Tag Archives: cps

Robert Marshall fined for ‘setting friend alight’

BBC

BBC

Introduction

There was rather a dramatic headline on the BBC website on 15th July 2014 – “Man fined after setting friend alight in Great Yarmouth“. That seems a rather fortunate sentence for setting somebody on fire?

As always, the devil is in the detail …

 

Facts

According to the BBC, Mr Marshall was sitting at a bar when he flicked his lighter towards his friend – Sam Taylor. Unfortunately, his friend had, unbeknownst to Mr Marshall, been doused in aftershave (there’s not a whole lot to do in Great Yarmouth) and caught on fire. It was put out, but not before the friend had burns to his hand and body.

The Great Yarmouth Mercury tells a slightly different story – the group of lads “as a joke, had been splashing one another with it in a bid to scupper their chances with women.

The friends had then “flicked” a lighter towards anyone who had been splashed, which had caused no damage. But when Marshall “flashed” the lighter at his friend in Long John’s Bar on Yarmouth’s Britannia Pier the prank went “terribly wrong”, magistrates heard.

Alison Cotterill, prosecuting, said one of the group had “poured” the remainder of the aftershave over Mr Taylor – more than “just a few splashes”. She added: “Mr Marshall… gets out a cigarette lighter, ignites the flame and flashes it initially towards one of the others.

“Mr Marshall turns round and then goes over to Mr Taylor. He then equally lights the lighter to Mr Taylor’s shirt and it just goes up in flames, he’s engulfed.

 

Sentence

Mr Marshall was fined £710 with an order for £71 Victim Surcharge and £85 costs. It is quite a difficult sentencing exercise in the circumstances, but this seems fair enough.

 

Why is guilty of this?

Good question. The piece from the BBC leaves a bit of doubt – if this was a harmless prank, why is Mr Marshall guilty?

There needs to be a ‘hostile intent’ (see R v Lamb) – is flicking a lighter at someone demonstrating this? The answer is, probably, that Mr Marshall knew that Mr Taylor was covered in aftershave and was therefore reckless when waving the lighter around.

Another question is why is Mr Marshall not guilty of a more serious offence? After all, burns (even if only 7% burns) are pretty serious. Certainly Actual Bodily Harm you might think, even if not really serious harm?

It’s not clear. If he is guilty of Common Assault, he’s guilty of ABH and of inflicting the injury. We don’t have details of the injuries, but this may be an example of common sense in the charging decision by the CPS?

 

CPS Consultation on Prosecuting Domestic Violence

StickerDVawareness

Introduction

What do you think about the way that Domestic Violence is prosecuted? Is it not taken seriously enough, or an example of policy driven prosecuting without regard to the circumstances?

There is a Consultation Homepage where all the material is collected.

 

Proposals

This is supposed to supplement the general Code for Crown Prosecutors. There is not necessarily anything wildly new or exciting put forward, just a consolidation and evolution.

Although it is a relatively lengthy document (some 50 odd pages) it is worth a read. Some of it is stating the obvious – the CPS state that cases should be prepared properly. Of course, saying that doesn’t make it happen, which may be a bigger issue.

There may be more controversy over the charging decisions. Cautions are effectively ruled out which may or may not be a good thing. There is a concern that there is to much of a ‘broad brush’ approach.

For example, para 64 : “The police should consider cautions carefully in domestic violence cases. This is because such cases involve a breach of trust and are unlikely to be the first offence“. It is not immediately clear that this correctly states the test for a caution. Many people might find the second sentence there a bit too vague and lacking in evidence.

This is in part due to the overly wide definition of domestic violence. It may  be relevant in many cases, but an argument in a pub between two brothers is also categorised as domestic violence, where it is hard to see an abuse of trust or any evidence that it is not going to be the first offence.

It seems to me that there is a lack of proper consideration of the evidential test – particularly where many (criminal) practitioners are of the suspicion that the CPS use a lower test in practice.

