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.

Adebowale receives permission to appeal against 45-year minimum term

rigby

From the Guardian

Michael Adebowale, one of two men convicted for the brutal murder of Lee Rigby in Woolwich in 2013, has been given permission to appeal against his sentence. In January 2014, he was sentenced to mandatory life imprisonment with a minimum term of 45 years. Our write-up of the sentencing hearing can be viewed here.

It is expected that he will appeal against the length of the minimum term only, as the life sentence is mandatory.

What’s the process? 

After being sentenced, a defendant has 28 days in which to lodge grounds of appeal against sentence. Once that period has expired, a defendant wanting to appeal would have to apply ‘out of time’ and provide reasons why the application is late.

Once grounds have been submitted, the case papers are prepared by the Criminal Appeal Office and placed before ‘the single judge’ – a high court judge who sits on his or her own (hence ‘single’) and reviews the case on the papers only.

The single judge then grants or refuses leave to appeal. Granting leave means a full oral hearing will follow.  Refusing leave gives the defendant one of two options: a) leave it there – the single judge has indicated that the grounds aren’t arguable, or b) renew the application for leave. This second option means that the defendant effectively ‘forces’ an oral hearing and applies once again for leave (permission to appeal) before the full court (in sentence cases this is either two or three judges).

In a renewed application, the court will consider the application for leave, and where they decide it ought to be granted, they can (but don’t have to) deal with the appeal there and then. If they refuse leave, they can make a direction for a loss of time which means any time spent in custody between applying for leave and the hearing does  not count against the sentence. In effect, it adds on some time to the sentence that has to be served.

Adebowale

Adebowale has received leave and so a full hearing will follow. As what ever the result, he will spend a very long time in prison, it is likely to take a good few months before it comes before the court. We will of course cover it when it does.

Robert Marshall fined for ‘setting friend alight’

BBC

BBC

Introduction

There was rather a dramatic headline on the BBC website on 15th July 2014 – “Man fined after setting friend alight in Great Yarmouth“. That seems a rather fortunate sentence for setting somebody on fire?

As always, the devil is in the detail …

 

Facts

According to the BBC, Mr Marshall was sitting at a bar when he flicked his lighter towards his friend – Sam Taylor. Unfortunately, his friend had, unbeknownst to Mr Marshall, been doused in aftershave (there’s not a whole lot to do in Great Yarmouth) and caught on fire. It was put out, but not before the friend had burns to his hand and body.

The Great Yarmouth Mercury tells a slightly different story – the group of lads “as a joke, had been splashing one another with it in a bid to scupper their chances with women.

The friends had then “flicked” a lighter towards anyone who had been splashed, which had caused no damage. But when Marshall “flashed” the lighter at his friend in Long John’s Bar on Yarmouth’s Britannia Pier the prank went “terribly wrong”, magistrates heard.

Alison Cotterill, prosecuting, said one of the group had “poured” the remainder of the aftershave over Mr Taylor – more than “just a few splashes”. She added: “Mr Marshall… gets out a cigarette lighter, ignites the flame and flashes it initially towards one of the others.

“Mr Marshall turns round and then goes over to Mr Taylor. He then equally lights the lighter to Mr Taylor’s shirt and it just goes up in flames, he’s engulfed.

 

Sentence

Mr Marshall was fined £710 with an order for £71 Victim Surcharge and £85 costs. It is quite a difficult sentencing exercise in the circumstances, but this seems fair enough.

 

Why is guilty of this?

Good question. The piece from the BBC leaves a bit of doubt – if this was a harmless prank, why is Mr Marshall guilty?

There needs to be a ‘hostile intent’ (see R v Lamb) – is flicking a lighter at someone demonstrating this? The answer is, probably, that Mr Marshall knew that Mr Taylor was covered in aftershave and was therefore reckless when waving the lighter around.

Another question is why is Mr Marshall not guilty of a more serious offence? After all, burns (even if only 7% burns) are pretty serious. Certainly Actual Bodily Harm you might think, even if not really serious harm?

It’s not clear. If he is guilty of Common Assault, he’s guilty of ABH and of inflicting the injury. We don’t have details of the injuries, but this may be an example of common sense in the charging decision by the CPS?

