Common – (Legal) Review of BBC Drama

Common-BBC-cast

Introduction

Jimmy McGovern is an absolutely cracking writer, as anyone who has seen his work can tell you. On Sunday 6th July 2014 he turned his hand to the controversial ‘joint enterprise’ law with a drama called ‘Common‘.

We have a factsheet on joint enterprise, which is a notoriously complex area of law, if you want a bit of background.

 

Plot

The drama opens as Johnjo borrows Patrick (his brother) car to drive a cousin, Tony, and two friends (Kieran and Colin) for a pizza, an ordinary night out for many people up and down the land, when Kieran stabs another boy – Thomas Ward. Johnjo drives them away as he and the others realise what has happened, and that Thomas was not going to live.

We then switch to the family of Thomas, who have to deal with their loss. But he (and his family) is not the only victim of the events of the night – Johnjo and his family are about to be ripped apart as well. He is a decent lad, and wants to go to the police to give his side to the story before the police come to him (good advice), but is warned about grassing,

He then finds out from his cousin that the other three were going to the pizza place with the aim of ‘sorting out’ (but not killing) someone. This wasn’t the one who was killed, but a different one. Kieran, one of the four, had a knife and stabbed Thomas.

It doesn’t take a great deal of detective work before the police begin to crack the case. CCTV shows that it was Patrick’s car and he is arrested. His alibi checks out and is quickly released, but he now knows that Johnjo was involved somewhere along the line and this blows up.

Johnjo’s Mum gives the worst advice imaginable – you’ve done nothing wrong so you don’t need a lawyer. His Dad is a bit more sensible (although he seems to think you wouldn’t get a good criminal lawyer on a Sunday).

Unfortunately for Johnjo, he listens to Mum and goes off to the police station to reveal all, on his own, without a solicitor or appropriate adult. DI Hastings does the ‘good cop/bad cop’ routine all by himself. Johnjo reveals all that happened. His Mum was wrong – the police don’t thank him for assistance and telling the truth and send him on his way … he is charged and kept in custody.

The other boys are picked up and all, sensibly, say ‘no comment’ in their interview. The guy in the pizza place (Hugo Davis) is asked to do an ID parade, but there’s an ulterior motive – he’s in the frame too, due to a phone call from him to Tony before and after the killing and is charged with murder.

We then get to see, finally, what happened in the pizza place – they all pile in to get Albert Flanagan, there’s a bit of violence, but the and Kieran sees Thomas eyeing him up and stabs him.

We then start the courtroom drama properly. Johnjo’s barrister does what appears to be an ‘application to dismiss’ to get him out of the case which is, needless to say, unsuccessful. There is then a meeting of all the defendants and lawyers downstairs in the cells. And at this point is gets a bit more dubious legally – a plea bargain is on the table – Kieran pleads to murder and all the others to GBH and that would be enough.

Johnjo’s Dad says take it, his mum says no. Johnjo is under pressure from all sides and, after some not too unsubtle threats from his codefendants, agrees to take the deal. Kieran gets life with a minimum term of 24 years. Colin and Anthony get 6 years and Johnjo 5 years 4 months.

 

Legal Issues Raised

A couple of problems you’d have spotted if you were a lawyer (and some you would have if you weren’t):

  • DI Hastings wouldn’t have told Margaret Ward that an arrest was imminent, and certainly would have said who it was.
  • As soon as Johnjo started the conversations with DI Hastings, he should probably have stopped and cautioned him (but, this doesn’t always happen)
  • As Johnjo is 17, an appropriate adult is compulsory (the law on that changed relatively recently however – you can see the High Court judgment here)
  • Johnjo would not have been allowed to keep his phone with him in the police interview
  • Threatening to arrest Johnjo’s parents is not something the police should do. It’s something that do do, but wouldn’t do in an interview which is recorded
  • A Magistrates’ Court is not able to grant bail and the Court would not adjourn for two weeks back there – it would go straight off to the Crown Court
  • The ID parade was not conducted properly – having DI Hastings there with a bit of a prompt and threat, as well as the other safeguards not being there, means that it should be ruled inadmissible (it’s a murder though, so who knows?)
  • The police don’t charge, and then uncharge, people, at least in the way shown in the interview.
  • It’s pretty rare nowadays that you’d get four people wearing a suit
  • The barrister for Johnjo would have been slapped down pretty quickly with his speech on joint enterprise
  • The Judge is a High Court Judge and is called ‘My Lord’ not ‘Your Honour’
  • The families of the victim and the defendants would not be wondering around the same cafe together, certainly not in a murder case
  • The High Court Judge seems to think that joint enterprise is a rule made by Parliament, which it never has been – it’s a judge-made law that can be unmade by Judges
  • Lawyers aren’t allowed mobile phones in the Court cells
  • The Prosecutor would not come down to the cells to engage in plea bargaining at all. Ever. Not in a million years.
  • The High Court Judge almost gets the name of the statute right when sentencing – it’s the Powers of Criminal Courts (Sentencing) Act 2000

But, notwithstanding that, it was actually a pretty accurate view of how a criminal case works, and didn’t (as many criminal TV shows do) make me cringe when watching it.

