Image from BBC News

Air passenger calmed by Boris Johnson admits assault and drunk

A few weeks ago you may have seen a story in the press about Boris Johnson urging a fellow passenger on his flight from Kuala Lumpar to London to “calm down” or risk being arrested.

What happened?

It appears that the passenger in question, David Morris, 43, was drunk and had been violent and abusive towards members of the crew. It had been alleged that Morris had been racially abusive to members of the crew, demanding more drinks and being aggressive. A witness said after several attempts to calm him down, six cabin staff handcuffed him, tied his legs and then strapped him in his seat.

The BBC covered the story here if you’d like a few more details.

Offences

It appears that on Thursday 18 December, Mr Morris pleaded guilty at Uxbridge Mags’ Court. There appears to be a little confusion as to why his case is being sent to Isleworth Crown Court for sentencing – after all, the headlines suggest that Morris pleaded to common assault, which regular readers of the blog will know is a summary only offence meaning it can only be dealt with in the Magistrates’ Court save for certain exceptions.

Morris in fact pleaded guilty to common assault and drunkenness in an aircraft.

Common assault (Criminal Justice Act 1988 s.39) – summary only offence with a maximum penalty of 6 months’ custody.

Drunkenness in an aircraft (Air Navigation Order 2009 art.139). Article 139 is listed in Schedule 13 Part C of the Order and accordingly, art.241(7) states that such offences are triable either way and the maximum sentence is one of two years’ custody.

Therefore, although it may appear to many that the assault is the more serious offence, it is due to the drunknness offence that Magistrates have the ability to send this case up to the Crown Court. The common assault offence, being “joined’ to the drunknness offence (by virtue of it arising out of the same set of facts) will also be sentenced in the Crown Court.

Sentence

Morris pleaded guilty and so we can expect a reduction of a third or thereabouts (it seems unlikely that a judge would consider the evidence in this case “overwhelming” – but you never know).

The judge will obviously have to bear in mind totality and we would expect concurrent sentences to be imposed for this reason; however, as always, it is the total that matters, not the way in which the sentence is made up.

Courts (rightly) take instances of drunknness etc. on aircraft very seriously; it is easy to see why. The potential for disaster need not be explained. The Court of Appeal have said that offences of drunkenness in an aircraft will always require condign punishment, especially for the reason of deterrence.

We would expect an immediate custodial sentence (there being nothing in the news reports that indicate a suspended sentence would be appropriate) in the order of 6-12 months, though 12 months may be a little on the high side considering the plea and the apparent remorse.

We’ll come back to the story in January when he is sentenced.

One man and his eagle – Jonathan Marshall avoids bird for dodgy documents

Introduction

Jonathan Marshall was a man with a dream – he was a falconer and, with his favourite bird Samson (a golden eagle), would go around the country giving falconry displays. Tragedy had struck in 2012 when Samson flew off from a wedding and seemed lost. A Hollywood ending followed however when it transpired he had flown the 107 mile journey home.

The tearful reunion was caught on camera :

Seeking to capitalise on this human interest story, Mr Marshall applied to go on the Alan Titchmarsh show. Unfortunately, he didn’t have the right permit for Samson, and so using an other bird’s certificate as a template, falsified Samson’s permit.

This lead him to being arrested and taken to Court, where he pleaded guilty to “falsifying an endangered species permit and keeping the eagle without registration“. He got 5 months, suspended for two years.

 

What were the offences?

Well, it’s not quite clear. But whatever it was, it was a pretty dull one we would think…

Our best guess would be that it was one under Reg 4 The Control of Trade in Endangered Species (Enforcement) Regulations 1997. This creates an either way offence (maximum sentence 2 years) that applies when “A person who knowingly falsifies or alters any permit or certificate”.

Golden Eagles are Part 1, Schedule 1 birds for the purposes of the Wildlife and Countryside Act 1981 (that attract the highest protection all year round. On a side note, it’s good to see that no fewer than three buntings make it on to that list – you have been warned). There are also registration requirements for Golden Eagles as they are listed in Schedule 4 Wildlife and Countryside Act 1981. There is an offence of failing to register under s7 Wildlife and Countryside Act 1981.

