Author Archives: Lyndon Harris

‘Slurry pervert’ David Truscott receives Hybrid Hospital Order and Extended sentence

Truscott, David

Last year, David Truscott pleaded guilty to making threats to kill and damaging property (most likely ‘criminal damage’).

The basic history is that Mr Truscott has a particular penchant for rolling around in slurry whilst sexually pleasuring himself. In doing so he had, over a lengthy period of time, engaged in a course of harassment against the farmer in question. He was made subject to a restraining order – an order which prohibits an individual from doing particular acts, going to particular places or contacting particular people – which he subsequently breached. Twice. He was imprisoned for both breaches (2006 and 2011).

Truscott, now aged 44, was found naked at Woodbury House Farm, covered in mud and slurry and surrounded by tissues. He has reportedly been caught numerous times
sexually pleasuring himself, naked, whilst surrounded by slurry.

Mental health issues

The issue of Truscott’s mental health was raised last year and he was given an interim hospital order.

An interim hospital order has a maximum length of 12 weeks and enables medical practitioners to assess the offender before a final disposal – the sentence.

It can only be made where a person has been convicted of an offence punishable with imprisonment, the offender is suffering from a mental disorder and a hospital order is thought to be appropriate, the court may make an interim hospital order.

Last year, we questioned whether Truscott would end up with a ‘full’ Hospital Order when he was eventually sentenced. It is possible to add a ‘restriction order’ to a Hospital Order which means that the individual cannot be released until his detention is no longer necessary for the protection of the public.

Sentence

Last week, Truscott was sentenced.

It was reported that he received an extended sentence of 10 years, comprising a custodial term of 5 years and an extended licence of 5 years. This means that the Judge considered that Truscott posed ‘a substantial risk of serious harm’ to members of the public – this is known as the ‘dangerousness’ criteria.

The release rules for extended sentences are different to ‘ordinary’ imprisonment; offenders must serve 2/3 of the custodial term before release (and in some circumstances even longer). This means Truscott will serve 40 months in prison and then 80 months on licence.

The BBC reported: Judge Philip Wassall said Truscott, who has autism spectrum disorder, would spend the first five years of his prison sentence receiving hospital treatment.

So the position wasn’t entirely clear. Was it a Hospital Order, or was it an extended sentence? The BBC actually reported that he had been jailed for 5 years, which is a bit misleading.

So what is the true position?

It appears that in fact, the Judge imposed what is known as a Hybrid Order – a mixture of a prison sentence and a hospital order. A Hybrid Order is suitable where the offender suffers from a mental illness but there is also a need to protect the public, meaning that Truscott cannot be released until a) his mental health improves and b) he has served the necessary time under the extended sentence.

Appeal?

We know too little about the facts of the offences and of Truscott’s mental health situation, and whether or not the imposition of a Hybrid Order was challenged by Truscott’s representatives at the sentencing hearing, and so it is impossible to say.

However it could be argued that a Hybrid Order where the imprisonment is an extended sentence (which deals with the ‘risk’ posed by the offender) is wrong in principle as the ‘risk’ would be adequately dealt with by medical treatment of the hospital order with a restriction order added on. Watch this space.

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Age of criminal responsibility – University of York research

We were contacted by a student at the University of York who is conducting some research into which social influences have led to our current juvenile justice policy with a focus on examining the age of criminal responsibility.

The age is currently 10 years old – but this is subject which is very controversial. There’s a Bill in Parliament to raise the age but that currently seems to be going no where fast.

The research seeks to examine the attitudes of the public to the age of criminal responsibility and whether it ought to be raised above the age of 10.

Can you help?

The number of participants in the research is obviously key and we’re asking whether you, dear reader, can help.

If you can spare a few minutes, please follow this link and complete the questionnaire on what is undoubtedly a very important subject.

Skullcracker gets another life sentence for another robbery

From the BBC News website

From the BBC News website

Michael Wheatley – the Skullcracker – pleaded guilty to robbery, possession of a firearm and being unlawfully at large on 7 May.

On 29 May, he was sentenced to life imprisonment with a minimum period of 10 years.

Wheatley was in prison for numerous armed robberies. He was on day release and failed to return. Predictably, he went and robbed a bank (£18,000) and was subsequently caught in east London.

Previous

As has been widely publicised, he had extensive previous. He had 23 previous convictions for robbery, two for attempted robbery and 18 for related firearms offences.

In 2002, he was given 13 life sentences for bank robberies.

Escape

He was serving a life sentence at an open prison when he failed to return from day release.

