submitted, the case papers are prepared by the Criminal Appeal Office and placed before ‘the single judge’ – a high court judge who sits on his or her own (hence ‘single’) and reviews the case on the papers only.

The single judge then grants or refuses leave to appeal. Granting leave means a full oral hearing will follow.  Refusing leave gives the defendant one of two options: a) leave it there – the single judge has indicated that the grounds aren’t arguable, or b) renew the application for leave. This second option means that the defendant effectively ‘forces’ an oral hearing and applies once again for leave (permission to appeal) before the full court (in sentence cases this is either two or three judges).

In a renewed application, the court will consider the application for leave, and where they decide it ought to be granted, they can (but don’t have to) deal with the appeal there and then. If they refuse leave, they can make a direction for a loss of time which means any time spent in custody between applying for leave and the hearing does  not count against the sentence. In effect, it adds on some time to the sentence that has to be served.

Adebowale

Adebowale has received leave and so a full hearing will follow. As what ever the result, he will spend a very long time in prison, it is likely to take a good few months before it comes before the court. We will of course cover it when it does.

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Andy Coulson sentenced to 18 months’ imprisonment for involvement in phone hacking

Photo from the Guardian

Photo from the Guardian

Introduction

On 4 July 2014, Andy Coulson was sentenced to 18 months imprisonment for conspiracy to hack phones.

Four others who had pleaded guilty received 1/3 credit and were sentenced as follows:

Neville Thurlbeck – 6 months

James Weatherup – 4 months suspended for 12 months. 200 hrs unpaid work

Greg Miskiw – 6 months

Glenn Mulcaire – 6 months suspended (reportedly due to the failure to charge him properly in 2006 when the police had sufficient evidence).

History

The trial of Rebeka Brooks, Andy Coulson and others began at the Central Criminal Court on 28th October 2013.  On 11th June 2014 the jury retired to consider their verdict.

Verdicts were returned on 24th June 2014. The headline news was the conviction of Andy Coulson on one count, but the acquittal of most other defendants.

On 25th June, the jury were discharged from giving a verdict on Mr Coulson and Clive Goodman on further counts and the CPS subsequently announced they would be pursuing a retrial.

You can read our coverage of the case here.

What was the case about?

Phone hacking and the behaviour of the New of the World.  In particular, it was alleged that employees working at the News of the World hacked the phones of a number of individuals in an effort to obtain information about celebrities for publication in the newspaper.  This was a direct invasion of those individual’s right to privacy.  Many of the victims of hacking are celebrities.  Some were members of the public misfortunate enough to hold the same surname as a celebrity.

It was agreed by both the prosecution and the defence that phone hacking went on at the NoTW, the issues for trial are how much, when, and who knew about it.

There were also allegations that the newspaper was involved in paying various officials (primarily police officers for information and destroying evidence to cover their tracks.

Andy Coulson

Andy Coulson – now aged 46, Coulson was deputy editor of the NoTW under Brooks’ role as editor.  Later he became editor.  He resigned to work for the Conservative Party, where he became the Prime Minister’s Director of Communication.

The indictment

Count 1:

Conspiracy to intercept communications

Details : ANDREW COULSON between 3 October 2000 and 9 August 2006 conspired … and with Glenn Mulcaire, Clive Goodman, Greg Miskiw, Neville Thurlbeck, James Weatherup and persons unknown, to intercept, without lawful authority, communications in the course of their transmission by means of a public telecommunications system, namely mobile phone voicemail messages.

Verdict: Andy Coulson – Guilty

The offence

The offence is one of conspiracy under the Criminal Law Act 1977 s 1, which creates an offence of agreeing with another or others that a course of conduct shall be pursued which if carried out will result in the commission of an offence.

In this instance the offence is ‘unlawful interception’.

Regulation of Investigatory Powers Act 2000 section 1

Unlawful interception

(1) It shall be an offence for a person intentionally and without lawful authority to intercept, at
any place in the United Kingdom, any communication in the course of its transmission by means
of—

(a)  a public postal service; or

(b)  a public telecommunication system.

(2)  It shall be an offence for a person—

(a)  intentionally and without lawful authority, and

(b)  otherwise than in circumstances in which his conduct is excluded by subsection (6)

from criminal liability under this subsection, to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of a private telecommunication system.

Maximum sentence

Under section 3(3) of the Criminal Law Act 1977, the person convicted of conspiracy shall be liable to imprisonment for a term not exceeding the maximum term provided for the offence they have conspired to commit. (There are a few exceptions but they do not apply here.)