This offence is summary only (s21 Wildlife and Countryside Act 1981). The sentence was presumably passed for the first offence, under the regulations.

 

No offence, but that’s rather dull, isn’t it?

Well, yes. Although if you go and look at the Regulations made under the 1981 Act you can see the impact of Welsh devolution – they started back in 1982 as joint between England and Wales but have been diverging in recent years (Rheoliadau Bywyd Gwyllt a Chefn Gwlad (Cofrestru, Modrwyo a Marcio Adar Caeth Penodol) (Cymru) 2011). How long before Wales becomes a separate jurisdiction? A very interesting constitutional question.

 

Is it so serious you get bird for it?

Apparently so.

The British do like their animals, but it seems hard to imagine that this passed the custody threshold. The fraudulent offence is clearly the most serious, and whilst fraud is fraud, it doesn’t seem to me that this was the most serious. Importantly, there doesn’t appear to be any suggestion that Samson was ill-treated, or any harm was done to the animals.

It may be that there is more to it than in the news reports, at least we hope so, because this does seem over the top. Although the sentence is suspended, it will still cost a lot of money to supervise which is money that could be better spent on more serious criminals.

 

Bet Samson will be pleased to have Mr Marshall home though, eh?

Ah. Apparently Samson was shot by a gamekeeper last year. RIP.

 

A Beretta pistol

Prohibited Weapons: The exceptional case of Manuel Wallner [Guest post]

A Beretta pistol

The recent prosecution of Manuel Wallner culminated with Swansea Crown Court deciding exceptional circumstances existed to justify not sentencing Mr. Wallner to at least 5 years in prison for possession of prohibited weapons. Any finding that deviates from the statutory minimum is rare in firearms cases. However, Mr. Wallner’s case was exceptional due to a number of factors, including a deeply concerning communication breakdown between French and UK border officials.

Background

In June 2014, Mr. Wallner travelled to Wales for a pre-booked £4,200 “close protection and hostile environment operation course” offered by a specialist security training company. His decision to bring his personal weapons from Austria to Wales would lead to him being arrested and charged with multiple allegations, including two of possession of prohibited weapons.

Before travelling to Wales, Mr. Wallner sought advice from local Austrian government authorities on the permits required to transport his firearms to the UK. He already held Austrian firearms permits for his semi-automatic assault rifle and semi-automatic Beretta pistol and was told that in addition he required a European Weapons Pass, which he duly obtained. Whilst these documents allow holders to travel with firearms for specific purposes between most EU countries, they are necessary, but not sufficient, to authorise EU nationals to bring prohibited firearms into the UK. Section 17 Firearms (Amendment) Act 1988 stipulates that all overseas residents must also have a visitor’s permit to travel to the UK with their weapons.

Relying on the advice he obtained from the Austrian authorities, Mr. Wallner drove to Wales unaware he was unlawfully transporting his personal weapons into the UK. When he arrived in Calais to catch a car ferry to Dover, Mr. Wallner declared his firearms to French authorities, which triggered a procedure known as ‘Code 100’, whereby the Ferry Operators took specified security steps. Crucially, the intelligence that Mr. Wallner was carrying firearms was apparently not conveyed to UK Border Agency staff and he was able to proceed into the UK without being challenged or having his weapons being seized. He was only arrested after showing his weapons to other people attending the course.

The law

Section 51A (2) Firearms Act 1968 requires courts to impose a custodial sentence of at least five years against any adult found guilty of possessing prohibited firearms unless exceptional circumstances apply. English courts have traditionally been reluctant to grant exceptional circumstances in firearms cases.  Exceptional circumstances were however found in last year’s case of Zhekov, where a Bulgarian Lorry driver was found in possession of a prohibited gun when he was stopped in Dover. The Court of Appeal judgment relied on the interpretation of ‘deterrence’ adopted in the 2005 case of Rehman and Wood that “if an offender has no idea that he is doing anything wrong, a deterrent sentence will have no deterrent
effect upon him.”

Mr. Wallner’s exceptional circumstances

Mr. Wallner entered a plea of guilty but argued his case involved exceptional circumstances that justified departing from the statutory minimum of five years in prison. His submissions were based on multiple grounds.

