Ministry-of-Justice-006

The Criminal Justice and Courts Bill and MoJ misinformation

The Criminal Justice and Courts Bill is currently making its way through Parliament, containing, among other things, amendments to sentencing legislation. Thanks to David Allen Green (@JackofKent), @JoshuaRozenberg and others – who over the weekend were discussing the “non-news story” that was the plans to increase the maximum sentence for offences committed by internet trolls (s.1 Malicious Comms Act 1988) from 6 months to 2 years – I had cause to read an MoJ press release about the Bill…

Ending automatic early release

What is likely to become section 4 of the Act when enacted makes provision for ending automatic early release for those serving extended sentences.

An extended sentence is one which includes a custodial part and a licence part. The licence part is designed to deal with the risk posed by the offender, whereas the custodial part is designed (predominantly) to satisfy the punitive aspect of the sentence. An extended sentence can only be imposed where the court has found the offender to be ‘dangerous’ – that is that they pose ‘a significant risk of serious harm to members of the public’.

There are currently two types of extended sentence, for the purposes of determining release. The first, is where the custodial period of the sentence is 10 years or more and the offender has a previous conviction for a Schedule 15B offence (this includes things such as manslaughter, s.18 GBH and rape). In those circumstances, release is discretionary at the 2/3 point, and the offender has to apply to the parole board. If the parole board consider that the offender is safe to release, the offender is released on licence (to serve the remained of the custodial period on licence, and then the period of extended licence on top of that). If the parole board do not consider that the offender is safe to release, the offender is not released and is liable to automatic release at the expiry of the custodial term, at which point he or she will be released to serve their extended licence.

The second type of extended sentence for the purposes of release is cases which do not fall into the first type (which is most of them). In such cases, the offender is automatically released at the 2/3 point and the parole board do not get the opportunity to consider the offender’s case. The offender is released to serve the remainder of the custodial period on licence, and then the extended licence on top of that.

The provisions contained in the Bill will change that. Automatic early release will end, and so all offenders serving an extended sentence, of any length, irrespective of whether they have a previous conviction for a Schedule 15B offence, will have to go before the parole board.

Wasted money and misinformation

Where to start? Well firstly, the extended sentence legislation was brought in by the current government, with the current Sec of State for Justice at the helm, in December 2012.

The MoJ brought in legislation which repealed the IPP (Imprisonment for Public Protection) sentence (an IPP sentence was very close to a life sentence as an offender receiving such a sentence was given a minimum term of custody which had to be served before an application to the parole board could be made for their release; this meant that an offender receiving an IPP sentence may never be released, and could only be released if the parole board deemed it safe to do so). This repeal left a gap in the sentencing powers for dangerous offenders, as the only options were an extended sentence or a life sentence. In December 2012, I predicted this would result in more life sentences. In 2013, the Court of Appeal made the same comment. 

In October 2014, Minister of State for Justice Lord Faulks QC made a speech at the Criminal Justice Management Conference, during which he said:

The government is tackling automatic early release. It cannot be right that serious sex offenders and terrorists may serve only half their sentence in prison and – regardless of how they have progressed with their rehabilitation – are then released automatically midway through their sentence.

The Bill therefore introduces measures to end automatic early release for anyone given an extended determinate sentence, or sentenced to standard determinate custody for the rape of a child or for serious terrorism offences. No such offenders will be released before the end of their custodial term, unless the Parole Board judges that they no longer pose a risk of serious harm to the public.

The effect is to require the parole board to assess every single extended sentence prisoner at the 2/3 point of their sentence to determine whether they ought to be released. If release is not granted, the offender will be released at the expiry of the custodial term. (Interestingly, if we compare this to the previous extended sentences under the 2003 Act, release was granted at the half way point, so in a little under 3 years, the practical effect of receiving an extended sentence will have potentially doubled. Take the following example of a 6 year extended sentence with 1 year licence:

2003 extended sentence: automatic release after 3 years: 3 years on licence + 1 year extended licence

2012 extended sentence: automatic release after 4 years: 2 years on licence + 1 year extended licence

2014 (?) extended sentence: possible release at 4 and automatic release at 6 years (with balance of custody spent on licence) + 1 year extended licence.

So some 18 months after the MoJ introduced this legislation, it amends it, to plug the gap left by the legislation they repealed. Not only is this a waste of money (because, had they conducted their research properly in the first place this change could have been implemented by one piece of primary legislation rather than two (at god only knows what cost) but the MoJ then conveniently omit from their press release the fact that they are making a significant amendment to a piece of legislation they brought in to force only 18 months ago.

