Rolf Harris : Attorney-General won’t be appealing the sentence

Photo from the Express

Photo from the Express

We have covered the case of Rolf Harris on the blog, sometimes with some very lively debate below the line (here’s the report on the conviction, our prediction of sentence as well as the details of the sentence that was actually passed).

In relation to the sentence, we said at the time “One thing about sentencing for historic offences is that nobody is satisfied. On the one hand it is lenient, in that it is around half of what he would get now. On the other hand, it is very severe, as it is probably about four times or so what he would have got had he been sentenced at the time.

There were plenty of calls for an appeal by the Prosecution (see here for a factsheet on Attorney-General’s References). We were sceptical whether this would happen for the reasons set above.

Well. On 30th July 2014 it was announced that there would not be a Prosecution Appeal against the sentence. You can see the full announcement on the AGs website – it’s the first announcement in fact by the new Attorney-General – Jeremy Wright QC.

Whilst this may be a disappointment to some people, it is completely understandable in the circumstances of the case. The sentence was, when looked at in the prism of the law at the time, if anything very severe rather than unduly lenient. It may be that Mr Harris will be appealing the sentence imposed on him.

Image from the BBC

Lorry driver convicted of murder over road rage incident

Mark Slater, aged 47, was convicted of murder on 29 July 2014.

It was suggested that the victim, Trevor Allen, aged 56, spotted Slater using his mobile phone whilst driving his 17T HGV. It is thought that Mr Allen indicated to Slater that he should stop using his mobile. What followed was a road rage incident which involved Mr Allen getting out of his vehicle and approaching Slater’s HGV. At that point, Slater drove over Mr Allen.

Trial

Slater pleaded not guilty on the basis that, whilst he was responsible for the killing, he did not see Mr Allen and therefore lacked the requisite intent for the offence of murder. The jury did not believe him and convicted him of murder.

The jury had heard evidence of previous road rage incidents involving Slater in which he had exited his HGV and proceeded to kick and punch another vehicle.

BBC

BBC News covered the story and more details – including an audio clip of the 999 call – are available here and here.

The BBC reported that Slater faces an automatic life sentence. That is not quite the case. Our explanation of what an automatic life sentence is, can be read here.

Sentence

The true position, as you are no doubt aware, is that Slater will receive a mandatory life sentence. That is the only sentence available for murder.

The judge must set a minimum term and in doing so will refer to Sch.21 of the Criminal Justice Act 2003 which sets out the starting points for murder tariffs.

As avid readers of the blog will know, a 25-year starting point is usually appropriate where a knife or other weapon is taken to the scene. In R v Beckford 2014 EWCA Crim 1299, the Court of Appeal held that a judge was correct to find that the 25-year starting point applied on the basis that the car was used as a weapon and was taken to the scene for the purposes of Sch.21 where, in his car, the defendant had chased the victim (who was riding a push bike) and driven into him.

In this case, it would appear that due to the spontaneity of the road rage incident, that would not apply. Consequently, the starting point is most likely going to be one of 15 years.

The judge will then take account of the aggravation (such as the nature of the death, the use of a vehicle as a weapon and the events leading up to the death) and mitigation (such as a lack of intent to kill, and the lack of premeditation). On the bare facts we have available, we’d expect a minimum term of just under 15 years – however that could of course rise depending on facts we may be unaware of.

Michael Adebolajo refused permission to appeal conviction and sentence

ADel

One of the most notorious murders of recent times is the killing of Lee Rigby. We have covered it a few times on the blog (see previous link). The latest news was that Mr Adebowale had received permission to appeal his tariff of 45 years.

We had looked previously at the fact that his co-defendant, Michael Adebolajo, had applied to appeal his conviction and sentence.

On 29th July 2014 it was announced that he had been refused permission to appeal. It seems that this will be renewed to the full court (see an explanation of how appeals work here), where it will be heard with the appeal of Mr Adebowale.

We will look at the appeal when it is heard. We stand by our prediction that his appeal against conviction will get absolutely nowhere. Because of the legal issues surrounding whole life tariffs, he has a better shot at the sentence appeal, but I wouldn’t hold your breath …

Christopher Copeland – guilty plea to defrauding three hundred grand from charity

Photo from the BBC

Photo from the BBC

Introduction

Some people, when you find out their offending, you know will get a hammering when they are sentenced. Christopher Copeland is one such gentleman.

On 28th July 2014 he pleaded guilty to one count of fraud (and one count of money laundering that related to hiding the proceeds of the fraud). Sentence has been adjourned until 15th September.

