Tag Archives: DPP

Alison Saunders – New DPP announced

What’s this?

Following last week’s news that there is a new Lord Chief Justice, we have the announcement that there is a new DPP – Director of Public Prosecutions – step forward Alison Saunders CB. There’s a profile of her here if you want some background.

Don’t you mean QC?

No, CB. Ms Saunders was appointed a CB – a Companion of the Most Honourable Order of the Bath for her work in relation to keeping the courts going during the riots in the summer of 2011. Ms Saunders was head of CPS London (her current post). It’s likely that she will be upgraded to Dame Alison in due course. It would not be a surprise if she is also appointed a QC (even if an honoury one) at some point as well.

Ms Saunders is the first ‘internal’ DPP – previously, the DPP has been a QC from the independent bar (apart Sir Theobald Matthew, who was a solicitor – the only solicitor DPP – in independent practice when he was appointed in 1944). Ms Saunders joined the CPS pretty much when in started in 1986 and has worked there ever since (apart from a short stint in the Attorney-General’s office).

Good to see a woman get a top job after another male Lord Chief though?

Yes certainly. Although Ms Saunders is not the first female DPP. That honour goes to Dame Barbara Mills QC, who was DPP from 1992 to 1998.

What does the DPP do?

They are head of the CPS (an organisation that employs about 7,000 people with a budget of £650 million) and “set the vision and policy for them“. Ms Saunders will be involved in making decisions as to whether to prosecute in some of the most serious and sensitive cases. They are also the ‘public face’ of the CPS – you will be seeing a lot more of Ms Saunders in the next five years.

The DPP reports to the Attorney-General, who is accountable to Parliament for her actions. There’s lots more information in the CPS Annual Reports.

Is it well paid?

Significantly more than most criminal lawyers! Currently it’s £198,674 a year (compared to an average of £25,000 for legal aid lawyers) – it’s pegged at the salary of a Lord Justice of Appeal as well as a pretty good pension. Who says crime doesn’t pay, eh?

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Sgt Nightingale fails in abuse of process application – retrial goes ahead

nightingaleAnd so the Sgt Nightingale saga rumbles on….

Readers will recall that after a successful sentence appeal and a successful conviction appeal, the Court of Appeal ordered a re-trial on the basis that the plea of guilty was a nullity as a result of improper pressure to plead guilty at the Court Martial.

A summary of the history of the case is available here. (Written before the sentence appeal.) Please see the ‘Sgt Danny Nightingale’ menu item at the top of the page for all posts on this case.

The hearing dated 1 May 2013 was a preliminary hearing. Such hearings are used to determine issues before trial. At this hearing, Sgt Nightingale argued that the decision to prosecute him was an abuse of process as the prosecution for a second time was not in the public interest. He argued it was both improper and oppressive. The Crown rejected Sgt Nightingale’s arguments. 

The court considered case law on the issue.

HHJ Jeff Blackett, the Judge Advocate General determined that the Director of Service Prosecutions (responsible for prosecutions in the Service Justice System) had not acted improperly.

The Judge went on to say:

‘…there is no suggestion that the decision to prosecute is arbitrary and I have already ruled that there was no impropriety on behalf of the DSP. Nor has there been excessive delay, there is no issue of lost or destroyed evidence, entrapment, going back on a promise not to prosecute, manipulation of procedure or immunity from prosecution. Nor can it be said that the Crown has acted in bad faith or dishonestly. There is a prima facie case against the defendant for two offences of unlawful possession of a firearm and unlawful possession of ammunition. The defendant has been properly investigated and then charged and the Crown has confirmed that it has kept the decision to prosecute under continuous review. In other words, oppression above and beyond the ordinary consequences of initiating a prosecution has not been shown. All of the factors suggested by the defence relating to the Defendant’s health, his future employment, the cost of defending himself or the risk of conviction reflect the personal impact upon the Defendant but they do not amount to oppression by the Crown.’

The Judge concluded:

‘…it is not my function to review the decision to prosecute. Provided I am satisfied that there has been no bad faith or dishonesty and that the exercise of a prosecutorial discretion has been conscientiously undertaken, I should direct that the matter proceeds to trial.’

The re-trial is expected the begin on 1 July.

The transcript, courtesy of Crimeline, is available here.

Image courtesy of the Daily Mail.

