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Is Ed Balls going to prison for GBH (spoiler alert – no)?

Introduction

How to win friends and influence people? As a politician that is a particularly pressing question. Especially with journalists. Journalists are the people that can make or break your career. Their significance as people that shape the news cannot be overstated.

Best off then not elbowing them in the face like Ed Balls did on 21st September 2014, putting Rob Merrick (a journalist for the Northern Echo) into hospital to have some stitches.

What happened?
The context was a football game. Specifically, the annual Labour Party v Journalists charity football game that kicks off the Labour Party Conference.

It is a hard fought contest and the Shadow Chancellor was out for revenge after losing last year.

Over to Mr Balls as to how it happened – “”I was about to score a brilliant goal in the top right hand corner … As I steadied myself to shoot Rob came piling in from behind attempting to nick the ball and came off worst.”

By ‘coming off worst’, the BBC said Mr Balls meant “The pair were contesting a 50-50 ball on the edge of the journalists’ penalty area when an elbow from Mr Balls left a cut under Mr Merrick’s right eye.”

Fortunately, after treatment in the hospital, Mr Merrick was discharged in time to return to the game and collect his man of the match award as his team won a 3-1 victory.

The Law
You obviously can’t go round elbowing people in the face. On the other hand, to be guilty of a crime you need to have (usually) some form of guilty mind.

By way of example if I go up to someone on the tube and punch them, then that’s a crime. If, however, when I’m getting off the tube I slip over and, whilst flailing around trying to get balanced, hit someone in the face, then this is an accident and I’m not guilty of any offence.

As always, context is everything. In a football game people can expect a bit of ‘rough and tumble’. Deliberate punching or elbowing is obviously off the table, but people playing football are deemed to consent to the potential for injury by a late misjudged tackle, or something like what happened here.

So. Here what happened was an unfortunate accident and not a crime. As, in fairness, Mr Merrick himself readily agreed. So you won’t be seeing Mr Balls in the dock anytime soon.
 

 

 

Photos from the BBC

Photos from the BBC

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Pensioner not to be prosecuted for growing cannabis

Introduction

When I was a kid I occasionally listened to Gardener’s Question Time – not out of choice I hasten to add. I never paid any particular attention to it, but I always thought that what it needed was someone to come along with their latest crop of skunk and distribute it round the Radio 4 audience.

Well, that hasn’t happened yet. Sadly. But we got close as we’re ever realistically likely to get when a “Patricia Hewitson, from Exmouth, contacted BBC Radio Devon’s gardening programme asking for help identifying ‘a weed’” that had been growing in her garden.

She emailed a couple of photos of the weed that turned out to be, er, weed. Fortunately for Ms Hewitson the police have decided to take no action against her with a Sgt Ryan Canning from the Devon & Cornwall Constabulary  saying ““The lady has committed an offence although there are mitigating circumstances so we would not look to take it further although we would take it away.

So all’s well that ends well…

 

The Law

It is illegal (s6 Misuse of Drugs Act 1971) “ for a person to cultivate any plant of the genus Cannabis” unless they are authorised by the Home Secretary – there are provisions for people engaged in research and the like to be permitted to grow cannabis if licensed.

Whilst it is absolutely right that someone in the position of Ms Hewitson should not be prosecuted for what was clearly an accident, we would disagree with Sgt Canning that she has necessarily ‘committed an offence‘.

There is a specific defence of ‘lack of knowledge’ contained in s28(2) Misuse of Drugs Act 1971. This states “it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged“.

Further, s28(3) states :

(3) Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused—

     (a) shall not be acquitted of the offence charged by reason only of proving that he neither        knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but

     (b) shall be acquitted thereof—

         (i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or

         (ii) if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies.

In this case it is clear that Ms Hewtison had no idea that what was growing was cannabis. In those circumstances, it seems to us that she clearly falls into the defence in s28 without further ado and, therefore, she hasn’t committed an offence.

But, either way, the police have acted very sensibly in not taking this case on…

 

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£21 million Pyramid Scheme fraudsters jailed

Introduction

Over the last few years, the South West of England has played host to a multi-million pound pyramid scheme called, variously, “Give and Take” and “Key to a Fortune”.

It seems that the members were sworn to secrecy, although it did, eventually and inevitably, come to light when someone complained to Trading Standards. They launched an investigation and, eventually, the first prosecution under the Consumer Protection from Unfair Trading Regulations 2008 (if you’re not familiar with these, there’s a link here).