Mr. Wallner had followed advice from a government official in Austria to apply for a European Weapons Pass, which he thought enabled him to transport his weapons to England. He had a legitimate reason for travelling to the UK for his pre-booked course and had declared his weapons to the French authorities at Calais. He had lawfully purchased all of his weapons in Austria and legally held all his firearms, which were in a safe condition when they were seized by police. He had co-operated throughout the Police investigation and admitted his possession of all the items, providing a full explanation in his interview under caution. Further, a promotional video for the course featured combatants wielding heavy artillery and written material from the course providers stated attendees could “bring their own kit”, which Mr. Wallner interpreted as an invitation to bring his own weapons.  Mr. Wallner’s personal background was also relevant to his submissions. He had been promoted to the rank of Corporal during his national service in the Austrian Army and had passed psychological tests to obtain his Austrian Firearms Permit.

The Court’s decision

Mr. Wallner was sentenced to a period of 18 months imprisonment, suspended for 2 years. His weapons were confiscated. Although Mr. Wallner avoided an immediate prison sentence, he now has a criminal record which will remain on the police national computer until he reaches the age of 100. This is likely to restrict his ability to fulfil his ambition of working in personal security. It may also impede his ability to travel.

Lingering lessons

An important lesson arising from Mr. Wallner’s case is that EU nationals intending to transport weapons within the EU should always consult the authorities within the jurisdiction they are intending to visit rather than relying on advice from local officials in their home state. Although Mr. Wallner followed advice given in Austria, he should never have been allowed to progress as far as the UK unchallenged by government authorities. The reasons for the fundamental communication breakdown between French and UK officials must be identified and remedied to ensure UK border security standards are upheld.

Some may wonder why in these circumstances the Crown Prosecution Service felt it was necessary to mount a prosecution.  Convicting those who commit offences in sheer inadvertence has no deterrent effect.

By Aileen Colhoun, a Partner in the Criminal Law Division of Hickman and Rose.

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Colin Ash-Smith – life with a tariff of 21 years for murder

Introduction

On 11th December 2014 Colin Ash-Smith was convicted of the murder in 1993 of Claire Tiltman. The next day he was sentenced to life imprisonment (mandatory) with the tariff set at 21 years.

 

Facts

In 1993 Mr Ash-Smith, then aged 25, stabbed Ms Tiltman, then aged 16, nine times. As to the motive, Mr Ash-Smith had “described himself as an “animal”, plagued by a hatred of women whom he said “humiliated” him. Asked why he attacked, he said: “I wanted to feel empowered, that I had control over someone, that I wasn’t a doormat.”

It is important to note that “In 1988, he attempted to rape and murder a young mother in a quarry and in 1995 he stabbed 22-year-old Charlotte Barnard 14 times, just yards from where he killed Claire“. For this he received three life sentences, with a 15 year tariff.

That was 19 years ago and he had not been released. He was, in fact, arrested in February 2014 coincidentally (or most likely not) the day of his Parole Board hearing.

 

Sentence

This was a difficult sentencing exercise because of all the changes in the criminal law since then, and the fact that some allowance had to be made for the time that Mr Ash-Smith had been in custody.

We have the sentencing remarks, which is always helpful. The Judge decided that if the offence was committed now, the tariff would have started at 25 years. That seems, if anything, generous in that it would have been hard to argue with a 30 year starting point.

It may not matter as the Judge considered that the aggravating features would have taken it up to 30 years in any event.

So far, so good. The problem is that at the time Mr Ash-Smith would have received a tariff with a starting point of 16 years. We would have thought that the aggravating features would have taken the tariff up to 18-20 years.

It seems that Mr Ash-Smith’s lawyer said that the tariff for this murder, and the other offences, would not have exceeded 40 years. On that basis, the Judge set the tariff at 21 years.

We would have thought that the tariff at the time would have been much higher than the 18-20 years had it just been the murder of Ms Tiltman. However it is hard to see that it would have been more than 25 years, and certainly not likely to be more than 30.

It is not a science though, and we would not expect any appeal to succeed, as it is not a mathematical exercise.

It is, in any event, probably academic as even if the tariff for the murder was reduced to 11 years, it is clear that Mr Ash-Smith is a very dangerous man and it is likely that he would spend far longer than that in custody. Whatever the length of the tariff, he will remain in prison until it is safe to release him which may well be never.