Terrorism and sexual offences

The Bill also includes a provision to end automatic release for “offenders of particular concern” – that is someone who has committed an offence listed in Schedule 18A when aged 18+.Where a court imposes a determinate sentence (i.e. not a life sentence or extended sentence, because the offender is ‘dangerous’) for an offence listed in Schedule 18A (e.g. rape of a child under 13 or possessing an article for terrorist purposes), then the offender will have to apply to the parole board upon reaching the half way point in his or her sentence before they can be released. Again, the parole board will only release the prisoner if it is safe to do so. This is notwithstanding that the court has not found the offender to be ‘dangerous’ and therefore not imposed a sentence which requires the parole board to assess the safety of release. Is this purely political? If the government considers that the current dangerousness test is adequate, and that judges are applying it correctly (which we must assume, as there are no amendments to it in the Bill – ideal time to make any), then it must expect the parole board to grant release to all of the offenders caught by this change. What as waste of time and money for the parole board; but you can’t put a price on good political capital, and everyone dislikes terrorists and child rapists.

One truly wonders who is responsible for such errant law-making…

This post was sponsored by Tranter Cleere Solicitors.

Tranter

 

Photos from the BBC

Robert Cerqua – life imprisonment for murdering his twin

Introduction

We looked yesterday, 20th October 2014, at the case of Robert Cerqua who was convicted of the murder of his twin bother last New Years Eve. The case was adjourned overnight and on 21st October, Robert was sentenced to life imprisonment.

This is a mandatory sentence, the question being how long the tariff should be. We found out a little bit more about Robert’s background – he “had served previous prison sentences for offences of battery and affray relating to domestic incidents involving his former partners. He also had previous convictions for motoring offences and criminal damage“.

We predicted that the tariff would be in the region of 13-14 years. How did we do? The sentencing remarks haven’t been published yet, but from the news reports, the tariff was actually set at 13 years, so pretty much what we expected. It is, in the circumstances of sentencing for murder, a (relatively) humane way of bringing this tragic case to a close.

 

_78406735_kitchenwherechristophercerquawasstabbed

Photo from the Essex Chronicle

Danielle Watson admits fraudulently claiming to have cancer to pay for wedding

Introduction

Weddings nowadays can be ruinously expensive. Saying ‘I do’ to the one you love can easily set you back a five figure sum (and then sum). Not surprising then, that in an age of austerity people have to be a bit creative.

Back in early 2012, blushing bride to be Danielle Watson (aged 24) hit on an alternative method of crowdsourcing the funding for her wedding – pretending that “she had stage four cervical cancer and had brought her wedding forward to April, so that it would take place before radiotherapy and chemotherapy made her hair fall out“.

The good folk of Colchester responded admirably to this – “she got free or discounted deals on haircuts, a wedding dress, a wedding reception at the Ivory Rooms in Billericay and, at fundraising events, she raised almost £10,000 towards “vitamin C treatment”“.

It turned out that she had never had cancer or any treatment for cancer, as she admitted on the 20th October 2014 on the first day of her trial for six counts of fraud relating to this.

The case has been adjourned to sentence to the 9th January 2015. It’s not clear why such a long period of time – this would usually indicate the need for medical reports to be obtained.

 

What will she get?

The starting point are the Sentencing Guidelines for Fraud (hot off the press from 1st October this year). Follow the link and go to page 6.

It is still early days of these, but we’d suggest that it is ‘High Culpability’ (which is Culpability A)on the basis of the blatant fraud, the number of victims and the circumstances are such that it is akin to having vulnerable victims and/or an abuse of trust.

On the basis of of the amount obtained (or intended to be obtained) being over the £10,000 the harm is bang in the middle of Category 4. There will be a small amount (about 10%) credit for the plea of guilty.

This gives a starting point of 18 months, with a range of 6 months to 3 years. It is difficult to know what she will get. One view would be that this is a really serious offence as it is such a cold and calculating offence that preys on people’s generosity. This would lead to a sentence of about 18-24 months.

The other view is that this is someone who has never been in trouble before (which would appear to be the case) and this is something that escalated and got out of hand. This would give a sentence of about 12-18 months, but suspended.

We don’t know which of those two broad scenarios this case would fall into it. We’ll be back in January to have a look though.

Photo from the BBC

Garron Helm jailed for an anti-semitic tweet

Introduction

The day after the newspapers picked up the story from many months ago that errant tweeters would be sent to prison for two years, another social media prosecution hits the headlines.

On 20th October 2014 Garron Helm (described as having links to an ‘extremist right wing group’) was sent to prison for 4 weeks for sending an anti-semitic tweet to Luciana Berger the MP for Liverpool Waverley.