After a lengthy process, and two trials one of which ended in a hung jury, six of the eleven people prosecuted pleaded guilty, three were convicted and the remaining two were acquitted. The reporting restrictions were lifted after three pleaded guilty just before a proposed re-trial following the jury being unable to agree at their first trial.

 

How did this scheme work?

It seems to have been a classic pyramid scheme. According to the Daily Mail, “Each of 15 spaces was filled with a participant who paid £3,000 and introduced two friends, who also paid that amount. Once the chart was filled, the eight people on the bottom of the chart paid their £3,000 to the person on the top, called the ‘Bride’. Participants collected their winnings at specialist prize-giving pamper parties, where they would be asked a series of simple questions before being handed the £24,000.A set £1,000 fee from the payout was deducted, with £600 shared between charities and £400 used to pay costs the committee occurred“.

Basically, you pay £3,000 to buy in and hope that more people follow you in. If they do, then you get £23,000 when you get to the top of the pyramid.

Who was involved?

The three women who pleaded guilty on 18th September 2014 will be sentenced next month (presumably after a Pre-Sentence Report has been obtained) are :

  • Mary Nash, 65 (charts co-ordinator )
  • Susan Crane, 68 (committee secretary)
  • Hazel Cameron, 54 (games coordinator)

The three people who pleaded guilty originally were all spared an immediate custodial sentence as follows:

  • Sally Phillips, 34 – 3 months suspended
  • Jane Smith, 50 – 4 months suspended 
  • Rita Lomas, 49 – 4½ months suspended

The three who were convicted after a trial all received prison sentences of 9 months :

  • Laura Fox, 69
  • Jennifer Smith-Hayes, 69
  • Carol Chalmers, 68

What to make of the sentence?

Difficult to know really. This is the first of its kind, so we would imagine that there would have been an appeal. The maximum sentence is only 2 years (so a lot less serious than other fraud offences) and with the absence of any guidelines, or more details, it’s pretty hard to say.

There was clearly a huge amount of money involved however, so a ‘top of the range’ sentence could be expected. We would have thought that those who pleaded guilty yesterday should just about get a non custodial sentence.

Photo from the Liverpool Echo

National Crime Agency fail crime prevention test?

Introduction

The National Crime Agency has occasionally been touted as the UK’s answer to the FBI. It has even been touted as this seriously on occasions. Their mission is “to lead the UK’s fight to cut serious and organised crime“. At which they are probably jolly good. Unfortunately, it seems that they may need a bit of help in fighting the less serious, and more disorganised, criminals.

 

What are you talking about?

This story in the Liverpool Echo.

It was about a car thief – Peter McHugh, was was sentenced to a ’12 week curfew’, presumably as part of a Community Order for going into a car and stealing the victim’s house keys, diary, wallet, driving licence, bank statement and various letters with his home address on.

Fortunately, it seems that the thief had no ambitions to kick on to burglary or identity theft as there seems to have been no attempt to use them for other nefarious purposes.

The sentence seems fair enough?
Yes. The Sentencing Guidelines for Theft don’t deal with theft from a car specifically (although look out for the new ones – due soon – complete with references to car theft).

But it’s probably somewhere between theft from a shop and theft from the person, and it’s in the lower category of both. This indicates that the starting point is a Community Order. Given Mr McHugh’s previous convictions (it’s not stated what they are, but we think similar) it can’t be say that this is in anyway out of kilter with what one would expect.

What’s this got to do with the NSA
Well. The victim of the theft was a Director of the NCA. And it seems that he did leave the car unlocked, which was seen by Mr McHugh who pounced.

It seems that the NCA stated that the fob was pressed so as to lock the door. Mr McHugh stated that it was unlocked.

It’s not clear whether this was subject to a Newton hearing, but it was noted that there was no indication that the car was broken into, so it may be that the magistrates accepted Mr McHugh’s version.

Whoops. That’s a bit embarrassing?
Yes, and some. And to make it worse, it seems that when the victim returned to the car it took him a couple of hours to notice that he had been the victim of a theft.

It should be said that there was nothing taken that related to the victims work, so no harm was caused in that area.

But, surely you should be allowed to leave your car unlocked without some scroat breaking in?
Of course. And nobody’s saying Mr McHugh’s not to blame.

