Category Archives: Q&A

Displaying the questions asked by readers.

What’s the difference between being arrested and being charged?

Q – Can you explain the difference between being arrested and being charged for the suspect and for the public at large?

A – The short answer is that someone is arrested when they have been detained by a Police Officer on the suspicion of committing a criminal offence. When they are charged, a formal decision has been taken (usually by the CPS) that there is a ‘realistic prospect of conviction’ and that it is ‘in the public interest’ for a prosecution to happen. Criminal proceedings proper have then commenced.

Once someone is charged, they will either be bailed to attend the magistrates’ court for the first appearance or kept in police custody overnight and taken to the magistrates’ court the next day.

The Contempt of Court laws are very important here. There is a rule of ‘strict liability‘ (which means that it doesn’t matter if you intended to break the law or not) that applies when criminal proceedings are ‘active’. This means that it is an offence to publish anything “which create a substantial risk that the course of public justice will be seriously impeded or prejudiced”. Proceedings will be ‘active’ from when someone is arrested.

 

Further Reading:

We will do a fuller piece shortly on what ‘arrest’ means as it is a complicated area. Not all people who are prosecuted are arrested – people can be ‘summonsed’ to Court, usually for more minor offences.

An overview of what happens at the Police Station

Bail

Contempt of Court – Law Commission Consultation

Spot the Offence!

Banksy mural

Introduction

Here at UK Criminal Law Blog, we are always up for a challenge. So when Andrew Keogh tweeted this, we couldn’t resist

AK Tweet on banksy

The news story is here. Basically, last year Banksy did a mural on a Poundland Shop outside wall in North London. A short while afterwards, it disappeared. Actually, an unidentified individual came along and chipped it away under cover of scaffolding. It’s now appeared at an auction in America (and is expected to go for several hundred thousands of pounds).

The (unnamed) owners of the building have not confirmed yet whether it was their doing. But, assuming that they own the building and the mural, and they did not authorise the mural’s removal, what criminal offences have been committed?

 

Theft and Criminal Damage

This is the obvious one. An overview of theft is here. The wall is clearly property belonging to another and taking it away is a theft. For this reason, it would seem that they would also be guilty of criminal damage (by damaging part of the wall). Banksy, of course, would also have been guilty of criminal damage when he made the mural (but given the added value, I doubt anyone would complain). For an interesting case that looks at this see DPP v J [2002] EWHC 291 (Admin).

Burglary

We’ve covered what burglary is here. This requires an ‘entry’ into the building (as every law student knows – see the case of Collins – the naked burglar). But what about taking part of the wall away – is that an entry? Probably not, as there is no actual entrance to the building.

Fraud

Offering to sell a mural that had been stolen whilst claiming to have good title to it, would be an offence under the Fraud Act. The fact that part of the fraud (the sale) would be carried out in America is not a bar to a prosecution (provided that there was an ‘occurence’ in England – see Part I Criminal Justice Act 1993 for more details).

Handling Stolen Goods

If the mural has been stolen, then anyone who knowingly took the mural, even if they were part of a chain, would be guilty of Handling Stolen Goods.

Going Equipped

As the thief went off to the shop, armed with tools to take the mural, they would be guilty of the offence of Going Equipped.

Other Offences

Another offence, that is not commonly seen, is ‘Removal of Articles’ contrary to s11 Theft Act 1968. This reads as follows:

where the public have access to a building in order to view the building or part of it, or a collection or part of a collection housed in it, any person who without lawful authority removes from the building or its grounds the whole or part of any article displayed or kept for display to the public in the building or that part of it or in its grounds shall be guilty of an offence

This has a maximum sentence of 5 years. The only case that we are aware of dealing with this is Durkin (1973) 57 Cr App R 637.

Conspiracy

This is the Prosecutor’s friend. In a case such as this, with many people involved in the whole ‘caper’, it may be that a conspiracy charge would be expected.

Mural afterwards

Deterrent or exemplary sentences – the rationale

We were asked by a Twitter follower to write a post about the human rights implications of deterrent or exemplary sentences.

One of the statutory aims of sentencing is deterrence. It is common sense that in addition to punishing, rehabilitating and sometimes providing recompense for victims, the law should operate as a deterrent to others. Prevention is better than a cure, as they say.

What is it and when is it appropriate?

A deterrent sentence is one which includes an ‘uplift’ from what has previously been the level of punishment in order to act as a disincentive to commit a particular crime.

The general view is that deterrent sentences are appropriate where the prevalence of a particular crime or type of behaviour is increasing.