 

Facts

Mr Copeland was organising collections on behalf of the charity ‘Help for Heroes’ all over the UK. He was registered with them, and did in fact gives tens of thousands of pounds to them that he had collected.

However, he also kept about £300,000 for himself over an 18 month period, paying this into his own bank account. It is not clear how this came to light, but by his plea of guilty he accepted that this was the case.

It is not clear at what point of the proceedings Mr Copeland pleaded guilty, but it seems that there was some discussion as to the amount stolen and a plea was entered once the prosecution had agreed the total amount stolen.

 

What will he get?

There are two guidelines to look at – the Theft Guidelines and the Fraud Guidelines.

Looking at the Theft ones, this is theft in a high breach of trust (p11) and is right at the top of that bracket, giving a sentence of about 5-6 years after a trial.

With the Fraud guidelines, it’s probably best described as a confidence fraud. We’d say it was in the top bracket, which gives a starting point of 5 years after a trial.

So, pretty similar whichever way you look at it. Stealing from a charity doesn’t go down well at all (for pretty obvious reasons), and we’d say the Judge will probably start with 6 years (if not a little bit more) before giving whatever credit is appropriate. On the basis that this was a plea at the earliest opportunity, we’ll plump for a sentence of 4½ years.

 

What was he released on bail?

Having pleaded guilty to an offence for which he is almost certainly going to go to prison for, some might find it surprising that he wasn’t locked up there and then. Twenty or so years ago, he probably would have done, not least because some judges would have seen it as a kindness (the time spent on remand would count towards the sentence) and to spare the defendant a month or so in a state of having their liberty, but knowing that they are about to lose it.

Times have changed a bit and the Judge has to look at the Bail Act to see if there are reasons for the defendant to be remanded.

In this case, Mr Castelford appears to be a man of good character, and there is no reason to suggest that he won’t come to Court. After all, he turned up today knowing that he was pleading guilty.

Some defendants would actually ask to be remanded to start their sentence, some prefer to have time to put everything in order.

In this case, the fact that it has gone off until September indicates that more than just the usual pre-sentence report is needed. Probably a medical report, but we don’t know.

Either way, even if there’s something exceptional in the reports, we’d expect a pretty lengthy prison when he is back in six weeks time. We will return and look at it then.

What happens if a Judge falls asleep in a trial?

On one occasion, researchers reported that jurors commented on the judge's 'loud snoring'

Introduction

There were news reports in July 2014 that a child sex trial had to be abandoned because the Judge fell asleep. How common is this, and much of a problem is it?

In this case, the jury were discharged and there will have to be a re-trial, which causes obvious difficulties for all concerned.

We should say at this stage that the facts aren’t clear and, most importantly, it is not clear if the Judge was actually asleep or not. The Judicial Conduct Investigation Office will consider the matter and issue a report in due course.

 

Does a sleeping judge make a conviction unsafe?

You’d think that the answer would be ‘yes’, or even more along the lines of ‘hell, yes – obviously’. But you’d be wrong. It will be no surprise that this is not the first time this has happened.

The Guardian has a background piece from a few years ago which is worth reading, but what does the law say?

The case of Betson [2004] EWCA Crim 254, better known as the Millennium Dome Diamond Robbery, featured a sleeping Judge. The Court of Appeal stated at para 47 “no judge ought, in any circumstances, to fall asleep during any stage of a criminal trial“.

That is, perhaps, a pretty uncontentious statement.  However, it wasn’t the end of the matter – “because a judge falls asleep or, for any other reason, allows his or her attention to wander, it does not necessarily follow that the trial is unfair, or that any ensuing conviction is unsafe. It is the effect, not the fact, of such inattention which is crucial“.

The Court then went on to give two examples that fell either side of the line : “First, if a judge is inattentive, however briefly, during a defendant’s evidence in chief and, in consequence, fails to register and, in due course, sum up to the jury, a piece of evidence crucial to the defence, the conviction may be regarded as unsafe. The unsafety arises not because the judge slept or was otherwise inattentive but because, in consequence, the summing-up was defective in that the defence was not properly put before the jury.

Conversely, a conviction is unlikely to be regarded as unsafe if, during a lengthy trial, a judge is inattentive, even for substantial periods, if, in consequence, he missed no significant point meriting inclusion in his summing-up and did not fail properly to control the admissibility of evidence, the conduct of counsel or some other aspect of the proceedings“.

In that case, the Judge was asleep for part of the speeches and some of the evidence. The Court concluded that in the circumstances of that case the conviction was not unsafe.

This was confirmed the next year in a case called Ottley.

 

What about a sleeping juror?

