Tag Archives: Appeal

Ian Watkins back in Court on 23rd July for appeal against sentence

Photo from the Independent

Photo from the Independent

Introduction

We have covered the case of Lost Prophets singer Ian Watkins previously on the blog. When he was sentenced, we said that it was a very, very high sentence and permission to appeal was likely to be granted. On that basis, it wasn’t a surprise when The Independent reported on 16th July 2014 that he has been given permission to appeal.

The full appeal hearing is next Wednesday, 23rd July 2014.

Here’s some of our previous pieces on the case:

 

What will happen?

The hearing will be a full appeal against sentence we understand. The Judges will have the papers, so anyone sitting in Court to watch it may well be a bit confused as they won’t have all that information.

It probably won’t actually last that long – maybe half an hour. A cynic would say that the Judges will have come to their conclusion, and even written their judgment, in advance.

There has been a move recently to have more hearings out of London, and to create a legal hub in Cardiff to represent Wales. There is a ‘Civil and Family Justice Centre’ there that can hear many cases.

Because of the need for a secure dock for Mr Watkins, this appeal will actually be heard in the Crown Court at Cardiff, even though it will be sitting for the day as the Court of Appeal.

As to the outcome? Difficult to say. Having to serve at least 19 years is one of the highest sentences ever handed out for this sort of offending. Having said that, this was a particularly horrific set of offences, and an extremely lengthy sentence was in order.

I imagine that there will be two strands to the appeal. Firstly, that an extended sentenced was not necessary. This is unlikely to get anywhere due to the nature of the offending.

Where Mr Watkins is on stronger ground is the argument that the sentence was just too long. When an extended sentence is passed, the usual need in sexual offences sentencing for public safety doesn’t apply. In light of that, I would imagine a total sentence of 30 years, with 24 years plus an extension of 6 years would have been more appropriate.

But, we’ll certainly have a look at this next week.

Adebowale receives permission to appeal against 45-year minimum term

rigby

From the Guardian

Michael Adebowale, one of two men convicted for the brutal murder of Lee Rigby in Woolwich in 2013, has been given permission to appeal against his sentence. In January 2014, he was sentenced to mandatory life imprisonment with a minimum term of 45 years. Our write-up of the sentencing hearing can be viewed here.

It is expected that he will appeal against the length of the minimum term only, as the life sentence is mandatory.

What’s the process? 

After being sentenced, a defendant has 28 days in which to lodge grounds of appeal against sentence. Once that period has expired, a defendant wanting to appeal would have to apply ‘out of time’ and provide reasons why the application is late.

Once grounds have been submitted, the case papers are prepared by the Criminal Appeal Office and placed before ‘the single judge’ – a high court judge who sits on his or her own (hence ‘single’) and reviews the case on the papers only.

The single judge then grants or refuses leave to appeal. Granting leave means a full oral hearing will follow.  Refusing leave gives the defendant one of two options: a) leave it there – the single judge has indicated that the grounds aren’t arguable, or b) renew the application for leave. This second option means that the defendant effectively ‘forces’ an oral hearing and applies once again for leave (permission to appeal) before the full court (in sentence cases this is either two or three judges).

In a renewed application, the court will consider the application for leave, and where they decide it ought to be granted, they can (but don’t have to) deal with the appeal there and then. If they refuse leave, they can make a direction for a loss of time which means any time spent in custody between applying for leave and the hearing does  not count against the sentence. In effect, it adds on some time to the sentence that has to be served.

Adebowale

Adebowale has received leave and so a full hearing will follow. As what ever the result, he will spend a very long time in prison, it is likely to take a good few months before it comes before the court. We will of course cover it when it does.

Marine A (Sergeant Blackman) – Conviction upheld, sentence reduced

BBC Photo

BBC Photo

Introduction

We looked at the case of Sgnt Blackman when he was convicted of murder last year, and the inevitable appeal that followed.

We predicted that he would lose the appeal against the conviction for murder, but have a couple of years knocked off his 10 year tariff, taking it down to 8.

On 22nd May 2014 we found out what happened …

 

Judgment

The Court of Appeal gave a written judgment, which is well worth reading.