 

Was the BBC’s legal drama ‘Common’ a missed opportunity?

Common-BBC-cast

Did anyone watch Jimmy McGovern’s drama ‘Common’ on BBC1 last Sunday? I did, but not without serious reservations. I don’t really like TV legal dramas, particularly not the earnest, moralising ones: they tend to miss the subtle shades-of-grey ethical questions that real trials throw up, and the legal howlers in them are just too cringeable.

‘Common’ was not without mistakes. Defence counsel addressing a High Court Judge repeatedly as ‘Your Honour’ instead of ‘My Lord’ was the sort of clanger that, had it occurred in an actual court room, would have led to other counsel wanting to gnaw their wigs to ease the embarrassment.

But what put me off ‘Common’ in particular was its billing as an exploration of the legal concept of ‘joint enterprise’. To explain: since 1861 it has been the law that anyone who assists or encourages the commission of a crime can be tried just as if they had committed the crime themselves. Thus the gang-leader can be tried for the murder of a witness even though he only paid the hitman who ultimately pulled the trigger (‘encouragement’). The getaway driver can be tried for armed robbery even though he only waited outside while the rest of the gang carried the guns and grabbed the bank notes (‘assisting’). What do you do, though, when a suspect says: ‘I only thought my guy was going to beat the witness up’ or ‘I didn’t know the rest of my gang had guns’? It is when someone’s actions assist or encourage a crime, but they say they only intended a lesser offence to be committed, that the rules as to ‘joint enterprise’ come in.

And that is where, for me, ‘Common’ fell down. Because it proceeded on the basis that its protagonist, a likeable 17 year old called ‘Johnjo’, hadn’t intended that a crime be committed at all.

At the start of the programme Johnjo agrees to drive his mate Tony and others to a pizza shop where, unbeknown to him, they all plan to beat someone up. During the assault one of them, Kieran, fatally stabs a bystander. Johnjo then drives them away, still none the wiser as to what has transpired.

On the factual premise of the programme, therefore, Johnjo was not guilty of the murder, or the assault, because he had no inkling that either offence was going to be committed.

Despite that, the programme makers then used Johnjo’s predicament to include comments from various characters about how awful ‘joint enterprise’ was – but Johnjo’s case wasn’t about ‘joint enterprise’. Had a jury known all the facts and been directed about ‘joint enterprise’ correctly they would have returned a unanimous verdict of Not Guilty on him before trial counsel had blown the froth off their coffee.

The greatest shame is that it would have been so easy to rewrite the script in a way that would have highlighted the potential injustice that ‘joint enterprise’ does create.

The way to do that would have been to have written the drama from the point of view of Johnjo’s mate Tony. As I say, Tony, Kieran and others planned to beat someone up in the pizza shop. Had Tony known that Kieran was carrying a knife, and had Tony foreseen that during the assault Kieran might stab someone, intending to kill them or at least seriously injure them, then Tony would also have been guilty of the murder committed by Kieran – because Tony would have had the requisite degree of foresight and because the murder took place during Tony and Kieran’s illegal ‘joint enterprise’. That is how ‘joint enterprise’ works.

In order to be guilty of murder committed by your own hand you must intend to kill, or at least intend to inflict really serious injury. However, you can be guilty of a murder committed by an accomplice, but which you assisted or encouraged – provided you both intend to commit a crime – and you at least foresee the possibility that during that crime your accomplice might commit a murder with murderous intent.

In other words, you can be guilty of ‘joint enterprise’ murder without you yourself intending that anyone should be seriously hurt.

To what extent does such ‘joint enterprise’ liability constitute an injustice? Some might say that if you commit a crime with a homicidal maniac armed with a deadly weapon you deserve all you get. Others might say: you deserve to go to prison, certainly, but not to be convicted of murder.

But whatever the rights and wrongs, it is situations like the one I’ve just outlined, situations where people who richly deserve to spend, say three years in prison, are instead looking at sentences of, say, 20 years, that are exactly the kind of shades-of-grey moral questions that actually arise in our criminal justice system.

