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[Guest post] The UK’s first FGM prosecution is not what you might expect…

Background

The country’s first prosecution under the Female Genital Mutilation Act 2003 (“FGMA 2003”) is currently underway at Southwark Crown Court, in front of HHJ Sweeney. The Defendant is Dr Dhanuson Dharmasena, a junior registrar in obstretics and gynaecology, who is on trial for the ‘reifibulation’ of female genital mutilation (“FGM”) – in layman’s terms, the re-stitching of FGM.

Facts of the case

The victim, known only as ‘AB’, was admitted to Whittington Hospital in November 2012 in the early stages of labour. When she was first examined, the midwife noted that AB had FGM. It appears AB first underwent FGM aged six, in her native Somalia. The next midwife to examine AB did not feel comfortable proceeding without a doctor and called for the assistance of Dr. Dharmasena. AB was examined by Dr Dharmasena, and he deinfibulated so that she was able to deliver the baby (in other words, he cut open the scar tissue from the FGM).

Dr Dharmasena faces no criticism for the deinfibulation. Rather, he faces prosecution because, after the baby had been delivered, he reinfibulated AB, sewing up both the episiotomy and part of the inner vaginal lips. This is the act that the Prosecution assert was contrary to the Female Genital Mutilation Act 2003 (“the FGMA 2003”). A midwife who was present at the time told Dr. Dharmasena that the procedure was not practiced in this country, and a hospital investigation was launched.

Another man is charged with aiding and abetting Dr. Dharmasena, and with an alternative count of encouraging or assisting another to carry out an offence.

The law

Section 1 of the FGMA 2003, ‘Offence of female genital mutilation’ provides that “a person is guilty of an offence is he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris”.

The offence appears to be strict liability, in that it has no corresponding mental element i.e. intention or recklessness.

Kate Bex, prosecuting, told the court that Dr Dharmasena originally gave the explanation that he carried out the procedure because AB wanted him to, but that he subsequently told police in August 2013 that the operation was ‘medically justified’. The defences to the offence of FGM are set out in section 2 of the Act, which provides that no offence is committed by an approved person (a medical practitioner or midwife, or trainee) who performs (a) a surgical operation on a girl which is necessary for her physical or mental health, or (b) a surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth. It is not yet clear on which of these two defences Dr Dharmasena seeks to rely.

Key Issues

Dr Dhamasena’s belief in the legality of the procedure he was performing will be somewhat irrelevant. What matter is whether he reinfibulated AB’s vagina for a legitimate medical purpose.

This is not the clear-cut case one might have imagined for the first prosecution under the FGMA 2003. Kate Bex, prosecuting, told the court “if you do know a little bit about FGM, you may be expecting to hear that the offence took place in a back-street clinic, by an unqualified and uncaring person, on a young child. This is quite different”.

The secrecy surrounding FGM makes it difficult to pinpoint cases, and it can be even more difficult to put together a case when the complainant will not give evidence, as in AB’s case. However the fact that the reinfibultation happened in a hospital has allowed the Crown to carve a case from witness accounts of medical practitioners and medical evidence.

Dr Dharmasena has been suspended by the General Medical Council pending the outcome of the trial.

By Merry van Woodenberg (@MerryVW), pupil barrister.

Image from Plymouth Herald

Former Naval chief petty officer sentenced to 14 years for rape of 6-month old child

We frequently get Tweets and emails asking us to look at particular cases in the press and we’re always happy to take a look.

On Fridat 23 January 2015, BBC News covered the sentencing of former Naval chief petty officer, Geoffrey Rooney.

Rooney pleaded guilty to offences including:

  • rape of a child under 13
  • sexual assault of a child under 13 (x2)
  • sexual assault of a male child under 16
  • possession of indecent photographs of children
  • taking indecent photographs of children (x3)
  • distributing indecent images of children (x2)

So, what happened? Well Rooney was arrested following the arrest of another man whose wife had found indecent images of children on his mobile phone. Rooney had asked the man to make his children available for him to sexual abuse. It appears that Rooney had then abused the victims, recording some of the incidents on his mobile phone. The victim of the rape was 6 months old.

We’re not entirely sure of the facts of the offending, such as how many victims, how many instances of abuse, the period of time over which the offences were committed etc.

Harm

The father of two of the victims described how he has had to hold his crying children down as doctors subjected them to  medical tests to ensure they had not contracted sexually transmitted diseases. The harm caused, therefore, appears to be very high.

However, a local newspaper noted that Rooney’s representative questioned the “harm” caused to the victims due to their very young age. The judge responded ““For the moment, [but] who knows what may come back to haunt them.”

