(c) Associated Press, from the Daily Mail

Could Jihadi John be tried in the UK?

We often receive tweets asking us to look at particular stories or to explain particular principles and yesterday was no different.

You are no doubt all aware of the dreadful murder of the American journalist James Foley. He was kidnapped and held hostage before being beheaded by a man wearing a face covering. The man is believed to be English. In fact, news outlets are reporting his name. Toronto’s ‘The Star’ state:  “According to British media outlets, they have a “key suspect:” Abdel-Majed Abdel Bary, a 23-year-old British-Egyptian rapper from west London.”

So, could the man dubbed Jihadi John be tried in the UK?

Unusually, the answer appears to be extremely simple. Yes.

Offences against the Person Act 1861 s.9 is entitled  ‘Murder or manslaughter abroad” and states:

Where any murder or manslaughter shall be committed on land out of the United Kingdom, whether within the Queen’s dominions or without, and whether the person killed were a subject of Her Majesty or not, every offence committed by any subject of Her Majesty in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, . . . , may be dealt with, inquired of, tried, determined, and punished . . . in England or Ireland . . .: Provided, that nothing herein contained shall prevent any person from being tried in any place out of England or Ireland for any murder or manslaughter committed out of England or Ireland, in the same manner as such person might have been tried before the passing of this Act.

So, there you have it. It matters not that the victim was not a British subject. Nor that it was committed abroad, outside “the Queen’s dominions” – all that matters it that “Jihadi John” is a “subject of Her Majesty”, (which, if the reports are correct and he is English, would appear to be satisfied) and that the conduct constitutes and offence of murder (or manslaughter) had it been committed in the UK (which again, appears to be satisfied).

Photo from the BBC

Liam King jailed for the murder of Rebecca Ayres

Introduction

On 4th March 2014 Liam King (26) got into an argument with Rebecca Ayres (24), his partner. The argument was about christening arrangements for Ms Ayres three year old daughter. Mr King was concerned that Ms Ayres was in too much contact with her former partner in the lead up to the ceremony.

The full details aren’t clear, but Ms Ayres threatened to end the relationship unless Mr King did not come to the christening. This escalated the argument and Mr King got a knife and stabbed Ms Ayres 11 times, killing her.

On 26th August 2014, Mr King was sentenced for the murder. The only sentence available was life imprisonment, with the Judge setting the tariff, the minimum period that has to be served, as 15 years (see here for our factsheet on sentencing for murder).

 

Comment

The starting point for a murder of this sort is 15 years. Here, it seems that there was a prompt guilty plea – in interview Mr King “admitted he had an argument with Miss Ayres and then stabbed her in her chest and arms as she tried to defend herself“.

This would indicate that the Judge had taken a starting point of 18 years (there are different rules relating to credit for a plea of guilty to murder).

As to why the Judge increased the sentence? Probably because of a history of violent and controlling behaviour on the part of Mr King, which is generally seen now as an aggravating feature, even if it has not lead to a conviction.

On a separate note, it would not surprise me if, on the back of cases like this, there are calls at some point for an increase in the starting point for murders committed in a domestic context.

 

Photo from the BBC

Photo from the BBC

Photo from the BBC, via ?Universal Pictures

Phillip Danks jailed for filming in cinema

Introduction

Honestly. You get a suspended sentence for glassing someone, a Community Order for rape, does anyone go to prison anymore? Well, in the Midlands they’re a bit robust, with one Judge leading the way by jailing Phillip Danks for nearly 3 years (2 years, 9 months to be precise) for filming in a cinema.

 

Facts

Obviously, there’s a bit more to it than that … Mr Danks not only filmed Fast and Furious 6, but he uploaded it to the internet where it was downloaded 700,000 times. He also offered to sell it via his facebook page. An assistant of his, Michael Bell, got a Community Order.

Apparently this lead to a loss of revenue to the film company of ‘millions of pounds’. This needs to be approached with a slight degree of scepticism as it is extremely unlikely that all those who downloaded it would otherwise have paid the full price to go and watch it.