Regulation of Investigatory Powers Act 2000 section 1

(7)A person who is guilty of an offence under subsection (1) or (2) shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both;

(b)on summary conviction, to a fine not exceeding the statutory maximum.

As Coulson’s conviction was on indictment, the maximum sentence is 2 years’ imprisonment.

Mitigation

The following is taken from the Guardian’s report of the hearing on 1 July 2014.

Timothy Langdale QC said that the maximum sentence should be reserved for cases of the utmost gravity and therefore the sentence should not be 2 years.

Langdale said that “Such a penalty would be unfair on Coulson who did not “knowingly flout the criminal law” and was hitherto of good character…” It was also said that the newspaper’s legal department did not tell Coulson that hacking was illegal.

It was also said that Coulson had already lost two careers – one as a journalist and the second in political life – and this had taken a toll on his life, leaving him unable to get “any work of any substance”.

Spectator editor and political columnist Matthew d’Ancona appeared as a character witness for Coulson, saying that he had restored “public values” to the office of government communications director which had been tarnished by years of the “culture of spin” by two previous incumbents.

Langdale added: “Whatever its failings, the News of the World did have a genuine social and public impact, quite aside from what might be known as the kiss-and-tell journalism and ‘tarts and vicars’ journalism,”

Finally, he said “No one at the News of the World or the newspaper at large in 2000 to 2006 realised that the interception of voicemails was illegal in the sense of a criminal offence,” and that Coulson quite clearly knew hacking was a breach of the Press Complaints Commission code and there might be privacy issues, but never knew it was a crime.

Cases

As this was a rather unique set of circumstances, past case law is of little assistance. However, some guidance can perhaps be obtained from R v Stanford 2006 EWCA Crim 258 (a case about email hacking) in which the Lord Chief Justice said ‘The material factors for a section 1 offence are the nature of the material obtained and the object of obtaining it.’.

It will also be remembered that Clive Goodman and Glenn Mulcaire received 4 months and 6 months respectively after pleading guilty to a conspiracy to commit RIPA 2000 s 1 (phone hacking) in relation to 609 messages on royal aides’ phones occurring over a period of 9 months.

Sentencing remarks

The Judge said Coulson took an active role and must take a large share of the blame and that Coulson wanted stories and “there was little care how he got them, there was little concern for personal privacy”.

The sentencing remarks are available here.

Release

Coulson is likely to be released on a tag (Home Detention Curfew) well before the half way point of his sentence. The way to calculate HDC eligibility in this case is to work out the requisite custodial term (which is half of the imprisonment). The subtract 135 days. So for Coulson, 18 months / 2 = 9 months, subtract 135 days = approximately 4.5 months before he is eligible for release on a tag.

Will there be an appeal?

Possibly but it would be unlikely to succeed. We’ll be able to say more once we have digested the sentencing remarks.

Rolf Harris Guilty of twelve counts of indecent assault

From the Huffington Post

From the Huffington Post

Introduction

On 30th June 2014, Rolf Harris, 84, was convicted of 12 counts of indecent assault at Southwark Crown Court. 

Offences

Harris was charged with 12 counts of indecent assault (Sexual Offences Act 1956 s 14) 

The 12 charges were in relation to four different complainants occurring between 1968 and 1986. The complainants were aged between seven and 19.

We have a factsheet on historic sex offences.

Individual counts

Complainant 1 – C1

How many counts? Seven of the 12 counts related to this complainant

When were the offences alleged to have been committed? 1978 – 1985

How old was the complainant? 13 – 19 (although it was said that the complainant alleged she was abused by Harris up to age 29)

Who was she? A friend of Harris’ daughter. 

The alleged activity The Mirror reported: Harris approached the girl in her room after she came out of the shower wrapped only in a towel, then indecently assaulted her “on the pretext of a hug and tickle”.

Details During a family holiday to Hawaii in 1978, C1 was assaulted by Harris. He went on to touch C1 several more times during the holiday, including after they moved on to Australia for the trip. 

The Mirror reported: She said had just got out of the shower and was wrapped in only a towel when he came over and gave her a “cringey” hug.

She told the jury of six women and six men: “The way he hugged you and touched you all over, it was cringey.

“The way Rolf folded himself around you, he was a big man…he enfolded you in his arms and then touched you up and down over your body.

“He’d go ‘ooh’.”

