Category Archives: In the news

Photo from the BBC

Polly Chowdhury and Kiki Muddar guilty of killing Ayesha Ali

Introduction

In August 2013 eight year old Ayesha Ali was found dead in her bedroom, having sustained more than 50 injuries.  A post-mortem found that Ayesha died as a result of damage to her head, caused by a blow or series of blows, on 29th August 2013.  Her body showed signs of prolonged abuse; carpet burns and even a bite mark.

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Ayesha’s mother, Polly Chowdhury, 35, and her girfriend Kiki Muddar, 43, have today been convicted of manslaughter, by a majority of 10-2, by a jury sitting at the Old Bailey.  The pair were cleared of murder.  The jury retired to consider their verdict on 19th February, and spent over 31 hours deliberating.

 

Background

The jury heard that Muddar was disgusted by Ayesha, who endured prolonged abuse as a result.

Muddar met Chowdhury when she moved next door to Ayesha’s family in 2007.  Muddar befrended Chowdhury, and sought sympathy from her by pretending to have cancer.

Ayesha’s father, Afsar Ali, moved the family away from Muddar, but she tracked Chowdhury down, prompting the breakdown of her marriage.

Over time Muddar used Facebook updates and over 40,000 text messages to manipulate Chowdhury into believing that her daughter had evil spirits inside her and needed to be disciplined.  One text read “You have no right to ever love or like your evil daughter”, describing her as “pure evil” and a witch.  She even blamed Ayesha for making her fictional cancer worse and threatened to drown her in the bath.

A psychiatrist told the Court that Muddar had not been delusional in her actions, and fully understood what she was doing:

“She was rational in her judgments in having a disgust with Ayesha. She did not like Polly Chowdhury putting Ayesha above her interests,” he said.

“However immoral, abhorrent and illegal her judgment, it was rational… there is no question of either defendant having been mad.”

In Chowdhury’s evidence she admitted that the pair smaked Ayesha and his her with a wooden spoon, because “Skyman” an alias “spirit” created by Muddar, told them to in a text message.

The pair will be sentenced on Friday 6th March.

Irving of Exeter / BBC

Jeremy Wayle Conditionally Discharged for stamping on a pigeon

Introduction

Earlier this year Jeremy Wayle was minding his own business in Exeter City Centre, eating a hot dog, while a pigeon (name unknown), attracted no doubt by the smell of the fast snack, approached and started to take advantage of the crumbs to have a late lunch.

Mr Wayle (who apparently ‘doesn’t like pigeons’ which may be something of an understatement) called the pigeon ‘vermin’, stood on his (or her) wing with one foot, before using the other to stamp on the pigeon until it died.

Having pleaded guilty to this, Mr Wayle was given a 12 month Conditional Discharge on 3rd March 2015.

 

What was the offence?

It’s not reported, but we suspect s4 Animal Welfare Act 2006– causing unnecessary suffering. This applies to all animals, wild or domestic. It’s not illegal per se to kill a pigeon, but it is if the killing involves inhumane suffering (as stamping almost certainly would be).

*Edit* – we were tipped off BTL to another news report that states (thanks to John Allman for that) Mr Wayle pleaded guilty to ‘killing a non schedule one wild bird‘. This is probably a reference to an offence under s1 Wildlife and Countryside Act 1981 – killing a wild bird. This is a summary only offence. There are no guidelines for this offence, but it may be that it is treated as less serious as the offence under the Animal Welfare Act (although it is hard to see why).

 

Sentence

There are no specific guidelines for this offence, but there is guidance in the Magistrates’ Court Sentencing Guidelines (have a look at page 22). It looks like it is in the most serious category, which involves killing an animal. This has a starting point of 18 weeks, with a range of 12 to 26 weeks.

Why such a difference between that and the sentence passed? It is probably due in part to the fact that this was an impulsive act, with no intention to cause undue suffering (note – I previously said ‘harm’ which was the wrong word). The top level of the guidelines seem to be aimed at people who are sadistic towards an animal, or who are making profit out of an animals suffering. We know that Mr Wayle has a history of PTSD which may have provided some additional mitigation.