Additionally, it was said that Rooney volunteered many of the offences to the police and had no previous convictions.

Sentence

Rooney was sentenced to 14 years for the offence of rape, with sentences on the other counts being made to run concurrently. He was also made to pay the £120 victim surcharge.

A spokesperson for the police criticised the way in which Rooney had “gloried” in his offending.

Comment

The starting point is the sexual offences guideline (see page 27). We’re only going to look at the rape guideline because that is really the only sentence that matters.

This is clearly a category 2 (harm) offence, due to the extreme youth of the victim. It’s possible that there are further factors of which we are unaware that could raise the offence to category 1.

Again, we don’t know all of the facts, but this appears to be a culpability “A” case, on the basis of the recording of the abuse on Rooney’s mobile phone. There may be (and we suspect are) further factors increasing the culpability in this case, such as planning and acting with others (how else did he come to have the opportunity to abuse a 6 month old child?)

That gives a starting point of 13 years’ imprisonment. He was given a final sentence of 14 years, which, accounting for the guilty plea (which we assume he received full credit), means a starting point of 21 years’ imprisonment. That represents an 8-year uplift for the other offences.

As we dont know the details, we can’t really comment as to whether that is too much, particularly as we dont know whether the other offences were committed against the same or other victims (and therefore we dont know whether the sentences would have been expected to have been made concurrent or consecutive).

So, in conclusion, we can’t say much, other than, whilst the 14 year sentence appears to be low – certainly in comparison to the Ian Watkins case, applying the guidelines, it doesn’t seem unduly lenient. The important difference between the two cases is that Watkins was found to be “dangerous” whereas in this case Rooney was not found to be dangerous. Additionally, we assume that the period of time over which Rooney’s offences were committed was significantly shorter than Watkins.

If we come across any further information, we will update the post.

The Straits Times

Pre-Charge Bail Consultation

Introduction

Following on from the College of Policing consultation on bail last year, the Home Office are currently consulting on the use of Police Bail (now known as pre-charge bail – makes sense, but not sure it was necessary to change the name).

The consultation document is here and is fairly short. Although there has been a lot of concern in some quarters about police misuse of bail, I am slightly surprised that the Tories have picked this up (not very ‘law and order’ really?) but it’s welcome. Given that most of the significant changes that could come out of it require legislation and there is an election coming soon, I wouldn’t hold your breath.

 

Summary of Proposals

Taken from the executive summary :

The measures being consulted upon include:

  • Enabling the police to release someone pending further investigation without bail in circumstances where bail is not considered to be necessary;
  • Setting a clear expectation that pre-charge bail should not last longer than a specified finite period of 28 days, as recommended by the College of Policing;
  • Setting the extenuating circumstances in which that period might be extended further, and who should make that decision;
  • Establishing a framework for the review by the courts of pre-charge bail;
  • Considering whether extension of pre-charge bail should only be available in certain types of case, such as fraud or tax evasion, or in all cases where there are exceptional reasons for an extended investigation;
  • Considering how best to enable the police to obtain timely evidence from other public authorities; and
  • Considering whether individuals subject to pre-charge bail should be able to challenge the duration as well as the conditions in the courts.

The important point in it is whether there should be any time limits on bail, if and how these can be extended, which Court has jurisdiction to decide this and what test they apply and what do you do when someone is arrested but a protracted investigation is needed.

 

How to respond

I have done a form that can be downloaded here. This can be emailed to pacereview@homeoffice.gsi.gov.uk

We will probably draft our own response and post it here to share. We’d be happy to host anyone else’s draft.

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Photo from Wales Online

Gareth Furse jailed for rape – Wales online is a bit misleading

Introduction

We’re always happy to have a look at cases from around the country that people bring to our attention. Well, on 23rd January 2015, this popped into out twitter timeline :

Happy to oblige…

 

Facts

Looking at the news report, it seems that Gareth Fruse was a friend of the victim and “took advantage of the woman when he found her drunk and fast asleep in his bed“. According to the defence (which is presumably accurate or it would have been corrected) “The rape lasted … as long as it took the victim, who is in her 20’s, to turn over in the bed and tell him to get off. He then stopped immediately.

Mr Furse was also convicted of a sexual assault on the same victim – putting his hands inside her clothing.

It seems that 12 years ago Mr Fruse received a caution for an indecent assault on a 15 year old when he was 19. We assume that that is it by way of relevant previous convictions, or the newspaper would have referred to it.

Mr Fruse had a trial and was found guilty by a jury.

