Teenage boy jailed for raping his sister

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Introduction 

The Daily Mail reported today (23rd April 2014) of a boy who raped his sister about fifty times over a two year period, starting when he was aged 13 and she nine.

The details are sketchy, but it seems to have been fortnightly, only ending when the boy formed a sexual relationship with another girl.

He was sentenced to 10 years detention. The usual rules about release apply and he will have to serve 5 years in prison.

 

Comment

The sentencing remarks have not been released and the only thing that we have to go on (other than the facts in the Mail) is that the Judge said that had it been adult who committed the same offences then he would have got a 20 year sentence.

Despite the fact that the offences go back to 2011, the guidelines that came into force on 1st April this year are the applicable ones. The offence of rape of a child starts at page 27.

Approaching it without looking at the age of the boy seems to be a difficult approach, but we can try. The first thing to look at is the Category. The things to look out for are :

  • Severe psychological or physical harm
  • Pregnancy or STI as a consequence of offence
  • Additional degradation/humiliation
  • Abduction
  • Prolonged detention /sustained incident
  • Violence or threats of violence
  • Forced/uninvited entry into victim’s home
  • Child is particularly vulnerable due to extreme youth and/or personal circumstances

It is difficult to know which, if any, of these apply. There is no reference to ‘severe’ harm or any of the other factors in the news reports. For it to have been a 20 year sentence, the Judge must have put it in the highest category. Although it doesn’t fit neatly into the “Prolonged detention /sustained incident” it must be that this applies.

Whilst the victim was vulnerable due to the fact that it was her brother, I would say it is different to being a father or step-father. She was not showing ‘extreme’ youth in my view (aged 9 when the guidelines are for under 13s).

For that reason, I would put it into Category 2 (just) because of the repeated ‘campaign’ of abuse and the other factors.

There is then a need to look at the culpability. The two features here that may be relevant are - Breach of Trust and Grooming behaviour. Again, it is hard to say which of these apply. I would suggest that it falls into the lower culpability.

These would give a starting point of 10 years, with a range of 8-13 years. If we follow the Judge and halve the sentence, this gives a sentence of 5 years. There was a trial, so there was no credit for a plea of guilty.

The problem here is that if this is an adult, this sentence would be far too low. And given his age, 10 years is too high in my view. To my mind this is the sort of case where, actually, the guidelines go out the window. I actually think this is a case where there should be a much lower sentence, but an extended sentence, so that there is scope for supervision.

I would imagine that there will be an appeal, just because the case is so unusual. The Judge heard the trial however and it wouldn’t surprise me if the Court of Appeal defer to his judgement on the matter.

It is also an example where the guidelines don’t really help – if anything, they just make it worse (as is so often the case).

 

 

 

Is the Mail on Sunday guilty of fraud?

Photo for Daily Mail article

Photo from Daily Mail article

Introduction 

The Daily Mail got into the Easter spirit this year with a story they released on Saturday 20th April 2014. Apparently people who may not actually be starving are using food banks and sometimes getting food without begging for it. And, what is worse, some of these people were foreign.

There was an undercover sting, of sorts, as one of their reporters, Ross Slater “GOT 3 DAYS OF GROCERIES… NO QUESTIONS ASKED”. Surprisingly for the Daily Mail, this is not quite correct. Mr Slater didn’t get the food (which included such luxuries as :creamed rice pudding, cost -15p; new potatoes in water, cost - 15p; processed peas, cost - 21p and kidney beans, cost 25p;) ‘no questions asked’.

As the story makes clear, there were plenty of questions asked (name, address, phone number, purpose of visit and a “series of questions about why the food bank vouchers were needed” which Mr Slater did not answer truthfully . The food was, therefore, obtained by Mr Slater because of the lies told by him.

 

Is this fraud? Intuitively, telling lies in order to get something sounds pretty fraudulent? The relevant statute is ‘Fraud by False Representation’ contrary to s2 Fraud Act 2006, which reads (in part) as follows:

Fraud by false representation 

 (1) A person is in breach of this section if he—

     (a) dishonestly makes a false representation, and

     (b) intends, by making the representation—

         (i) to make a gain for himself or another, or

         (ii) to cause loss to another or to expose another to a risk of loss.

  (2) A representation is false if—

       (a) it is untrue or misleading, and

       (b) the person making it knows that it is, or might be, untrue or misleading.

Lying about his name and personal circumstances is clearly a false representation.

  But is there a gain – the food got given back?

Mr Slater gave the food back at a later stage it seems. Is that enough to stop it from being fraud? Under s5(2)(b) Fraud Act, ‘gain’ and ‘loss’ : “include[s] any such gain or loss whether temporary or permanent“.

