Category Archives: Bizarre Law

“Punch 4 Punch” – a game with tragic consequences

For those unfamiliar with the game “Punch 4 Punch”, as we at UK Criminal Law Blog were, we are reliably informed that the game involves players being filmed with one hand tied behind their backs, punching one another.  A seemingly odd form of amusement, the game involves two individuals taking turns to hit one another.  The “loser”, or the player who gives up first, then forced to take a forfeit, usually in the form of an alcoholic beverage.

This rather bizarre game can have tragic consequences, as one family from Bexley have sadly found out.  Tommy Main, a 23 year old father of one, was playing the game with a friend when he was rushed to hospital having collapsed after being punched in the chest.  He later died in hospital.  A 20 year-old man has been arrested on suspicion of murder and bailed until September for the police to commence investigations.

 

Tommy Main, photo: Evening Standard

Egg-Shell Skull

Whether the game caused Mr Main’s death is yet to be established.  However, it brings to mind the “egg-shell skull” rule.  Essentially, this rule states that those who commit offences must “take their victim as they find them”.  By way of explanation; if set out to steal a handbag, but in doing so you cause your victim to fall the ground, crack their head open and later die, you may be held criminally responsible for their death.  Although you may not have intended to kill, therefore may not be guilty of murder, you may be guilty of manslaughter, as death was the result, albeit an unexpected and unintended one.

Joint Enterprise

Joint enterprise is a legal doctrine enabling the CPS to charge a group of individuals with one offence, if they were allegedly acting together, regardless of what role they played.  For example, the man who sets out to steal the handbag, may ask someone to drive him to and from the scene of the crime, and therefore that driver can also be charged with theft/robbery/manslaughter/murder, in the same manner that the handbag thief is.  In Tommy Main’s case we would speculate that there may well be others involved, who may well face charges under this doctrine.

Sentencing?

If the 20 year-old man referred to above is charged with murder, what sentence might he expect to receive?  The sentencing guidelines for murder are explained here.  If a manslaughter charge is laid, he would be subject to different sentencing considerations and of course the judge would not have to impose a life sentence.  Until the case is investigated thoroughly it is simply too early to say what the outcome will be.  But this post will be updated as and when there are any developments.

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‘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.

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

 

 

Man fined for goldfish neknomination stunt

Taken from the BBC

Taken from the BBC

Gavin Hope, aged 22, pleaded to an Animal Welfare Act 2006 offence and was sentenced on 23 April 2014.

The law

The RSPCA prosecuted Hope for, presumably, under section 4 of the 2006 Act – that of causing unnecessary suffering to an animal. We presume it is under subsection

(2) A person commits an offence if:

(a) he is responsible for an animal,

(b) an act, or failure to act, of another person causes the animal to suffer,

(c) he permitted that to happen or failed to take such steps (whether by way of supervising the other person or otherwise) as were reasonable in all the circumstances to prevent that happening, and

(d) the suffering is unnecessary.

The offence is a summary only offence, triable therefore only in the Magistrates’ Court. The maximum sentence is a £20,000 fine and/or 6 months’ imprisonment.

The facts

The BBC reported that the RSPCA Chief Inspector said:

“The video shows Mr Hope prepare a pint glass with lager, chilli, tequila, a fresh egg and fish food.

“He picks up another glass containing a small amount of water and the goldfish, which is swimming around, and shows it to the camera before drinking it down, and following it with the pint.

“A vet report advised that the stomach would be a completely unsuitable place for a goldfish and that the fish would have died in time, the cause of death being a mixture of suffocation and acid ph levels in the stomach, as well as the alcohol he drank.”

It was said that it was after the decision to flush the fish down the toilet that Hope decided to drink it as a part of the Neknomination craze and that the decision was impulsive.

Sentence

Hope was fined £300, ordered to pay a £30 victim surcharge and £431 in costs.

The starting point is to look at page 40 of the guidelines. As usual, it can fairly be said that the offence does not fit into any of the three categories.