The difficult question of when a complainant should be forced to come to court and/or give evidence is given, in my view, far too little consideration. But there is some good material on how to support complainants and witnesses (again, it could be said that the practice is often somewhat different from the theory).

 

How to respond

There is a response form which can be downloaded.

The deadline to respond is 9th July 2014.

 

Judge criticises CPS for accepting plea to lesser charge

cps

Ricky Fuller, 29 and Aaron Ellwood, 31 were charged with section 18, GBH with intent. It is one of the most serious of the offences against the person and the maximum sentence is life imprisonment.

Facts

The full facts can be seen in the Daily Mail article. In essence, Fuller and his friend ambushed two men who were waiting for a taxi. They were knocked unconscious and kicked whilst they were on the floor. The victim, who worked with one of the men who was knocked unconscious, chased Fuller and his friend. Upon reaching an alley way nearby, Fuller turned and attacked the victim. He punched him, smashing his jaw in two places. The victim needed extensive facial reconstructive surgery as a result.

It appears that Fuller offered a plea to section 20 GBH/wounding (importantly without intent)– a lesser offence than the section 18 offence. The maximum for section 20 is 5 years imprisonment, with the difference between the two essentially being the intention to cause really serious harm.

The CPS accepted that plea and Fuller fell to be sentenced for the section 20 offence. The maximum sentence was therefore 5 years and not life.

Sentence

HHJ Coleman sentenced Fuller to 3 years’ imprisonment. The guidelines for section 20 are here at page 8.

The top category – category 1 – has a starting point of 3 years. The Judge must have raised that starting point to something in the region of 4 to 4.5 years. He then will have reduced that for the guilty plea.

Judge’s comments

The Judge said:

‘I go as far as to say that this misjudgement in the prosecutorial process I believe has led to a serious miscarriage of justice in that two men who should have been tried for causing GBH with intent were allowed to plead guilty to lesser charges which did not reflect their culpability.’

The CPS denied there had been any misjudgement and said they would be writing to the Judge about his comments.

Should the CPS have acted differently?

The Victims’ Code 2013 states at para 2.12:

The CPS must inform victims of and give reasons for decisions to:

•           discontinue a charge and proceed on another;

•           substantially alter a charge;

•           discontinue all proceedings;   or

•           offer no evidence in all proceedings.

There is no information as to whether the victim was consulted or informed of the reasons to accept the section 20 plea.

Comment

We are unable to say much, as the facts are somewhat sparse. However, one would have expected the victim to have been informed of the view of the CPS that a section 20 plea should be accepted.

Based on the information in the article, section 20 doesn’t really seem appropriate. Additionally, there could have been a trial on the section 18 charge with section 20 as an alternative, if the jury weren’t sure that there was an intention to cause really serious injury.

If the maximum sentence was 5 years, why didn’t the judge give him 5 years? Well there are rules about this sort of thing. Where a judge considers the maximum sentence for an offence inadequate, they may do their best to pass a high sentence, but in doing so are often careful to avoid an appeal. In this case, a sentence of 5 years would have been reduced on appeal due to the guilty plea and any other mitigation available.

Perhaps we will hear more about the correspondence between the CPS and the Judge over the coming weeks.

Celeb sexual offence trials: The CPS can’t win

Crown CourtOh dear, it seems the police and the Crown Prosecution Service can’t win. First they were villified for not bringing a case against Jimmy Saville during his lifetime. Now they are being criticised because they did bring ultimately unsuccessful cases against Dave Lee Travis and Bill Roache. Meanwhile Operation Yewtree, the police enquiry set up in the wake of the posthumous Saville allegations, is being derided as a celebrity “witch hunt”.

The Saville, Roache and Lee Travis cases of course all depend on their own circumstances. I’m not going to comment on the merits of individual cases. What I do want to discuss is the basis on which decisions to prosecute and not prosecute are made, and in particular, the significant influence of the High Court over the way such decisions are made in sex cases.

Generally, decisions whether to commence criminal proceedings are made on the basis of at test laid down in the Code for Crown Prosecutors, the “Evidential Stage test” or “the realistic prospect of conviction test”.

