Tag Archives: court of appeal

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.

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‘Hapless Hitmen’ have appeals dismissed – Jason Richards and Ben Hope

Photo from ITV

Photo from ITV

Introduction

We always like to come back to cases previously covered on the blog, and the Court of Appeal’s judgment on 17th June 2014 in the case of Richards & Hope [2014] EWCA Crim 1196 gives us the chance to dust off a post from February of last year when they were convicted of murder.

 

Facts

The judgement of the Court of Appeal sets out the facts and the evidence against the two men. In brief, the prosecution alleged that they had been recruited by a third person to kill a man who was due to give evidence against that person. In what was described in Court by the prosecution as an act of ‘staggering incompetence’ they went the wrong address and stabbed 17 year old Aamir Siddiqui and his parents several times. Aamir’s parents survived (and Mr Richards and Mr Hope were convicted of their attempted murder) but he, tragically, died and the two were convicted of his murder.

 

Appeal Against Conviction (Mr Richards only)

The appeal was based in part against a cumulation of various points, but mainly on the basis that Mr Hope abandoned his appeal and gave evidence accepting that he had been involved, but exculpating Mr Richards.

This is always a tricky appeal to run and very rarely succeeds. The Lord Chief Justice here quoted a previous case where it was said “ this Court will be very careful before it will admit a confession of guilt by one of two people who have been convicted by a jury of a joint offence. It would be too easy for criminals to seek to share out responsibility so as to get one of them off“.

Of course, it could also be said that someone in the position of Mr Hope has every reason to lie and have a trial in the hope that he gets off, even knowing that the man in the dock next to him isn’t guilty. This is all the more so when he is facing down the barrel of a life sentence with a very long tariff…

But still. Mr Richards had an uphill task and, as was always really going to be case (especially in a murder case) and the Court of Appeal managed to dismiss his application for leave to appeal without breaking sweat.

 

Appeal Against Sentence

The tariffs for both of them were set at 40 years. As we said at the time, this is one of the longest tariffs ever set. And, whilst the offences were clearly serious, it was not clear why it was that long.

Well, we have a bit more information now from the Court of Appeal. They had the sentencing remarks (which haven’t yet been published), which had distilled the following aggravating factors :

i) It was the murder of a child.

ii) It was committed before the eyes of his parents.

iii) There was a significant degree of premeditation and planning.

iv) There was a joint attempt to murder Aamir’s mother.

v) There was a joint attempt to murder Aamir’s father.

vi) Both Richards and Hope had convictions involving serious violence.

There were no mitigating features.

The Court of Appeal upheld the 40 year tariff, saying “This was an appalling series of crimes for which the minimum term of 40 years was just punishment, reflecting not only the premeditated and brutal nature of the murder and attempted murders but also a deterrent element in respect of contract killings which have no place in any civilised society“.

All the aggravating features are correct, although when one speaks of the murder of a child, it is normally speaking of someone younger than 17 and (iv) and (v) clearly overlap. We would have hoped for a bit more by way of analysis from the Court, partly because of what we said above, and partly because several of these factors are effectively incorporated into the higher starting point of 30 years.

It is also an interesting point as to what extent deterrence has a role to play in setting the tariff for murder – the deterrence is surely in the mandatory sentence of life imprisonment itself?

Having said that, the Judge heard the trial and has a wide discretion in sentencing. A tariff more in the region of 35 years still seems more appropriate to us, but sometimes you have to defer to the Judge’s assessment of the situation.

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.