 

Review

This isn’t a documentary and, as I’ve said before, a legal drama that was based on real life would be incredibly dull. It’s a tightly written drama (as you’d expect) and very well acted and directed. It’s certainly one that tugs on your heartstrings.

It was good that they showed the story from both sides, and the pain that the victim’s family went through isn’t glossed over in any way (even if the reconciliation at the end was a bit twee (or as twee as it can be on a northern council estate).

Joint enterprise isn’t a ‘new’ thing (although it has been used a lot more recently) and whilst it applies to every crime, it is disproportionately used in murder cases. It is also more acute due to the fact that murder carries a mandatory life sentence and you can be found guilty of murder not only without intending to kill, but in some cases without intending to cause really serious harm – merely foreseeing that death might happen is sufficient.

Anyone with experience of the criminal justice system knows the unfairness that can be caused by joint enterprise, but this didn’t need to be stated quite so clearly all the time (I got a little sick of the words ‘joint enterprise’ by the end).

 

Is it accurate?

Yes. Sadly. Knowing what happened in the pizza place, it is clear that Kieran is guilty of the murder of Thomas and GBH of Albie. Tony and Colin are guilty of GBH. Johnjo is not guilty of anything.

Actually, the most unrealistic aspect of this is the prosecution agreeing to drop the murder charge against  the three in return for pleas to GBH. In a case such as this, I would imagine that it would go to trial  and it would not surprise me if Kieran, Tony and Colin were found guilty of murder. Johnjo might be luckier, but I wouldn’t be that surprised if he was convicted also.

Picking one case that I have read recently , Mitchell & Ballantyne [2011] EWCA Crim 2552 shows that the scenario in ‘Common’ is not in any way fanciful.

The other issue that it did raise is the iniquity than can sometimes be seen by ‘plea bargaining’. Officially it doesn’t exist in England and Wales, in practice it is rampant. Here, Johnjo had no real alternative but to plead guilty – out in 2½ years at the age of 20, with the possibility of building something of your life at least, versus life with a 20 year tariff (as he was 17 at the time) – meaning, in reality, that he would not be out till he was in his early 40s (if he was lucky) with no real chance of building any kind of life.

Faced with that, who wouldn’t take it?

 

Rolf Harris Sentenced – 5 years, 9 months

an-rolf-harris-mugshot-300x0 Introduction

Rolf Harris was convicted of 12 counts of indecent assault on 30th June 2014. Sentence was adjourned to the 4th July in order for a medical report to be obtained. We gave our guess as to what sentence he would receive here.

Prior to sentencing ‘Victim Impact Statements’ were read to the Court, where the victims set out how the abuse had, as the name suggests, impacted on them. There was then mitigation where the obvious factors in mitigation – Mr Harris age, good character and the fact that he is the carer for his ill wife, were put forward.

In the end, Mr Harris was sentenced to a total of 5 years and 9 months in prison. The full sentencing remarks can be read here and are, of course, vital reading in understanding the sentence.

 

Offences

Mr Harris was convicted of the offences as follows:

  • Count 1: Indecent assault between 1/1/68 and 1/1/70 on a girl A, aged 7-8

Sentence : 9 months

Details :A was queuing for Mr Harris’s autograph. “When she reached the front of the queue, Harris “twice put his hand up her skirt between her legs and touched her vagina over her clothing“. She said she had initially thought it might have been an accident but then he touched her again.”

  • Count 2: Indecent assault on a girl B, 14, between 1/1/75 and 1/1/76

Sentence : 6 months (consecutive)

Details:B was working as a waitress at a charity event when Mr Harris put his arm around her and down her back and over her bottom. “squeezing her left buttock a number of times“.