 

Sentence

Firstly, the news reports got the sentence wrong. Or, at least, it was a bit misleading. Doing the best that we can, it seems that there was an extended sentence for the rape comprising of 5 years, plus a 4 year extension period, with a 3 year consecutive sentence for the Sexual Assault.

This gives a total sentence of 12 years, as reflected in the headline. So far, so good. But according to the news reports, the 4 year extension period attaches to the whole 8 year sentence. Which is it?

It’s complicated, but given Mr Fruse’s lack of previous convictions, the 3 year sentence for sexual assault cannot attract and extended sentence (there has to be a minimum sentence of 4 years).

This has a huge impact on how long Mr Fruse will serve, as you have to serve 2/3 of the custodial part of an extended sentence, but ‘only’ ½ of a determinate sentence.

So. We think that Mr Fruse has to serve half the 3 years for Sexual Assault, plus 2/3 of the 5 years for the rape (3 1/3 years) which gives a total of 4 5/6 years (or 58 months).

But many Judges would have said that given it was the same victim, the total custodial sentence is 8 years, with a concurrent sentence (or no separate penalty) for the Sexual Assault. Had he done this, Mr Fruse would have had to serve 5 1/3 years (64 months).

This is an extra 6 months in prison, purely because of the way that a Judge structures a sentence. Does that make sense? No, absolutely not. It makes a complete mockery of the law quite frankly, but this is what happens when you legislate at the rates of current governments.

 

Was the sentence too long?

There are two issues here :

1) Should an extended sentence have been passed?

We would suggest no. Or, at least, there is nothing in the news reports to indicate that the test for dangerousness is met. The Judge has to be satisfied that there is “a significant risk of serious harm to members of the public” from further offending by Mr Fruse (see the test as set out in Lang [2005] EWCA Crim 2864).

Here, there is no history of offending, other than a caution when he was 19. This is a long time previously and, although it was for a similar offence, it is hard to say that he presents such a risk.

It seems that the Judge expressed his conclusion as follows “although he wasn’t a predator and he did stop when told to, there was concern that he succumbed when he found himself in a particular situations … the public needed protecting from that and a pre sentence report had identified Furse as being at high risk of causing serious harm until he could control his sexual urges” .

Obviously we have not seen that report, but on the face of it, it is not clear that the relevant test is met. We imagine that there will be an appeal, so it may be that this would be looked at again.

 

2) The length of the sentence

Starting with the guidelines, the 5 years for the offence of rape is what one would expect (page 11). Turning to page 16 for the guidance for Sexual Assault, it gets a bit less clear.

Assuming the touching was under the victim’s underwear, it would still be a Category 2 Harm B offence, for a starting point of 1 year in prison. 3 years would be for where there is Abduction, Violence or threats of violence, Forced/uninvited entry into victim’s home, or severe psychological of physical harm.

Even then, regard would have to be taken to the question of totality – given it was the same victim, you wouldn’t just add up the sentences for each offence, you have to make an overall sentence.

Again, this may all come out in an appeal, but on the face of the news reports, we would have thought a consecutive sentence of about 6 months should have been passed.

 

Conclusion

On what is reported, the sentence passed is significantly higher that what we would expect – nearly double in fact (when account is made of whether there should be an extended sentence.

We could, of course, be wrong and there may be much more than was reported. But on that news report, we would say that Wales Online could have made a better job of explaining it, and the sentence was much higher than it should have been.

 

 

 

 

Image from the BBC

Woman convicted of assault for throwing water out of her window

It sounds odd but we can assure you it is true.

Michelle Dodd of Stockport, Greater Manchester had pleaded not guilty to three counts of “assault”, but on 21 January 2015, she was convicted.

Background

As some readers may have guessed, the background to this case lies in a neighbourly dispute. Ms Dodd took objection to the noise made by her neighbour’s children, specifically the noise made whilst they were enjoying playing on their trampoline. Her neighbour, Afshan Iqbal, had previously complained about Ms Dodd, and Ms Dodd had complained about Ms Iqbal.

Dodd subsequently threw water out of her bedroom window, hitting the children and Ms Iqbal on three occasions. It appears that this was not in dispute. So why did she plead not guilty?

Well, Dodd’s case was that she was bed ridden with illness and was emptying a pan of water put out for her cat, not intending to hit anyone, and therefore was not guilty on the basis that she lacked the required intent (a specific intention or having been reckless as to the consequences of her actions).

It is likely that the proper description of the offence was battery rather than assault; the difference being for the former, it is necessary to prove the application of unlawful force, whereas for the latter, it is necessary to cause a fear of unlawful force. As the water was thrown out of the window and actually hit the children, we assume the children were unaware of the water being thrown until it hit them and so battery rather than assault would be the more appropriate description.