The conviction appeal tackled the legality of the Court Martial head on, saying (para 16) “it is a fundamental feature of the system of criminal justice in England and Wales, emblematic of a democracy, that those facing serious criminal charges are entitled to be tried before 12 members of the public and can only be convicted by a majority of at least 10 of the 12” which is not the case in a Court Martial.

The most interesting part of the argument put forward, to me at least, was “A simple majority conviction is said to be inherently unsafe because it demonstrates sufficient doubt to defeat the criminal standard of proof.“This was always going to be a tricky argument to run, as it had been considered (and rejected) in the case of Twaite [2010] EWCA Crim 2973.

The attempt to get round this used Art 14 ECHR (non-discrimination). The Court of Appeal had little difficulty in knocking that one on the head. They did raise the question of whether Mr Blackman should have been tried by a civilian jury, but did not go much further than that because he didn’t object to a Court Martial.

Of more concern to the Court was the appeal against sentence. There was no challenge to the mandatory life sentence, the only issue was the tariff. The Court of Appeal concluded (para 75-76) that greater weight should have been given to the combat stress in the circumstances of the case. More interestingly, they concluded that there was no need for any element of deterrence in the sentence, given all the factors.

For this reason, the tariff was reduced to 8 years.

 

Comment

The appeal against conviction was always doomed to fail. It does, to my mind, raise some important questions. If 10 out of 12 members of a jury (or 2 out of 3 magistrates, or 3 out of 5 members of a Court Martial) are sure of an individual’s guilt, how can one say that the jury (or bench or panel) is sure?

This is a conceptual problem that arises with majority verdicts that has always troubled me. I completely understand the rationale for majority verdicts, but if at least 17% of the people hearing the case do not believe that the person before them is guilty can we really say that that person’s guilt is proved beyond a reasonable doubt?

The sentence appeal is fair enough, although still perhaps too high in my mind. What it does show (to me at least) is the iniquity of the mandatory life sentence. Mr Blackman committed this murder in unique circumstances and I believe that a life sentence is unjust. Mandatory sentencing always gives rise to injustice, and this is a good demonstration of that -and would be a perfect case to tackle the sentencing laws for murder.

If, as in some jurisdictions, juries had a role in sentencing and had the option to impose a life sentence or not, then I have no doubt that one would not have been imposed. Maybe this is a step that could be taken?

Finally, if Mr Blackman had had a trial in a Crown Court would he have been convicted? He is undoubtedly guilty of murder, but this is a prime case where a jury may have found a way out, possibly by convicting him of manslaughter rather than murder.

It would be nice if this case gave rise to a public debate over the issues raised.

Sgt Danny Nightingale refused permission to appeal conviction

nightingale

Introduction

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

What does that mean?

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

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

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

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

Well, where to start? But in essence…

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

So what happened?

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

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

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

And what happens next?

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

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

Ian Watkins seeks permission to appeal

Watkins date set

According to the BBC, Ian Watkins will – as we predicted – seek leave to appeal against his sentence. He was given an Extended Determinate Sentence of 29 years with a 6 year licence. He will have to serve 2/3 of the 29-year sentence and the remainder on licence.

It is unknown whether Watkins’ co-defendants – who are still the subject of anonymity provisions – are seeking to appeal against their sentences.

An explanation of the sentence is here .

The process

The appeal papers will be prepared and put before the single judge. That is a High Court judge who assesses the merits of the appeal on the papers. There is no hearing.

The single judge has two options. He or she either grants leave to appeal – where a hearing before the Court of Appeal follows – or refuses leave – whereupon Watkins has two options: He can drop the appeal or he can ‘renew’ the application, which means he goes before the Court of Appeal to ask for permission at a hearing.

More detail can be found in our appeals factsheet here.

Prediction?

It is always dangerous but I would expect this to get permission and go before the full court (3 judges), probably including the Lord Chief Justice.

We’ll keep you posted…

Dirty protest in Doncaster – Conviction appeal fails

Dirty protest

We became aware of a story about a man from Doncaster who staged a dirty protest at a police cell. The Star reported  that Allen Vincent appeared in court for a two-day hearing in front of a judge and two magistrates.

Putting the scraps of information together, we can safely assume that Allen Vincent appealed against his conviction (in the Magistrates’ Court) for criminal damage. 