 

  • Count 3: Indecent assault between 5/4/80 and 4/4/81 on girl C aged 15
  • Count 4: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 5: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 6: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 7: Indecent assault between 1/1/84 and 1/1/85 on same girl, then aged 19
  • Count 8: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 9: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15

Details: C was a childhood friend of Mr Harris’s daughter and they lived close by. The offending started when she was aged 15. A summary of the offending is :

  • 3 – digital penetration of C’s vagina by spitting on his finger and putting it under her jeans for a minute – 15 months consecutive 
  • 4 – digital penetration of C’s vagina by spitting on his finger and putting it under her dungarees for a minute and a half – 15 months concurrent
  • 5 – digital penetration of C’s vagina whilst C was staying with Mr Harris daughter (whilst she had left the room) – 15 months concurrent
  • 6 – oral penetration of C’s vagina on the same occasion as Count 5 – 12 months concurrent
  • 7 – digital penetration of C’s vagina whilst C was staying with Mr Harris daughter whilst she was asleep in the same room – 15 months consecutive
  • 8- oral penetration of C’s vagina on the same occasion as Count 7 – 12 months concurrent
  • 9 – digital penetration of C’s vagina whilst she was in Mr Harris swimming pool – 12 months consecutive

The news reports indicate that C was aged between 13 and 15 at the time of the offences. Some of this (seemingly the earlier parts) was behaviour that was alleged to have occurred outside of England and Wales, and so cannot be tried in this country. We don’t know if the jury accepted that evidence or not, and so Mr Harris should not be sentenced on the basis that the abuse started when C was 13.

The total sentence for offences relating to C is 42 months

  • Count 10: Indecent assault on 31/5/86 on girl D, aged 14
  • Count 11: Indecent assault on D on same day
  • Count 12: Indecent assault on D on same day

Details:

  • 10 – putting his hand on her thigh over tights and knickers whilst she was sitting on his lap in public – 9 months concurrent
  • 11 – putting D in a ‘forceful bear hug‘ and putting his hand down her top into her bra and playing with her breasts for 30 seconds – 9 months concurrent
  • 12 digital penetration – 12 months consecutive 

Sentence : Unclear

Note – D has been widely named as it is reported that she has waived her anonymity. There is (probably) no power for her to do this, at least without having a waiver for this blog, as so we won’t name her as this would be a criminal offence. Clearly, all the other news outlets don’t agree with that!

[Information courtesy of the Daily Mail and BBC].

 

Sentencing Powers & Approach to sentence

The maximum sentences on Count 1 is 5 years, for Counts 2-9 it is 2 years on each count. The maximum for Counts 10-12 is 10 years each. We have a factsheet on sentencing in historic sexual abuse cases. Also worth a read is this on sentencing for multiple offences. The rule nowadays is that you start with the sentence that would be passed had the offences been committed today, before making allowances (sometimes) for the maximum sentence at the time. For that reason, the first port of call is the Sentencing Guidelines for Sexual Offences 2014.

It is perhaps best to group the offences by victim :

  • A – 6 months
  • B – 9 months
  • C – 42 months (3½ years)
  • D – 12 months

Having seen the details of the sentencing, we would say that for offending today Mr Harris would receive as follows :

  • A – 12 months
  • B – 9 months
  • C – 120 months (10 years)
  • D – 24 months (2 years)

Totality would come into play of course, and we would have thought that the total sentence would have been about 11 years, so double the actual sentence. That is before some discount for his age, health and other circumstances.

 

 

What about the child pornography?

Eagle eyed readers of the news will remember that Mr Harris was at one point charged with four offences relating to indecent images of children. This then dropped off the radar, why was that?

The Guardian has a very good explanation of why these allegations did not feature in the trial. We may do a longer piece on the issues round this but, in brief, Mr Harris denied the allegations and there were various investigation ongoing to establish the ages of the people depicted (a difficult area). The Guardian reports that these would not be completed by the time of the trial and, for that reason, they were separated to be tried at a later date.

Presumably they were not referred to in the media before then as it was felt that they were unduly prejudicial to the main trial.

The prosecution decided that there was sufficient public interest in pursuing the indecent images and so they have been left to lie on the file.

 

Other Orders

  • Mr Harris will be required to sign on to the Sex Offenders Register for the remainder of his life
  • He will have to pay costs – that will be assessed later, but will be substantial
  • The provisions of the Safeguarding Vulnerable Groups Act apply automatically
  • There was no order for compensation

 

Conclusion

There will be an appeal – Mr Harris has nothing to lose. One thing about sentencing for historic offences is that nobody is satisfied. On the one hand it is lenient, in that it is around half of what he would get now. On the other hand, it is very severe, as it is probably about four times or so what he would have got had he been sentenced at the time.

 

Rolf Harris leaving his house by boat on the day of sentence - Independent

Rolf Harris leaving his house by boat on the day of sentence – Independent

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

Photo from the Guardian

Photo from the Guardian

Introduction

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

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

Neville Thurlbeck – 6 months

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

Greg Miskiw – 6 months

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

History

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

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

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

You can read our coverage of the case here.