It provides that a case must only go ahead if prosecutors believe an “impartial and reasonable jury… acting in accordance with the law is more likely than not to convict the defendant…”.

In other words: the chances of a conviction have got to be 51% or better. But note the other very important element to the test: it requires prosecutors to assume the jury will be impartial and will act in accordance with the law. In cases involving well-loved celebrities and historic allegations from what might be described as a bygone age that might be a big ask.

In any event, that is the test prosecutors must apply. However, in relation to sex cases, since 2009 it has been given an additional “spin” by the Queen’s Bench Division of the High Court.  It arises out of the case of R(FB) v DPP.

“FB”, as it is known, was a very sad case. The complainant, FB, who has never been identified, was the victim of a serious attack: his ear was bitten off. He went to the police, identified his assailant and picked him out on an identity procedure.

However, FB had a history of mental illness. An expert said he suffered from hallucinations. It’s clear the CPS wrestled for some time with its conflicting obligations to disclose to the defendant’s legal team material which might assist him; to protect FB’s privacy, including his confidential medical records; and to put the defendant through a trial only where the case passed the Evidential Stage test. The deeply unfortunate result was that FB attended court on what was intended to be the first day of the trial only to be told the case had been dropped and a verdict of Not Guilty returned against the defendant.

FB instructed solicitors who went to the High Court. The court found that the CPS’s decision to drop the case had been “irrational” under their own guidance, and had breached the state’s duty to provide protection to persons suffering ill-treatment at the hands of others. FB was awarded £8,000 compensation. The Not Guilty verdict returned against the defendant remained, of course, unaffected.

The significance for the CPS’s future practice was twofold: first of all it established that  decisions not to pursue those suspected of criminal offences were susceptible to judicial review. Secondly, the High Court said that the CPS’s Evidential Stage test must be interpreted differently in certain types of cases. The relevant part of the judgment is worth quoting in full:

“49. There was also discussion whether in applying the “realistic prospect of conviction test” a prosecutor should adopt a “bookmaker’s approach” (as it was referred to in argument) or should imagine himself to be the fact finder and ask himself whether, on balance, the evidence was sufficient to merit a conviction taking into account what he knew about the defence case. In many cases it would make no difference, but in some it might. Mr Perry QC submitted that the latter was the correct approach…I agree with Mr Perry. 

50. There are some types of case where it is notorious that convictions are hard to obtain, even though the officer in the case and the crown prosecutor may believe that the complainant is truthful and reliable. So-called “date rape” cases are an obvious example. If the crown prosecutor were to apply a purely predictive approach based on past experience of similar cases (the bookmaker’s approach), he might well feel unable to conclude that a jury was more likely than not to convict the defendant. But for a crown prosecutor effectively to adopt a corroboration requirement in such cases, which Parliament has abolished, would be wrong. On the alternative “merits based” approach, the question whether the evidential test was satisfied would not depend on statistical guesswork.”

In other words: in certain types of cases, where prosecutors know from their experience that on the evidence before them the jury is likely to acquit the defendant, but where the prosecutor nevertheless believes the complainant, they should proceed with the case – notwithstanding that on the balance of probabilities they expect that the jury will ultimately find the defendant Not Guilty.

The High Court having authoritatively interpreted the Evidential Stage test in this way the CPS has had no choice but to incorporate it into their official guidelines in dealing with sex cases.

It’s worth comparing the words of the High Court in FB with the note sent to the trial judge by the jury in the Dave Lee Travis case after two days of deliberations, and before returning Not Guilty verdicts on 12 out of 14 counts:

‘…[the prosecutor], in summing up, said if we believe that the complainant was telling the truth, then we must find the defendant guilty. Can you give us any guidance on how that should be weighed with the lack of supporting evidence and the passage of time so we are sure beyond reasonable doubt?’

It seems to me therefore that the Dave Lee Travis jury was troubled by precisely the same doubts – i.e. lack of corroborating evidence – that the High Court said prosecutors should ignore when deciding what cases to bring.