Sentence

The maximum sentence for common assault under s.39 of the CJA 1988 is 6 months. So where on the scale did Dodd’s offence come? Unsurprisingly, right at the very bottom. She was given a conditional discharge for 12 months and ordered to pay £280 in costs.

Interestingly, applying the Sentencing Council’s guideline, (see p.23) as Dodd “repeatedly targeted the same victim(s)” this would be a category 2 offence as that is a factor indicating greater harm – if one was so slavishly follow the guideline. Obviously that is nonsense and would result in an absurd sentence. Correctly, the court appears to have ignored the guideline.

Dodd said: ‘It’s disgusting but there’s nothing I can do. I thought the court would laugh and sue the police for wasting everyone’s time.’

So Dodd has to behave herself for the next 12 months and stump up £280.

What a waste of the court’s time and taxpayer money….

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Chris Grayling – victim of an interesting crime

Introduction

Chris Grayling, being a politician, is not always popular with everyone. Amongst lawyers he ranks close to herpes in terms of how welcome he is round the robing room. Another group that he has managed to alienate is the Fathers for Justice campaigning group.

On 19th August 2014, Martin Matthews took to the roof of Mr Grayling’s rather nice house in Surrey (paid for largely by the tax payer). Not to protest our Lord Chancellor’s expenses claims, but rather campaigning for an “open and transparent family court system“.

He stood trial for Criminal Damage on 21st January 2015 where he was found guilty. This was after he seemingly couldn’t resist a roof when presented with it and had a cheeky two hour protest on the roof of Redhill Magistrates’ Court before coming down to have his trial.

 

Facts

As stated, this was a rooftop protest. The allegation of criminal damage relates to him putting screws into the bitumen in Mr Grayling’s roof in order to erect his banner. The District Judge ruled that “the ability of the felt to protect the house from water has been compromised, albeit to a minor degree, due to the width of the screws I have seen“.

And that reader, some very small holes in the roof, was the criminal damage.

 

Sentence

The maximum for criminal damage is 3 months in prison. This gets nowhere near that and Mr Matthews was fined £100, with £200 costs and a £20 Victim Surcharge.

 

The Law

Now this is interesting. It took me back ten years or so when I had my first ever (proper) appearance in the Crown Court – an appeal against conviction where the issue was ‘what is damage’?

In short, the definition of ‘damage’ is wide, but not gaping. It is to “include not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness.” (Morphitis v Salmon – see also Fiak (2005) where it is quoted).

Further guidance comes from Whitely – “Any alteration to the physical nature of the property concerned may amount to damage within the meaning of the section. Whether it does so or not will depend on the effect that the alteration has had upon the legitimate operator (who for convenience may be referred to as the owner) … where … the interference … amounts to an impairment of the value or usefulness of the [property] to the owner, then the necessary damage is established.”

So, is a small hole in a roof damage? Given that the roof was bitumen, the answer will come down to what state the roof was in after Mr Matthews left. If there was a ‘scar’ but no actual damage to the integrity of the roof, then there would not be damage. If there was still a hole that could leak, then this would constitute damage.

In this case, the Judge found as a fact that there was damage. This is a conclusion that he was entitled to come to and is unlikely to be (successfully) appealed.

This whole escapade however will have cost many thousands of pounds. Very much a large sledgehammer to crack a very small nut(case). The sort of court case that one would imagine Mr Grayling would heavily condemn …

 

 

 

Photo from the Epsom Guardian

Photo from the Epsom Guardian

 

Photo from the BBC

Fred Talbot stands trial for historical sexual abuse

Introduction

Fred Talbot is known to millions of people as The Weatherman on ‘This Morning’. Before that, he was a biology teacher until 1984. Last year he was accused of various sexual offences against five different complainants.

In brief, “the allegations related to two periods, firstly when Mr Talbot was a trainee teacher in Newcastle-upon-Tyne in the late 1960s and early 1970s, and secondly from the mid-1970s to 1984, when he taught in Altrincham”. All the complainants appear to have been aged 14-16.

On 20th January 2015 his trial started. It is expected to last for up to four weeks.

Details of the charges are not easy to come by. We think that there are nine counts of indecent assault, and one of buggery going on the news reports (the Scotsman seems to have the best detail) and these are as follows :

The first six charges are all indecent assaults, relating to one complainant, a boy aged under 16 at the time, and include alleged offences of masturbation, oral sex and digital penetration, all taking place between October 25 1969 and October 24 1970.

The remaining charges are: an allegation of indecent assault, by masturbation, on a male under 16, between January 1 1975 and December 31 1976; the same offence against another male under 16 between the same dates; and indecent assault by sexual touching on a fourth complainant between January 1 1977 and December 31 1977.