DPP issues interim guidance on social media prosecutions

Scales of justice

Today the DPP issued his interim guidance on social media prosecutions.

The guidance is available here: DPP SocMed Guide

The DPP has requested that the guidance is read and responses submitted. On a cursory glance, it looks as though the guidance largely follows a common sense approach, however there has already been disquiet on Twitter concerning the DPP’s view that ‘deeply unpopular’ messages ought to be policed (see @ajcdeane’s Tweet).

We will have a short post about the guidance up here later. In the meantime, what are your thoughts?

Gary McKinnon avoids extradition

Gary McKinnon avoids extradition

 Background

In 2002 Gary McKinnon, a Scottish Systems Administrator, was charged with hacking into 97 United States military and NASA computers during a 13 month period between 2001 and 2002.  It was claimed that he deleted critical files, caused entire networks of computers to shut-down and paralysed munitions supply deliveries to the US Army.  The US authorities stated $700,000 was spent in rectification.

McKinnon was interviewed and later indicted to face seven counts of computer-related crime, each carrying a custodial sentence of up to ten years.

 

Extradition, the basics

The Extradition Act 2003 provides a swift method of ensuring those wanted to stand trial, be sentenced or serve a sentence are sent to the requesting country.  Guilt or innocence as to the charges faced, or mitigation as to the sentence, are irrelevant for the purposes of extradition.  Individuals facing extradition can consent willingly, in which case they will be extradited to the requesting country within a matter of days, or alternatively put forward various arguments to attempt to contest their extradition.

 

Article 3 arguments

McKinnon’s legal team successfully contested his extradition by utilising article 3 of the European Convention on Human Rights.  Article 3 states that no one shall be subject to torture or to inhuman or degrading treatment or punishment.  McKinnon was diagnosed in 2008 as suffering from an autism spectrum disorder, compounded with clinical depression.  Supporters of McKinnon claimed he was suicidal and would not survive incarceration in a US prison.  His lawyers argued that it would be unnecessary, cruel and inhumane to remove McKinnon from the UK, when he could be tried here.

In order to successfully use Article 3 as a bar to extradition it is necessary “to show strong grounds for believing that the person if returned faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment” (Ullah [2004] 1 AC 323). Concerns as to mental health are also a governing factor in extradition cases; s.91 of the Extradition Act 2003 deals with cases where it would be oppressive to extradite a particular individual due to their mental health.

 

The decision

On 16th October 2012 the Home Secretary Theresa May announced that McKinnon’s extradition had been blocked, stating that it “would give rise to such a high risk of him ending his life that a decision to extradite him would be incompatible with Mr McKinnon’s human rights”.  The Director of Public Prosecutions, Keir Starmer QC will now decide whether McKinnon will face trial in the UK.

The Code for Crown Prosecutors

Why are some offences are prosecuted, whereas some are not?

It’s a frequently asked question.  The answer often comes down to the Code for Crown Prosecutors.

The Code essentially asks two questions:

  1. Is there enough evidence against the accused to bring the case? (“the evidential stage”)
  2. Is it in the public interest to prosecute? (“the public interest stage”)

The Evidential Test

In answering question 1, crown prosecutors must ask themselves whether there is a “realistic prospect of conviction” against the defendant.  In assessing this, the prosecutor will consider what the defence case may be. The test is an objective one.  In considering the evidence, the prosecutor must ensure it is admissible in a criminal court, and that it is reliable.

If there is not enough evidence to bring the case, the matter will not proceed to the public interest assessment and will not go to court.

The Public Interest Test

“[i]t has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution…[There should be a prosecution] wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest”

– Sir Hartley Shawcross, 1951 (the then Attorney General), taken from the House of Commons Debates, Volume 483, 29 January 1951, courtesy of the 2010 Code for Crown Prosecutors.