Personally I’m not sure that the gloss put on the Evidential Stage test by the High Court in FB is correct or helpful. My worry is that it may lead to the running of weak cases when allegations of sexual misconduct are concerned. The High Court described the alternative as the “bookmakers approach”. If that means, as well as can be done, a cool and objective estimation of whether the chances of success are 51% or above, and if not, dropping the case; perhaps that is not such a bad thing. Let me explain why:

First of all it seems anomalous to have one test for whether to charge defendants in the general run of cases, and what amounts at least to a “different interpretation” of the test for sex cases.

Secondly, with respect, I’d suggest that the High Court risked engaging in a little “statistical guesswork” itself when saying that convictions are hard to obtain in certain types of cases. Certainly no empirical evidence to this effect was referred to in the judgment. In my opinion, it is not that convictions are hard to obtain in certain types of cases, it is that convictions are hard to obain in cases where the evidence is essentially one person’s word against another – and sex cases are more likely that others to fall into that category. But they are not the only kind of case where this problem applies: FB itself wasn’t a sex case, but one of wounding with intent, the kind of case that is a staple of CPS work. It’s hard therefore to see why the problem of the evidence being one person’s word against another should be treated differently depending on the nature of the allegation.

A point made by the High Court was that prosecutors should not adopt what was described as “a corroboration requirement which Parliament has abolished”. I’m not quite sure to what this was intended to refer. There was an old rule requiring corroboration, but it applied to a very narrow category of cases, not including rape or indecent assault.

The wider corroboration rules, which is what I believe the High Court had in mind, did not concern whether cases should be brought or not, but simply required judges to warn juries in cases where there was no corroboration. They were abolished in 1995.

My point, therefore, is that adopting a “probability-based” interpretation of the Evidential Stage test would not be to restore a corroboration requirement as abolished by Parliament, because, in relation to rape and indecent assault certainly, there never was such a corroboration requirement in the first place.

Rape and other sexual offences are horrible crimes that can damage people for life. Having read the heart-rending accounts of many complainants in such cases I don’t need anyone to convice me of that. I can also speak with some authority on the subject of how difficult it can be to make a decision to prosecute or not prosecute a case. It is very tempting, when reading moving accounts from complainants, to feel that not to take on their case would be a betrayal of them. It’s very tempting to think “Well, we’ll let it run and see what happens”. That is why the strictures of the Evidential Stage test are so important: it really does no-one any favours to build up a victim’s hopes, to put them through months of anxiety about giving evidence, to oblige them to relive their experiences in the witness box, where there is not even a 50/50 chance of a conviction – whatever the type of case and the good intentions of the prosecutors.

The CPS works within the confines of our criminal justice system and part of that system is that juries are instructed in the firmest terms: unless you are sure the defendant is guilty you must acquit him. That is obviously what was concerning the jury in the Dave Lee Travis case.

I don’t know the details of the Bill Roache or Dave Lee Travis cases: whether they were apparently weak cases, strong cases or somewhere in between. Whatever the merits, they at least serve as an opportunity to consider the guidance given to prosecutors in such cases. In my opinion there is an argument that such guidance should be consistent with guidance in other cases: that everything must be done to build a case, to gather all available evidence, but once that has been done – if there is not a better than evens chance of achieving a conviction that case should not be run.

By David Allan, a barrister specialising in the criminal law.

Follow David on Twitter: @DavidAllanLegal

Caroline Lucas to be prosecuted for protesting

Introduction

On 25th September 2013 the CPS announced that Caroline Lucas, the MP for Brighton Pavillion, and the only Green Party MP in the UK, will be prosecuted following her attendance at an anti-fracking protest last month.

 

Charges

Ms Lucas faces two charges –

1. Failing to comply with a direction given by the Police

Under s14 Public Order Act 1986, if the police consider that, in all the circumstances, a public assembly :

(a) may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

(b)the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,”

then they can give directions as to the location, duration, or maximum number of attendees at a protest.