The BBC reported that ‘He had gone on the run twice in the past and each time staged a series of violent robberies before being caught and re-jailed.’

Sentence

So a straightforward life sentence? Er, not quite.

Wheatley was sentenced for the robbery and the related firearm counts. There are four types of life sentence in England and Wales:

1)      Mandatory life (murder cases only)

2)      Discretionary life (where the offender is ‘dangerous’)

3)      Discretionary life (where the offender is not ‘dangerous’)

4)      Automatic life (where the offender has particular previous convictions)

So which applies here?

Considering his previous convictions, it is undoubted that Wheatley is ‘dangerous’ within the meaning of the Criminal Justice Act 2003 which provides the power to imprison someone for life.

But also, due to his previous convictions, automatic life (also known as ‘two strikes life’) also applies. Here’s why:

a)      At the time of the new offence, Wheatley has a previous conviction (more than one actually) for armed robbery – this is a requirement under CJA 2003 Sch 15B

b)      The sentence(s) received a custodial term of either 10 years + or a life sentence

c)      He now, after 3 December 2012 (because that is when the automatic life sentence was available from) has another conviction for a CJA 2003 Sch 15B offence – armed robbery

d)     The sentence for the new offence is worth 10 years + or life

We don’t have a transcript so it may be that the Judge got it bang on. But what should have happened? The Judge should have considered dangerousness and recorded that Wheatley was dangerous and therefore was receiving a life sentence under those provisions. He should then have considered automatic life and recorded that Wheatley was also subject to those provisions.

Anything else?

The Judge should probably have made an order for Wheatley to pay £120 victim surcharge, although due to sloppy legistlative drafting this is not entirely clear.

A point of note

The way in which the automatic life sentence works means that in very rare cases, someone could receive a life sentence for an offence which does not carry life as its maximum. Here’s why:

The list of offences in Sch 15B contains offences which do not carry life as a maximum – making etc. indecent images of children (10 years) for example. If a person had a conviction for rape (max sentence life) and received 12 years, and then subsequently was convicted of the indecent images offence, and would (but for the automatic life provisions) receive the maximum 10 year sentence, automatic life would apply and they would be  in line for a life sentence, even though the new offence a) wasn’t ‘worth’ a life sentence and b) the maximum sentence for the new offence wasn’t life imprisonment.

Funny huh?

So why doesn’t life mean life?

We had a look at this issue previously, here. In essence, the ‘life’ in life sentence refers not to the imprisonment, but the sentence as a whole, being made up of a custodial term, and the life licence which the offender is subject to upon his or her release.

 

Man wearing pig mask and toy police officer’s helmet arrested for impersonating an officer

 

 

From the MEN

From the MEN

Well, where to begin with this one?

A dis-grunt-led Steven Peers was arrested on suspicion of impersonating a police officer. He was in Manchester City Centre wearing a toy police officer’s hat, a pig mask and a hi-vis jacket.

Why?

The MEN reports:

Steven Peers said he has often donned the mock outfit to perform ‘comical parodies’ of Greater Manchester Police after becoming unhappy with how officers behaved during the Barton Moss anti-fracking protests.

He was reportedly filming sketches when he was stopped by an officer who asked questions about his outfit. He was arrested (without resistance so no need for a hambulance) detained for 8 hours and then bailed. The outfit was confiscated.

Peers huffed and puffed and said: ‘It’s ridiculous’…’ It’s just a parody making fun of GMP. I’ve dressed like this at Barton Moss, in front of Swinton police station and in front of the force HQ in Newton Heath. Other officers have laughed it off.’

What’s the offence?

Police Act 1996 s 90 created offences relating to the impersonation of a police officer:

(1)  Any person who with intent to deceive impersonates a member of a police force or special constable, or makes any statement or does any act calculated falsely to suggest that he is such a member or constable, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(2)  Any person who, not being a constable, wears any article of police uniform in circumstances where it gives him an appearance so nearly resembling that of a member of a police force as to be calculated to deceive shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3)  Any person who, not being a member of a police force or special constable, has in his possession any article of police uniform shall, unless he proves that he obtained possession of that article lawfully and has possession of it for a lawful purpose, be guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale.

We shan’t comment on which we think it is most likely he will be charged with – if at all – but all three offences are triable only in the Magistrates’ Court with only subsection (1) having a custodial sentence available.

Comment

We’re rather limited as to what we can say about this for obvious reasons, but we’ll certainly return to this as and when it pops up in the news.