What isn’t clear is exactly how much money Mr Danks made from this operation. According to a FACT press release (Federation Against Copyright Theft – the body that prosecuted this) he offered to sell copies of the film for £1.50, and it may be that he made something from all the downloads. It is doubtful if he would have made more than a couple of thousand pounds for this.

 

What were the charges?

They are said to be under the Fraud Act and (probably) s198 Copyright, Designs and Patents Act 1998 (maximum sentence of ten years).

There are guidelines for fraud, but this doesn’t fit too well into any of the categories. At a push we’d say it was a kind of confidence fraud constituting a single transaction of a non-vulnerable victim (page 20), but even then it’s not ideal.

The sentence does seem pretty high. We don’t know if there was a guilty plea, but we think so. Either way, this does seem out of line with sentenced for other offences. We’d expect an appeal.

Confiscation proceedings for cable thieves yields £7

Introduction

Last December (17th December 2013 to be precise), seven men were jailed for Conspiracy to Steal. They had stolen about 7,000 metres of copper cable, valued at about £150,000 – not to be sniffed at. The prison sentences varied from 21 to 30 months.

Confiscation As is often the case with financial offences, the Court proceeds to confiscation. This has a laudable aim of depriving criminals of the proceeds of their crime. It has, however, caused a whole lot of problems, with many trips to the Court of Appeal and Supreme Court. It has, in fact, almost certainly cost more money than it has brought in.

On 20th August 2014 the Confiscation Proceedings in this case were heard. In relation to all seven defendants, the Judge determined that, basically, they didn’t have any money. And so there was a nominal order against all defendants of £1 each.

How much did this cost? We don’t know. There are hugely different estimates of how much a Crown Court costs to run, but let’s take a figure of £3,000 a day. It is hard to imagine that a case such as this would have been resolved in less than a day in total. Add in the same amount, if not more, for the prosecution to investigate and prosecute the confiscation and a couple of hundred for the defence lawyers, and it’s already quite a lot of money. It wouldn’t surprise me if the total cost was over ten grand, all for seven quid – so not a great return on your investment.

Is it worth it? It is right that if one of them one the lottery tomorrow then this means that the government can go back for more. This is pretty unlikely however, and whilst if there is legitimate earnings down the line, then I would question whether this is a proper use of state funds.

The argument is that it shouldn’t be a cost benefit analysis when it comes to this sort of thing. I sort of agree with that, but equally, confiscation is not supposed to be a penalty (even though it is now, given the way that it has developed).

On balance, justice shouldn’t come down to cost. But, the government is happy to sacrifice that principle in other areas of law, so why not this one? Maybe it’s time to cut back on the confiscation…

_77056000_leejezard20august

Lee Jezard – drunk man sentenced for comandeering a plane

Introduction

Drunk people doing stupid things is always a good source of amusement. And sometimes a good source of work for the CPS in generating prosecutions. On 20th August 2014 a Mr Lee Jezard served up another example of this.

 

Facts

Mr Jezard was at Birmingham Airport for reasons unknown. He was very drunk, and all he was aware of was that he probably got a train there.

What was reconstructed was that he had swiped £36.45 of food from Caffe Nero (based on our experience this may have been a sandwich and a packet of crisps) for which he pleaded guilty to theft before heading for a baggage carousel. He climbed through this onto the tarmac before seeing an empty Lufthansa plane and boarded it.

When confronted by cleaning staff, he initially claimed to be the pilot. When that failed, he showed a level of drunken ingenuity claiming firstly that he worked for the navy, and then said that he was “ breaking into places to see if people can catch me – I go to prisons and other places’“. This failed to convince however, and he was in due course arrested.

 

What were the offences?

Theft is straightforward. The news states that there were three charges. We imagine that the other two related to the trespass onto the tarmac and then getting onto the plane.

There are a large number of offences relating to airport and aviation security (see here for a list and discussion document from ACPO if you’re bored).