Whilst it was ‘one impulsive act’ (a descriptor in category 1 – the lowest category), it was also an attempt to kill – in fact it did kill – the fish (a descriptor in category 3 – the highest category). The sentencing range is from a Band B fine to 26 weeks’ imprisonment.

A Band B fine is 100% of relevant weekly income (range, 75-125%). Relevant weekly income is calculated from information provided by the offender on a means form, which they are required by law to complete.

In the event, Hope was fined £300. There is no information about his income and therefore it is difficult to say whether the fine was in accordance with the guideline. It is possible to say however, that the decision to impose a Band B fine – if that is the decision of the court – seems fair, considering Hope’s guilty plea. This is because to impose a Band B fine, the court would have started significantly higher than that level before giving a reduction for his guilty plea.

On a minor issue, the victim surcharge – a point often missed or incorrectly calculated by the courts – was correctly imposed in this case. Where an offender is fined, the surcharge is 10% of the fine.

Shouldn’t the £43,000 fare dodger be prosecuted?        

Image from lep.co.uk

Image from lep.co.uk

You may have seen a story in the press over the past few days about a hedge fund manager who dodged his train fare for about 6 years. (Here, here and here if you want some extra reading.)

The currently unnamed individual lives in Stonegate, East Sussex, and commuted to London where he worked as a hedge-fund manager. He would not buy a ticket at Stonegate, and would travel to London Bridge station. He would then change trains to London Cannon Street and would ‘touch out’ using his Oyster card at London Cannon Street station. Having not ‘touched in’ he would there incur the maximum fare on the Oyster card of just £7.20, instead of the £24.50 each way ticket price.

Avoiding prosecution

After being challenged by an observant member of staff at London Cannon Street, he claimed he had dodged the fare on five occasions. He then went on to renew his season ticket a few days later. This prompted Southeastern trains to investigate further. They believed the man had been dodging the fare for 5 years as some digging around revealed that he had last brought a season ticket in 2008. Southeastern trains notified the man of the sum owed (presumably based on 5 years’ worth of train fares).

The man never admitted to dodging the fares for 5 years, but offered to pay the sum of £42,550 plus £450 in legal costs.

This was on the basis that he would not be prosecuted.

The Daily Mail reported:

“Southeastern, who has not named the man, said all passengers have the option to avoid prosecution and settle out of court.

The train company told the Sunday Times that the executive wanted to protect his identity because he was concerned about the impact it would have on his job.

A spokesperson added: ‘All customers have the option to settle out of court and in this case he chose to pay the settlement fee that we put to him.”

What offences could have been charged?

There are a number of offences which could have been prosecuted.

Fraud Act 2006 s 1 (fraud) Max sentence 10 years

Fraud Act 2006 s 6 (possession of articles for use in frauds) Max sentence 5 years

Fraud Act 2006 s 11 (obtaining services dishonestly) Max sentence 5 years

Regulation of Railways Act 1889 s 5 (travelling on a railway without paying) Max sentence 3 months/£1000 fine

Factors

It seems to me that the relevant factors are as follows:

Aggravating:

  • Planned
  • High level of profit from the offence
  • Only stopped when he was caught, not of his own volition
  • Carried out over a significant period of time
  • Vulnerable victim (arguable, as the Stonegate train station was often unmanned and had no ticket machine, relying on the honesty of passengers)
  • Lied/tried to conceal the extent of the fraud
  • Motivation for the offence (financial gain, and absence of financial pressure)

Mitigating:

  • Repaid the money quickly
  • Not fraudulent from the outset (on the basis he had previously purchased a season ticket prior to 2008)

For Fraud Act 2006 s 1 (fraud) and 6 (possession of an article for use in fraud) offences, the guidelines (numbered page 22 para 13) recommend a starting point of 26 weeks custody.

Comment

Many people have commented that this appears to be yet another situation where there is one rule for the rich, and another for the rest of us, on the basis that Southeastern were only willing to agree not to prosecute the man on the basis he paid the huge sum of money off – and quickly.