Photo from the BBC

Ray Teret jailed for 25 years for historic sex offences

Introduction

I got rebuked a few weeks ago for saying “in the current climate” it was hard to know whether an appeal against sentences for sexual offences would succeed. Maybe I shouldn’t use those words, maybe I should, but I stand by the point that sentencing on sexual offences has gone somewhat askew, with new principles being developed on the hoof.  There are perfectly respectable arguments as to whether this is principled or welcome, indeed, different writers of this blog have different views.

But a further example of this was given on 11th December 2014 when Ray Teret, who would probably be described by a newspaper as a ‘disgraced former BBC DJ’ was sentenced to 25 years imprisonment for various sexual offences. We had previously covered this, in brief, when he was convicted.

 

Facts and Sentence

We have the Sentencing Remarks. They are brief, and certainly worth a read. Essentially, Mr Teret groomed the victims (‘In the main you did not have to use force to abuse these girls, as the combination of their naivety and your celebrity was such that they willingly came with you to the various locations where you abused them‘), who were all girls aged between 13 and 15.

We don’t have the exact dates (relevant for the maximum sentences at the time), but the offending appeared to be between the mid-60s and mid-70s. He was convicted “of having sexually abused 11 different girls during this period of time, 6 of whom you raped and 5 of whom were, as I have said, so awed by your celebrity status that they consented to having sexual intercourse with you. Some of those you raped were forcibly penetrated by you“.

We don’t really have any more details than that. For 5 of the indecent assaults he received 12 months, for the other 6, 18 months. These were concurrent, and concurrent with the 25 years he got for the 7 counts of rape.

The Judge said that, had he been convicted of this at the time, he would have got a life sentence, but accepted that given his age (73) and the length of the custodial sentence, he was no longer a risk.

 

Comment

Why 25 years? Here, the brevity of the sentencing remarks we are left somewhat in the dark. The starting point is the current Sentencing Guidelines (starting at page 9). This gives a range of up to 19 years for the most serious cases.

A Judge is perfectly entitled to go above that in a suitable case, but s/he should really explain why this is the case.

It is clear that it is Culpability A. Given the sentence passed, we assume that the Judge put the Harm as Cat 1, although it is not clear why this should necessarily be the case.

It should be remembered that the sentence of 25 years is a ‘global’ sentence, so has to reflect the multiple counts of rape as well as all the indecent assaults. Even then, the sentence seems much higher than what we would expect. We would have expected a sentence in the region of 18 years. It could be said that we didn’t hear the trial and therefore the Judge saw much more than we did. That is absolutely true, and the Judge – Baker J, certainly knows what he is doing, but one of the purposes of the Sentencing Remarks is to give us – the public – a view of what is being done in our name, and why.

We imagine that there will be an appeal but, and I hesitate to say it, in the current climate if I were Mr Teret I would not get my hopes up.

Daniel Pelka

Life with minimum of 30 years upheld for murder of 4yr old Daniel Pelka

Earlier this year we covered the tragic case of Daniel Pelka.

Daniel, aged 4, was starved and beaten by his mother and her partner, Magdelena Luczak and  Mariusz Krezolek.

The facts are distressing to say the least; Daniel was starved and given salt water to the point where he was sick, thereby causing him to vomit. He was also beaten and ultimately died of severe head injuries. Each blamed the other but ultimately, they were convicted and received life sentences for murder, with minimum terms of 30 years. Our write up of the sentencing hearing can be read here.

Well, on 9 December 2014, their applications to appeal against sentence were refused. It appears also that Krezolek also had an application to appeal against conviction refused. We have a fact sheet on how the appeal process works, to explain the difference between an applicant and an appellant.

Lady Justice Hallet said:

“That anyone could treat a child this way is incomprehensible. That his mother and stepfather could is beyond any belief and understanding,”

“Both applicants were plainly far more concerned about their own future and their own responsibility than about getting help to a dying child.”

And that the judge was  “fully entitled to treat this as one of the most serious offences of murder to come before the courts”.

See the BBC News website for more details.