There are three separate offences that this section creates, depending on the individuals role in the protest. A protester that fails to comply with the direction can be fined (maximum Level 3 fine). Someone who is organising the protest, or someone who incites others to breach a direction, can be sent to prison for a maximum of 3 months or a Level 4 fine.

There are no sentencing guidelines.

 

2. Obstructing the Highway

This is an offence under s137 Highways Act 1980. Someone is guilty of an offence if “without lawful authority or excuse, [they] in any way wilfully obstructs the free passage along a highway“.  The maximum sentence is a Level 3 fine.

 

Defences

As well as ‘factual defences (as in “it wasn’t me”), there are potentially arguments over the reasonableness and lawfulness of the behaviour of the police and the protesters, as well as arguments relating to the ECHR and the right to peaceful protest. We will look at those in detail when the case has finished.

 

What happens now?

She is due for a first appearance at Crawley Magistrates’ Court on 9th October. Although these offences will conclude in the Magistrates’ Court and there won’t be a jury trial, we will refrain from saying anything more about it until the case has concluded.

 

CPS Issue policy on prosecuting naturism

Of all the pictures, in all the world, this is the one we chose for a piece on nudity.

We have covered the case of Stephen Gough, the ‘naked rambler’ and his various travails with the legal system. Courtesy of CrimeLine today (18th September 2013) we saw that the CPS has issued guidance on the prosecution of naturists

It’s not, frankly, of great assistance to anyone, and is pretty much just a re-statement of the general prosecutorial policy (with a bit of common sense thrown in). 

It starts by recognising that the desire to be nude is a legitimate part of an individual’s freedom of expression that needs to be balanced against the right of the wider public to be “protected from harassment, alarm and distress”. After this, it turns to the specific offences, concentrating on s5 Public Order Act.

The gist of it is that if it is done for sexual pleasure, or there was an intent to annoy other people (especially if children are present), or this is an oft-repeated offence, then this points away towards a prosecution. In the absence of those, then it may well not be in the public interest for the individual to be prosecuted. 

Interestingly, in relation to ASBOs, the guidance says “Although naked behaviour may fit the anti-social rather than the criminal category, an ASBO carries with it the risk of an early and repeated breach followed by prosecution and ultimately imprisonment. It is questionable whether such an outcome is proportionate either in terms of the cost to the CJS or the penalty incurred. Very careful consideration needs to be given before an ASBO is sought. It should be regarded as a last resort.

Looking at Mr Gough’s case, none of the above will provide him with too much comfort as, given his lengthy history with the Criminal Justice system, it would probably indicate that a prosecution would be in the public interest.

We await to see whether it will actually make any difference …

 

CPS pair sentenced to 6 years for £1m taxi fraud

cps

Facts

On 14th March 2013 two Crown Prosecution Service employees, Lisa Burrows (41) and Tahir Mahmood (50) pleaded guilty to Conspiracy to commit fraud under Criminal Law Act 1977 s 1. (See the CPS press release for details)

Burrows was an Area Finance Manager for CPS West Midlands. She was authorised to submit any invoice up to the value to £25,000 without recourse to a senior manager. Mahmood was a CPS employee (that employment was facilitated by Burrows) and prior to that employment he was a taxi driver. The Judge commented that it was that experience which underpinned the fraud.

The two CPS employees set up false invoices to claim for non-existent taxi rides (with a non-existent taxi firm) to transport non-existent witnesses to Court. Mahmood set up a bank account using an alternative surname to facilitate the fraud. They managed to get in over £1 million over a five year period, amounting to about £4,000 per week.

The BBC stated that they used the funds to pay off their mortgage, buy designer goods and to pay for trips to Dubai and New York,

Delay

The pair pleaded in March, so why the delay? The authorities conducted financial inquiries to trace the money, for the purposes of recovering the proceeds of the offences. We are unaware of the outcome of the inquiries. This should not have resulted in a discounted sentence.

Judges’ Comments

The sentencing remarks are available here.