To my mind, that is a fair point. When courts fine individuals, there is a principle that a rich defendant should not be able to buy his or her way out of a custodial sentence; basically, if an offence deserves custody, the fact that the defendant can afford to pay a large fine shouldn’t allow him or her to avoid a custodial sentence, and conversely, if a large fine is appropriate, a poor defendant should not end up in custody because they cannot afford to pay it. Whilst the sum repaid is not a fine, it is merely restitution of the money defrauded, the principle would seem to apply.

Secondly, is it not entirely appropriate that the man is prosecuted? I consider it right that he ends up with a criminal record for what is a sizeable fraud. It is highly likely that if the man were unable to repay the money, he would have been prosecuted. Southeastern appeared to cite the reason for not prosecuting as partly based on the risk and cost involved in the proceedings. Two matters arise: a) Re the cost: they would have been able to apply to get their costs back (and the man is obviously a man of means) and b) Re the risk: the risk of losing would seem minimal given the information Southeastern appeared to have found (see the Daily Mail article).

Thirdly, currently, the man has not actually paid a penalty, he has merely restored to Southeastern trains the monies that were owed to them. He is no worse off than he would have been had he complied with the law and paid for his train ticket like everybody else.

Finally, on the issue of his ‘anonymity’, the fact that publication of his name would damage his career is no doubt true. Unfortunately, that is not sufficient to trump the principles of open justice and if he were prosecuted his name would undoubtedly be permitted to be published. Of course we do not know the details of the agreement between the man and Southeastern trains.

The lesson?

Money talks.

Laura Cunliffe jailed for microwaving kitten to death

Image from Daily Mail

Image from Daily Mail

In the Daily Mail on Friday 21 February 2014, it was reported that unemployed Laura Cunliffe, 23 from Barnsley, pleaded guilty at Barnsley Magistrates’ Court to causing unnecessary suffering of an animal.

On 13 March 2014, she was sentenced to 14 weeks’ imprisonment.

The offence

Animal Welfare Act 2006 s 4 creates the offence of causing unnecessary suffering. It is a summary only offence meaning it can only be tried in a Magistrates’ Court. The maximum sentence is 6 months and/or a £20,000 fine.

Facts

The Mail’s article, which contains some disturbing pictures, can be seen here.

She had a 4 month old kitten – Mowgli.

Mowgli reportedly ‘attacked’ Ms Cunliffe’s goldfish. Ms Cunliffe then appears to have placed Mowgli into the microwave and set it to cook for 5 minutes.

Mowgli reportedly was still alive when Ms Cunliffe removed him from the microwave, but was struggling to breathe. Ms Cunliffe then took Mowgli to a relatives house. He died some 90 minutes after Ms Cunliffe removed him from the microwave.

RSPCA

The prosecution was brought by the RSPCA, who reportedly said: ‘The main reason the RSPCA took this case in order to achieve disqualifications in order to protect animals and prevent further suffer in the future.’

The deputy chief inspector said: ‘It is particularly horrendous because of the period of suffering for the kitten which would have been awful.’

She said that the exposure to the radiation in the microwave would have cooked the animal’s internal organs.

She said: ‘It is an horrific case in the fact that the death of the cat would have been prolonged and it is unimaginable what it would have gone through taking some time to die.

Mitigation

Prior to the sentencing hearing, her defence advocate reportedly said that Ms Cunliffe had suffered from psychosis and depression, having been detained under Mental Health legislation ‘several times’.

The BBC reported that in mitigation, her solicitor said that Ms Cunliffe had longstanding problems with psychotic depression and had been sectioned under the Mental Health Act 20 times.

Sentencing guidelines

There are guidelines which apply to this offence. See numbered page 22 [40 of the PDF]. There are three categories and arguably this offences does not neatly fall into any of them.

The bottom category describes ‘One impulsive act causing little or no injury’ which this is clearly not.

The middle category describes: Several incidents of deliberate ill-treatment/frightening animal(s); medium term neglect’ which doesn’t seem to fit either.