The final count of buggery is said to have occurred against the fifth complainant, aged under 21 at the time, on or around August 2 1983.

We will come back to this when the trial concludes, and not before, for obvious reasons.

Photo from the Bristol Post

Simon Parsons – another teacher jailed for sex with pupil

Introduction

It’s been a bad week for the public image of teachers – firstly Stuart Kercher escaped an immediate prison sentence, then Amardip Bhopari was sentenced to 2 years immediate custody.

On 20th January 2015* Simon Parsons, a drama teacher, was sentenced to 12 months due to offences rising out of a 5 year affair with one of his pupils.

 

Facts

The victim was a pupil at Castle School where Mr Parsons was Head of Drama. Over a five year period, starting from when the victim was 17, they had a sexual relationship. This was ended by the victim when she was in her early twenties, by which time they had had a child together.

Mr Parsons pleaded guilty on the specific basis (which appears to have been accepted) that he did not groom the victim, and the prosecution accepted that the sexual activity was consensual (obviously, or else a much more serious offence would have been committed).

It seems that Mr Parsons pleaded guilty and was remanded in custody until sentence. He pleaded guilty to five counts of sexual activity in breach of trust.

 

Sentence

As we’ve looked at before, there are the Sentencing Guidelines (page 67). It is Category 1 and would appear to be Culpability B. This gives a starting point of 12 months, with a range of ½ to 1½ years.

The pregnancy would obviously normally be an highly aggravating factor, but here it appears that this happened after the victim was over 18, and so it would not be. Looking at it, the aggravating and mitigating factors would appear to balance out and so we would be looking at the starting point being about a year, minus the discount for a plea of guilty, so 8-10 months (depending on when the plea was entered)

Here, the sentence appears to be well within the appropriate range in terms of length. Why wasn’t it suspended? The short answer is that we don’t know. On the face of it, this is a sort of case where a suspended sentence would have been unobjectionable (especially as it appears that Mr Parsons has had two months on remand, and therefore had a proper ‘taste of prison’), but we doubt that the Court of Appeal would intervene and suspend it. There is probably no harm in Mr Parsons appealing, but we doubt that he will get very far.

 

_79101850_79101843*Note – we incorrectly stated the year was 2014 rather than 2015…

 

CPS Consultation on speaking to witnesses at Court

Introduction

Who would have thought a CPS consultation on procedure would become a news story? On 19th January 2015, news outlets were awash with reports of the latest CPS consultation. This time it is do with what should advocates say to complainants (or, as the CPS have it, ‘victims’) at Court.

There is new guidance which aim to “ensure victims are, for example, informed of the general nature of the defence case or if their own character is to be questioned in the witness box. In a rape case a complainant may be told if the likely defence was to be, for example, on the issue of consent or identity. The guidance makes clear that assisting witnesses in this way is not coaching or telling them what to say“,

The press release is here, and you can see the Consultation Response ‘hub’ here and the draft guidance here.

Summary of Guidance

The actual draft guidance is very short – only 7 pages, and is worth reading. Most of it is common sense and common decency, but parts are much more controversial.

Basically, the advocate is instructed to speak to the witness and provide assistance about, amongst other things, ‘Procedure’, ‘Giving Evidence’ and ‘Cross-Examination’. What was trailed was that complainants would be told what the defence was so that they would be forewarned.

There is a fine line between this and coaching witnesses (see the guidance in Momodou [2005] EWCA Crim 177) and it is likely that this aspect will be where the focus of most of the response will be.

 

How to respond?

There is a response form that you can download and fill in.

This is a controversial issue (although less controversial when you read the actual guidance). Make sure you have your say.

Image from BBC News

Man who admitted drunkenness and assault on Boris’ flight gets 6 months

Before Christmas, we covered the story of David Morris, the air passenger who Boris Johnson had urged to calm down on his flight from Kuala Lumpar to London.

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

What happened?

Press reports are still a little sketchy but we understand that Morris was drunk and had been violent and abusive towards members of the crew, including head butting one of them. 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

So Morris was sent to the Crown Court for sentence. We don’t have the remarks and we have no details other than the final sentence – 6 months’ imprisonment. We dont know how the sentence was structured (whether there were consecutive sentences etc.) and without any more specific details it is hard to say whether or not a sentence of 6 months (representing a sentence of 9 months after a trial) is on the money or not.

However, we can say that it is certainly in the range expected for this type of offence. If the reports that Morris had been racially abusive and had head butted one of the crew are correct, he might count himself a little fortunate to have received 6 months.