Again, it’s probably a question of what was missed, although  it’s unlikely that the Court of Appeal will intervene. In Tomar [1997] CLR 682, the Court had no difficulty in dismissing the appeal against conviction on the basis that one juror was asleep for some of the proceedings. A similar result was achieved in Barnes [2008] EWCA Crim 2726.

In both of those cases, the Court came up with a novel argument, In the first, the fact that there were other jurors who were paying attention makes up for any difficulty and, in the second, the fact that the tired juror missed the cross-examination of the defendant means that any prejudice was felt by the Prosecution.

 

Conclusion

Judges or jurors sleeping are not to be encouraged, clearly. However, if the trial continues to a verdict, then it is unlikely that any conviction will be safe.

In this case, the jury were discharged. It is clearly an issue that the whole trial will have to be re-run. It is understood that the complainant had completed their evidence, and so it is doubly unfortunate that they will have to give their evidence again.

 

 

David Ruffley cautioned for common assault – what does that mean?

From Conservative Home

From Conservative Home

Introduction

David Ruffley, the MP for Bury St Edmunds, is in the news at the moment for all the wrong sort of reasons. On 16th March 2014 he received a police caution for a common assault on his (then) partner.

Since then, he has stated that the “incident was dealt with by the police and I accepted responsibility for my actions at the time. I regret this matter in its entirety and the position in which I put my former partner and I now ask that her privacy be respected.

 

What is a caution?

We have a factsheet on what police cautions are, which sets it out in more detail. It is important to note that this required there to be a prima facie case of assault and that Mr Ruffley had made an admission to the police of his guilty.

Further, it has to be determined that it is in the public interest to prosecute. In practice, the police will always hold that to be the case in domestic violence cases as they take it very seriously. This is a serious matter for him.

As was said in CaetanoAlthough sometimes referred to in terms of a slap on the wrist without serious consequences, that is not so. The declaration which anyone who accepts a caution has to sign makes that clear. Dr. Caetano’s position illustrates it. She is not yet certain of her future employment. She may wish to work in the United States or Australia. She has to attend conferences all over the world. A caution for ‘assault by beating’ could be a serious impediment both to travel and work”.

Having said that, it is surprising (to us at least) that Mr Ruffley was cautioned. The CPS Policy on Prosecuting Domestic Violence states “In cases of domestic violence, if the evidential stage is passed and the victim is willing to give evidence, we will almost always prosecute, even if, for example, the injury was minor or the parties have reconciled. Police guidance states that cautions by police officers are rarely appropriate in domestic violence cases“.

Given that Mr Ruffley was a high profile individual, we would have thought that the police would have erred on the side of caution and Mr Ruffley would have been charged.

 

Can he still be an MP?

There are petitions calling for him to resign as an MP. However, a police caution is no impediment to him continuing until the next election, at which point (if he is still maintained by the Conservative Association as the candidate) it will be up to his constituents to hire him or fire him.

The law is contained in s1 Representation of the People Act 1981. Mr Ruffley is not required to resign from the House of Commons and is not barred from seeking election again.

s1 states :

A person found guilty of one or more offences (whether before or after the passing of this Act and whether in the United Kingdom or elsewhere), and sentenced or ordered to be imprisoned or detained indefinitely or for more than one year, shall be disqualified for membership of the House of Commons while detained anywhere in the British Islands or the Republic of Ireland in pursuance of the sentence or order or while unlawfully at large at a time when he would otherwise be so detained.

So, anyone who is in prison and serving more than 12 months cannot stand for election. If a sitting MP gets more than 12 months, then by virtue of s2 their seat will be vacated and a by-election called (there are also exemptions for people who are convicted of electoral offences).

It is clear that there is no legal impediment to Mr Ruffley remaining as the representative of the good folk of Suffolk.

 

Should he stay as an MP?

That’s a different question.

There are actually good reasons why a criminal conviction shouldn’t bar anyone from standing for Parliament. It’s a democracy and it’s up to the voters who they want. Also, 1 in 5 people in the UK have a criminal record, and that should not, of itself, preclude them from being a Parliamentarian.

If there was a recall mechanism, then it may be that this would be triggered and the voters would decide. As stated, it’s the voters that should call the shots on this one.

 

 

Jayden Parkinson – minimum 20 years for Ben Blakeley

Photo from the BBC

Photo from the BBC

Introduction 

On 25th July 2014, Ben Blakeley was found guilty of the murder of Jayden Parkinson, his former partner. His brother, Jake Blakely has admitted perverting the course of justice and had stood trial for preventing the lawful burial of Ms Parkinson. The jury could not agree on this charge, and it seems that there will not be a re-trial.