So, although the sentence seems a very lenient one, it is an explicable one and a good example of the fact that guidelines are ‘guidelines, not tramlines‘. Having said that, I would probably have given a higher sentence – it’s the sort of behaviour that would warrant a Community Order to my mind.

Hopefully Mr Wayle ate his dog with ketchup at least. Having it with mustard would have been one barbarism too far.

Photo from the BBC

Vincent Tabak jailed for indecent images of children

Introduction

Around Christmas 2010 Vincent Tabak strangled his neighbour Joanna Yeates. Later that year he was convicted of murder and sentenced to life imprisonment with a minimum term of 20 years.

The case attracted a large amount of notoriety, both because of the nature of it, but also because of the tabloid insinuations and hounding of Chris Jefferies.

During the course of the investigation, Mr Tabak’s computer was analysed and indecent images of children were found. These were not adduced at the trial. This was because it was not relevant, but was obviously hugely prejudicial.

After the murder conviction and Mr Tabak’s unsuccessful appeal, he was summonsed to Court to face the child pornography charges. After denying it, he pleaded guilty on 2nd March 2015 and was sentenced to 10 months.

 

Sentence

Mr Tabak pleaded guilty to 4 counts, reflecting 145 images that were found. These comprised of 129 at Category C (the lowest), 10 at Category B and 6 at Category A. There are Sentencing Guidelines (page 76).

The old Oliver Guidelines were very useful. The new ones far less so – they are extremely cumbersome. Possession of Category A has a range of 6 months to 3 years. Often people have hundreds, thousands and sometimes more images, so 6 is a very small number. This would give a sentence of around the 6-8 months mark. There will be some credit for a plea of guilty, but not much as it was on the day of trial.

The elephant in the room of course is the conviction and sentence for murder. On a strict legal view, these offences were committed before the murder and so should not really be taken into account. On the other hand, surely it can’t be ignored?

It maybe that that (or of course something else such as the nature of the images) is the reason why a 10 month sentence was passed.

It’s completely academic as whatever the sentence is, it has to start today. So whether he got 10 weeks, 10 months or 10 years it wouldn’t make any difference to when he would be released.

 

What was his defence?

We don’t know. There was legal argument as to whether he could have a fair trial, and after the Judge ruled that he could, the guilty pleas were entered.

It’s a difficult area. We have to trust juries, but this is one of a handful of cases that one looks at over the last few years and wonder whether it is humanly possible for a jury to put everything in the press out of their heads and approach the case neutrally.

This case is not quite in the same category as Garry Glitter last week, and the finding of the Judge is certainly not a surprise. The case of Stuart Hall does show that juries are pretty robust, more so that I would have imagined (so I may be being unduly cautious, but this is an area that would benefit from some further research.

 

Why prosecute him for this?

Good question. The official reason given by the police is that “Although he’s serving a minimum tariff of 20 years’ imprisonment, we felt it was crucial Tabak was brought to justice for possessing indecent images of children, so the full nature of Tabak’s offending is on record.

“Tabak is now a convicted sex offender and this means an extensive range of protective measures can now be put in place to manage his criminal behaviour and protect those at risk.”

I can see the argument, and I recognise that there will be times when someone serving a life sentence for murder can properly be prosecuted for offences that pre-date the sentence (it’s different where someone escapes or commits an assault in prison where the public interest is clearer). I’m not completely convinced it was needed here.

True it is that he is now banned from working with children etc, but the protection given by a life licence is, in practice, a lot more powerful than many of the other preventative orders. And, of course, the Parole Board would have looked at the question of sexual risk in any event, as well as the overall question of harm, when the time came when he could apply for release.

In any event, the protection regime will almost certainly be completely different when Mr Tabak comes to be released (if he ever is). So, I am not completely convinced by the argument. Although it could be said that there is no harm in prosecuting him, this whole procedure will have cost more than 5 figures (it’s always difficult to judge). At a time when cases are not being properly pursued because of a lack of resources, a decision to prosecute impacts on other cases and means (sadly) that other victims of crime don’t get the justice they deserve. Is that a price worth paying?

Nb. This was not the fish that was swallowed by Berry.

Another sentenced for Neknomination/goldfish stunt

Thought we’d heard the last of idiots drinking goldfish? Sadly not.