The prosecution was probably under the Malicious Communications Act 1988 which requires the tweet to have been grossly offensive.

 

What was said?

One of the most frustrating things about these cases is that the news outlets never report exactly what is said. Sometimes this is understandable, but it would be useful for there to be some indication at least as to why we are paying for people to be prosecuted and imprisoned.

Here, the BBC were less than clear. The Liverpool Echo however, had more detail. It seems that there was a photo “which showed a Holocaust-era star on the MP’s head with the hashtag ‘Hitler was right’. Additionally, “The tweet then called the MP a “communist Jewess” and read: “You can always trust a Jew to show their true colours eventually.

Ms Berger stated that she was (understandably) ‘deeply shocked’ by the tweet. The Judge said that the offence was racially aggravated (again, perhaps understandably).

 

What was the sentence?

The Judge would have been guided by the Magistrates’ Court Sentencing Guidelines. The best place to start would be at page 42. Based on the sentence, it would fall in the category of – “Single call where extreme language used and substantial distress or fear caused to receiver“.

Additionally, the surcharge was imposed in the sum of £80. Incidentally, we think that this may have been wrong. This is because the offence was committed on 7th August 2014, which is before the law changed so that someone sent to prison by the Magistrates’ Court could get a surcharge imposed – see here for more details of this.

 

Why is it a criminal offence?

The CPS have their own guidelines as to when people should be prosecuted for ‘social media’ offences.

This clearly does not fall into the first 3 categories, so it then comes down to an assessment of whether this should be prosecuted in all the circumstances of the case.

It is a difficult one. The tweet is clearly a vile and racist one, and is illegal under the law. However, it is a different question whether a prosecution is compatible with Art 10 and the CPS policy. Whether a prosecution should have followed in this case is less clear cut. I would suggest that whilst it is not clear cut, especially when considering there is only one tweet, this should not have been prosecuted (with the caveat that there may well be other matters that we are not aware of).

One consequence of making these sorts of offences either way is that people can then have trial by jury. Whilst it may mean higher penalties, it also means that people who are concerned about freedom of speech have the protection of a jury – and in the end who better to decided what is and isn’t acceptable but a jury? It also means that the CPS will have to think a bit more carefully before prosecuting people, which can only be a good thing.

Photo from the BBC

Robert Cerqua guilty of murdering his twin

Introduction

On New Years Eve 2013,  Robert Cerqua was at the family home in Hythe in Hampshire with his twin brother Nicholas and other members of his family. After alcohol had been consumed, Robert and Nicholas had an argument.

The prosecutor told Winchester Crown Court that “That argument appears to have turned into a tussle, punches may have been exchanged, at some point this defendant picked up a kitchen knife and he used it to stab his brother Christopher.”

Robert accepted killing his brother, but said that it was done in self-defence after his brother had threatened him with a knife. On 20th October 2014 the jury in his trial found Robert guilty by a majority of 10-2. He will be sentenced tomorrow.

 

What sentence will he get?

The only sentence that can be passed is one of life imprisonment. The issue for the Judge will be how the tariff – the minimum period of time before Robert can be considered for release, will be.

Our fact sheet sets out how the Judge will set about that task. Here, the starting point will be 15 years. There was a trial, so there can be no credit for a guilty plea. We would, however, expect a tariff of under 15 years in any event.

The reason for this is that it would appear that this was a moment (or couple of moments) of anger from Robert. In those circumstances, it may well be that the Judge will feel that this is the sort of case where a bit of mercy can be shown (relatively speaking), and reduce the tariff to somewhere in the region of 13-14 years.

If it was a drunken argument, then it may be that the Judge sees this as an unpremeditated act, where there was no intention to kill (but to cause really serious harm), and real remorse was shown afterwards. None of the aggravating features appear to be present, and therefore whilst the 15 years is a starting point, it may be that that will be reduced. The fact that the victim is his twin brother may well be seen as a mitigating feature to some extent.

 

We’ll come back tomorrow to see …

Photo from the BBC

Mark Dyson sentenced for killing his wife

 

Introduction

On 29th April 2014 Mark Dyson, then aged 55, returned to his home in Adlington which he shared with his wife Carole (aged 53), and strangled her. In the next few days, concerns were raised about her safety and her body was found when Police attended her address.

Facts

The BBC report is short to the point of terseness. The reporting is a bit fuller in the Lancashire Evening Post.

It seems that Mr “Dyson had suffered from depression and post-traumatic stress disorder caused by the premature death of the couple’s 15-year-old daughter and also a rare condition which caused him to believe he was in constant pain”.