Vincent suffers from autism, Aspergers syndrome and bilateral permanent hearing loss. He appeared at the court wearing a ‘not guilty’ label stuck to his forehead. 

The facts

Vincent was arrested in February for breaching bail conditions and was detained at Doncaster police station. A nurse attended to assess his fitness to be detained by the police but he refused to co-operate. The next morning, it was reported that he was found naked and had covered himself with excrement and written on the walls (presumably with excrement). 

He swore and threw excrement at a duty officer and urinated on a cell door. He also refused to clean himself up. The Star reported that he did not accept that he had damaged the cell and had been unlawfully arrested several times. 

The offence

Criminal damage is an offence under the Criminal Damage Act 1971. Section 1(1) states:

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

The fact that the cell would not have been permanently damaged does not preclude a conviction for criminal damage (Roe v Kingerlee [1986] CLR 735 – smearing ‘mud’ on the wall of a police cell that had to be cleaned off was criminal damage).

The appeal

We can assume then that upon pleading not guilty in the Magistrates’ Court, he was convicted after a trial and appealed his conviction. 

That appeal is to the Crown Court in front of a circuit judge (a crown court judge) and two magistrates (from the magistrates’ court – but not the same magistrates as presided over the trial). There are more details available here about appeals from the Magistrates’ Court to the Crown Court. 

Because Vincent has difficulties communicating, he was permitted to submit in writing his complaints. We understand those complaints relate to what Vincent considers to be his unlawful treatment. 

The Judge said he had sympathy with Vincent but that Vincent knew what he was doing.

The result

The appeal appears to have been successful in part. Unfortunately for Mr Vincent, the successful part did not relate to the conviction. 

The conviction appeal was rejected, presumably on the basis that Vincent’s assertion that he did not ‘damage’ the cell was rejected. 

The order for costs (£405) and a compensation order (an unspecified amount) were quashed. 

The community order (12 months in length) remained. It is unclear the requirements which were attached.

Sgt Nightingale – conviction quashed with a retrial directed

nightingale

The full facts are here.

The sentence appeal is here.

Sgt Nightingale appealed his conviction on the basis that his plea was entered as a result of pressure place upon him as a result of an indication of sentence – not requested – given by the Judge.

The transcript is available from CrimeLine here. Some edited sections are below:

“We agree with Mr David Perry QC that no criticism can be made of a judge seeking to make clear to himself, or seeking to clarify for his own purposes, the appropriate legal sentencing framework and to seek the assistance of one or both sides for such a purpose. If all that had happened was no more than an enquiry to discover the relevant sentencing parameters, there would be no ground for criticism.

However, in our judgment, from a reading of the relevant passage of the transcript it seems abundantly clear that the Judge Advocate gave an uninvited sentence indication.”

The Court felt that pressure was placed on Sgt Nightingale to plead guilty:

“As we see it, what was being conveyed was that the defendant would be looking at a sentence of, or close to, the minimum statutory term if the case was fought, and certainly no longer than two years (and probably shorter) if he pleaded guilty; and that if he pleaded guilty he would have the advantages of serving his sentence in military detention rather than a civilian prison and with the possibility (no more) that his military career could continue.”

Sgt Nightingale’s counsel in the Court Martial gave a statement saying:

“It was accordingly my duty to advise the appellant as to my understanding of what had transpired in court. I did so. What was very different following those remarks was that the court had made it plain that if the appellant fought the trial and lost he would lose the exceptional circumstances required to avoid a minimum five year sentence of imprisonment. The stakes were thus clarified.”

The situation was that Sgt Nightingale felt he had no option but to plead guilty. The Court said:

“Having reflected on the facts in this case, we conclude that the appellant’s freedom of choice was indeed improperly narrowed. Accordingly, the plea of guilty is in effect a nullity. It will be set aside. The conviction based on the plea will be quashed.”

“There is sufficient material here to require the issue to be considered fully. Accordingly, we shall order a trial to take place before a Court Martial on the basis of the present indictment.”

The conviction was quashed and a retrial in the Court Martial ordered. As ever, we will keep our ear to the ground and report back regarding the retrial.

Unfortunately, this tells us nothing as to what Sgt Nightingale’s defence will be at the Court Martial retrial. There is an interesting point in relation to guilty pleas entered on legal advice which may be the subject of a post at a later date.