Tag Archives: BBC

Was the BBC’s legal drama ‘Common’ a missed opportunity?

Common-BBC-cast

Did anyone watch Jimmy McGovern’s drama ‘Common’ on BBC1 last Sunday? I did, but not without serious reservations. I don’t really like TV legal dramas, particularly not the earnest, moralising ones: they tend to miss the subtle shades-of-grey ethical questions that real trials throw up, and the legal howlers in them are just too cringeable.

‘Common’ was not without mistakes. Defence counsel addressing a High Court Judge repeatedly as ‘Your Honour’ instead of ‘My Lord’ was the sort of clanger that, had it occurred in an actual court room, would have led to other counsel wanting to gnaw their wigs to ease the embarrassment.

But what put me off ‘Common’ in particular was its billing as an exploration of the legal concept of ‘joint enterprise’. To explain: since 1861 it has been the law that anyone who assists or encourages the commission of a crime can be tried just as if they had committed the crime themselves. Thus the gang-leader can be tried for the murder of a witness even though he only paid the hitman who ultimately pulled the trigger (‘encouragement’). The getaway driver can be tried for armed robbery even though he only waited outside while the rest of the gang carried the guns and grabbed the bank notes (‘assisting’). What do you do, though, when a suspect says: ‘I only thought my guy was going to beat the witness up’ or ‘I didn’t know the rest of my gang had guns’? It is when someone’s actions assist or encourage a crime, but they say they only intended a lesser offence to be committed, that the rules as to ‘joint enterprise’ come in.

And that is where, for me, ‘Common’ fell down. Because it proceeded on the basis that its protagonist, a likeable 17 year old called ‘Johnjo’, hadn’t intended that a crime be committed at all.

At the start of the programme Johnjo agrees to drive his mate Tony and others to a pizza shop where, unbeknown to him, they all plan to beat someone up. During the assault one of them, Kieran, fatally stabs a bystander. Johnjo then drives them away, still none the wiser as to what has transpired.

On the factual premise of the programme, therefore, Johnjo was not guilty of the murder, or the assault, because he had no inkling that either offence was going to be committed.

Despite that, the programme makers then used Johnjo’s predicament to include comments from various characters about how awful ‘joint enterprise’ was – but Johnjo’s case wasn’t about ‘joint enterprise’. Had a jury known all the facts and been directed about ‘joint enterprise’ correctly they would have returned a unanimous verdict of Not Guilty on him before trial counsel had blown the froth off their coffee.

The greatest shame is that it would have been so easy to rewrite the script in a way that would have highlighted the potential injustice that ‘joint enterprise’ does create.

The way to do that would have been to have written the drama from the point of view of Johnjo’s mate Tony. As I say, Tony, Kieran and others planned to beat someone up in the pizza shop. Had Tony known that Kieran was carrying a knife, and had Tony foreseen that during the assault Kieran might stab someone, intending to kill them or at least seriously injure them, then Tony would also have been guilty of the murder committed by Kieran – because Tony would have had the requisite degree of foresight and because the murder took place during Tony and Kieran’s illegal ‘joint enterprise’. That is how ‘joint enterprise’ works.

In order to be guilty of murder committed by your own hand you must intend to kill, or at least intend to inflict really serious injury. However, you can be guilty of a murder committed by an accomplice, but which you assisted or encouraged – provided you both intend to commit a crime – and you at least foresee the possibility that during that crime your accomplice might commit a murder with murderous intent.

In other words, you can be guilty of ‘joint enterprise’ murder without you yourself intending that anyone should be seriously hurt.

To what extent does such ‘joint enterprise’ liability constitute an injustice? Some might say that if you commit a crime with a homicidal maniac armed with a deadly weapon you deserve all you get. Others might say: you deserve to go to prison, certainly, but not to be convicted of murder.

But whatever the rights and wrongs, it is situations like the one I’ve just outlined, situations where people who richly deserve to spend, say three years in prison, are instead looking at sentences of, say, 20 years, that are exactly the kind of shades-of-grey moral questions that actually arise in our criminal justice system.

The sad thing is that those real-life situations are too subtle, too full of moral ambiguity, involving characters whose own repellent actions have put them too far beyond mainstream ethics, for them to be of any interest to TV dramatists.

Guest post, by David Allan, barrister.

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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.

Dave Lee Travis acquitted of historic sexual offences

Photograph: Matthew Lloyd/Getty Images [From The Guardian]

Photograph: Matthew Lloyd/Getty Images [From The Guardian]

On 13 February 2014, Dave Lee Travis – real name David Patrick Griffin – was acquitted of 12 counts of indecent assault. The jury were unable to reach a verdict on the final indecent assault count and the sexual assault count. The CPS have seven days to decide whether they wish to pursue a retrial on those two counts.

