Paul Flowers charged with drug possession

From The Telegraph

From The Telegraph

Introduction

The Co-op bank has had a pretty torrid time of late. It wasn’t helped when it was announced today (16th April 2014) that Mr Flowers, the former Chairman, and methodist lay preacher, has been charged with two offences of possession of a Class A drug and once of Possession of a Class C drug.

 

What happens next?

Mr Flowers will go to Court on 7th May where he will enter a plea. If it is guilty, or pleads guilty but is convicted then he will be sentenced. This will be governed by the Drugs Guidelines produced by the Sentencing Council. The guidance for ‘simple’ possession is at page 30. Everything would depend on the circumstances of course, but the starting point would be a fine.

As Mr Flowers has now been charged and is entitled to the presumption of innocence, we won’t say much more at this stage.

Emma Wilson – sentence increased for murder

emma willson

We covered the case of Emma Wilson when she was convicted of murdering her son last September and sentenced to life imprisonment with a minimum term of 14 years. We commented at the time that the starting point was 15 years but it wasn’t clear why the tariff was reduced to 14 years given that the aggravating features seemed to outweigh the mitigating ones.

Well, we don’t know if the Attorney-General reads the blog, but if he doesn’t then it seems that he had the same view as a prosecutor’s appeal was lodged. This was heard on 15th April 2014 and the Court of Appeal stated that the sentence was not just a lenient one, but one that was unduly lenient. As a result the tariff was increased to 17 years imprisonment.

It will take a few weeks (at least) for the judgment to be published. We will have a look at that when it has been transcribed and published.

 

Shouldn’t the £43,000 fare dodger be prosecuted?        

Image from lep.co.uk

Image from lep.co.uk

You may have seen a story in the press over the past few days about a hedge fund manager who dodged his train fare for about 6 years. (Here, here and here if you want some extra reading.)

The currently unnamed individual lives in Stonegate, East Sussex, and commuted to London where he worked as a hedge-fund manager. He would not buy a ticket at Stonegate, and would travel to London Bridge station. He would then change trains to London Cannon Street and would ‘touch out’ using his Oyster card at London Cannon Street station. Having not ‘touched in’ he would there incur the maximum fare on the Oyster card of just £7.20, instead of the £24.50 each way ticket price.

Avoiding prosecution

After being challenged by an observant member of staff at London Cannon Street, he claimed he had dodged the fare on five occasions. He then went on to renew his season ticket a few days later. This prompted Southeastern trains to investigate further. They believed the man had been dodging the fare for 5 years as some digging around revealed that he had last brought a season ticket in 2008. Southeastern trains notified the man of the sum owed (presumably based on 5 years’ worth of train fares).

The man never admitted to dodging the fares for 5 years, but offered to pay the sum of £42,550 plus £450 in legal costs.

This was on the basis that he would not be prosecuted.

The Daily Mail reported:

“Southeastern, who has not named the man, said all passengers have the option to avoid prosecution and settle out of court.

The train company told the Sunday Times that the executive wanted to protect his identity because he was concerned about the impact it would have on his job.

A spokesperson added: ‘All customers have the option to settle out of court and in this case he chose to pay the settlement fee that we put to him.”

What offences could have been charged?

There are a number of offences which could have been prosecuted.

Fraud Act 2006 s 1 (fraud) Max sentence 10 years

Fraud Act 2006 s 6 (possession of articles for use in frauds) Max sentence 5 years

Fraud Act 2006 s 11 (obtaining services dishonestly) Max sentence 5 years

Regulation of Railways Act 1889 s 5 (travelling on a railway without paying) Max sentence 3 months/£1000 fine

Factors

It seems to me that the relevant factors are as follows:

Aggravating:

  • Planned
  • High level of profit from the offence
  • Only stopped when he was caught, not of his own volition
  • Carried out over a significant period of time
  • Vulnerable victim (arguable, as the Stonegate train station was often unmanned and had no ticket machine, relying on the honesty of passengers)
  • Lied/tried to conceal the extent of the fraud
  • Motivation for the offence (financial gain, and absence of financial pressure)

Mitigating:

  • Repaid the money quickly
  • Not fraudulent from the outset (on the basis he had previously purchased a season ticket prior to 2008)

For Fraud Act 2006 s 1 (fraud) and 6 (possession of an article for use in fraud) offences, the guidelines (numbered page 22 para 13) recommend a starting point of 26 weeks custody.