The top category describes: ‘Attempt to kill/torture; animal baiting/conducting or permitting cock-fighting etc.; prolonged neglect’ which on balance isn’t a perfect match either, as one presumes Ms Cunliffe pleaded guilty on the basis that she did not intend to kill or torture the animal.

Judge’s comments

The BBC reported: District Judge John Foster said “This was an act of utterly horrendous cruelty on your part on an animal that, as far as I could see, had come to trust you and rely on you.”

Sentence imposed

14 weeks’ imprisonment, and a disqualification from owning or keeping etc. animals, under Protection of Animals Act 1911 s 2, for life.

Comment

The starting point for the top category in the guidelines is 18 weeks. Ms Cunliffe pleaded guilty and so some credit (presumably 1/3) would have been given for that. Her mental health issues provide strong mitigation and so despite the seriousness of the offence, 14 weeks immediate custody appears to be over the top (even with the aggravating factor that the kitten died). Perhaps a suspended sentence might have been more appropriate and proportionate, considering Ms Cunliffe’s difficulties. It would appear that treatment, not abandonment, is what is required.

The disqualification order seems entirely appropriate.

Driver faces prosecution for driving through a puddle

puddle

It is the sort of headline you would expect from the Daily Mail, sensationalist, inaccurate and purely designed to add fuel to their ‘this country has gone to the dogs’ fire.

Well half of that is correct. It was in the Mail but it seems as though the headline is right on the money. (See also the article in the Metro).

So, what happened?

The Metro reported that a driver –a 22 year old man thus far unnamed – was driving passed a group of school pupils. He allegedly drove through a puddle ‘soaking’ the group. The incident was seen by PC Mark Hercules who reportedly said:

‘The vehicle was driven through the puddle at a relatively fast speed making no attempt to slow down or avoid it.

‘We could hear the screams from the children as they got drenched in the cold dirty rain water. The motorist drove off. Fortunately, I was able to witness the whole incident.’

The Mail reported that The police officer stopped the motorist and told him he was reporting him for careless driving.

Debbie Pugh was walking with her 8-year-old son and 11-year-old daughter said:

‘My son was crying his eyes out. I was yelling obscenities. I calmed myself down and the next car we saw was a copper’s car.’

What offences might he have committed?

The Metro stated that the Essex police suggested that careless driving was the most obvious choice, and they were right.

 Careless and inconsiderate driving is an offence under Road Traffic Act 1988 s 3:

 ‘If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.’

The section actually creates two offences and the CPS would need to decide which they are charging (See R v Surrey Justices, ex parte Witherick [1932] 1 K.B. 340)

Where inconsiderate driving is charged, it is necessary to demonstrate that the driving caused a road user or other person in a public place was inconvenienced. For careless driving, there is no such requirement. (See Road Safety Act 2006 s 3ZA(4)).

The CPS legal guidance states that driving through a puddle causing pedestrians to be splashed is likely to be considered to be inconsiderate driving.

The penalty is usually a fine and 3-9 penalty points. The court also has the power to disqualify the driver.

Another option would be for an offence against the person, such as a battery, to be charged.

It is a summary only offence which means there is a maximum penalty of 6 months imprisonment. This is not to be confused with common assault, which has the same maximum penalty but different requirements. The difference between the two is often misunderstood or not appreciated:

An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force.

A battery is committed when a person intentionally and recklessly applies unlawful force to another.

The offence can be committed intentionally or recklessly – that is to say, a person does an act causing unlawful force to be applied to another without the specific intent of doing so, but appreciating that his or her actions are likely to so cause unlawful force to be applied.

So, where a driver has seen the puddle and has continued to drive through it, he or she may be guilty of a battery on the basis that they were reckless as to the unlawful force that would be applied to the pedestrians on the footpath.

Is it ‘unlawful force’?

Simply, yes. Just as throwing an egg at someone would be, causing a wave of water to hit them would also be unlawful force.

What will happen?

We’ll keep an eye on it but expect it to be dealt with by a fine. Is there really a need to bring this to court, and waste everyone’s time and money?