 

Facts

Mr Blakely and Ms Parkinson had been in a relationship that was marked by violence and jealousy on his part. This was ended on 21st November 2013 by Ms Parkinson. She later found out that she was pregnant with Mr Blakely’s child and agreed to meet up to explain this to him and offer access to the child. Mr Blakely threatened to put naked videos and pictures of Ms Parkinson on the internet. This was reported to the police on 27th November.

There was a further meeting on 3rd December from which Ms Parkinson did not return.

Mr Blakely strangled her and disposed of her body, firstly in a ditch near where she was killed, and then later in his uncle’s grave (this was with the assistance of Jake) where it was found two weeks later.

 

Sentence

The sentencing remarks were put up on the internet commendably quickly, and are well worth the read. I’m biased (from my appearances in front of him), but HHJ Eccles is an excellent, thorough and very fair minded Judge, and his sentencing remarks are typically clear and precise.

The headline figure is that the minimum term that was set was 20 years. The only sentence that can be passed is life imprisonment, but the calculation of the tariff is a complicated business.

The Judge took a starting point of 15 years. There were two aggravating features identified. Firstly, Mr Blakeley’s previous violence towards Ms Parkinson and secondly, the way that he tried to dispose of her body, and the repeated lies to the police.

The Judge determined that this merited an increase of 7 years.

In mitigation, the Judge felt that the offence was not premeditated, and there was no intention to kill. Also, Mr Blakeley had written a letter of remorse from prison and it seemed that there is an indication that there was an acknowledgement that he had done wrong (this is seen as well in that he accepted that he was guilty of manslaughter and the trial issue was only in relation to his intention). Lastly, Mr Blakeley was still young, and had suffered various abuses in his childhood.

This merited a reduction of 2 years, balancing this out gave the tariff of 20 years.

 

Comment

The murder of Ms Parkinson was a horrible one, but the Goldilocks question – is 20 years too long, not long enough, or about right?

Firstly. It’s pretty unlikely that the Court will interfere. The Judge heard the case and was best placed to form a view.

A couple of points spring to mind – the previous violence was raised in Court, but as it does not appear to have been the subject of a charge at any time, as a matter of principle it is not clear if it is appropriate to increase the tariff because of unproved allegations.

Secondly, we would have thought that a slightly larger discount would have been given for the mitigating factors, especially the fact that there was an admission of responsibility for the murder.

Putting those two together, we would have expected a tariff of 17-18 years, rather than the 20 years that was passed. But, as stated, we don’t think that he will get anywhere with an appeal on this one.

A cautionary tale – teenage couple cautioned for sexting

Image from the BBC

Image from the BBC

On 22 July 2014, it came to our attention that a teenager in Nottinghamshire had been given a caution for sexting.

What happened?

It appears that the young girl took a picture of her breasts on her mobile phone and sent them via a text message to her then boyfriend. Nothing wrong with that you might think. After the couple had an argument and the relationship ended, he sent the picture to some of his friends. The police became involved and both were cautioned. More details are available here.

The offence(s)

News reports are pretty sketchy about the offence but it would appear to be under one of the following sections:

  1. Protection of Children Act 1978 s 1 (making, taking or permitting taking, distributing or showing indecent photographs)
  2. Criminal Justice Act 1988 s 160 (possession of indecent photographs)
  3. Coroners and Justice Act 2009 s 62 (possession of prohibited images of children)

Let’s re-wind. Both have been cautioned – but why?

Well, the legislation set out above prohibits the making, taking, distributing and possession of indecent images of children. But how are this couple caught by the legislation?

The need for caution – but not a caution

As is set out below, the law as it stands is deeply unsatisfactory. There is certainly a need for caution…

What is ‘indecent’ ? 

The test for indecency is for the jury to decide based on what is the recognized standard of propriety. The circumstances and motive of the defendant are not relevant to the question of indecency, although they may be relevant to the question of whether the photograph was deliberately taken.

What if they are above the age of consent?

Well the news reports we have seen are silent on this fact, but unfortunately for the couple, even if they are above the age of consent, that doesn’t preclude the offence being made out – the definition of a child was altered in 2003 from someone under 16 to someone under 18. Therefore, two 17 year olds, in a loving relationship, sending intimate pictures of themselves to one another are committing an offence. Bizarre, huh?

Are there any defences?

Well yes, but they are not helpful in this context. Under the 1978 Act, there is a defence if the couple are married and living together (unlikely, you might think, for school-age children in a relationship). There is a similar defence for the offence under the 1988 Act. There are other defences which aren’t relevant here.

