Tag Archives: Sexual offences

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 That was repealed in 2004.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.

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Man who set up ‘masturbation station’ near a primary school pleads guilty to child pornography offences

chained computer

 Stephen Conroy, 53, has pleaded guilty to a number of sexual offences including making and possessing indecent images of children and possessing extreme pornography.

The offences

Possessing extreme pornography is an offence under Criminal Justice and Immigration Act 2008 s 63. The maximum sentence is 3 years or 2 years where the image in question is not an image which portrays a) an act which threatens a person’s life, or b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals.

 There are several indecent image offences including:

1)     Criminal Justice Act 1988 s 160 (possession of indecent photographs) – max sentence 5 years

2)     Protection of Children Act 1978 s 1 (taking, distributing, publishing etc. indecent photographs) – max sentence 10 years

3)     Coroners and Justice Act 2009 s 62 (possession of prohibited images of children) – max sentence 3 years

It is not clear how many counts, or indeed which section he has pleaded to.

The (scarce) facts

He was found in possession of thousands of printed images, DVDs and videos of child pornography after police searched his home address in February 2013. There was reportedly pornography ‘plastered’ all over the ceilings and walls of three bedrooms. It is understood that some of the images are considered to be level 5 images of child pornography – the highest on the scale.

Additionally, police reportedly found children’s underwear and a school girl’s outfit.

The prosecution, presumably opening the case the judge (telling the judge what the case is about) stated that Mr Conroy had filmed children arriving at and leaving the primary school with which his house is in close proximity.

The prosecutor added: “There was a home-made masturbation device by a window which had a view of the street. In regards to the masturbation station, he admitted that is what he used it for,”.

 “Conroy told officers he thought the children in the images were innocent and beautiful and works of art but probably did not understand what was going on.

“He said he liked children and thought of himself as childlike.”

Conroy told officers he had started looking at child abuse images in 2006 and later searched for “school uniform porn”.

Sentence

Sentencing was adjourned, reportedly due to the unavailability of certain evidence. This is presumably so the correct basis on which to sentence Mr Conroy can be determined.

We will return to the sentencing when it is reported.

Further details can be found here.

Boy, 15, raped a boy, 13, for ‘not having a good phone’

youth justice

Facts

A 15-year-old boy pleaded guilty to two counts of rape. When aged 14, X (he cannot be named because of his age) approach V (aged 13) whilst V was waiting at a bus stop on his way home from school.

X asked V where he lived, where he went to school, whether he was in a gang and whether he had a phone. When V replied that he did not have a phone, X told him he must go to a block of flats in order that he could be searched.

X then grabbed V, ordered him to remove his boxer shorts and raped him, telling him to “do it like a girl”. V was begging for X to stop and X replied “Good, that’s what you get for not having a good phone [to steal]. I’m going to scar you for life.” After the rape, X then slapped V in the face and told him not to look at him.

X had a previous conviction for possession of cannabis and had been reprimanded for carrying a knife.

News reports are here (Evening Standard), here (LBC) and here (BBC).

Sentencing

X was sentenced to 4 years’  detention under section 91. This is for grave crimes committed by those under 18. See here for our explanation of youth custodial sentences.

Judge Roger Chapple, sentencing, told the defendant that his offences had been “dreadful” and the effects on his victim “profound”.

“You were apparently punishing him (the victim) for not having a mobile phone you could steal from him,” the judge said.

“A quite sad and disquieting theme that has run through this case is the power, control and domination you sought to exercise over your victim and your apparent wish to degrade him.

“When he told you how much you had hurt him you expressed satisfaction and threatened to scar him for life.”

This throws up a couple of important – difficult – issues.

Punishment

The first issue is punishment. What is the appropriate sentence? For an adult, the sentence is likely to have been more than double the four years given to X.

On one side, there is the need to punish X, and a lengthy custodial sentence is necessary to a) deal with the issues X obviously has and b) mark the seriousness of the offence, ensuring that an appropriate punishment is imposed. There is also the need to protect the public where appropriate, however here, X was not assessed as dangerous (within the meaning of CJA 2003) warranting an extended or life sentence.

On the other, there is the desire not to unnecessarily incarcerate children and young offenders. X is clearly a child with issues which need addressing. A sentence maeasured in years is obviously going to have a significant effect on X’s life and restrict what he can do once he is released. This may be the beginning of a life of crime if, for example, he leaves custody with no education, a drugs habit, no skills, no job prospects.

Whilst there is a duty to impose the shortest possible sentence commensurate with the seriousness of the offence, there is some discretion within that and courts can – and do – take very lenient approaches to some offenders.

So, what is the correct sentence? For my money, 4 years seems right.

Anonymity

The second issue is anonymity. As a general rule, those under 18 are anonymised.

The victim, V, will remain anonymous for the rest of his life as he is a victim of a sexual offence (see here for more about sex complainant anonymity).

As for X, his identity is currently subject to reporting restrictions. That means that publication of his name, image or any information which might lead to the public ascertaining his identity is prohibited. This would most likely include his school and where he lives.