On 2 March 2015, Luke Berry, aged 26, was sentenced to a community order with an unpaid work requirement comprising of 150 hours having pleaded guilty to causing an animal unnecessary suffering.

The law

The RSPCA prosecuted Hope for, presumably, under section 4 of the 2006 Act – that of causing unnecessary suffering to an animal. We presume it is under subsection

(2) A person commits an offence if:

(a) he is responsible for an animal,

(b) an act, or failure to act, of another person causes the animal to suffer,

(c) he permitted that to happen or failed to take such steps (whether by way of supervising the other person or otherwise) as were reasonable in all the circumstances to prevent that happening, and

(d) the suffering is unnecessary.

The offence is a summary only offence, triable therefore only in the Magistrates’ Court. The maximum sentence is a £20,000 fine and/or 6 months’ imprisonment.

What happened?

Berry had been nominated in the “Neknomination” game that became popular last year. If you need reminding what Neknomination is, the BBC had a helpful little explainer:

“Neknominate usually involves people filming themselves “necking” an alcoholic drink, posting a video on social media and then nominating someone else to do the same.”

So, predictably, Berry thought it would be a laugh to swallow a live goldfish and have his mate film it and place the video on social media. The RSPCA brought the prosecution and Berry pleaded guilty (what other option did he have?).

On the video – available here – Berry’s friend can be heard to say “chew his head off and bite him”.

Sentence

The starting point is to look at page 40 of the guidelines. As usual, it can fairly be said that the offence does not fit into any of the three categories.

Whilst it was ‘one impulsive act’ (a descriptor in category 1 – the lowest category), it was also an attempt to kill – and in fact it did kill – the fish (a descriptor in category 3 – the highest category). The sentencing range is from a Band B fine to 26 weeks’ imprisonment.

Berry received a community order, which is somewhere in the middle of the range set out in the guidelines. This is in contrast to Gavin Hope, who was fined £300 for a similar offence.

Appeal?

Unlikely. Whilst the sentence here is a fair bit higher than that imposed upon Gavin Hope, it can’t be said to really be outside the permissible range.

Comment

There is little to say really, other than he deserved the community order for being so stupid as to record and upload the footage onto the internet, if for nothing else.

Photo from the BBC

Garry Glitter – 16 years for child sex abuse

Introduction

Six years after Channel 4 broadcasted a mock documentary called ‘The Execution of Garry Glitter’, the downfall of the singer formerly known as Paul Gadd is complete.

Having been convicted of various sexual offences against children, he was sentenced on 27th February to 16 years in prison.

 

Facts

The sentencing remarks have been published. They are clear, commendably brief, and well worth a read.

There were three victims, and the facts against each one are as follows (taken verbatim from the Sentencing Remarks):

A – Count 1 (Attempted Rape) – 7 years

An 8 year old child, a friend of your daughter, was an overnight guest in your home. You went to the room in which these two little girls were sleeping together in a double bed and you made a determined, although ultimately unsuccessful, attempt to rape her

B – Counts 3, 4 and 6 (Indecent Assault x 2 and Unlawful Sexual Intercourse) – 4, 4 and 8 years

The 12 year old victim came with her mother to one of your concerts. You invited them both to your hotel and created a situation in which her mother was taken out of your suite of rooms to another place, leaving you with this sexually inexperienced child. All of this happened because and only because of your fame. You kept her in your room all night. You penetrated her vagina with your finger and performed oral sex on her. You had full sexual intercourse with her.

C – Counts 9 and 10 – 1 year on each

The 13 year old victim of these offences visited your dressing room after a performance. She was left alone with you for a few minutes. You put her on your lap, you kissed her in a manner that was sexual and touched her vagina, albeit over her clothing

 

Sentence

The Judge sets out the sentences as they would be under the guidelines in force today. He states “I must sentence you in accordance with the sentencing regime applicable today, not at the date of the offence. But I am limited to the maximum sentence available at the time of the offence.”

We have a fact sheet on historic offences. The Courts have shifted their position in the last five years, and now the approach is to ignore what the proper sentence would have been when the offence was committed, and pass the sentence as it would be today, provided that it was a sentence that could be lawfully passed.