He then sexually assaulted her before going back downstairs as if “nothing had happened”, the woman told the court.

C1 also said Harris twice led her away from a jetty where she had been sunbathing to abuse her down the side of the house.

However in cross examination Harris’ barrister questioned C1 about her diary,  particularly asking why there was no mention in her diary of the alleged abuse. The diary entry for that day commented “Today was great, we went on the beach and went swimming.”

Further assaults were said to have taken place in her own home during her teens and on one occasion when other people – including Harris’ wife – were present in the room. C1 developed a drinking problem at age 14 and would drink “shed loads of gin” when Harris visited her family home. C1 also alleged that Harris abused her when she was in bed next to Harris’ daughter Bindi. 

When C1 was 14, Harris followed her to her room, and said she “turned him on” before assaulting her.

After C1 turned 19 there were occasions when she consented to sexual encounters with Harris, which continued until she was 29.

On one occasion she performed a sex act on Harris on the M4 motorway in Harris’ red Mercedes when she was 22 in 1987.

C1 went to see Harris in Cinderella in Wimbledon in 1994.

She performed a sex act on him in his dressing room before the panto started.

She brought the abuse to an end when she was 29.

C1’s father wrote a letter to Harris after C1 told him of the abuse. Harris replied in 1997 admitting a sexual relationship, denying that it began when she was aged 13 and  he had been left feeling “sickened” to learn of the misery he had caused her.

Harris said he believed that “everything that had taken place had progressed from a feeling of love and friendship”, and there was “no rape, no physical forcing”.

Complainant 2 – C2

How many counts? 1

When were they committed? 1968

How old was the complainant? 7 or 8

Details When aged 8, C2 saw Harris at a community centre. in Portsmouth She went to get his autograph. He touched her indecently in an ‘intrusive’ way. 

The Mirror reported: C2 told jurors: “He was very very close, he was leaning into me.

“I thought he was warm, being accommodating to a small child.

“He was looking at me smiling and I smiled and was looking excited, then from out of nowhere I felt his hand go down my back and up between my legs.

“It was very quick, so quick that I thought to myself ‘what’s just happened’.”

The girl “could not process” what had happened and thought it may have been an accident but Harris then repeated the same move.

She said: “More or less instantly the hand was back. I don’t recall it on my back that time, but it was straight up between my legs quite aggressively and forcefully and it didn’t matter if it was going to hurt me or not.”

Complainant 3 – C3

How many counts? 1

When were they committed? 1975

How old was the complainant? 14

Details At an ‘It’s a Knockout’ event in Cambridge, C3 saw Harris playing with a dog. He said “oh look who’s here’ before fondling her.

The Mirror reported: C3 told the jury of six men and six women that Harris put his arm around her, and moved his hand up and down her back, before squeezing her bottom.

With her voice wavering, she said: “I can’t remember the exact words but he made some motion to me ‘ come up’, and I can see it in my mind’s eye as clear as if it was happening now. He came up and put his arm around my left shoulder.

“It was quite a firm hold. I just stood there. I couldn’t believe what was going on, this famous person putting his arm around me.

“To start it was a very nervous but a good feeling, however his hand then moved and his hand went up and down my back and his hand went over my bottom and it was very firm.”

Complainant 4 – C4

Anonymity – C4 had reportedly ‘waived’ her right to anonymity. Whilst there is provision for that under the relevant legislation, we will air on the side of caution and refer to her as C4.

How many counts? 3

When were they committed? ‘late 1980s’

How old was the complainant? 15

Details C4 met Harris whilst she was part of a theatre group in Australia. The group travelled to the UK in 1986 where they met Rolf and had dinner at a London pub where he told funny stories. He asked the girls to sit on his lap whilst he touched them inappropriately. C4 was in shock and went to the bathroom. When she left the bathroom Harris was waiting for her and groped her again. Harris stopped when someone walked by. 

The Mirror reported: C4 then aged 15, said she was invited to sit on the entertainer’s lap, and that his hand began to creep up her thigh.

She said: “I could feel that there was some movement happening beneath me. He was moving back and forth rubbing against me.”

The defence commented that C4’s decision to give press interviews about the alleged abuse demonstrated a desire to make money out of Harris. 