The Judge is reportedly considering a request to lift the anonymity order in relation to X. Should he do so? We understand his decision will be given on 17 July. 

There was a lot of criticism recently about the lifting of anonymity orders in relation to child offenders – this was sparked by the news that John Venables was to be released from prison . Many thought that had the judge decided to refuse the request to publish details of Thompson and Venables’ identities and their pictures, then some of the anger surrounding the may have subsided. As it currently is, their names can keep cropping up in the press, as the order made by the judge permitted their identities to be known, but no images etc. of their appearance to be published after 2001.

This is tricky issue. There is force in the argument that says offenders should be named and shamed, and that such a process features as a part of the denunciatory value of sentencing. However, there is much force, in my view, in the argument that supports retaining that anonymity as it would allow X to serve his sentence and attempt to rebuild his life.  He is a young boy who clearly has issues which need addressing. The fact he has a criminal conviction, for a sex offence, will serve as an ongoing reminder – as will signing on to the sex offender’s register. By virtue of the sentence he received, the conviction will remain on his record forever. Is his custodial sentence, criminal record and requirement to sign on to the sex offender’s register punishment enough?

 Should the courts give him a helping hand to turn his life around and protect his identity? Or should the court grant the application to publish his identity and leave him with an albatross around his neck for the rest of his life?

Anonymity for complainants in sex cases

 

The anonymity

Sexual Offences (Amendment) Act 1992 s 1 affords lifetime anonymity to complainants in certain situations.

When does it apply?

When an allegation that an offence specified under the Act has been committed.

The offences to which it applies

Section 2 of the Act lists the offences to which the anonymity under section 1 applies. These include all offences under the Sexual Offences Act 2003 (excluding sex with an adult relative, intercourse with an animal and sex in a public lavatory). This includes rape, sexual assault, and all child sex offences. Also included under the Act are attempts to commit such offences.

What is prohibited and to whom does it apply?

The publication of any matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed.

This includes their name, address and image (still and moving)

How long does the anonymity last?

For the complainant’s lifetime.

What does ‘publication’ mean?

It means traditional media, such a newspapers, magazines and news programmes, but also new media, such as online blogs, news websites, and crucially, Twitter and Facebook.

Offence of breaching anonymity

Section 5 makes it an offence to publish matters listed above.

What is the penalty?

A level 5 fine (currently £5,000, but there are plans to increase the powers of the Magistrates’ to impose unlimited fines)

“But I didn’t even know there was a law prohibiting it”

Tough. Ignorance is not a defence.

Examples

Ten individuals were convicted of offences under the Act in relation to the Ched Evans case. We covered it here and here.

Recently, Michael Le Vell (Corronation Street actor) was arrested and charged with child sex offences (see here for details). On 1 March, a 23-year-old man from Manchester was arrested for an offence under the Act for allegedly Tweeting the identity of the alleged victim in that case. The Daily Mail reported the story here.

Advice

If you are unsure whether you should be putting something on Twitter or Facebook in relation to the victim of a crime, don’t. It is as simple as that.

Stuart Hall sentenced for historic sexual offences

stuart hall

Facts

EDIT: Stuart Hall was sentenced to 15 months’ imprisonment on 17 June 2013. More to follow.

Stuart Hall, 83, pleaded guilty to 14 offences which occurred between 1967 and 1985. There is one count of rape which will lie on the file – this means that the charge will not be proceeded with without the leave of the Court of Appeal. This usually happens where the offence is not admitted by the defendant, the judge agrees there is sufficient evidence to have a trial., but the prosecution decide (usually as a result of pleas to other offences) there is no need to secure a conviction on the matter, but do not want to offer to evidence. The matter can be reinstituted but this is rare.

 You may remember that Mr Hall had previously referred to the allegations as “pernicious, callous, cruel and above all spurious”.

 The BBC report was as follows: “Preston Crown Court previously heard that in the 1980s Hall molested a nine-year-old girl by putting his hand up her clothing.

He also kissed a 13-year-old girl on the lips after saying to her: “People need to show thanks in other ways.”

CPS Chief Crown Prosecutor Nazir Afzal described Hall as an opportunistic predator. He went on to say that Mr Hall’s victims did not know each other and that although almost two decades separated the assaults, the victims provided strikingly similar accounts.

 Sentencing

Sentencing in historic sex cases can be complex and difficult.

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.

Sexual Offences Prevention Orders (SOPOs)

Legislation Sexual Offences Act 2003 s 104-113
Maximum length Indefinite (SOA 2003 s 107(1)(b))
Minimum length 5 years (SOA 2003 s 107(1)(b))
Which court can make an order? Youth Court, Magistrates’ Courts, Crown Courts

The basics

These orders are civil behaviour orders or ‘preventive orders’ imposed upon conviction (‘post-conviction orders’) or upon complaint (‘stand-alone orders’). The former are by far the most common.