Mrs Dyson appears to have been his carer. There was a history of Mr Dyson being violent and abusive, but not for ‘many years’.

The cause of the murder appears to have been “when his wife refused to wait for him to get up when the couple were due to go out. He strangled her with his bare hands and then possibly smothered her with a pillow.

He then walked to nearby Chorley Hospital and told staff “something terrible” had happened. He said he had been in pain for some time and his wife had been “nasty” to him”.

Sentence

The only sentence available was the mandatory sentence of life imprisonment. The question for the Judge was how long the tariff, the minimum period of time that Mr Dyson should serve before he can be considered for release, should be.

In this case, there do not appear to be any of the aggravating features. The only mitigating feature that is apparent is Mr Dyson’s mental health. For that reason, we would expect that the Judge would have taken the starting point of 15 years and reduced it by a little bit to reflect that. This would give a tariff of 14 years or so.

So far, so good. However, Mr Dyson pleaded guilty. It was not at the first available opportunity, but he did accept his responsibility for the homicide of his wife straight away. In light of that, he should receive a fair amount of credit.

The maximum credit for murder is 1/6th (rather than the usual 1/3rd) up to a maximum of 5 years. It is an interesting question whether the reduction in credit in cases like Mr Dyson should start at a third or not.

Assuming that it doesn’t, there should still have been a reduction in the region of about two years. For that reason, the 14-year tariff is longer than we would have thought. Whether the Court of Appeal will interfere with it is a different matter. Firstly, there may well be matters not in the news reports that we are not aware of. Secondly, as the Courts are fond of saying, “sentencing is an art, not a science”.

Nevertheless, we would expect that Mr Dyson will try to appeal the sentence. We’ll keep you up to date.

 

_74580984_74580983

Image from Facebook/Daily Star

10 months for assaulting police officer and bragging about it on Facebook

On 10 October, the Daily Star reported that Suzanne Porter had been sentenced for “punching cop’s teeth out then gloating on Facebook”. So what’s the story?

Facts

Well, it appears that Porter and her friends had been drinking at a pub in Clitheroe, Lancashire. The police had been called due to the group becoming rowdy. When the police arrived, Porter was barefoot and drunk. Porter and her group were asked to leave the pub, however it appears that they had to be spoken to again by the police because their disruptive behaviour continued.

Subsequently, officers found Porter in the middle of the road whereupon she lifted up her dress revealing her buttocks. PC Pitcher followed Porter in a police van and challenged her about her having urinated in the street and revealing her buttocks to police officers.

Porter reportedly replied :”Oh, did I?” and the officers began to make arrests.

PC Pitcher first began to detain Porter before deciding to assist colleagues in arresting Porter’s brother who was also drunk and was struggling with officers and threatening them with Porter’s stiletto shoes. When PC Pitcher went back to arrest Porter, Porter punched her in the face, knocking off her glasses and causing to stumble and fall to the floor. Porter ran off but was subsequently arrested and found to have PC Pitcher’s blood on her dress.

Injuries

PC Pitcher suffered distortion of the cartilage in her nose, a broken front tooth and three others were caused to become loose. She could not work for four weeks and needed to be accompanied by a colleague on her return due to the impact on her confidence.

Offence

Porter pleaded guilty to assault occasioning actual bodily harm under s.47 of the Offences against the Person Act 1861. The maximum sentence is 5 years’ imprisonment.

The offence could have been charged as s.89 of the Police Act 1996 (assault on a constable in execution of his duty), however that carries a maximum of 6 months’ imprisonment and the injuries in this case clearly warrant a more severe penalty than that. It is presumed, for that reason, that the decision was taken to charge the more serious offence under s.47.

Previous convictions

The Star reported that she “had a previous conviction for violence and intimidation”. The details are unknown but they are very likely to have been considered to have aggravated the seriousness of the offence.

Facebook

Porter apologised to the police but it transpired that she had posted a picture of her blood-stained dress on the social media site, Facebook, with the caption “Ruined”. One of Porter’s friends commented: “All she will want for Christmas is her two front teeth” and Porter replied: “Ha, ha.” Porter also reportedly posted an image of a broken tooth on her Facebook page.

At the sentencing hearing at Burnley Crown Court, the prosecution said that this conduct added to the victim’s distress.

Sentencing remarks

We don’t have the sentencing remarks as they have not (yet) been published. The Star reported that the Judge said: “The victim was particularly vulnerable in the circumstances. You targeted her.” This would have been considered to be an aggravated factor.