For this reason, even if the property was later restored, this would not stop there being a ‘gain’ or ‘loss’ for the purpose of the Fraud Act. It may have an impact on the last issue, that of dishonesty, however.

Is this dishonest?

Certainly many people would think so, at least in the colloquial sense. The legal test for dishonesty is often called the ‘Ghosh test’, coming from the case of R v Ghosh [1982] EWCA Crim 2.

There is a two stage test :

(i) “a jury must first of all decide whether according to the ordinary standards of reasonable and  honest people what was done was dishonest”. If no, then there is no dishonesty. If yes, then

(ii) “the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest … it is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did”.

Ultimately, this would be a question for a jury (or magistrates, if the case stayed in the Magistrates’ Court). It is clear that if Mr Slater thought that he was acting in the public interest by exposing a generosity of spirit in his fellow countrymen, then that would not be a defence if he must have realised that other people would think it was dishonest.

 

 

Conclusion

So, is the Daily Mail employing fraudsters and encouraging their reporters to commit fraud? That would be a matter for you, as representative of the reasonable man and woman, to decide.

Police Officers caught stealing in sting

Photo from the Independent

Photo from the Independent

Introduction

When South Wales Police had concerns over the probity of two of their officers - Detective Sergeant Stephen Phillips and Detective Constable Jason Evans, they resorted to some Hollywood film style tactics to find out just how honest they were.

On the pretext of conducting a search relating to a suspected armed robbery, the two officers were dispatched to a house in Neath that had been rigged with audio and video surveillance in advance. They had placed “including around £21,000 in cash, watches, an iPhone and even Viagra.

The two officers took the bait and were later caught, pleading guilty on 17th April 2014 in Cardiff Magistrates’ Court. The case was adjourned for sentence, with the District Judge warning them they faced prison.

 

What will they get?

The build up of the piece implied scenes of thousands of pounds being taken in scenes worthy of the corrupt cops of Hollywood. “Cardiff Confidential” would be slightly less dramatic  DS Phillips made off with £250. Perhaps worse, DC Evans seemingly ignored the piles of cash and high-value electronic goods in favour of two disposable biros.

The Theft Guidelines are in theory the starting point. In practice these go out the window, as a police officer stealing in these circumstances will almost inevitable be sent to prison to send a message out that such behaviour is unacceptable.

Here, you can’t help feeling that the police who set up the sting were after something more – it’s a lot of effort to go to for such low level corruption. DS Phillips is certainly at risk of prison – stealing cash from a crime scene is certainly serious. Cash is obviously untraceably generally and when someone is arrested with cash and drugs which go “missing” (it happens, particularly with drugs) there is often an incentive for the loser to keep quiet about it. Personally I would give him a suspended sentence, but he may face a short immediate prison sentence of a couple of weeks.

DC Evans is, to my mind, in a different category. If everyone who stole biros went to prison, then our prisons would be even more overcrowded than they are now. Even given that he was dishonest (as he accepted by his plea, although if I were on a jury I would find it hard to say that that was dishonest unless there is more to it than appears in the new reports), it is of such a low level that the loss of his career (he will be sacked whatever the sentence) is more than a sufficient punishment.

So, we will come back to it when they are sentenced, but as we saw last year, it is not the case that all officers who steal are jailed (although that is a far less serious set of circumstances).

Caroline Lucas cleared

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We looked last year at the fact that Caroline Lucas MP was being prosecuted for two offences relating to an anti-fracking protest. Well, on 17th April 2014 she was acquitted of both charges.

The case was heard by a District Judge who would have given a full and reasoned decision, but we don’t have a copy of it as yet (hopefully it will be published). We can quote the following from the BBC :

District judge Tim Pattinson said the prosecution had failed to satisfy him that Ms Lucas had “the requisite knowledge” about the Section 14 order being in place.

On the obstruction charge, he said he did not hear any evidence that any “actual obstruction” of a vehicle or person was caused by the protest.

“I have already ruled that issues of climate change are irrelevant to the decisions I have to make in this trial,” he said. 

“Having said this, I am quite prepared to accept, having heard the evidence from all five defendants, that they are sincere and highly motivated in their commitment to the cause of reduction of carbon emissions.

It seems likely that there were plenty of arguments about Art 10 (freedom of expression) and Art 11 (freedom of assembly) as well as issues as to the right to peaceful protest under the common law. The Judge side-stepped and made a factual decision, which is perhaps not surprising – Judges hate having to address those issues as they are seen as inherently political (because they are). This urge to avoid anything political is all the stronger with the ECHR, for perhaps understandable reasons.

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.