Let’s hope he has a good brief to save his bacon (sorry-couldn’t resist). We would imagine that, given the pig mask, it is unlikely that a member of the public would have mistaken that for a genuine police officer.

Other cases

A quick Google led me to these three idiots:

To get donuts

Directing traffic

At a funeral

 

 

Stuart Hall sentenced to 2.5 yrs for two counts of indecent assault

 

Photo from the Mirror

Photo from the Mirror

Introduction

We covered the case of Stuart Hall who was acquitted of all charges of rape and all but one of indecent assault last Friday. He fell to be sentenced for the one offence of indecent assault that he was convicted of as well as one that he had pleaded guilty to at the start of the trial.

These offences were committed against the same victim.

Count 19 – Indecent assault – Guilty plea

The victim was aged 13. Hall was invited to supper at the victim’s parents house. The victim, with Hall’s son, consumed a quantity of alcohol and was sick. She went to bed and Hall entered her bedroom and digitally penetrated her with his fingers. At one point he tried to get on top of her but eventually desisted. He had also indecently assaulted the victim’s friend, who was also present. He pleaded guilty to that count last year and was sentenced to 15 months.

Sentence: Starting at 18 months. 6 months discount for pleading guilty. 12 months

Count 21 – Indecent assault – Convicted

Hall had admitted having a sexual relationship with  the victim, aged then 15. He would buy her champagne and presents and take her to football matches on which he would commentate. He was convicted of one count of indecent assault; the jury found that oral sex occurred between Hall and the victim. Because the offence of unlawful sexual intercourse can no longer be prosecuted due to a time bar, the intercourse cannot be prosecuted unless they are indicted as rape. The jury returned not guilty verdicts on those counts and so this offence has to be prosecuted as indecent assault.

Sentence: 18 months

Sentencing remarks

The Judge’s remarks are available here. They are worth a read if you want to understand the nature of the offences and the way in which the Judge arrived at his final decision as to sentence.

What about the sentences Hall is already serving?

Stuart Hall was sentenced to 12 months and 18 months consecutive, making a total of 2 1/2 years. That is to be served consecutively to the sentence of 2 1/2 years he is already serving.

The Judge considered that because the victims of these two offences were separate from those in respect of which he pleaded guilty last year, notwithstanding that one offence occurred on the same evening against a different victim, consecutive sentences were appropriate.

Analysis

The starting point is the Sexual Offences Guidelines and the sentence that would be passed if the offences were committed today (see our fact sheet here).

Indecent assault has a maximum sentence of two years for these offences and so the Judge had to work within that maximum.

The primary issue for the Judge to consider was totality both in respect of the sentences that Hall is currently serving and in relation to the two counts against the same victim.

Concurrent or consecutive with one another?

Where offences are committed against the same victim, often courts will pass concurrent sentences, ensuring that the total is proportionate to the overall offending. In this case, the Judge made the sentences consecutive. That is because the two offences were very different in nature and committed at very different times – one when the victim was aged 13 and one when she was aged 15. That analysis appears to me to be correct.

Concurrent or consecutive to his current sentence?

The Totality guideline suggests that where offences were committed before the previous sentence was imposed, the approach should be to consider what the sentence length would have been if the court had dealt with the offences at the same time and ensure that the totality of the sentence is just and proportionate in all the circumstances. If it is not, then an adjustment must be made to the sentence.

The Judge obviously felt that had these two counts been sentenced at the same time as the offences to which Hall pleaded guilty last year there would have been an additional 2.5 years added to the sentence and so no adjustment was necessary.

So, is it too long?

Previously, we would have expected this sentence to have been reduced for totality on the basis that 5 years for all the offending (these two and the ones he pleaded to last year) was too long based on the old law. However, practice is changing and sentences for historic sexual abuse are getting longer. For that reason, we will not be pinning our colours to the mast as to whether an appeal would be successful. Having said that…

Will Hall be off to the Court of Appeal?

I would think he is likely to receive permission to appeal. The outcome of the Max Clifford sentence appeal will be instructive as to whether a complaint such as this about the length of the sentence for historic sexual offences is likely to result in any reduction in sentence…so we will refrain from committing ourselves either way just yet.

Sgt Danny Nightingale refused permission to appeal conviction

nightingale

Introduction

On 20 May 2014, Sgt Danny Nightingale was refused leave to appeal against his conviction.

What does that mean?

When someone wants to appeal against conviction or sentence, they have to apply for permission. This is reviewed by the Single Judge (a High Court judge who looks at the case papers but doesn’t hear any oral argument) and permission is either granted or refused.