What was the case about?

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

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

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

Andy Coulson

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

The indictment

Count 1:

Conspiracy to intercept communications

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

Verdict: Andy Coulson – Guilty

The offence

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

In this instance the offence is ‘unlawful interception’.

Regulation of Investigatory Powers Act 2000 section 1

Unlawful interception

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

(a)  a public postal service; or

(b)  a public telecommunication system.

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

(a)  intentionally and without lawful authority, and

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

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

Maximum sentence

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

Regulation of Investigatory Powers Act 2000 section 1

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

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

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

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

Mitigation

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

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

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

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

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

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

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

Cases

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

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

Sentencing remarks

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

The sentencing remarks are available here.

Release

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

Will there be an appeal?

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

Convicted rapist has sentence increased by 6 years

Rameez Afzal was convicted in March of raping a 23 year-old woman in a hotel room in Reading. Afzal met his victim in the lobby of a Travelodge at 4am and offered to help her find her friends, whom she had become separated from. He took his victim back to his room and raped her. HHJ Richard Parkes sentenced Afzal to 5 and a half years in prison. However, Afzal was already serving a six-year sentence for supplying Class A drugs, a sentence received in January. The Judge ordered the rape sentence to run concurrently to the drug sentence. The result of this was that Afzal had no additional time to serve for the rape offence. His sentence was referred to the Court of Appeal, on account of it being unduly lenient. The Court of Appeal heard the case yesterday and added a further six years to the sentence.

The guidelines for rape can be found here.

Consecutive or Concurrent?
When an offender is sentenced for two or more offences, the sentencing Judge has discretion as to whether to make the sentences consecutive or concurrent. Where the offences are wholly unrelated, the sentences are often consecutive, however the Judge must take into account the principle of totality in sentencing.

Court of Appeal
We often hear of the Court of Appeal reducing sentences which have been appealed as a result of being manifestly excessive. But the Court upholds an important function in relation to offences which are considered unduly lenient. Those cases can be referred to the Court of Appeal who will look afresh at the mitigating and aggravating features of the offence.

“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.

Alan Crickmore – Court of Appeal refuse permission and BBC get it wrong

BBC

BBC

We çovered the case of Alan Crickmore, the coroner and former solicitor who pleaded guilty to stealing about 2 million pounds from dead clients. When he entered his plea, we predicted (correctly) that he would get hammered, but incorrectly gave a guess of about 5 years.

When he was sentenced, he actually got 8 years. We indicated that we would keep an eye out for an appeal and, on 1st July 2014, the Court of Appeal heard an appeal against sentence. Or at least that’s how the news report reads.

In fact, this was an application for permission to appeal. Openshaw J said that the sentence was ‘just and appropriate’ and refused permission. Mr Crickmore can, and probably will, renew his application to appeal. This means he has an oral hearing before the full court where the court considers again whether he should have permission to appeal. We will have a look if and when this happens.

We originally thought this was a written application (as is common) although someone at the Judiciary very helpfully pointed out that in fact, there was an oral hearing. That said, it was still a permission hearing – not an appeal.

Anyway, the BBC. The headline states “Coroner Alan Crickmore loses appeal to reduce sentence for £2m theft“. For the reasons stated, this is wrong. A better headline would have been “Coroner Alan Crickmore refused permission to appeal sentence for £2m theft“or something like that. Perhaps it is picky…but in law, without detail, we are nowhere.

Rolf Harris – What sentence will he get?

Photo from the Express

Photo from the Express

Introduction

On 30th June 2014 Rolf Harris, everyone’s favourite children’s TV entertainer of old, was convicted of 12 counts of Indecent Assault. Sentence was adjourned until Friday, 4th July.

What sort of a sentence will he get?

 

Offences

  • Count 1: Indecent assault between 1/1/68 and 1/1/70 on a girl A, aged 7-8

Details :

A was queuing for Mr Harris’s autograph. “When she reached the front of the queue, Harris had touched her inappropriately with his “big hairy hands”, she told the jury. She said she had initially thought it might have been an accident but then he touched her again.”

 

  • Count 2: Indecent assault on a girl B, 14, between 1/1/75 and 1/1/76

Details:B was working as a waitress at a charity event when Mr Harris put his arm around her and down her back and over her bottom.