But it’s relevant in a few ways. Firstly, the fact that a thief opens an unlocked door means less harm is caused, and it is not as planned, so that the offence is less serious.

Secondly, it is a good reminder to take care of your valuables. If one of the country’s top crime fighters can forget to lock the door (assuming that he did of course) then we all can.

And, let’s be honest, it does make for an amusing story.

Photo from the Bury Free Press

Myles Bradbury – paediatric haematologist pleads guilty to child sex offences

Introduction

Myles Bradbury was a successful doctor, he has been a specialist in child cancer at Addenbrooke’s Hospital for the last five years. Following complaints about his behaviour, an investigation landed him in Court where, on 15th September 2014, Dr Bradbury pleaded guilty to 25 child sex offences relating to 18 different complainants.

 

Facts 

At this stage, as is so often the case, facts are a bit thin on the ground. What we can glean from the news is that the offences are as follows :

  • 6 x Sexual Assault
  • 13 x engaging in sexual activity with a child
  • 3 x causing or inciting a child to engage in sexual activity
  • 1 x voyeurism
  • 2 x making an indecent image of a child (relating to 16,000 images – although we don’t know what level these were at)

It is clear on the back of the charges that Dr Bradbury is facing a lengthy sentence sentence. Just how long depends on the details of what exactly it was he did.

The Judge will be guided by the Sentencing Guidelines for Sexual Offences, but again, it is not possible to comment too much on what he will get, as we don’t have more details.

It is also the case that Dr Bradbury will no longer be allowed to work as a doctor.

 

Photo from the BBC

Neil Masterson pleads guilty to attacking George Galloway

George Galloway is not a man who inspires ambivalence in anyone. On 29th August 2014 one man, Neil Masterson, took his opposition to the Bradford MP a bit too far and attacked him.

We can say that because on 15th September Mr Masterson pleaded guilty to assaulting Mr Galloway. We think that this is ABH, but not a hundred per cent sure.

We can’t say too much more however, as Mr Masterson has pleaded not guilty to this offence being ‘religiously aggravated’ and there will be a trial in November on this part. We will come back when that has happened.

Photo from the BBC

Christopher Copeland – ‘Hope for Heroes’ fraudster jailed

Introduction

We looked previously at the case of Christopher Copeland who pleaded guilty to fraud on 28th July 2014. He had organised collections for the ‘Hope for Heroes’ charity, which he put into his bank account saying that it would be passed on.

However, ‘almost all’ of it was kept by him, giving rise to the charge to which he pleaded guilty to.

 

How did we do?

We said that, in relation to predicting the sentence, we’d “plump for a sentence of 4½ years“.

Pleasingly, the sentence passed was exactly 4½ years. We don’t have the sentencing remarks, but we presume that it proceeded much as we had anticipated.

It’s a pretty nasty offence – stealing from a charity – and the lengthy sentence is pretty well deserved in my view. It may well that there is an appeal, but we doubt that it would go very far.

Mr Copeland will now face confiscation proceedings where he will probably be relieved of any assets that he currently has.

From the Telegraph

80 year old sex offender sentenced to 10-year extended sentence

On 12 September 2014, the BBC reported that “Watford paedophile jailed for 10 years as risk to children”. So what was the story?

BBC confusion

Well, the article seems to get a little confused with the sentence that was imposed. ‘Jailed for 10 years’ is unclear in itself – does it mean a 10 year sentence (which we all know means 5 years in custody and 5 years on licence) or does it mean 10 years in prison (which would mean a 20-year sentence)? Well, as just demonstrated, it could mean either. Here however, it means neither.

The facts

The news report doesn’t indicate whether or not there was a guilty plea, but we assume there was not.

John Dearlove, from Watford, was convicted of six counts of sexual assault of a child aged under 13 and one of sexual assault of a girl committed between 2008 and 2011. One of the victims was as young as 8 years old.

David Smithet, in mitigation, said Dearlove was a widower since his wife of 40 years died in 1999 and a diabetic who had suffered a stroke. No doubt a reference was also made to his age and how difficult a prison sentence would be on him.

The BBC stated that “Judge Stephen Gullick said a probation report on Dearlove said he did not “exhibit an understanding” of his offending.”

The BBC report doesn’t go into any more details than that, and so we’ve struggled to ascertained exactly what happened. However, using the guidelines and working backwards, we can have a go.