Aside from the sheer amount involved, the features that make this conspiracy particularly serious are these:  This was a huge fraud on the public purse causing substantial losses to a department already under serious financial pressure.  It was carried out by someone in a position of very considerable trust.  The fraud involved significant planning by both of you.  It continued formore than five years.  It would have carried on had it not been discovered as is apparent from the fact that you, Burrows, had further bogus invoices ready for submission.  Very large sums of money remain outstanding.  Where the proceeds can be traced,they wentlargely on high living. The fraud was motivated purely by greed. The fact that the fraud involved the Crown Prosecution Service and was committed by a senior member of that Service – the body responsible for bringing criminals to justice – will have affected and eroded public confidence in that Service.

Plainly the element of breach of trust applies mostsignificantly to you, Burrows. Whilst you, Mahmood, were an employee of the Crown Prosecution Service in the latter stages of the fraud, your employment was not an integral part of the fraudulent process. Equally, Burriows, you have lost everything as a result of the fraud and I cannot ignore the fact that you, Mahmood, held the purse strings. I do not intend to distinguish between you in the sentence I impose.

The Judge appears to suggest that the aggravation of the breach of trust (most applicable to Burrows) is cancelled out by the fact she has ‘lost everything’, thereby allowing the Judge to treat the defendants equally for the purposes of sentence. He continued:

It is difficult to envisage a more serious fraud of its type that the one you committed. Had you contested the case the sentence in your case in the region of nine  years would have been appropriate.

Clearly the Judge took a dim view of the offending.

The Judge made no reference to the guidelines.

Sentence

In March, we looked at what sentence they could expect. News reports had suggested the pair had pleaded to Fraud Act 2006 offence. We said:

“The Fraud Guidelines will apply. The most suitable category is ‘Banking and Insurance Fraud’ (page 24). It is professionally planned and over a long period of time, and, given the amount of money, it is in the top category.

The starting point (based on £750,000) is 5 years, with a range of 4-7 years. This is after a trial and both will get full credit for pleading guilty.”

This was incorrect. The pair pleaded to conspiracy to commit fraud. They each received 6 years, representing a sentence of 9 years after a trial (as the Judge gave them full credit for their pleas).

When sentencing for conspiracy offences, it is usually appropriate to sentence for the individual role in the conspiracy, as well as participation in the overall conspiracy. This often results in higher sentences than where merely a substantive offence is charged. (Eg. conspiracy to burgle / burglary).

The guidelines

Officially, the guidelines do not apply. The guidelines apply to the offences listed in Annex A. Section 1 states:

…if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—

(a)will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement…

he is guilty of the conspiracy to commit the offence in question.

The guideline specifically excludes conspiracy to defraud (a different common law offence) but doesnt mention conspiracy to commit the substantive offence (which is covered by the guideline). A little complicated.

Whilst the guidelines do not officially apply, I am of the view that they can be of some assistance.

The starting point of 5 years (based on £750,000) can be raised to reflect the fact that over £1m was obtained. That could legitimately be increased to 6 years (or a bit more), but is unlikely that a starting point of over 7 years would usually be deemed to be appropriate in absence of some serious aggravating factors. There plainly should be an increase for the breach of trust and the role played by each and the fact that the funds were used to finance a lavish lifestyle. There can be no increase for the length of time over which the fraud was carried out, nor the professional planning or multiple frauds, as this is already factored in to the starting point.

It would be necessary to increase the sentence to reflect the involvement in the conspiracy and so that may have taken the sentence towards the 9 year starting point that the Judge adopted.

Appeal?

Perhaps. In light of the fact that this was a conspiracy, the sentence doesnt seem so high as originally thought.

To the substantive offence, 6 years on a plea seems high. And it is hard to see how a sentence of 9 years, against a maximum of 10 could be upheld on an appeal. For a conspiracy, it may be that the sentence is about right, after considering the guidelines, adding a bit on for the conspiracy, the increased sum obtained and the lavish lifestyle it was used to fund.

Watch this space.

Note: This post was amended on 30 August 2013 after learning that the offence was conspiracy to commit fraud.