Tag Archives: prosecution

Man who attempts suicide is prosecuted for ‘trespass’

Daily Mail

Daily Mail

Introduction

On 15th May 2014 Peter Anderson had lost his driving licence and consequentially his job. He was homeless and couldn’t find work and was suffering from depression. He decided to take his own life and attempted to throw himself under a train at Leigh on Sea train station in Essex.

Police there stopped him and did what anyone would do when faced with a suicidal man at the end of his tether – they prosecuted him.

On 4th June Mr Anderson pleaded guilty and was conditionally discharged for three months.

 

What was the offence?

The news report says ‘trespass’ but that is not, of itself a criminal offence (it’s a civil wrong for which you can be sued, but not prosecuted).

We think that the offence was Aggravated Trespass under s68 Criminal Justice and Public Order Act. This requires an act of trespass, but also a requirement that  the defendant does “in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land , does there anything which is intended by him to have the effect—:

(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,

(b) of obstructing that activity, or

(c) of disrupting that activity.

This was designed to stop raves, but has been applied to other areas since. Does it cover this? There is an issue as to whether he was ‘trespassing’. If he didn’t have a ticket then he would be, if he threw himself on the tracks he also would be (as members of the public are not allowed there), but if he was on the platform preparing to jump, but was then stopped, then it might not be.

The ‘activity’ referred to would be people travelling on the train. Whilst they would be obstructed and disrupted had Mr Anderson killed himself, it is unlikely that he would have been intending that effect (even if he was, or would have been had he thought about it, aware that that would have been the impact).

For this reason it is not immediately clear that he would be guilty of this.

There is also an offence of Endangering Life on a Railway contrary to s34 Offences Against the Person Act 1861. This states that “Whosoever, by any unlawful act, or by any wilful omission or neglect, shall endanger or cause to be endangered the safety of any person conveyed or being in or upon a railway, or shall aid or assist therein, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years,”.

The trespass may count here as an unlawful act. Although this is not obviously designed for this sort of a situation, it is arguable that if he endangers his own life then this could count as the person who’s safety was endangered.

There are several summary only offences (s16 Railway Regulation Act 1840, s23 Regulation of the Railways Act 1868 and s55 British Transport Commission Act 1949) but these all require a warning to be given before an offence is committed.

So, on balance we’d guess that the correct offence was the Endangering Life on a Railway. Even then, it is not clear that the offence was made out.

 

What do you make of the sentence?

There is no minimum period for which a conditional discharge can run, but 3 months is about as short as it gets. Short of an absolute discharge (which may have been a more appropriate sentence, but is very rare), it’s the least he could have got.

There is no mention of the victim surcharge, but Mr Anderson would have had to pay £15 for this (a further demonstration of what nonsense this is).

 

Why was he prosecuted?

On the face of it, this seems a ludicrous prosecution. There is a Code for Prosecutors that sets out when a prosecution should be instigated and continued. There is an ‘evidential’ part (which would be met’ and a ‘public interest test’ – a prosecution should not be commenced unless it is in the public interest.

The CPS said “the prosecution was in the public interest. In this case, due to the fact the defendant was on prohibited land, namely train tracks, and by his doing so could harm or cause distress to other members of the public and/or their safety it is clear that it was in the public interest to proceed. 

‘This course of action we hope would also deter anyone else from acting in the same manner in the future, which is dangerous and could potentially endanger lives. The safety of the defendant or anyone on or in the proximity of train tracks is paramount. 

I have to say that this appears to me to be nonsense. It’s always possible that there are more facts than in the newspaper (and it is the Daily Mail after all) but there is nothing on the CPS website to indicate that they disagree with the facts.

Leaving aside the question of whether the offence was actually made out, I cannot see how it was possibly in the public interest to prosecute Mr Anderson. The idea that this will deter others from trying to take their own life seems implausible, and it seems to me that the CPS have made a mistake on this one …

Advertisements

Jake Newsome – Another social media jailing over an Ann Maguire posting

BBC

BBC

Introduction

We looked at the case of Robert Riley who was jailed last month for tweeting offensive messaged relating to the death of Ann Maguire. Well, Mr Riley has a companion – on 4th June 2014 Jake Newsome was sentenced to six weeks in prison for a ‘malicious communications charge’. He was using Facebook rather than twitter, but the same issues are apparent.

 

Facts

As in most tweeting/social media cases the full messages aren’t published. According to the BBC – “Jake Newsome wrote that he was “glad” she had been stabbed and he “felt sorry” for the boy accused of her murder. The 21-year-old completed his post with an obscene suggestion“.

The Mirror reported that he had said ““Personally, I’m glad that teacher got stabbed up. Feel sorry for the kid. He should have p***** on her too.”

It’s not clear what the charge is. The news reports would indicate that it was under s1 Malicious Communications Act 1988, but it would be a similar outcome if it had been under s127 Communications Act 2003.

 

Comment

Firstly the sentence. The Magistrates’ Court Sentencing Guidelines are applicable (see page 40). Looking at the guidelines does not help much as they relate to telephone calls. But it would appear to have been treated by the Court as being a series of offensive messages with extreme language and a moderate impact. The increase in sentence from the starting point of six week (before the credit for a plea of guilty) may be explicable by the Court treating these messages as causing ‘substantial distress or fear’.

On that basis, the sentence is probably fair enough, if a little on the high side. The bigger question is whether he should have been prosecuted. The CPS policy on prosecution of social media offences gives four categories of messages :

  1. Communications which may constitute credible threats of violence to the person or damage to property.
  2. Communications which specifically target an individual or individuals and which may constitute harassment or stalking within the meaning of the Protection from Harassment Act 1997.
  3. Communications which may amount to a breach of a court order.
  4. Communications which do not fall into any of the categories above and fall to be considered separately (see below): i.e. those which may be considered grossly offensive, indecent, obscene or false.

(1)-(3) don’t apply clearly, so it must be that the prosecution falls to be justified under (4). On the face of the Facebook postings as we’ve set out above, it is arguable whether these are ‘grossly offensive’. Even if they are, the policy states that the case “will be subject to a high threshold and in many cases a prosecution is unlikely to be in the public interest.

It seems that there was not any argument as to the policy in Court (and in any event there have been some fairly dodgy decisions of the Court of Appeal on this point) which is disappointing.

Is this a case that calls out for a prosecution? Is one needed in the public interest? Is it compatible with Art 10 European Convention on Human Rights? We would suggest that the answer is no to all the above. Yet again we are seeing a knee jerk reaction by the CPS to people being caused offence (which is not, and should not be, a criminal offence). It is time that the CPS were called to justify how some of the decisions to prosecute are being made in these sorts of offences.

 

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 …