Other alleged victims

The court also heard from five other women who claimed to have been victims of Harris’ behaviour. As some of the behaviour was committed outside of the UK and before legislation enabled such offences to be tried in the UK, the evidence was adduced to attempt to demonstrate how Harris had a defined pattern of behaviour in relation to young women and girls. The jury were not asked to consider whether he was guilty of those allegations. The most notable allegation to feature in the papers was probably that Harris told an 11-year-old girl, “I want to be the first one to give you a tongue kiss,” as he lunged at her during a trip to Australia in 1969.

Jury questions

The media are always fascinated by these. Often they can give an inaccurate indication as to the stage or thought process of the jury and barristers tend to tell their clients not to take too much heart (or dismay) from a particular question asked by their jury.

The jury asked the Judge a question on Friday 20 June. The Guardian reported that they were sent home for the weekend early after asking the Judge what happens if they are unable to reach a unanimous verdict.

The Judge replied: “At the moment the only verdict on each count I can accept from you is one upon which you are all agreed.

Sentencing

Maximum sentences

Sexual Offences Act 1956 s 14 – the law was amended over the years and the maximum sentence changes depending on when the offence was committed. The relevant periods are:

1 January 1957 – 31 December 1960: 2 years

1 January 1961 – 15 September 1985: 2 years or 5 years if victim under 13 and age stated on indictment

16 September 1985 onwards: 10 years

What does this mean for Rolf Harris?

C1 – max sentence on each count 2 years

C2 – max sentence 5 years provided the indictment specifies C2 was aged under 13

C3 – max sentence 2 years

C4 – max sentence on each count 10 years

How will the Judge approach the case?

The starting point for sentencing historic sexual offences is the new sexual offences guideline. We have a fact sheet on the sentencing of historic sexual offences which explains the way the Judge will approach the sentencing exercise. 

Additionally, as there are multiple counts to sentence for, our guide on totality and concurrent and consecutive sentences may be of interest.

He will be sentenced on Friday 4 July at 10am. He was bailed until then.

‘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.

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!

Government propose to increase level of fines in Magistrates’ Courts

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

This had been in the offing for some time.

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

What are the changes?

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

Level 1            £200

Level 2            £500

Level 3            £1,000

Level 4            £2,500

Level 5            £5,000

They will increase to:

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

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

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

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

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

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

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

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

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

Will the changes have a big impact?

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

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

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

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

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

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

Mohammud Yusuf – 25-year minimum term for sexual murder

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Mohammud Yusuf was today sentenced for murder.

Facts

On 18th October 2013 police were called to an address in Neasden after a carer had reported that one of the women she looked after had been attacked. Amoe Stevens was taken to hospital but died shortly afterwards of her injuries.

Her son in law, Mohammud Yusuf, was quickly arrested. He lived with Ms Stevens daughter (Margaret) and their two children. It was alleged that after Margaret had left the house, Mr Yusuf attacked her mother – it seems that this was not the first occasion that this had happened.

The prosecution stated that there was a sexual motive for this, and put forward evidence that Mr Yusuf had an ‘obsession with violent pornography’ and his mobile phone had ‘searches for pornographic videos showing violent rape, gang rape and incest’.

Conviction

On 2nd June 2014 Mr Yusuf was unanimously convicted of murder. Sentence was adjourned until Friday 6 June..

Judge’s comments

The Judge made various comments about the gravity of the offence – “This lady suffered the most agonising death imaginable … I have never come across such a factual background of a case like this”,

Sentence

As well you know by now, there is only one sentence for murder – mandatory life. The question facing the Judge was how long was the tariff going to be?

Our factsheet on murder sentencing is here.

We don’t have the Judge’s sentencing remarks (yet) but it was thought that this may well be considered to be a murder ‘involving sexual or sadistic conduct‘, which would give a starting point of 30 years. From there, the Judge would have to consider whether to move up or down (or both) to reflect the aggravation and mitigation.

In the event, the Judge imposed a 25-year minimum term. There was no discount for a guilty plea, which in murder cases is limited to 1/6 or 5 years.

We are unaware of the exact facts – and the extent of the injuries – and so making an assessment of the length of minimum term is difficult.

What we are able to say though, however, is that whether the Judge selected a 30-year minimum term (based on sexual conduct – which seems likely) or a 15-year term (having decided that the higher starting point didn’t apply, it is the eventual total that matters.

Moving down from 30 to reflect mitigation, or moving up from 15 to reflect aggravation is simply two routes to the same end; the correct sentence.

As we have said, we are unsure as to whether this is too short so we will wait for the sentencing remarks to see how the Judge arrived at the 25-year figure.