The Code suggests various factors to be taken into account:

“A prosecution is more likely to be required if:

a) a conviction is likely to result in a significant sentence;

b) a conviction is likely to result in an order of the court in excess of that which a prosecutor is able to secure through a conditional caution;

c) the offence involved the use of a weapon or the threat of violence;

d) the offence was committed against a person serving the public (for example, a member of the emergency services; a police or prison officer; a health or social welfare professional; or a provider of public transport);

e) the offence was premeditated;

f) the offence was carried out by a group;

g) the offence was committed in the presence of, or in close proximity to, a child;

h) the offence was motivated by any form of discrimination against the victim’s ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation or gender identity; or the suspect demonstrated hostility towards the victim based on any of those characteristics;

i) the offence was committed in order to facilitate more serious offending;

j) the victim of the offence was in a vulnerable situation and the suspect took advantage of this;

k) there was an element of corruption of the victim in the way the offence was committed;

l) there was a marked difference in the ages of the suspect and the victim and the suspect took advantage of this;

m) there was a marked difference in the levels of understanding of the suspect and the victim and the suspect took advantage of this;

n) the suspect was in a position of authority or trust and he or she took advantage of this;

o) the suspect was a ringleader or an organiser of the offence;

p) the suspect’s previous convictions or the previous out-of-court disposals which he or she has received are relevant to the present offence;

q) the suspect is alleged to have committed the offence in breach of an order of the court;

r) a prosecution would have a significant positive impact on maintaining community confidence;

s) there are grounds for believing that the offence is likely to be continued or repeated.

Some common public interest factors tending against prosecution

A prosecution is less likely to be required if:

a) the court is likely to impose a nominal penalty;

b) the seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies

c) the suspect has been subject to any appropriate regulatory proceedings, or any punitive or relevant civil penalty which remains in place or which has been satisfactorily discharged, which adequately addresses the seriousness of the offendingand any breach of trust involved;

d) the offence was committed as a result of a genuine mistake or misunderstanding;

e) the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement;

f) there has been a long delay between the offence taking place and the date of the trial, unless:

• the offence is serious;

• the delay has been caused wholly or in part by the suspect;

• the offence has only recently come to light;

• the complexity of the offence has meant that there has been a long investigation; or

• new investigative techniques have been used to re-examine previously unsolved crimes and, as a result, a suspect has been identified.

g) a prosecution is likely to have an adverse effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence and the views of the victim about the effect of a prosecution on his or her physical or mental health;

h) the suspect played a minor role in the commission of the offence;

i) the suspect has put right the loss or harm that was caused (but a suspect must not avoid prosecution or an out-of-court disposal solely because he or she pays compensation or repays the sum of money he or she unlawfully obtained);

j) the suspect is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is a real possibility that it may be repeated. Prosecutors apply Home Office guidelines about how to deal with mentally disordered offenders and must balance a suspect’s mental or physical ill health with the need to safeguard the public or those providing care services to such persons;

k) a prosecution may require details to be made public that could harm sources of information, international relations or national security.”

The Code was revised in 2010.  There is currently a consultation on a revised edition, which can be accessed here.  The consultation was launched by the DPP, Keir Starmer QC, in July.  In a statement to the CPS, Mr Starmer stated: “This version of the Code is intended to help the CPS take a more focused, proportionate and effective approach to bringing criminals to justice.”

The revisions include an extra factor in the evidential stage: Is the evidence credible?

The consultation also considers a revision in the public interest assessment.  The following questions are considered:

a)    How serious is the offence committed?

b)    What is the level of culpability of the suspect?

c)    What are the circumstances of and the harm caused to the victim?

d)    Is the suspect under 18 years old?

e)    What is the impact on the community?

f)     Is a prosecution a proportionate response?

g)    Do sources of information require protecting?

The consultation is now closed.  Stay turned for the results.

Retweet at your peril

On Wednesday night, the DPP spoke at the LSE on the issue of social media. This follows a series of ‘roundtables’ at which he invited some prominent legal tweeters, (with some notable absences), to proffer their thoughts on how the law can best deal with the issue of prosecutions in cases involving social media.

Here is a list of questions/discussion topics which were presented to the attendees for consideration.

At the LSE, the DPP discussed social media prosecutions and stated that he understood the anxiety of the Twitter community in relation to free speech: “It is important and the criminal threshold must be high”.

Whilst there are many issues pertaining to offences committed through social media, it is the Communications Act 2003 s 127 which has of late been the really controversial talking point.

See here for the UK Human Rights Blog post on a conviction under the Act.

See here for Adam Wagner (of UK Human Rights Blog) being interviewed by Joshua Rozenberg for BBC R4’s Law in Action, on this topic.

However, the bit that got every talking was this. Someone posed the question ‘Is it an offence to re-tweet something grossly offensive?’ to which the DPP replied, ‘you retweet, you commit an offence under the Act.’