The sad thing is that those real-life situations are too subtle, too full of moral ambiguity, involving characters whose own repellent actions have put them too far beyond mainstream ethics, for them to be of any interest to TV dramatists.

Guest post, by David Allan, barrister.

Nadine Wilson-Ellis – disbarred after fraud conviction

Image from the Western Press

Image from the Western Press

Last year Nadine Wilson-Ellis, a barrister and law lecturer, was convicted of housing benefit fraud and sent to prison for 7 months. We didn’t actually say in that, that this would spell the end of her legal career, but confirmation of that was received on 8th July 2014 where the Bar Standards Board heard Ms Wilson-Ellis’s case and disbarred her (the highest sanction that they can impose).

This is not a surprise. Ms Wilson-Ellis hadn’t actually practised as a barrister, but will no longer be able to start her training if she had wanted to. This will not affect her work as a Law Lecturer as a matter of law, but the University may well have taken action against her.

Common – (Legal) Review of BBC Drama

Common-BBC-cast

Introduction

Jimmy McGovern is an absolutely cracking writer, as anyone who has seen his work can tell you. On Sunday 6th July 2014 he turned his hand to the controversial ‘joint enterprise’ law with a drama called ‘Common‘.

We have a factsheet on joint enterprise, which is a notoriously complex area of law, if you want a bit of background.

 

Plot

The drama opens as Johnjo borrows Patrick (his brother) car to drive a cousin, Tony, and two friends (Kieran and Colin) for a pizza, an ordinary night out for many people up and down the land, when Kieran stabs another boy – Thomas Ward. Johnjo drives them away as he and the others realise what has happened, and that Thomas was not going to live.

We then switch to the family of Thomas, who have to deal with their loss. But he (and his family) is not the only victim of the events of the night – Johnjo and his family are about to be ripped apart as well. He is a decent lad, and wants to go to the police to give his side to the story before the police come to him (good advice), but is warned about grassing,

He then finds out from his cousin that the other three were going to the pizza place with the aim of ‘sorting out’ (but not killing) someone. This wasn’t the one who was killed, but a different one. Kieran, one of the four, had a knife and stabbed Thomas.

It doesn’t take a great deal of detective work before the police begin to crack the case. CCTV shows that it was Patrick’s car and he is arrested. His alibi checks out and is quickly released, but he now knows that Johnjo was involved somewhere along the line and this blows up.

Johnjo’s Mum gives the worst advice imaginable – you’ve done nothing wrong so you don’t need a lawyer. His Dad is a bit more sensible (although he seems to think you wouldn’t get a good criminal lawyer on a Sunday).

Unfortunately for Johnjo, he listens to Mum and goes off to the police station to reveal all, on his own, without a solicitor or appropriate adult. DI Hastings does the ‘good cop/bad cop’ routine all by himself. Johnjo reveals all that happened. His Mum was wrong – the police don’t thank him for assistance and telling the truth and send him on his way … he is charged and kept in custody.

The other boys are picked up and all, sensibly, say ‘no comment’ in their interview. The guy in the pizza place (Hugo Davis) is asked to do an ID parade, but there’s an ulterior motive – he’s in the frame too, due to a phone call from him to Tony before and after the killing and is charged with murder.

We then get to see, finally, what happened in the pizza place – they all pile in to get Albert Flanagan, there’s a bit of violence, but the and Kieran sees Thomas eyeing him up and stabs him.

We then start the courtroom drama properly. Johnjo’s barrister does what appears to be an ‘application to dismiss’ to get him out of the case which is, needless to say, unsuccessful. There is then a meeting of all the defendants and lawyers downstairs in the cells. And at this point is gets a bit more dubious legally – a plea bargain is on the table – Kieran pleads to murder and all the others to GBH and that would be enough.

Johnjo’s Dad says take it, his mum says no. Johnjo is under pressure from all sides and, after some not too unsubtle threats from his codefendants, agrees to take the deal. Kieran gets life with a minimum term of 24 years. Colin and Anthony get 6 years and Johnjo 5 years 4 months.