Summary

So, the law, as it stands, criminalises the sending of intimate images of those under 18, even where they are sent between two people in a relationship. Was that the purpose of the act? We can safely say that it was not. Granted, there are some child protection issues which arise, such as the need to protect children from themselves in the context of sexual activity whilst under the age of consent. However, those legitimate concerns do no justify the bizarre choice to include 16 and 17 year old people in a sexual relationship wishing to take, send and share sexual images of themselves.

Back to the case…

In respect of these two teenagers, it would appear the police became involved due to the young man deciding to share the image among his friends – clearly an unwise move and a spiteful thing to do.

CPS policy

CPS policy is “The decision by the police to administer a caution will ordinarily be made in conjunction with the CPS.”

“The prosecutor before offering a caution must apply his or her mind to the public interest factors. Every case should be decided upon its own facts.”

Comment

In relation to the cautions issued to the two individuals, one wonders whether anyone stopped and asked themselves whether this was an appropriate course of action to take; whether this was in the public interest; or even whether there was an offence committed (can you share an indecent image of yourself?).

There are two broad points to make. The first is about the law prohibiting the possession etc. of indecent images of children. It has been developed and amended in a piecemeal fashion, with new offences created which overlap with existing offences. Is it not time to scrap the old law and re-issue the legislation in a codified, more sensible fashion? It is firm view of mine that prosecutorial discretion (though necessary in certain circumstances) can be a dangerous thing. It is far better for the law to be sufficiently certain, clearly drafted and readily understood so that it criminalise that which ought to be criminal, and clearly leaves outside of its boundaries conduct which Parliament does not intend to be an offence. That way there can be no (or at least limited) grey areas.

The second point relates to the inappropriate use of cautions. We have written about this on the blog and spoken about it on the podcast; cautions can be a valuable tool. They can also be misused at both ends of the spectrum; a caution for rape is inappropriate, as is a caution where the individual fears a prosecution an accepts a caution without advice – perhaps they havent committed an offence at all.

This case raises some important issues for the criminal law to face up to, because currently, the situation is unsatisfactory.

Ian Watkins – Appeal against sentence dismissed

Photo from The Mirror

Introduction

We have covered the case of Ian Watkins before and mentioned that, as expected, he was appealing his sentence.

This was heard on 23rd July 2014 where the Court dismissed the appeal.

For our background pieces, see :

Appeal Ruling

At the moment, we don’t have the judgment, just the news reports. We know that the Court said that the offences were “of such shocking depravity that they demanded a lengthy prison sentence“.

That much is clear, for anyone who has read the facts of the case. The question is whether the sentence was still too long, despite the horrific nature of the offences. We will hold fire on that until there’s more details in the public domain ….

Ian Watkins back in Court on 23rd July for appeal against sentence

Photo from the Independent

Photo from the Independent

Introduction

We have covered the case of Lost Prophets singer Ian Watkins previously on the blog. When he was sentenced, we said that it was a very, very high sentence and permission to appeal was likely to be granted. On that basis, it wasn’t a surprise when The Independent reported on 16th July 2014 that he has been given permission to appeal.

The full appeal hearing is next Wednesday, 23rd July 2014.

Here’s some of our previous pieces on the case:

 

What will happen?

The hearing will be a full appeal against sentence we understand. The Judges will have the papers, so anyone sitting in Court to watch it may well be a bit confused as they won’t have all that information.

It probably won’t actually last that long – maybe half an hour. A cynic would say that the Judges will have come to their conclusion, and even written their judgment, in advance.

There has been a move recently to have more hearings out of London, and to create a legal hub in Cardiff to represent Wales. There is a ‘Civil and Family Justice Centre’ there that can hear many cases.

Because of the need for a secure dock for Mr Watkins, this appeal will actually be heard in the Crown Court at Cardiff, even though it will be sitting for the day as the Court of Appeal.

As to the outcome? Difficult to say. Having to serve at least 19 years is one of the highest sentences ever handed out for this sort of offending. Having said that, this was a particularly horrific set of offences, and an extremely lengthy sentence was in order.

I imagine that there will be two strands to the appeal. Firstly, that an extended sentenced was not necessary. This is unlikely to get anywhere due to the nature of the offending.

Where Mr Watkins is on stronger ground is the argument that the sentence was just too long. When an extended sentence is passed, the usual need in sexual offences sentencing for public safety doesn’t apply. In light of that, I would imagine a total sentence of 30 years, with 24 years plus an extension of 6 years would have been more appropriate.

But, we’ll certainly have a look at this next week.