Comment

Many people have commented that this appears to be yet another situation where there is one rule for the rich, and another for the rest of us, on the basis that Southeastern were only willing to agree not to prosecute the man on the basis he paid the huge sum of money off – and quickly.

To my mind, that is a fair point. When courts fine individuals, there is a principle that a rich defendant should not be able to buy his or her way out of a custodial sentence; basically, if an offence deserves custody, the fact that the defendant can afford to pay a large fine shouldn’t allow him or her to avoid a custodial sentence, and conversely, if a large fine is appropriate, a poor defendant should not end up in custody because they cannot afford to pay it. Whilst the sum repaid is not a fine, it is merely restitution of the money defrauded, the principle would seem to apply.

Secondly, is it not entirely appropriate that the man is prosecuted? I consider it right that he ends up with a criminal record for what is a sizeable fraud. It is highly likely that if the man were unable to repay the money, he would have been prosecuted. Southeastern appeared to cite the reason for not prosecuting as partly based on the risk and cost involved in the proceedings. Two matters arise: a) Re the cost: they would have been able to apply to get their costs back (and the man is obviously a man of means) and b) Re the risk: the risk of losing would seem minimal given the information Southeastern appeared to have found (see the Daily Mail article).

Thirdly, currently, the man has not actually paid a penalty, he has merely restored to Southeastern trains the monies that were owed to them. He is no worse off than he would have been had he complied with the law and paid for his train ticket like everybody else.

Finally, on the issue of his ‘anonymity’, the fact that publication of his name would damage his career is no doubt true. Unfortunately, that is not sufficient to trump the principles of open justice and if he were prosecuted his name would undoubtedly be permitted to be published. Of course we do not know the details of the agreement between the man and Southeastern trains.

The lesson?

Money talks.

Ashley Williams jailed for life for murdering Julie Beattie

Image from the Daily Mirror

Image from the Daily Mirror

On 14th April 2014 Ashley Williams (49) was convicted of the murder of Julie Beattie, his 24 year old former partner and sentenced to life imprisonment. The tariff, minimum period that Mr Williams will have to serve before he could be considered for release, was set at 25 years.

The attack was a brutal one, set against a backdrop of controlling behaviour by Mr Williams. On 19th July 2013 he repeatedly hit her around the head with a hammer. The initial attack with the hammer did not kill Ms Beattie and after that Mr Williams doused “her with a cocktail of diesel and petrol and setting her on fire” in front of her child and other family members. After that, Mr Williams ran off and slit his wrists, where he was found in a local park. It seems that the trigger for the killing was that Ms Beattie informed Mr Williams that she was leaving him for his 19 year old son. 

Why 25 years? We don’t have the sentencing remarks, but would imagine it was analysed this way – there were factors that pointed to a higher seriousness (a 30 year starting point) – the extreme brutality and the fact of setting Ms Beattie on fire before she died. However, the starting point is still, technically, 15 years (it doesn’t seem that this was a murder where the hammer was brought to the scene).

However, the features mentioned above increase the seriousness greatly (although we would have thought not as much as ten years). There were some mitigating features as well – there was no premeditation and it appears that Mr Williams accepted killing Ms Beattie (the issue at trial was probably whether it should be manslaughter because of loss of control), so we would expect an appeal.

 

 

Marine A – Sergeant Blackman Appeal – judgment reserved

Photo from the Telegraph

Photo from the Telegraph

We have previously looked at the case of Sergeant Blackman (formerly known as ‘Marine A’) when he was convicted last year of murder, and later sentenced to life imprisonment with a minimum tariff of 10 years.

We said in the original piece that “It is likely that there will be an appeal by Mr Blackman – it is such an unusual case that he would get permission and it is right for the Court of Appeal to consider the case“. And so it proved to be,

The appeal was heard on 10th April 2014.

Judgement was reserved – this means that the Judges did not give their verdict or findings today, but will think about it, discuss it and give a judgment at a later date (to be confirmed when). This means (probably, although there are other possibilities) that they have found it a difficult exercise. Sergeant Blackman shouldn’t necessarily get his hopes up, there is no guarantee that he will win.