As a guess, we’d go for trespassing in an airport (under the Civil Aviation Act 1982) and/or a bylaw offence under Airports Act 1986. Both of these are (probably) summary only and can only be dealt with by a fine.

 

What did he get?

A fine. In total he got £285 in fines, £185 costs and a £20 Victim Surcharge. The fines were three lots of £95 and so the surcharge is 10% of the fine or, if there are more than one, the largest fine (with a minimum of £20). That’s the reason why the surcharge is £20.

There was also compensation to Caffe Nero for the full amount.

 

Comment

If there was any suggestion that there was any nefarious reasons for this then in these days of heightened concern over terrorism, he would have been facing far more serious charges and years in prison.

However, Mr Jezard was a man of good character, and this was obviously someone being very drunk rather than trying anything more serious. For that reason, this seems a sensible way of dealing with the matter. He has learnt a costly lesson.

As has, hopefully, the airport as to how easy it appears to be to trespass in the airport … we are told that there has been a review of security and the gaps that Mr Jezard exploited have now been closed.

From the BBC News website

Skull cracker “accomplice” gets 12 months

Earlier in the year we covered the case of the delightfully named “skull cracker” and his escape and subsequent armed robbery of a bank, making off with £18,000. Here, we covered his inevitable life sentence.

So, on 20 August 2014, we picked up a news story that Kevin Perry, 53, had pleaded guilty to perverting the course of justice and had been sentenced to 12 months’ imprisonment. 

By his plea, it seems he accepted helping “skull cracker” Michael Wheatley, but pleaded not guilty to assisting an offender. He also pleaded guilty to a (presumably unrelated) count of handling stolen goods. We aren’t aware of the exact conduct which was said to have perverted the course of justice, and so an assessment of the sentence is very difficult. What we do know is that he received 12 months, that the judge will have been mindful of the principle of totality when also sentencing for the handling offence (so as not to make the overall total disproportionate to the overall offending) and that perverting the course of justice almost always ends up with an immediate custodial sentence. With a sentence of 12 months, a starting point of around 18 months is likely to have been taken, subject to a) how the sentence was made up (whether the handling sentence was made consecutive or concurrent) and b) the judge’s view as to the evidence (as where a case is overwhelming, a judge does not need to give the full 1/3 discount for pleading guilty).

Slightly more information is available here.

Picture from the Daily Mail

Man escapes custody after breaching community order imposed for burglary…whilst on licence for manslaughter

On 20 August, a story appeared in the Daily Mail to the effect that “man walks free after fourth brush with the law” – putting aside the obvious irritation with the tabloid hyperbole around people “walking free” from court, what is the story about, and have the Mail got it right?

One, two, three, four…

Manslaughter

Craig Real (now 21) was convicted of manslaughter when he was aged 16. He received 5 years’ imprisonment for beating a homeless man to death with two others in 2009. The Mail state that ‘[t]he trio punched and kicked the helpless victim as he slept outside a Waitrose store in Westbourne, Bournemouth, Dorset, because he refused to give them his cigarettes.’ We don’t have any more details about the manslaughter case at the moment. He was released from that sentence. The Mail states that he was released early. Whilst this is true, it is potentially misleading. As many of you are no doubt aware, all determinate custodial sentences are subject to early release, which occurs at the half-way point, after which the prisoner is released on licence and subject to a number of conditions.

Breach of licence

It appears that he then breached his licence and was returned to prison. It isn’t clear what conditions were breached. It appears he remained in prison for the duration of the 5-year sentence. He was re-released earlier this year.

Burglary

He had been out of prison (not on licence, as the sentence had expired) for two months when he committed a burglary, stealing a TV from a summer house. He was arrested and brought to court. He was sentenced to a community order with a  programme requirement which required him to attend a ‘Thinking Skills Programme’. The judge of course had the power to send him to prison, but opted to give Real a chance.