This caused concern among Twitter users. Many state clearly in their ‘bios’ that a RT is not an endorsement, i.e. retweeting another’s tweet is not an indication that the view is shared or the content is endorsed. NEWSFLASH the DPP cares not for your disclaimer, and section 127 cares not for your intent. It states:

Improper use of public electronic communications network

(1) A person is guilty of an offence if he:

(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) causes any such message or matter to be so sent.

There is no requirement that the message was sent with the intention of it being grossly offensive, nor that there is a defence if the message is sent with a view to the original sender being dealt with by the police – why would there be? The legislation has its roots in the Post Office (Amendment) Act 1935 and was voted on in its current form prior to Twitter and Facebook even existing.

So it appears that whether you are a newspaper tweeting links to the image of Mr Barry Thew’s t-shirt (see here for a summary of his case), a fan retweeting a grossly offensive joke tweeted by your favourite comedian, or simply a do-gooder retweeting a grossly offensive tweet to enable the authorities to take appropriate action prior to the user removing the tweet, you fall foul of the Act.

Where then, does that leave you? Well, quite simply, in the collective lap of the CPS. Flip a coin…because who knows whether the charging decision will be the sensible one (Paul Chambers, Matthew Woods spring to mind). I think the DPP should be commended on what he is trying to do with social media and the law, but relying on prosecutorial discretion is not the way forward.

Can we not simply have a law which criminalises that which ought to be criminal and leaves untouched that which ought to be untouched?

Worked examples of IPP/Extended Sentences

*Please note – under the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Judges can no longer sentence offenders to Imprisonment for Public Protection (“IPP”) or pass an Extended Sentence for Public Protection (“EPP”) where the offender was convicted after 3rd December 2012.

The example below is based on the old law, and presupposes that Adam’s conviction was prior to 3rd December 2012.

Adam is convicted of rape in 2005. This is a specified offence (ie, listed in Sch 15), a serious offence (ie in Sch 15A) and the maximum sentence is life imprisonment.

The guidelines indicate that the starting point for rape (without any aggravating features) is 5 years. Assume that this is the sentence that the Judge is thinking of.

 If the Judge considers Adam to be especially dangerous, or the offence particularly grave (not likely if the Judge was thinking of a 5 year sentence) then he can impose a life sentence. The tariff would be 2½ years (based on halving the 5 years).

If the Judge thinks that Adam presents a significant risk of serious harm to members of the public (and this could include, for example, one person, ie a girlfriend), then he would consider an IPP or EPP.

Due to the fact that the sentence would be over four years, it does not matter if Adam has been convicted of any offences before, both sentences are available. The Judge should consider both and, if he believes that an Extended sentence would provide sufficient protection, then impose that (as it is a less onerous sentence than an IPP).

If he did this, it would be an IPP with a tariff (minimum term) of 2½ years. If he were to concluded that an extended sentence would be sufficient, the extension period would have to be 8 years or less. If he chose a period of 6 years, the sentence would be an EPP of 11 years, comprising a 5 year custodial period and a 6 year extension period.

This can cause confusion in the press. If someone gets an 11 year ‘normal’ sentence, they will be released after 5½ years and spend 5½ years in the community being supervised by Probation. If it was a sentence such as Adam got, then he would serve 2½ before being eligible for release (and would have to be released after 5 years), and would be supervise by Probation until 11 years after the sentence was passed.

Imagine Adam gets 5 years and is later released. After his licence period has expired, he gets in a pub fight and is convicted of ABH (causing actual bodily harm).

The maximum sentence for ABH is 5 years and therefore (as this is not life, and less than 10 years), it doesn’t matter how serious the case is, or how dangerous the Judge thinks Adam is, he cannot impose a life sentence or an IPP.

As ABH is a specified offence, the Judge can, if he thinks that there is a significant risk of serious harm (note that serious harm means something more than ABH), impose an Extended Sentence.

The mechanics are difficult however. As Adam has a previous conviction for rape, the Judge can impose an Extended sentence whatever sentence he would impose for ABH. Say the Judge takes a starting point of 3 years. As the maximum sentence is 5 years, the extension period cannot be more than 2 years (as the Judge cannot sentence Adam to more than the maximum). If the Judge wanted to sentence Adam to 6 months, but felt Adam is a grave danger, he can pass an extended sentence. As the minimum is 12 months, that would be the custodial part, with the extension period being anything up to 4 years.