He stood trial accused of 13 counts of indecent assault and one count of sexual assault against 11 women.

He pleaded not guilty to all counts.

The alleged offences

Indecent assault was an offence under Sexual Offences Act 1956. That was repealed in 2004.

Sexual assault is an offence under Sexual Offences Act 2003. That came into force in 2004.

The reason for the different counts is that the single allegation of sexual assault relates to alleged behaviour after 2004. All other counts relate to alleged behaviour before 2004.

Both indecent assault and sexual assault encompass a very wide range of behaviour. Indecent assault can include penetration. After 2004, penetrative behaviour would be charged as assault by penetration (a more serious offence than sexual assault).

Background

He was a radio DJ and TV presenter in the 1970s and 1980s, best known for presenting the breakfast show on Radio 1 and Top of the Pops.

Allegations

The complainants alleged that DLT engaged in the following behaviour:

  • Groping a radio announcer’s breasts whilst she was on air.
  • Touching a journalist’s bottom whilst she was at his house to conduct an interview.
  • Touching a girl’s bottom whilst dancing at two British Airways parties.
  • One of the complainants was aged 15 at the time of the alleged

This may appear to be a bit vague, but it is hard to get exact details of each allegation.

DLT’s evidence

The Mirror reported that he admitted being tactile but denied being predatory:

  • “Perhaps hugging is something which can be misconstrued by some people or if people are looking for an excuse they can say ‘he touched us’. I did hug a lot girls.”
  • “I do not have a predatory nature with women, I have a cuddly nature.”
  • “Maybe that’s what this is all about, but I am not predatory.”
  • “If I really like somebody I will put my arm around them and I might give them a peck on the cheek, I even do that with men, to make them feel comfortable and welcome to the place.”
  • “But nowadays you are not allowed to do that, put your arms around people and hug them.”

Additionally, in his police interviews, DLT commented that perhaps the complainants were fabricating the allegations in order to ‘jump on the bandwagon’. The Mirror reported that in interview, he said:

  • “Why wait 20 years until it comes out in one-sided press coverage?”
  • “This is just someone else who can smell money and is jumping into the game to see what they can get out of it.”

Readers will no doubt remember the LCJ’s comments in the Stuart Hall Att-Gen’s Ref case where Hall was severely criticised for making public statements labelling the complainants as liars. Had Dave Lee Travis been convicted, this may have been taken into account by the sentencing judge. In my view that would have been wrong for two reasons. The first is that DLT seems to have only made these comments in his police interview, not to the press (though they have been reported) and secondly that there is a principle that a defendant should not be punished for the way he or she conducts their defence. The ‘punishment’ for not telling the truth is the loss of credit for a guilty plea. The fact that a defendant has lied giving evidence or lied in police interview should act as a factor by which to increase the sentence.

The jury note

On the morning of their third day of retirement, the jury sent a note to the Judge that caused a fair amount of interest on the internet :

This appeared to be a bad sign for Mr Travis. However, the verdicts were not delivered until the next afternoon. As jury deliberations are secret, we will never know what the significance of this question was.

Majority direction

On 13 February 2014 at about 11.50am (after about 19 hours of deliberation) the jury were given what is known as the ‘majority direction’.

A jury will be told when they first retire that they must reach a unanimous verdict. Since 1974 juries have been allowed, in certain circumstances, to reach a majority verdict. This is a verdict of 11-1 or 10-2.

When the Judge gives a majority direction, s/he will tell the jury that they should still try and reach a unanimous verdict. The jury will then go and think about it and can return a majority verdict if the numbers are as above.

Maximum sentences for the offences

It is important to remember that historic allegations are sentenced on the basis of the law at the time, that is to say, the penalties are as they were at the time of the offences.

The reason for this is that there is a principle of law against retrospective sentencing which prohibits imposing higher sentences than were available at the time the offences were committed. That means that the Judge is restricted by the maximum sentence at the time, he or she does not need to estimate what the defendant would have been sentenced to if the defendant was sentenced at the time. (See below for more details)

Indecent assault

For indecent assault, the maximum sentence depends on the gender and age of the victim:

Female victims, offence committed on/after 16 Sept 1985 10 years

Female victim, offence committed prior to 16 Sept 1985 five years, if the girl was under 13, otherwise two years’

Male victims 10 years

Sexual assault

For sexual assault, the maximum sentence is 10 years.

