Category Archives: The Law, Explained

Fact sheets providing clear and concise explanations of the law.

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!

Advertisements

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

20140603-100259-36179643.jpg

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.

‘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.

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

 

 

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.