Comment

Until we see the transcript it is difficult to assess the decision of the court. However, at the time, we said that an appeal was likely (because they have nothing to lose) but that it would be considerably difficult to persuade a court that the sentences were manifestly excessive. We’re unsurprised that this has been the result of the challenges to the sentences. As for the conviction appeal, it is not possible to say as we do not know the grounds, however the court described it as “unarguable”.

Jeffrey Goodwyn freed after unlawful sentence passed

Introduction

In 2012 Jeffrey Goodwyn, a seemingly unrepentant and dangerous paedophile (with a previous conviction for rape of a child), was sentenced to IPP (Imprisonment for Public Protection) for an offence of indecent assault that had occurred sometime before May 2004. Spot the problem? The Judge didn’t.

On 9th December 2014, the Court of Appeal quashed the sentence of IPP, replacing it with an Extended Sentence of 3 years, plus a 5 year extension period. This meant that because of the amount of time that he has spent in custody, Mr Goodwyn was released from Court.

 

Why did the Court do that – surely he’s too dangerous to be released?

Because they had no choice – the sentence passed was unlawful. Basically, IPPs were introduced in the Criminal Justice Act 2003 and first became lawful on 4th April 2005. Therefore, such a sentence can only be passed if the offence occurred after that date. It is a basic rule of law that you cannot be sentenced for something that wasn’t an offence at the time that it was committed, or to a sentence that was not lawful at the time.

For that reason, the Judge was not allowed to pass a sentence, it would be similar to passing a sentence of death, it simply was not an available sentence. Whilst this may seem that Mr Goodwyn ‘got away with’ something here on a technicality, when you think about it, it’s obviously right that the Court had to intervene – if the Courts don’t stick to the law, why should anyone else?

 

What was the sentence?

We don’t know the original sentence, but we imagine the Judge felt that the offence (of which there are no real details) merited 3 years in prison, hence the tariff for the IPP was set at 18 months.

The Court clearly thought that Mr Goodwyn met the test for dangerousness, and therefore imposed an Extended Sentence. The amount of time that he had to serve under the Extended Sentence was longer than the minimum period of time that he would have had to serve under the IPP, but the reality is that with an IPP sentence, he would not have been released anytime soon.

 

How did this happen?

In short, we don’t know. It may be that there are facts that we don’t know, but it is surprising if a Judge and both lawyers missed the fact that the sentence was unlawful.

In this day and age of what appears to be a state of permanent revolution when it comes to sentencing, it is actually relatively easy for something to be missed in the sentencing process. It is rare for it to go so wrong that the whole of a sentence is unlawful. As said though, we don’t know the circumstances of the case, or the full facts, so there’s not too much we can say about this now.

We would say that it took a surprisingly long time to come to the Court of Appeal – 2½ years is far too long, which would suggest that the error was not picked up into much further down the line however.

Image taken from the Daily Mail

21yr old woman given another chance after breaching suspended sentence for glass attack

Earlier this year, we covered the case of the delightful Yasmin Thomas.

In August 2014, Ms Thomas, aged 21, pleaded guilty to ABH after glassing a man in a nightclub after a disagreement over an e-cigarette. She received a 12 month custodial sentence, suspended for 2 years with 80 hours of unpaid work. She was also required to pay £1,000 in compensation to the victim along with a £100 victim surcharge.

More details can be found here (and they are well worth a read, particularly the fact that at the tender age of 21, she had a string of convictions (EIGHTEEN) for violent offences).

So, on that occasion (and presumably numerous others preceding that) she was given another chance, as the sentence could easily have been one of immediate custody.

Breach

On 9 December 2014, she was sentenced for breaching the suspended sentence. The Mail reported that she was before the court for three breaches committed within a period of two months. It is understood that these were failures relating to the supervision element of her suspended sentence, which requires her to meet with her supervising officer.

Tom Evans, defending, said Thomas’s mother had suffered a stroke on one of the days when a breach occurred, and that she was afraid she might have cancer.

Thomas reportedly accepted that her behaviour had been unacceptable, though it is unclear whether any reason or excuse was given for the other two breaches.

Options

In this circumstance, the court has a number of options:

1) activate the suspended sentence in part or in full

2) impose a fine of up to £2,500

3) extended the operational period of the suspended sentence (the period for which the sentence is suspended, in this case, originally 12 months)

4) impose more onerous community requirements or extended the supervision period (the period during which the defendant has to comply with certain requirements).