 

  • Count 3: Indecent assault between 5/4/80 and 4/4/81 on girl C aged 15
  • Count 4: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 5: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 6: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 7: Indecent assault between 1/1/84 and 1/1/85 on same girl, then aged 19
  • Count 8: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15
  • Count 9: Indecent assault between 5/4/80 and 4/4/81 on same girl, 15

Details:

C was a childhood friend of Mr Harris’s daughter. The news reports indicate that C was aged between 13 and 15 at the time of the offences. Some of this (seemingly the earlier parts) was behaviour that was alleged to have occurred outside of England and Wales, and so cannot be tried in this country. We don’t know if the jury accepted that evidence or not, and so Mr Harris should not be sentenced on the basis that the abuse started when C was 13.

We are told that “The court heard that the abuse began when she had been on holiday with the Harris family at the age of 13. Later, the woman said Harris had performed a sex act on her at the Harris family home, with Bindi [Mr Harris’s daughter] asleep in the same room.

Further assaults took place at the Harris home and in her bedroom at her own home while her parents were downstairs, she said

The exact details are not clear, but it seems that the most serious is the ‘sex act’ (although it is not clear what that sex act is.

 

  • Count 10: Indecent assault on 31/5/86 on girl D, aged 14
  • Count 11: Indecent assault on D on same day
  • Count 12: Indecent assault on D on same day

Details:

The allegation, as reported by the BBC, is that Mr Harris “asked her to sit on his lap before moving his hand up her leg and assaulting her. He was moving back and forth rubbing against me,” she said. “It was very subtle, it wasn’t big movements.”

The jury heard that Harris had then patted her on the thigh and moved his hand upwards. She said she had “started to panic” and rushed to the toilet. When she came out, she said, Harris was waiting for her and gave her “a big bear hug” before putting his hand down her top and then down her skirt.

Note – D has been widely named as it is reported that she has waived her anonymity. There is (probably) no power for her to do this, at least without having a waiver for this blog, as so we won’t name her as this would be a criminal offence. Clearly, all the other news outlets don’t agree with that!

[Information courtesy of the Daily Mail and BBC]

Sentencing Powers

The maximum sentences for Count 1 is 5 years, for Counts 2-9 it is 2 years on each count. The maximum for Counts 10-12 is 10 years each.

 

Approach to Sentencing

We have a factsheet on sentencing in historic sexual abuse cases. Also worth a read is this on sentencing for multiple offences.

The rule nowadays is that you start with the sentence that would be passed had the offences been committed today, before making allowances (sometimes) for the maximum sentence at the time.

For that reason, the first port of call is the Sentencing Guidelines for Sexual Offences 2014.

 

So. What’s he going to get?

We think that the ‘sex act’ was digital penetration. Today, this would be charged as assault by penetration (s3 Sexual Offences Act 2003).

Count 1 would be Sexual Assault on a girl under 13 (s7 Sexual Offences Act 2003). The remaining offences would be Sexual Assaults (s3 Sexual Offences Act 2003).

The most serious offence is Assault by Penetration. This would be (page 14 Guidelines), probably a Category 2A Offence, giving a starting point of 8 years with a range of 5-13 years. Count 1, we would imagine, would be a Category 3A Offence, with a starting point of 1 year, with a range going up to 2 years.

The other offences differ in seriousness. Count 2 is probably 3B – giving a Community Order and Counts 10-12 are probably 3A, so 6 months or so.

The other offences on C are less clear, as the details are hazy. Of course, we have to remember that there is the assault by penetration.

On that basis, the sentence today for each complainant would be about :

A – 1 year

B – 9  years (8 years for the penetration, 1 year for the other offences)

C – Community Order

D –  6 months

It would not be right to roll all these sentences together. Stepping back, a sentence of about 9 years in total would appear to be about right. This would probably be achieved by shortening the sentence on B and making the other sentences consecutive (and giving a short custodial sentence for C).

But. But. The maximum sentence for the most serious offences is two years – how will the Judge square that circle?

On principle, there ought to be a reduction to take account of that. We would have thought that the appropriate sentence is about 2-3 years (before reduction for his age and good character). However, we got the sentence badly wrong in Max Clifford when we made the same approach, so who knows?

I would doubt the need to send him to prison, given his age and personal circumstances. We live in more draconian times however, and being a celebrity means his chance of getting a non-custodial is lesser. It would not surprise me if he were to get a sentence in the range of 4-5 years.

 

Conclusion

It is always difficult to predict a sentence, especially when you are relying on the newspaper to give the facts. That is before you even begin to consider that sentencing, as is often said (particularly by the Court of Appeal when dismissing an appeal against sentence) ‘is an art, not a science‘.

For that reason, this should be taken with a large pinch of salt. It’s not a definite guess, more a guideline to the parameters, and the approach that the Judge will likely take.