The theory is that by imposing a deterrent sentence, or a sentence with a deterrent element, others will be disincentivised to commit/continue to commit such crimes as the increased penalty now outweighs the perceived benefit/gain.

It is necessary to perform a balancing exercise between the deterrent element and ensuring that the sentence remains proportionate for the crime.

The deterrent operates in two ways, firstly against the individual offender, to induce him or her into not committing that crime again (analogous to adding a bit on to a sentence if you have a string of similar previous) and secondly to operate as a deterrent to society as a whole.

Consider the situation where a driver receives 3 points and a £60 fine for speeding. The fine and the points (especially if there are existing points on the licence) may already operate as a deterrent, however, if the penalty was a £600 fine, or an instant ban, or even a short custodial sentence, one may say that drivers would instantly think twice about driving in excess of the speed limit.

Examples

Rioters

R v Blackshaw and Others 2011 EWCA Crim 2312 (the conjoined appeals from the heavy sentences handed out in light of the August 2011 riots).

The court imposed deterrent sentences, which saw some receive sentences of 4 years.

Deterrent sentences were required because the fact that so many people with no previous convictions decided to participate. Why was that? Well, many were participating because they thought that they would not get caught, which suggests a respect not for the law, but for the consequences which breaking the law might bring. When the perception was that there were no consequences, there was no deterrent not to break the law. In turn, this required a tough response, to ‘send a message’ to those who take such an attitude.

Knife crime

Backed by statistical data demonstrating an increase in knife crime, it was felt that in order to quell the ‘trend’ in carrying and using a knife, a tough response was needed. In response, Parliament introduced a 6 month minimum sentence for certain knife offences. There is also a starting point of 25 years if a knife is taken to the scene and used in a murder.

Human rights considerations

Articles 3 (prohibition of inhuman, degrading treatment or torture) may be relevant – might an excessively long sentence constitute degrading treatment? Perhaps, but it appears somewhat unlikely (see the discussion on the case of Hall [2013] EWCA Crim 82 last week). Article 8 (right to private and family life) appears most likely however, in that a deterrent sentence is disproportionate, arbitrary and therefore not a legitimate interference with the convention right under article 8, it is unlikely that any such argument would ever succeed in practice.

The primary argument against a deterrent sentence in practice is probably going to be either a) it wasn’t warranted or b) it was warranted but the sentence imposed was still too long, as opposed to a human rights based argument.

Deterrence (i.e. a reduction in crime) is a legitimate aim of sentencing. Where it can be shown that a deterrent sentence for an offence was necessary, because of its prevalence for example, such an argument would surely fail.

The case of R v Offen 2001 1 Cr App R 24 offers an interesting discussion of automatic life sentences, ‘exceptional circumstances’ and the ECHR.

Success?

Minimum sentences don’t appear to have worked, and from a lawyer’s point of view, they unnecessarily fetter the judge’s discretion and can make it more difficult for him or her to impose the correct sentence.

Taking burglary as an example, since the 3-year minimum for a 3rd domestic burglary offence was enacted, the number receiving a 3-year minimum sentence has risen. Sharply. Now this will in part be due to the fact that since it was enacted, more have been ‘eligible’ (i.e. collecting burglary convictions over time), and so it is expected that the numbers will increase, but over an 11 year period, the numbers are as follows:

2000: 6            2001: 20

2002: 116        2003: 226

2004: 380        2005: 448

2006: 498        2007: 593

2008: 737        2009: 788

2010: 891        2011: 993

Not much of a deterrent, eh? It may be that in many cases, deterrent sentences are more a political than legal consideration (knives, burglary, etc.). However, for something like perverting the course of justice, it is thought necessary to hand out heavy sentences to demonstrate that the justice system is to be respected.

However, after Joanne Fraill contacted a defendant on Facebook and received a stiff custodial sentence of 9 months, do you think jurors are less inclined to use the Internet to do some research into their trial? Judges do use such cases as examples when instructing jurors that they are not to perform their own research etc. In relation to Chris Huhne, if he escapes with a non-custodial sentence, then it may be that there is a rise in the number of instances of husbands and wives taking each other’s penalty points to avoid disqualification. If so, then the whole penalty point system falls apart. A custodial sentence demonstrates that the law is to be respected.

So, do they work? Save for the few situations (e.g. perverting the course of justice), it appears that deterrent sentences do not work.

How many offences involve a degree of planning (as opposed to spontaneous)? Of those, how many defendants will be aware of the likely sentence if they are caught? Not many. Immediately, the deterrent effect is reduced because it operates solely on people knowing about it.

Dan has written an interesting post (here) on some of the statistics used to justify deterrent sentences, and how deterrent sentences do not work.