Sentence

Reference would have been made to the Assault guideline (see page 12). Taking account of the judge’s remarks as to the vulnerability of the victim and that she was targeted, it seems the judge took the view that this offence involved greater harm (vulnerability of the victim, see page 13) and higher culpability (targeting of the victim, see page 13). That placed the offence into category 1 with a range of 1-3 years’ custody (which, on the information we have, appears to be a bit high).

The next step would have been to consider the aggravation and mitigation. It would have been an aggravating feature that the victim was an on-duty police officer, that Porter was drunk and that it was committed at night, after the police had told the group to leave the pub. Porter’s previous convictions are likely to have added to the seriousness. The effect upon the victim will also have been taken into account.

Additionally, it appears that the judge relied upon the Facebook evidence to demonstrate a lack of remorse and additional distress caused to the victim.

In mitigation, it is likely the judge would have taken into account that this was a single blow as opposed to a sustained assault. Further, although not mentioned in the news report, it is likely the defence would have submitted that the fact that Porter is a single mother and has a dependent child should have resulted in a shorter sentence or the sentence being suspended.

The judge appears to have taken a starting point of 15 months, and then (we presume) given full credit for the guilty plea, resulting in a sentence of 10 months’ imprisonment. It is likely that a victim surcharge would also have been imposed.

Porter’s brother Gary Place, pleaded guilty to using threatening, abusive or insulting words or behaviour and was fined £75, with £85 costs and a £20 victim surcharge.

Photo from the BBC

6 months apiece for pyramid fraudsters

Introduction

We looked last month at the case of the Pyramid fraudsters of South West England. As we explained then, this 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.

 

Sentences

The reporting restrictions were lifted after the final three women pleaded guilty on 18th September 2014. They were sentenced on 13th October 2014 as follows :

  • Mary Nash, 65 (charts co-ordinator) – 6 months
  • Susan Crane, 68 (committee secretary) – 6 months
  • Hazel Cameron, 54 (games coordinator) – 6 months, suspended for two years

 

Will there be an appeal?

As we said previously, 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.

We hope that there is an appeal, as it would be useful to have some guidance on how serious an offence this is.

How did we do?

We said “We would have thought that those who pleaded guilty yesterday should just about get a non custodial sentence.

So, not bang on, but one out of three isn’t too bad..?

Photo from the BBC

Tania Clarence pleads guilty to manslaughter of her three children

Introduction

On 22nd April 2014 Gary Clarence was with one his four children and other family in South Africa when the police informed him that his three other children had been found smothered to death, and his wife, Tania Clarence, had been arrested for their murder.

On 13th October 2014, Ms Clarence entered pleas of guilty to the manslaughter of the three children – twins Ben and Max aged 3, and Olivia, aged 4). The prosecution will not seek a trial on the charges of murder, and the matter was therefore adjourned for sentence.

 

Why manslaughter?

The three children all had type 2 spinal muscular atrophy (see here for the NHS fact sheet on it).  –  “killed her three-year-old twin sons Ben and Max and daughter Olivia, aged four, because she was depressed and wanted to end their suffering.

More details will no doubt emerge at the sentencing hearing, but “The prosecution said Mrs Clarence killed her three-year-old twin sons Ben and Max and daughter Olivia, aged four, because she was depressed and wanted to end their suffering.” Apparently, “Mrs Clarence could “see not hope for the future” and could no longer cope with caring for her children.”

We will get an fact sheet on murder/manslaughter up at some point (promise), but in this case the defendant stated that “This offending did occur whilst Mrs Clarence was suffering from an abnormality of the mind.

“She was manifesting stress throughout the life of the children by their suffering and caring for three children with this condition was exhausting, distressing, debilitating and turned out to be overwhelming.” After killing her children, Ms Clarence tried to kill herself.

The Prosecution would have accepted that there was an abnormality of mind that substantially diminished Ms Clarence’s capacity, and hence accepted the plea to manslaughter.

 

What will the sentence be?

Sentencing for manslaughter has the widest range for any criminal offence. Whilst sentences have been on the rise in recent years (in accordance with all offences), the sentence here will depend on the psychiatric evidence and whether it can be dealt with by a Hospital Order, or whether there will be some form of prison sentence.

It is an exceptionally difficult sentencing exercise for the Judge. Whilst there needs to be a recognition that three children died, clearly this is a hugely tragic event for all concerned. People often scoff, or get offended, when the term an ‘act of love’ is used when a mother or father kills their offspring, but it may be that it goes some way to explaining the circumstances (to the extent that it can ever be explained) behind the headlines.

Parents killing their children is obviously an incredibly rare event (though proportionately less rare) fortunately, and we would suggest that deterrence plays no part in the sentencing here.