We will come back to this when the judgment is given. For what it’s worth, my bet is that he will lost the murder conviction and maybe have a couple of years knocked off his tariff.

Nigel Evans Sex Case verdict in

Nigel Evans

Introduction

Nigel Evans, MP for Ribble Valley and former Deputy Speaker of the House of Commons was found not guilty by a jury on 10th April of the nine sexual offences that he faced. This was after only four hours or so deliberation by the jury.

 

Charges

The charges that Mr Evans faced were as follows :

  • one count of rape (in 2013)
  • two of indecent assault (in 2002-2003 – approaching two different men in their 20s whilst drunk and putting his hands down their trousers)
  • five of sexual assault (the exact allegations are not clear, but include cupping the genitals of a man in a House of Commons Bar)
  • one of attempted sexual assault (this was amended during the trial from an allegation of sexual assault – trying to kiss )

These were alleged to have been carried out between 2002 and 2013 on seven different complainants.

The indecent assaults are alleged to have been committed between 1 January 2002 and 1 January 2004.

The sexual assaults are alleged to have taken place between 1 January 2009 and 1 April last year, and the rape between 29 March and 1 April last year.

 

Further Reading

A couple of articles of relevance :

Celebrity sex trials 

There were new Sexual Offences Guidelines that would have applied to this case from 1st April 2014

Mr Evans remains as an MP and will presumably try to pick up the pieces and carry on with his life. Despite being cleared of all the charges, Mr Evans will be a poorer man – he paid privately and won’t get his money back.

Rohan Pershad (QC) – Appeal fails

rpqc

 

Introduction

We have covered the case of Rohan Pershad, the barrister who was convicted of VAT fraud and sentenced to 3½ years in prison last year. It also spawned an interesting question as to whether Mr Pershad is still a QC or not.

As was perhaps unsurprising, Mr Pershad appealed his conviction (he had nothing to lose). This was heard on 5th March and dismissed, with the written reasons being handed down on 10th April.

 

Grounds of Appeal

There were two grounds of appeal put forward -

1. Prosecution failure to disclose

2. A biased summing up

It is worth reading the judgment to get a full flavour of it, but in essence, when Mr Pershad was first contacted by the Revenue and Customs Officers, he was alleged to have said “it’s fine” when given a letter explaining that he was being investigated. The note of this conversation was not disclosed by the Prosecution until during Mr Pershad’s evidence (when he said something contrary to this). There was a less persuasive ground relating to his divorce settlement (as it was information that he clearly had knowledge of).

The lawyers who were conducting the appeal produced a schedule of issues with the summing up and alleged that the Judge had been too pro-prosecution.

 

Result

Mr Pershad had a couple of Pyrrhic victories. The Court of Appeal accepted that the note should have been disclosed previously (as it clearly should have) and that, having seen the “schedule of inaccuracies in the summing up. We regret to conclude that for the most part the schedule was well founded.”

Notwithstanding all of that (and as any lawyer will tell you – they could see what was coming next) the Court felt that the conviction was safe as “there were more than sufficient grounds for the conclusion that the applicant’s explanation of his failure to pay VAT was incapable of belief”.

 

Comment

That Mr Pershad (QC) lost the appeal is not a surprise. There are two things that are worth noting. Firstly, this was a pretty high profile case, with senior people representing the two parties. It is a worry that something as a defendant’s first reaction when confronted with an allegation was not disclosed. If it didn’t happen here, what hope is there of disclosure being done properly in an average magistrates court case.

Secondly, it is a difficult balancing act as to when errors at trial make a conviction unsafe. On the one hand, the Court of Appeal can’t let every error, however small, lead to a conviction being unsafe. On the other hand, you can see why someone may have a legitimate grievance if they are told that they have been convicted after a summing up that wasn’t fair and on the basis of evidence that wasn’t properly dealt with.

How do you square that circle? Where do you draw the line? What it comes to normally is whether the Court of Appeal can be sure that the jury would not have decided differently. That is an impossible task, especially as you cannot ask them and we have no idea how a jury came to its conclusion in any particular case.