Why don’t people plead guilty to murder?

Q : In this case, given how obviously guilty they were, why didn’t they just accept it and save us all a lot of money?

A : Firstly, of course, everyone has a right to have a trial, and no-one should be forced to plead guilty. There have been cases where people are ‘obviously guilty’ and it turns out that they are, in fact, innocent. These may be rare, but during the course of a trial it is not uncommon for what seems an open and shut case to turn out to be far more nuanced that at first seemed. There are, often, two sides to every story.

But, as someone pointed out, it seems that far fewer people plead guilty to murder (proportionately) than to other cases. Is that correct? It is not easy to find the exact figures, but it would seem so.

As to why that would be, the case quoted above may give an indication as to why. We will look at it here in a ‘pragmatic’ way, in the way that a defendant who wants to get the best result for themselves may approach it.

In some cases, a guilty plea can make the difference between whether someone goes to prison or not. In others, if a defendant is working and won’t be sent to prison, then the amount they may have to pay if they lose a trial is far greater. Neither of those considerations will apply in a murder case.

Another (perhaps the main) reason for pleading guilty is that they will get credit (a discount) for the plea. This can be up to a third, so even if someone knows that they will be going to prison (say, for a drug importation), then it may still be worth pleading guilty so that a 12 year sentence is reduced to 8 years. The actual amount of time served would then be 4 years instead of 6 (half would be served in prison, half on licence in the community).

Here we can see why there is far less of an incentive to plead guilty to murder. Pleading guilty leads to a mandatory life sentence, and, as we looked at, this may lead to someone spending far longer in prison than their tariff.

But, it is when you consider the different credit rules for murder, that you really see the difference. For someone who is facing a 40 year tariff, the maximum discount is 5 years – still leaving at least 35 years in prison (rather than 26 and a half if there was the full one third discount). It is hardly surprising. therefore, that they would have pleaded not guilty.

Playing the odds

People are obviously not rational, but if you take a thought experiment with the figures above, the situation is stark. For the drug offence, if the chances of a conviction is 66% or less, then an economist may advise to have a trial. For the two people convicted of murder, the figure is 87.5% – over 20% higher. Is this a good idea, or is it time to review the credit for murder sentencing to increase it?

Overview

What sorts of Courts can try a criminal case?

In answering this, it is helpful to draw a distinction between ‘first instance’ cases (cases where there is a trial) and ‘appellate courts’ (courts that hear a case after there has been a finding of guilt that deal with appeals against a decision of the ‘first instance’ court).

First Instance/Trial Courts

There are two courts that hear trials (or take a plea of guilty and deal with sentences):

Magistrates’ Court

Overview

These are the oldest courts in the land and have existed, in one way or another, since the 14th Century. They deal with all summary only offences and some (less serious) either way offences.

Who are the magistrates?

Magistrates can be either lay or professional. Lay magistrates (historically called Justices of the Peace – JPs) form the majority of magistrates and are people who are not legally trained. They sit on a voluntary basis around 20 times a year and are drawn from the local community. As they are not legally qualified, they are assisted by a legal advisor (historically called a clerk) who takes notes of the hearing and any evidence heard. The legal advisor will give advice to the JPs on what the law is (but not in relation to deciding what to make of the evidence).

Lay magistrates will usually sit as a panel of three. Occasionally, usually due to lack of availability, they can sit as a panel of two, although this is generally undesirable due to the risk of them disagreeing. When lay magistrates are sitting in court as judges, they will often be referred to as a ‘lay bench’. One person will be the ‘chair’ who will give the judgment and often lead discussions (if any) in Court.

Professional magistrates are now called District Judge (Magistrates’ Court), or DJ for short (they used to be called Stipendiary Magistrates, which is a term you will still hear being used). They are appointed by the Ministry of Justice and generally have to have been practicing as a lawyer for seven years before they can be considered for an appointment.

Some people are practicing lawyers who sit part-time as a DJ. These are called DDJ (Deputy District Judges) and will sit for about 20 days a year whilst practicing for the rest. They have all the powers of a DJ, except for the fact that they cannot deal with youth cases.

Guidance on who can be a magistrates, and further details can be found here).

What do you call a magistrate?

In court, a DJ will be called ‘sir’ or ‘madam’ as the case may be. If there is a lay bench, then you normally pretend you are speaking to the ‘chair’ and address them as ‘sir’ or ‘madam’. Some people will address the whole panel as ‘your worships’, although this is becoming old-fashioned.

What do they wear?