The law in this area is complicated and advice should always be sought. For our Australian readers, NSW firm Prime Lawyers offer information and guidance on the issues surrounding sexual offences.

The approach to sentencing historic sexual offences

Here are some basic principles from the guideline case on sentencing historic sexual offences, R v H 2012 2 Cr App R (S) 21:

1) The offence of which the defendant is convicted and the sentencing parameters (in particular, the maximum available sentence) applicable to that offence are governed not by the law at the date of sentence, but by the law in force at the time when the criminal conduct occurred.

 2) Article 7(1) of the European Convention of Human Rights prohibits the imposition of a heavier penalty than one “applicable” at the time when the offence was committed.

 3) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in (2013) what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed.

 4) Similarly, if maximum sentences have been reduced, as in some instances, for example theft, they have, the more severe attitude to the offence in earlier years, even if it could be established, should not apply.

 5) As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus. Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender’s culpability.

Here is more information about prosecuting and sentencing allegations of historic sexual abuse.

Sentencing for sexual assault

DLT would have been sentenced according to the existing sentencing guideline for sexual offences. This does not apply to indecent assault. It will remain applicable until 1 April 2014 when the new guideline will come into force.

The guideline that applies to sexual assault is here (see numbered page 31 onwards)

Consequences of a conviction for sexual offences

Generally, a conviction for a sexual offence results in the offender being placed on the sex offenders register. This is known as ‘notification’ as the offender has to notify the police of certain details such as where he or she lives, if they are staying away from their main address, their bank details etc. The length of the notification depends on the sentence they receive. There is fact sheet here.

Offenders convicted of sexual offences usually are able to be made subject to SOPOs – Sexual Offences Prevention Orders. There is a factsheet on SOPOs here.

Indecent assault

In relation to indecent assault, a SOPO may only be made if the victim is aged under 18 or the offender is sentenced to 30 months or more.

A conviction or caution for indecent assault will result in the offender’s inclusion on the adult and child barred list subject to the consideration of representations. This means that they will be prevented from working with children and vulnerable adults, but they do have the opportunity to make representations as to why such a prohibition should not apply to them.

Sexual assault

A SOPO may be made where the victim was under 18 or the offender was sentenced to imprisonment or a community order lasting at least 12 months.

As with indecent assault, a conviction or caution for sexual assault will result in the offender’s inclusion on the adult and child barred list subject to the consideration of representations.

What now for DLT?

The Prosecution have a week to consider whether they wish to have a re-trial on the two counts on which the jury could not agree. We will look at this in a bit more detail next week.

This news piece was made possible by Prime Lawyers.

BBC seek to explain murder sentences…but get the law a bit wrong

This morning, 11 December 2013, the BBC News website published an article by Jon Kelly seeking to explain the reason why three men convicted of murder received mandatory life sentences with wildly different minimum terms.

The three cases

Lee James: 18 years

Rakesh Bhayani: 27 years

Anxiang Du: 40 years

We are of course wholly in favour of greater public legal education, particularly the explanation of criminal cases featuring in the news (indeed, we have been doing it for over a year). This piece provides a good, brief, explanation of each of the sentencing decisions, with a couple of comments from two esteemed practitioners and an esteemed academic.

As a part of the article, Jon Kelly sought to explain how the starting points for the calculation of minimum terms in murder cases are calculated (while we’re at it, here is our fact sheet).

Getting the law a bit wrong

The problem is, Jon Kelly gets the law slightly wrong. Here, he states that the starting points for life apply to offenders aged 21+

 BBC Sch 21

There are three problems.

The starting points – who do they apply to?

Firstly, the Sch 21 starting points apply only to murder convictions. Jon states they apply ‘to life’. There are four types of life sentence available to the courts in England and Wales. These starting points only apply to mandatory life sentences imposed for murder.

Secondly, the starting points differ depending on the age of the offender. The correct explanation is as follows:

Whole life: Only available for those 21+

30 years: Available for those 18+

25 years: Available for those 18+

15 years: Available for those 18+

12 years: The only starting point for offenders aged under 18

[See Criminal Justice Act 2003 Sch 21 paras 4, 5, 5A, 6 and 7] The explanation as to which starting point applies to which case (e.g. bringing  a knife or other weapon to the scene, 25 years) was correct.

And thirdly, that he fails to state that the offender’s age is at the time of the offence, not conviction or sentence.

In a post seeking to explain the law, getting the law wrong is not a great start (though we applaud the desire to improve public understanding).

For the future, if the BBC wanted to have such articles etc. checked pre-publication, we would be more than willing to do so. Just drop us an email. What a service!