The starting point is the Sentencing Guidelines. Nowadays the most serious offence would be the Attempted Rape and the Unlawful Sexual Intercourse (both which would be charged as rape (or attempted rape) of a child under 13. The guidelines here are at page 27. The Judge heard the trial and he is in the best position to assess where in the guidelines it falls.

 

Will he appeal?

I imagine so. There’s very little to lose.

As to the conviction, there is an obvious question as to whether Mr Gadd could have had a fair trial. This was not just the case of his past misdeeds being ‘out there’, but for the last fifteen years his name has been synonymous with paedophilia, to the extent that there was a tv programme considering his execution. I doubt that this will get very far though (and it should be noted that as the Stuart Hall rape trial shows juries are pretty robust).

Although the sentence is far in excess of what he would have got had he been sentenced at the time the offences were committed, on the basis of current sentencing practice whilst it does still seem higher that we would have thought, it us unlikely to be considered to be manifestly excessive.

Paul White – Former Royal Marine sentenced for Benefit Fraud

Introduction

There’s brazen, and then there’s brazen. On 24th February 2015, Paul White was sentenced to two years in prison, suspended for two years, with a condition of undertaking 300 hours unpaid work. There was also an order that he pay £2,500 costs.

 

Facts

Forty six year old Paul White had left the marines for medical reasons in 2001 due to a back injury.  He was signed off sick by his doctor and later received a higher rate of pension due to chronic back pain. He was awarded the higher rate in 2003.

It is not clear whether he was lying at that stage, or if he had a dramatic improvement in his condition, but whilst the claim was ongoing he was clearly in a much better shape that he claimed.

As the Judge said, “You were working in seaborne security and as a bodyguard at the time you were claiming disability benefits but you were also playing golf and doing 10 kilometre runs in less than an hour. At the time you were maintaining the claim that you were only capable of walking 25 metres and that with the aid of a stick. The dishonesty went on for six years and was breathtaking.”

 

Sentence

There are new(ish) guidelines for fraud sentencing (p27 for Benefit Fraud). These are not easy to use it is fair to say. We know that the value of it puts it right at the top end of Category 4. The Culpability is harder to say. It doesn’t really fit in with any of them, but given the flagrant dishonesty, it is probably fair to put it in the Higher Culpability bracket.

On this basis, and taking the very top of that box, the starting point is 2½ years so, after giving some credit for a plea of guilty (we are not sure whether it was full credit or not), the figure of 2 years can be explained. The decision to suspend is a separate one, and we don’t know the Judge’s reasons why.

Given that Mr White is not going to prison, we doubt that he would appeal it. On the face of it, the sentence of two years does seem a little high, and we would have thought that 18 months would be more appropriate. As said though, Mr White has little to complain about.

 

Photo from the BBC

Alan Barnes robbery – Richard Gatiss pleads guilty

Introduction

The case of Alan Barnes, the disabled pensioner from Gateshead who was robbed earlier this year, touched the hearts of many, and a fundraising drive for him collected over £300,000.

On 24th February 2015 Richard Gatiss appeared at Newcastle Crown Court where he pleaded guilty to assault with intent to rob. The case was adjourned for sentence.

 

What will he get?

When adjourning the case, the Judge “warned Gatiss jail was likely“. This is somewhat of an understatement. Custody here is a virtual certainty.

We know that Mr Barnes was a vulnerable man (he was visually impaired and is only 4 foot 6). He was attacked outside his home and was left with a broken collar bone.

There are sentencing guidelines for robbery (the Council have been recently consulting and intend to have a replacement out shortly). Although the offence was assault with intent to rob, the outcome of the sentence is pretty similar.

The sentence will depend on whether the injury to Mr Barns is deemed to be ‘serious physical injury’ that has been caused by ‘significant force’ (see the table at page 11).

It is difficult to say. My view would be that although this was a disgraceful and cowardly attack, it sounds like it was not quite in that category. We don’t know exactly how it panned out, but it seems that Mr Barnes was pushed in a confrontation and broke his collarbone whilst falling. – the news report says “Gatiss pushed Mr Barnes to the pavement outside his home in January and told him to hand over his money but his victim said he had none and Gatiss then ran off.

For that reason, I would say it is towards the top of Category 2, with a starting point of about 6 years. There will be full credit for a plea of guilty, and so we would expect a sentence of about 4 years.