Magistrates, whether lay or professional, will wear a dark suit in court, as will the lawyers. Neither the magistrates nor the lawyers wear robes or wigs or anything like that.

Crown Court

Overview

Crown Courts date only from 1971, but the courts that they replaced (the old Assizes and Petty Sessions) date back many hundreds of years. They deal with all the indictable only offences as well as some either way ones.

Who are the Judges?

A Crown Court Judge will always have been a practicing lawyer for at least 7 years. They are appointed by a branch of the Ministry of Justice, the Judicial Appointments Commission.

Sitting at a trial, the Judge will always sit with a jury made up of 12 people who are chosen at random from the electoral roll in the local area. The Judge will make legal decisions and rulings and sum up the facts for the jury, but it is the jury (and only the jury) who can return a verdict of guilty or not guilty.

If the jury finds someone guilty (or they plead guilty) then it is the Judge who will sentence that person. Unlike in some countries, the jury plays no role in sentencing.

As with DDJs, sometimes practicing lawyers ‘sit’ part time as Judges of the Crown Court. They are called Recorders.

High Court Judges sometimes also sit in the Crown Court to deal with the more serious offences (typically murder).

Certain Judges who are Senior Crown Court Judges have been designated as the ‘Recorder of X’ or ‘Honoury Recorder of X’ with X being a city, borough or district. These Recorders are full time Judges and should not be confused with part-time Judges (more details can be found here). Generally, if someone is Mr/Mrs/Ms Recorder Smith, then they will be a part-time Judge. If it is The Recorder of [Manchester] then it will be a full-time Judge.

What do you call a Judge?

A Recorder or Crown Court Judge is addressed as ‘Your Honour’ in Court. The only exceptions is Judges at the Old Bailey (officially called the ‘Central Criminal Court’) and those Judges that are the Recorders or Honoury Recorders who are addressed as ‘Your Lordship’, as are all High Court Judges.

What do they wear?

A Recorder wears the normal robes that they wear day to day in court.

A Crown Court Judge will wear a gown, a different wig, and a red sash.

A High Court Judge will wear a red gown.

Joint enterprise

Q: I read about this case in the news. It was a pub fight between two groups of football supporters (red and blue). One of the blue lads was glassed and suffered really serious injuries. All of the lads from the red side were charged with the glassing. Why, when only one of them glassed him?

A: The reason is a principle called joint enterprise, sometimes called joint responsibility.

Where two or more people act together to commit a criminal offence, each is responsible and each is guilty.

In carrying out a criminal offence, different people may play different roles. Each is guilty provided he shared the intention to commit the offence and did something to bring it about.

There does not have to be a formal agreement to commit the crime. The agreement can arise on the spur of the moment.

A good example is a burglary. Consider the situation where three men agree to commit a burglary, the first drives the men to the property, the second acts as a lookout and the third physically enters the property and takes the goods. Each is guilty because they have acted together as they share an intention to commit the offence, and each has acted to bring about the result – the property is burgled.

It would unfair if only the third man (who entered the property) were charged with burglary.

Turning to your example, it may be that the CPS took the view that the ‘red’ group were acting with a common intention to commit the offence on the victim. It would not be necessary that the ‘red’ group intended or agreed that the victim would be glassed, merely that he was to suffer injuries of the type he did in fact receive.

Many feel that joint enterprise is grossly unfair. It is used particularly viciously in gang violence cases. I heard of a recent example where a group of three lads were charged with manslaughter. Two of the lads had kicked the victim, who later died of his injuries. The third was at least 15 feet away when the kicks were delivered. The prosecution said as the third man was making his way towards the victim and the two men who were kicking him, he shared the intention and was lending his support. They said this was sufficient to satisfy the ‘did something to being the offence about’ requirement. He was not convicted of manslaughter. But it doesn’t seem right, does it?

Burglary and the ‘three strikes’ rule

Q: My brother is up for burglary. This would be his third. I’ve heard of the three strike rule but I don’t know how it works – can you explain it? I know you get a third off for pleading guilty – is it the same with a third strike burglary?

A: Offenders who are convicted of a third burglary of a dwelling (also referred to as a ‘domestic burglary’) will receive a minimum sentence of three years, where all three burglaries were committed after 30 November 1999. This minimum sentence applied in all cases, unless there are particular circumstances that would make it unjust to impose such a sentence.

A guilty plea at the first opportunity usually attracts a 1/3rd discount on the sentence imposed.  In relation to a third burglary offence, the sentence may still be discounted but this discount must not reduce the sentence to below 80% of the statutory minimum (28.8 months, 124.8 weeks or 876 days).

The sentencing guideline for burglary can be found here