The court must deal with an offender by one of those methods.

Sentence

Judge Harrow told her at Bournemouth Crown Court: ‘Those guilty of a breach are almost all given one chance. I hope you understand that you had been given a chance.’

He warned her that she would be imprisoned if she committed another breach: ‘If you don’t comply with all conditions to the letter you are going to go through that door at the back.’

Regrettably, we do not know how she was sentenced, save that we know the judge did not ‘activate’ the suspended sentence so as to send Thomas to custody. The result is that he must have either imposed a fine, extended the supervision/operational period of the sentence or added more onerous community requirements.

Comment

If I was to have a guess, I would say it was likely that Thomas was given a few more hours of unpaid work – this signals that orders cannot be breached with impunity but that with breaches as minor as missing a couple of appointments (assuming that all other aspects of her sentence are being complied with and her supervising officer is generally content with her progress) there is no point activating the sentence.

There is a danger that when imposing a suspended sentence, courts set defendants up to fail; if they live chaotic lifestyles or have addiction problems or mental health issues, it may be likely that breaches will occur and result in the sentence being activated. However at the same time, courts need to ensure that orders of the court are obeyed, and that means punishing people when they are not.

In this case, I think the balance has been correctly achieved (notwithstanding that I would have sent her to prison for the original offence).

Photo from the BBC

Elita Amantova gets Hospital Order for burying her child alive

Introduction

The death of a child is always tragic. When it is a death inflicted by the child’s parent(s), it is all the more so. As society moves on we are better at dealing with men and women who kill their children. There is always a desire to look for a ‘reason’, when actually the search for meaning is often a futile one.

 

Infanticide

One development in the strict law of murder came in 1938 with the admirably brief Infanticide Act. This reduces what would otherwise be murder to the lesser offence of infanticide in certain circumstances. The language is old-fashioned, but the meaning clear – “Where a woman by any wilful act or omission causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this Act the offence would have amounted to murder, she shall be guilty of felony, to wit of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child.

The effect is to remove the mandatory life sentence for murder, and leave the sentence at large. Whilst a life sentence can be imposed, in practice this never happens.

 

Facts and Sentence

Ms Amantova came to the UK from Latvia in 2008 to work. She lost her job and ended up in “the company of organised criminals in Norfolk and worked as a prostitute“. By 2012 she was pregnant and living rough in Tooting “living off berries and bread left out for the birds“.

She was offered help but “Previously diagnosed with a schizophrenia-type mental illness, her condition was said to have been exacerbated by childbirth, and she refused help from police to find a suitable place to live“.

Against that backdrop, she gave birth in August 2012. The facts of exactly what happened at that point are unclear, but Ms Amantova buried the child in the ground, where it was later to be dug up and partly eaten by a fox. Although this could probably not have been proved but for her admission, the child was alive when she buried it.

The Judge imposed a Hospital Order saying ““the court must always mark the serious fact a life has been taken”, a hospital order was appropriate and the defendant would probably need lifelong treatment and care.

 

Comment

This is a tragic and horrible case, and it seems that the Judge struck the right balance between treatment for Ms Amantova, whilst marking the fact that a child died as result of her actions.

Photo from the BBC

‘Birdman of Morecombe’ John Wilkinson, gets his ASBO extended

6 months ago we looked at the case of John Wilkinson, the ‘Birdman of Morcombe’, who caused protests in the town centre when he was banged up for fulfilling the last wish of his dying mum by feeding his local birds (in breach of an ASBO).

On 5th December 2014 he was back in the news, and back in Court for the renewal of his ASBO. The council got the ASBO extended for another year to “forbid Mr Wilkinson from feeding pigeons within 100m of his home.” The good folk of Lancaster City Council did bend a little -“He is allowed to feed pigeons with 0.5kg of bird seed between 09:30 and 10:30 on Mondays, Wednesdays and Fridays.

Will this work? It seems that Mr Wilkinson has curbed his feeding habit to some extent at least. He certainly hasn’t been to prison since the summer, so hopefully some sort of compromise has been reached.