We don’t know the history of Mr Gatiss, but there appears to be a level of drugs misuse which may aggravate the case.

Either way, I would stake a lot of money on Mr Gatiss getting a prison sentence, and a lengthy one at that.

 

Photo from the Daily Mail

Lisa-Jayne Samuels jailed for 20 months for false rape claim

Introduction

Incorrect allegations of rape are rare, actually false (as in knowingly malicious) allegations are very much rarer. On 23rd February 2015 the Daily Mail reported on the case of Lisa-Jayne Samuels, a 29 year old woman from Southend, who was sentenced to 20 months in prison.

Facts

It seems that Ms Samuels “… wanted her mother to feel sorry for her” (although later in the story it was phrased as wanting to reconcile with her mother) and, in order to facilitate this, claimed that she had been raped. She said that she had been drinking in a pub when an unknown man spiked her drink and later raped her. She called 999 in the early hours of the next morning (10th October 2012).

Ms Samuels stated that he was an acquaintance and provided police with an ‘e-fit’ that led to the arrest of a Terry Brown early in 2013. Ms Samuels attended an ID parade where she picked Mr Brown out.

He was charged with rape but after investigation, it seemed that CCTV showed that the account given by Ms Samuels was incorrect, and after further investigations, the rape charge against Mr Brown was dropped.

On 6th December 2013 Ms Samuels was interviewed by the police when she accepted that she had fabricated the account.

Sentence and Comment

The offence of perverting the course of justice will always lead to a prison sentence, unless there are exceptional circumstances. In this case, the lawyer asked the Judge to suspend the sentence, but this was refused.

The Judge said “Rape is one of the most serious and repulsive crimes there is. A false allegation of rape can have dreadful consequences on the innocent person who has committed no crime whatsoever.

‘It seems your initial call to the police was an impulsive act but you persisted in it, you made an e-fit and identified your supposed attacker in a line up – that was not impulsive. I have a duty to the public, meaning your sentence must be immediate and must be of some length

Ms Samuels has four children and, it seems, was quite vulnerable, with a history of addiction to drugs and alcohol. These would normally militate against making a custodial sentence immediate. It does seem that Ms Samuels has twice done this before in 2002 – “In 2002, she made false claims to police, but later admitted it was so her mother would not find out she had slept with a Kosovan man. In the same year, she phoned police saying she had been raped in a public toilet and also made a hoax fire call to 999“.

This obviously makes it harder to suspend the sentence (although such a history may be an indicator of further vulnerabilities). One point that isn’t explained is why it took from December 2013 until now for Ms Samuels to be sentenced. If it is that she pleaded not guilty until the day of trial, then this is a further reason that the sentence cannot be suspended. If there was a long period on bail before she was charged, then this is mitigation.

There probably won’t be a (successful at least) appeal against sentence – although 20 months is a long sentence, it is hard to say that it is manifestly excessive, and although the Court of Appeal have (still – after ten years) not given guidance on when a sentence should be suspended, Ms Samuels is not an obvious case for a successful appeal.

Image from BBC/Nick Irving

Man facing custodial sentence for not disclosing HIV status in breach of SOPO

On 19 February the BBC reported the story of Mr James Defalco who, after admitting breaching a requirement of his sexual offences prevention order (SOPO) is staring down the barrel of a custodial sentence.

Defalco – formerly known by the name Derek Hornett – has heard the clang of the prison gates before, however.

Background

A quick “Google” reveals Defalco has a string of convictions for sexual offences – including offences against children and the elderly – and had breached his SOPO on previous occasions (see here and here).

In 2005, following a conviction for s.20 GBH for infecting an 82-year old woman with HIV, having entered into a relationship with her because she was “financially secure”. He was given a custodial sentence of 39 months and a SOPO including a prohibition concerning his HIV status. This has been reported in varying degrees of detail and accuracy, from a requirement to “disclose his HIV status before any future sexual relationship” to a requirement that he informs anyone he is “in a relationship with” about his “condition”

We are unable to find any details of an appeal arising from this sentencing hearing.

What’s the new offence?

It appears that Defalco has breached the SOPO by failing to comply with the prohibition surrounding his HIV status. The penalty for breach of a SOPO is up to 5 years’ imprisonment. Defalco has been sent to prison previous – for 6 months – for an earlier breach of the SOPO, however that breach appears to concern the prohibition on working with/for elderly persons.