The sentence

He received an extended sentence of 10 years, comprising a custodial sentence of 5 1/2 years and an extended licence of 4 1/2 years. The BBC failed to really make that clear, which is a pity as to my mind, the news report is rather misleading in its current form.

Presuming that he has no previous convictions which in some circumstances can alter the release provisions for extended sentences, he will have to serve 2/3 of the custodial sentence before being released on licence.

In practical terms, that means he will serve just short of 4 years (44 months to be precise) and then a further 76 months on licence (22 months of his custodial term + 54 months of the extended licence).

The new Sexual Offences Guideline applied (see p.37 onwards). Based on the sentence imposed (and here we are only looking at the custodial element – the 5 1/2 years) it is likely that the behaviour involved some touching of naked genitalia. Beyond that, however, as the guidelines are drawn quite widely, it is difficult to guess what the offences involved.

We can’t say whether or not there is likely to be an appeal but aged 80 with a relatively long

More confusion

The BBC report also stated that:

(1) “The extended sentence was because he remained a significant risk to children under 16.”

(2) “… and was banned from unsupervised contact with children for the next 10 years.”

Let’s break this down.

(1) The test for “dangerousness” (allowing either an extended sentence or a life sentence to be imposed) is whether or not the defendant poses a significant risk of serious harm to members of the public. Once that test is satisfied (and a couple of other hurdles), the judge MAY impose an extended sentence. But does not have to.

(2) This sounds like a Sexual Offences Prevention Order. The judge will have had the power to make an order in such terms as were necessary and proportionate. The order will have been more detailed than the BBC report suggests and will have set out several prohibitions designed to protect – presumably – young girls from Dearlove.

Photo from Random House

Anonymity for defendants? Pam Ayres weighs in (with predictable results)

Introduction

The question of whether those accused of sexual offences should have anonymity until convicted is a vexed one (see a piece by Mark George QC for the blog here and something by me here), with many good arguments on both sides.

On 9th September 2014 this issue was addressed by, slightly surprisingly, Pam Ayres in the following tweet :

The reaction to this was entirely predictable, and she was eviscerated on twitter by a multitude of people (although she did have some support to be fair) who made all the points that could be made, good and bad, against her argument.

 

What’s the background?

The backdrop to this is the case of Archie Reed. Mr Reed was accused of rape and subsequently acquitted (we think on 5th September). The Judge did not mince his words – he “criticised the CPS for its shambolic evidence during the trial“, amongst other things. .

It is clear that there were multiple failings in the way that the case was investigated (although that may well be a dog bites man story nowadays), although it should be noted that the case did go past half time (on one of the charges at least) and it was the jury who acquitted Mr Reed.

 

Conclusion

There isn’t one. And there probably won’t every be – this is a difficult issue, and I imagine it will rumble on. It may be that Ms Ayres will think twice before commenting on legal matters in future, (although she has as much as a right as anyone, even if she could have chosen her words slightly more carefully), but she seems to have continued with the debate in fairness to her.

 

From the Telegraph

From the Telegraph

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Marlon King – appeal dismissed

Introduction

We didn’t actually cover the case of Marlon King, the former footballer who was sentenced to 18 months imprisonment on 15th May 2014 for dangerous driving. He had caused a three car pile up that left one man in hospital for weeks when weaving in and out traffic, and undercutting another driver, all whilst eating an ice cream.

 

Appeal

Mr King tried to appeal the sentence on 9th September 2014, saying that it should have been suspended. This didn’t get very far, with the Court of Appeal saying “It was an unusually bad offence of its kind with episodes of extremely aggressive driving and sudden changes of lane and speed on a busy road culminating with him stopping, blocking the path of a vehicle and causing the collisions which followed. It was, in truth, deliberately dangerous driving, which may have resulted in far more serious injuries or worse“.

We don’t have the transcript, so we don’t have full details, It seems that the basis that Mr King was saying that the sentence should be suspended so that he could join his family who recently moved to Zambia and were struggling to settle.

The actual sentence itself, of 18 months, doesn’t seem to have been challenged. Given that the maximum sentence for Dangerous Driving, the sentence was certainly high, but given that he had only pleaded guilty shortly before the trial was probably not ‘manifestly excessive’.

 

Conclusion

There is, infuriatingly, no guidance as to when a sentence should be suspended. Hopefully when we have the full judgment we will an inkling of a kind of test that could be used in these sorts of cases. Hopefully. I won’t be holding my breath though.