The orders specify terms which prohibit the person subject to the order from doing certain things. The orders are targeted at sexual offending and are designed to prevent the commission of acts or offences which would cause serious sexual harm to another person.

SOPOs are from the same family as ASBOs. A SOPO operates in a similar way to an ASBO in that it is preventative in nature, targeted at the behaviour of the person subject to the order. Consequently, many of the principles are the same.

Power to order

Stand-alone orders The power is a discretionary power.

A Chief Officer of Police may by complaint make an application if a) it appears that that the defendant has been convicted of a Schedule 3 offence (list here) or a Schedule 5 offence (list here), or if he has been cautioned for such an offence, and b) the defendant has acted in a way as to give reasonable cause to believe that an order is necessary.

(SOA 2003 s 104(1) and (4))

Post-conviction orders The power is a discretionary power.

Step 1 Is the court dealing with the defendant for a Schedule 3 or 5 offence? (SOA 2003 s 104(2))

Step 2 Is the court satisfied that it is necessary to make such an order for the purposes of protecting the public from serious sexual harm? (SOA 2003 s 104(1)(a) and (b))

NB. The focus of Step 2 must be the risk of further offending. (R v D 2005 EWCA Crim 3660)

Interim orders A court may make an interim order when considering whether to make a stand-alone order. (SOA 2003 s 109)

What is ‘serious harm’?

Death or serious personal injury, whether physical or psychological. (PCC(S)A 2000 s 161(4) and R v Halloren 2004 EWCA Crim 233)

Drafting the order

Serving the draft on the defence to allow for proper scrutiny

A written draft must be properly considered in advance of the sentencing hearing. The normal requirement is that it is served on the court and the defence before the hearing. The Court of Appeal have suggested two clear days as a suitable time period, but in any event the draft is not to be served at the hearing. (R v Smith and Others 2011 EWCA Crim 1772)

The judge and the defence must have proper opportunity to scrutinise the proposed order and discuss its terms. (R v Guest 2011 EWCA Crim 1542)

The terms

Must be prohibitive in nature, as opposed to requiring the defendant to positively do something. (R v Smith 2009 EWCA Crim 785

Must not be oppressive (R v Collard 2004 EWCA Crim 1664)

Must be expressed in simple terms, easily understood by those who are not particularly bright (B v Chief Constable of Avon & Somerset Constabulary 2000 EWHC 559 (Admin)

Must not be vague. The twin tests are necessity and clarity. A subtest of necessity is proportionality. The real risk of unintended breach must be avoided. (R v Smith and Others 2011 EWCA Crim 1772)

A term is not necessary if it duplicates another regime to which the defendant is subject to by virtue of his conviction(s) for sexual offences. The following should be considered: a) notification, b) disqualification from working with children, and c) release on licence. (R v Smith and Others 2011 EWCA Crim 1772)

Where a defendant had shown no sign of progressing from making/possessing indecent images offences to contact offences, an order which prohibited him from having unsupervised contact with a child under 16 and his child while under 16, was unlawful. (R v Lea 2011 EWCA Crim 487)

Variations etc.

Power to vary

The power to vary, renew or discharge a SOPO is contained within SOA 2003 s 108. An order may be varied so as to impose additional requirements. The test remains the same as for imposing a SOPO; is the term necessary for protecting the public from serious sexual harm from the defendant. (SOA 2003 s 108(5))

Discharging an order

An order may not be discharged before the expiration of the 5 year minimum term without the consent of the defendant and the chief officer of police. (SOA 2003 s 108(6)

Where to appeal against a variation

Appeals in relation to variations are to the Criminal Division of the Court of Appeal. (R v Aldridge and Eaton 2012 EWCA Crim 1456)

Appeals

Power to appeal

A defendant may appeal against the making of a SOPO. (SOA 2003 s 110(1))

Where a defendant was prohibited from seeing his son, L, by a term in a SOPO, L did not have the right to apply to vary, renew or discharge the order. (R v D 2005 EWCA Crim 3660)

The test

There are three questions:
a) Is the order necessary to protect the public generally, or any particular member of the public from serious sexual harm?
b) If it is necessary at all, are the particular terms of the order oppressive?
c) Are the terms of the particular order proportionate?

(R v Mortimer 2010 EWCA Crim 1303)

Old, unlawful orders

A defendant appealed a SOPO made in 2006, relying on the decision in R v Smith and Others 2011 EWCA Crim 1772. The Court held that the fresh guidance in Smith did not provide the basis for a successful appeal against a SOPO which was imposed long before that decision. The SOPO was imposed on the relevant legislation and guidance, and should not be varied on appeal because of subsequent changes to them. The Court stated that they are ‘not a review body for every SOPO’. (R v Instone 2012 EWCA Crim 1792 Lord Chief Justice)

Key considerations

Is the order necessary?

Are the terms clear, concise and capable of being understood?

Are the terms proportionate and targeted at the defendant’s behaviour?

Key cases

R v Smith and Others 2011 EWCA Crim 1772
R v Instone 2012 EWCA Crim 1792