Breach of community order

Just weeks after the community order was imposed, Real failed to attend a meeting with his probation officer. His probation office had the option of giving him a warning (those subject to community orders are allowed one warning within a period of 12 months) or “breaching” him and having him brought to court. He was “breached” and brought to court, no doubt due in part to his history of failing to comply with his licence. The judge had two options;

a) impose more onerous requirements, or

b) re-sentence him for the original offence.

The judge decided to add as the Mail states, “a month-long curfew from 8pm to 6am and ordered him to wear an electronic tag”. An electronic monitoring requirement, as it is known, for the period of just a month is somewhat unusual and we would have expected something a little longer. We of course do not know how long the community order was originally imposed for. 

The judge reportedly said he did not send Real to custody because this was a single breach. No doubt he was told that such a course is unlikely to be taken if there is a further breach.

Public outcry

Perhaps ‘outcry’ is too strong, but there was some discontent. The Mail stated:

“Local residents took to an online messaging board to express their outrage at the latest sentencing.

One wrote: ‘Disgusting. This toe rag gets yet another chance. Where’s the chance he gave his defenceless victim?”

I consider that to be an entirely separate matter – the offence of manslaughter was dealt with in 2010 and he has served his sentence for that. To my mind, taking a pragmatic approach, trying to encourage compliance with the community order and attempting to allow Real to get on with his life and contribute to society – rather than be a burden sat in a prison cell – is the best approach. No matter whether or we think he is wrong’un. He is only 21 after all.

_77019411_fish-drinker-1

Paul Wooding sentenced for swallowing fish

Introduction

We looked earlier this year at the case of Gavin Hope who pleaded guilty to swallowing a goldfish as part of a ‘Neknomination stunt’. He was fined £300.

On 19th August 2014 there were echoes of that in the case of Paul Wooding. Mr Wooding received a challenge and, taking up the dare, “He took the fish from a friend’s tank and put them into a pint glass of wine, gin, vodka, rum and lemonade before swallowing them“.

It seems that Mr Wooding had drunk a not inconsiderable amount of alcohol by this point of the evening. He also recorded himself doing this and put the resulting footage on facebook. Whilst we can’t offer legal advice, we can say this – filming yourself committing a crime and posting it on the internet is not a particularly clever thing to do.

 

What is Neknomination?

It is described on the BBC thus – “The concept of the game has been described as “neck your drink, nominate another“. Which pretty well sums it up. Wikipedia has a full article on it here, if you want to find out more.

 

What’s the offence?

The RSPCA prosecuted Hope for, presumably, under section 4 of the 2006 Act – that of causing unnecessary suffering to an animal. We presume it is under subsection

(2) A person commits an offence if:

(a) he is responsible for an animal,

(b) an act, or failure to act, of another person causes the animal to suffer,

(c) he permitted that to happen or failed to take such steps (whether by way of supervising the other person or otherwise) as were reasonable in all the circumstances to prevent that happening, and

(d) the suffering is unnecessary.

The offence is a summary only offence, triable therefore only in the Magistrates’ Court. The maximum sentence is a £20,000 fine and/or 6 months’ imprisonment.

 

What did he get?

He got a Conditional Discharge for 18 months, together with the Victim Surcharge of £15 and some rather steep costs of £500.

What to make of that? It seems quite a generous sentence (animals tend to get quite a lot of protection in our legal system and those harming them get hammered), but maybe a sensible way of dealing with someone who was a drunken idiot.

One thing that his defence lawyer said in mitigation was “Yes, those fish may have experienced pain and then died, but they are small fish, nothing more” which, whilst it may be true, is quite a brave thing to say and may often backfire. Here, though, he seems to have got away with it.

A fish. But not the fish. A similar one (we think - we're lawyers not ichthyologists)

A fish. But not the fish. A similar one (we think – we’re lawyers not ichthyologists) though

 

Photo from the Croydon Guardian

Two teens sentenced for the manslaughter of Sylwester Mendzelewski

Introduction

On 10th June 2013 the fire brigade were called to an abandoned Sea Cadet Centre in Croydon, following reports that it was on fire. It had been used as a sleeping place by local rough sleepers.