If permission is refused, the appellant has the opportunity to ‘renew’ the application before the full court. This means that the application goes before the court (in front of two or three judges, as appropriate) for an oral hearing. At that hearing, the appellant must apply for permission to appeal again. If it is granted, the court then hears the appeal, if it is refused, that is the end of the line.

We have a fact sheet on the appeals process which contains further details.

Ok, so remind me of the history of the Nightingale case…

Well, where to start? But in essence…

  • He was charged with possession of a prohibited weapon and ammunition.
  • He pleaded guilty and was sentenced.
  • We have a short post on the basic background up to this point here.
  • He appealed against his sentence, and was successful.
  • See here for a post about the sentence appeal.
  • He then applied to vacate his plea (withdraw it, essentially) so that he could plead not guilty and have a trial.
  • He then made an abuse of process application – an attempt to stop the trial from proceeding. See our post on that, here.
  • He was tried and was convicted at the retrial. We have a fact sheet on that here.
  • He was then sentenced (again).
  • It now appears that he appealed against his conviction, again. See here for an ITV news report.

So what happened?

It is our understanding that Nightingale applied for permission to appeal and was refused by the Single Judge. We then believe that he renewed that application before the full court, led by the Lord Chief Justice.

That application was refused – Nightingale failed in his attempt to have a full hearing about his appeal.

The court will have reviewed the grounds of appeal – the reasons why Nightingale says his conviction is unsafe – and decided that the conviction was safe.

And what happens next?

Well, that will most likely be the end of the line for Nightingale. There is an avenue to appeal to the Supreme Court but that has to be on the basis that there is a point of law of general public importance. On the information we have seen, it would appear that this is not such a case. Further, this can only be a possibility where the Court of Appeal grants leave to appeal and then dismisses the actual appeal. Here, it seems that the Court of Appeal simply refused to grant permission to appeal.

So Nightingale is left with a conviction for firearms, and thousands upon thousands of pounds of public money (to pay for the court time) and Nightingale’s supporters’ money (to pay for his lawyers) has been spent.

Burglars to get longer sentences when children give evidence – More nonsense from the MoJ

splogger-content-theft

Earlier this week, The Evening Standard ran a story that claimed ‘Burglars will face tougher jail sentences if children traumatised by the raids bravely tell courts of their ordeal.’

This was, it seems, a response to a statement made by Justice Minister Damian Green MP who the Standard reported, ‘stressed that judges should take into account personal victim statements made by youngsters, as well as adults, whose homes are burgled.’

What is he talking about?

That is the question I found myself asking, right before I emailed Dan to say ‘what a load of fucking nonsense’.

Just a few problems…

The article is somewhat confusing, seemingly failing to draw a distinction between children giving evidence at a burglary trial, and children making a Victim Impact Statement, and choosing to read that aloud at a sentencing hearing.

What’s the difference? Well at a trial, our fictional child may give evidence about the burglary (what he or she saw etc.), so that the jury or magistrates can determine whether or not our ‘burglar’ did it. At a sentencing hearing, our fictional child may choose to read his or her Victim Impact Statement aloud to the court (how the offence has affected them, are they scared to be in the house etc.).

So there is the first problem. The second problem is that the article (and Mr Green if the article is faithful to the points he was making) is making out as though this is a reform, and that the MoJ are making provisions for tougher sentences when children are affected by a burglary. The problem? That already happens.

The Burglary sentencing guidelines lists the following as aggravating factors:

[Aggravated burglary] Child at home (or returns home) when offence committed

[Domestic burglary] Occupier at home (or returns home) while offender present

Clearly, ‘occupier’ would encompass a child, and so when a child is at home during a burglary, that will be considered to be an aggravating factor and reflected in the final sentence.

The third problem is the suggestion that the Victims’ Code is somehow going to result in longer sentences for burglars. Firstly, there was already an inherent power to allow a victim to read a Victim Impact Statement aloud. The Code has simply formalised that power and is likely to have made it more common (but not by a great deal I don’t expect). Secondly, the idea that by reading your statement aloud, the defendant is going to get a longer sentence is simply wrong – it may put pressure on a person to read their statement when they do not wish to do so, and may encourage exaggerated or untrue statements. To suggest such a thing is irresponsible. Thirdly, it is common sense that whether read aloud or simply written and handed to the judge, the sentence will reflect the effect on the victim, as explained in the Victim Impact Statement – not by how well it is articulated orally in court.

So there we are. More nonsense from the Ministry of Justice, and a bit of dodgy press reporting to boot.