 

Legal Issues Raised

A couple of problems you’d have spotted if you were a lawyer (and some you would have if you weren’t):

  • DI Hastings wouldn’t have told Margaret Ward that an arrest was imminent, and certainly would have said who it was.
  • As soon as Johnjo started the conversations with DI Hastings, he should probably have stopped and cautioned him (but, this doesn’t always happen)
  • As Johnjo is 17, an appropriate adult is compulsory (the law on that changed relatively recently however – you can see the High Court judgment here)
  • Johnjo would not have been allowed to keep his phone with him in the police interview
  • Threatening to arrest Johnjo’s parents is not something the police should do. It’s something that do do, but wouldn’t do in an interview which is recorded
  • A Magistrates’ Court is not able to grant bail and the Court would not adjourn for two weeks back there – it would go straight off to the Crown Court
  • The ID parade was not conducted properly – having DI Hastings there with a bit of a prompt and threat, as well as the other safeguards not being there, means that it should be ruled inadmissible (it’s a murder though, so who knows?)
  • The police don’t charge, and then uncharge, people, at least in the way shown in the interview.
  • It’s pretty rare nowadays that you’d get four people wearing a suit
  • The barrister for Johnjo would have been slapped down pretty quickly with his speech on joint enterprise
  • The Judge is a High Court Judge and is called ‘My Lord’ not ‘Your Honour’
  • The families of the victim and the defendants would not be wondering around the same cafe together, certainly not in a murder case
  • The High Court Judge seems to think that joint enterprise is a rule made by Parliament, which it never has been – it’s a judge-made law that can be unmade by Judges
  • Lawyers aren’t allowed mobile phones in the Court cells
  • The Prosecutor would not come down to the cells to engage in plea bargaining at all. Ever. Not in a million years.
  • The High Court Judge almost gets the name of the statute right when sentencing – it’s the Powers of Criminal Courts (Sentencing) Act 2000

But, notwithstanding that, it was actually a pretty accurate view of how a criminal case works, and didn’t (as many criminal TV shows do) make me cringe when watching it.

 

Review

This isn’t a documentary and, as I’ve said before, a legal drama that was based on real life would be incredibly dull. It’s a tightly written drama (as you’d expect) and very well acted and directed. It’s certainly one that tugs on your heartstrings.

It was good that they showed the story from both sides, and the pain that the victim’s family went through isn’t glossed over in any way (even if the reconciliation at the end was a bit twee (or as twee as it can be on a northern council estate).

Joint enterprise isn’t a ‘new’ thing (although it has been used a lot more recently) and whilst it applies to every crime, it is disproportionately used in murder cases. It is also more acute due to the fact that murder carries a mandatory life sentence and you can be found guilty of murder not only without intending to kill, but in some cases without intending to cause really serious harm – merely foreseeing that death might happen is sufficient.

Anyone with experience of the criminal justice system knows the unfairness that can be caused by joint enterprise, but this didn’t need to be stated quite so clearly all the time (I got a little sick of the words ‘joint enterprise’ by the end).

 

Is it accurate?

Yes. Sadly. Knowing what happened in the pizza place, it is clear that Kieran is guilty of the murder of Thomas and GBH of Albie. Tony and Colin are guilty of GBH. Johnjo is not guilty of anything.

Actually, the most unrealistic aspect of this is the prosecution agreeing to drop the murder charge against  the three in return for pleas to GBH. In a case such as this, I would imagine that it would go to trial  and it would not surprise me if Kieran, Tony and Colin were found guilty of murder. Johnjo might be luckier, but I wouldn’t be that surprised if he was convicted also.

Picking one case that I have read recently , Mitchell & Ballantyne [2011] EWCA Crim 2552 shows that the scenario in ‘Common’ is not in any way fanciful.

The other issue that it did raise is the iniquity than can sometimes be seen by ‘plea bargaining’. Officially it doesn’t exist in England and Wales, in practice it is rampant. Here, Johnjo had no real alternative but to plead guilty – out in 2½ years at the age of 20, with the possibility of building something of your life at least, versus life with a 20 year tariff (as he was 17 at the time) – meaning, in reality, that he would not be out till he was in his early 40s (if he was lucky) with no real chance of building any kind of life.

Faced with that, who wouldn’t take it?