It transpired that a 14 year old boy and a 16 year old girl (who have not been named, which is the usual practice with under 18s) had gone there, with another friend who “filmed them set[ting] fire to paper and a sleeping bag on top of some tyres” before they left, seemingly not realising that the fire was continuing.

Tragically, they were also unaware that Sylwester Mendzelewski was sleeping in the basement. When the fire caught hold, he was unable to escape and died due to smoke inhalation.

They were both sentenced on 18th August 2014.

 

Sentence

The two were charged with arson and manslaughter. It seems that they both admitted the above facts when they were arrested and interviewed, and pleaded guilty to arson straight away.

There was a trial on the manslaughter charge, with them both being found guilty in June this year. It is probable that there was no factual dispute of the prosecution case at the trial, with the jury being asked to consider what the two children were (and should have been) aware of.

Having a trial, there was no ‘credit‘ for a plea of guilty. It seems that they were both sentenced to three years youth detention.

 

Comment

We don’t have as much detail as we’d like, and we don’t have the sentencing remarks, which is always a disadvantage.

Sentencing for these sorts of cases, particularly with youths, is exceptionally difficult. Here, the youths were doing what thousands of youths do but the consequences were so catastrophic. The words of the police after sentence are worth bearing in mind :

The two young people are not hardened criminals but simply two individuals who did not think through the consequences of their actions that fateful day.

These two young people were old enough to understand the consequences associated with starting a fire of this nature, but it’s only now that this has become a reality to them.

Both have shown immense remorse but still have to live with the knowledge of what they did and the devastating impact on the lives of others.

The sentence has to mark the fact that a man died, whilst recognising that that was in no way the intention of the people involved. Their age has to be taken into account as well. It is not the case where there are guidelines, or where previous decisions of the Court of Appeal are or assistance – it’s all very fact specific.

The sentence is probably a bit more that we would have expected. Also, it is unclear why they both got the same sentence – we would have expected the boy to have got less than they girl as she was two years older. It may be that there will be an appeal in which all the details are aired. In the absence of that, we are none the wiser.

 

Vicar pleads guilty to ‘publishing’ obscene material

 

Photo from the BBC

Photo from the BBC

Introduction

On 18th August 2014, the (presumably soon to be ex-) Reverend James Ogley pleaded guilty to seven counts of publishing an obscene material.

Details are a bit vague. We know that these related to “having obscene conversations with children as young as 12 on an internet chat blog“. It seems that there were six occasions in June 2012 and one in November 2012.

 

What’s the offence?

Publishing an obscene article is an offence under s2 Obscene Publications Act 1959.

Whilst ‘publishing’ has connotations of a formal process, in fact someone publishes an article if he “distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire; or, in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it, or, where the matter is data stored electronically, transmits that data“. So that covers what was presumably the obscene conversations.

An article is obscene if, where there are more than one of them “the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons“. What were the images? We don’t know, other than that part set out above.

 

 

What sort of sentence will he get?

This is not an offence that is covered by the Sexual Offences Guidelines. It is an either way offence (maximum sentence of 5 years) and is so rare that it is not covered by the Magistrates’ Court Sentencing Guidelines. That means we’re pretty much in the dark as to what the proper sentence should be.

Given the way it is charged, it is not as serious as offences of grooming or incitement, which means that whatever happened, it is not the case that this was the prelude to a contact offence. For that reason, the sentence would be a lot less than might otherwise be expected.

 

Conclusion

Rev Ogley will return for sentence next month. Given the nature of the offences, whilst they are clearly serious and the custody threshold is probably passed. These are worrying offences obviously, even if they went no further than online conversations.

But, given that it was not a grooming offence, the catastrophic effect it will have on him (he will lose his job and will almost certainly never be able to work as a vicar again), and the protections that will be in place (not just the Sexual Offences Register, but also the fact that he is now known to potentially pose a risk to children and others) it is case where an immediate custody may not be needed.