Test for imposing a SOPO

The test for imposing a sOPO is whether or not the court is satisfied that it is necessary to make such an order for the purposes of protecting the public from serious sexual harm? (SOA 2003 s 104(1)(a) and (b)).

Issues

Of particular interest is the SOPO and the HIV term; firstly, the reporting of the SOPO is inaccurate. A SOPO may not impose a requirement, it can only impose a prohibition. The important distinction being that it can only stop someone from doing something, rather than require someone to positively do something. At least, that is what the legislation says. One can no doubt imagine how easily a positive requirement can be turned into a negative prohibition: “Mr X is required to disclose…” / “Mr X is prohibited from not disclosing…”

A few years ago the Court of Appeal began to clamp down on this sort of lexical trickery, the conclusion being that the purpose of the statute was being circumvented by some (not so subtle) word play. However, that feeling seemed to disappear quite quickly and preventive orders such as SOPOs appear to be abused on a regular basis to impose a requirement on a defendant where a court thinks it necessary (an example being the requirement to make one’s internet browser history available for inspection).

So, firstly, one might wonder whether this SOPO condition to disclose the HIV status falls foul of the statute in that respect. Secondly, there is the issue of whether or not it is proportionate and necessary – a requirement of preventive orders such as SOPOs.

A blog written by Matthew Weait – a legal academic – has questioned the legality of such conditions on similar grounds. He says: “There is no evidence of which I am aware that indicates a positive correlation between disclosure and subsequent safer sex.” On that basis he questions whether or not such a “requirement” is necessary as it does not prevent people from “serious sexual harm” – his argument is that the requirement avoids uninformed consent to sexual activity, it does not protect.

Having not seen the research upon which Mr Weait relies, I question whether the distinction being drawn is apposite. If such a requirement would enable a person to decline to have unprotected sexual intercourse with him, then surely it will protect from serious sexual harm (i.e. contracting HIV). Further, if Defalco has a history of not informing potential sexual partners of his HIV status, then it is arguable that such a condition is “necessary”.

The issues are a little more complex than this blog would suggest – however due to the need to keep these blogs short, I shan’t delve any deeper into the issues. I question the legality of the SOPO condition, however not on the basis that Mr Weait does.

The comments section below is open and we’d be interested to hear readers’ thoughts on this issue, whether they are lawyers or not.

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“Baby P” mother Tracey Connelly recalled to prison for breach of licence

The tragic case of “Baby P” – Peter – is known by many. In short, 17-month old Peter was found dead in his cot having suffered 50+ injuries at the hands of Connelly’s boyfriend, Stephen Barker and his brother Jason Owen. The case saw Haringey social services severely criticised as the abuse of Peter had been repeatedly missed over a number of months during which social services staff had visited Peter.

Barker and Owen were convicted of causing or allowing the death of a child: Barker received a sentence of 12 years for that offence and also a sentence of life imprisonment for a separate offence of rape of a child, whilst Owen received an IPP sentence with a minimum term of three years. Connelly, who pleaded guilty to causing or allowing the death of a child, receiving an IPP sentence with a minimum term of five years.

A sentence of IPP – since repealed – means someone is detained at least for the duration of the minimum term, at which point they may apply to the Parole Board to be released. The Parole Board will order their release when they are satisfied the individual is safe to be released.

Release

We explained here how Connelly came to be released in October 2013. Save in very exceptional circumstances, when people are released from custodial sentences, they are on licence for either the duration of their sentence, or for life.

A breach of that licence – or the commission of another offence during the currency of that licence – will lead to them being recalled to prison to serve some or all of the remainder of their sentence. If a new offence has been committed, then they will also be sentenced for that new offence.

When Connelly was released, she was given a new identity.

What happened?

It was reported in the press that “Baby P’s mother [had been] sent back to jail for allegedly selling porn images”.

It appears that Connelly had been selling sexual images of herself online to so-called “fans” who were “turned on by her notoriety”. This, it appears, was considered to be a breach of her licence and she has been recalled to prison.

What happens next?

Connelly’s case will be considered by the parole board who will, again, have to decide whether it is appropriate to re-release her.