Over the last 12 months or so, there have been a couple of incidents which have made me question whether the criminal law has lost all of its common-sense. As distinct from the civil law, the criminal law has usually tried to be pragmatic and fair in its solutions to issues, whether that is a conviction appeal in the Court of Appeal, sentencing guidelines, or a charging decision.
When interpreting legislation, the criminal courts more often than not try to find the best result. Of late however, this appears to have waned. Below are three examples of where the criminal law has in my view completely lost the plot.
Sexual Offences Prevention Orders
(See here for a fact sheet)
In R v Aldridge and Eaton 2012 EWCA Crim 1456, the Lord Chief Justice held that where a SOPO was purported to be imposed for a period of 3 years, where the minimum term for a SOPO was 5 years, the 3-year order was unlawful, could not be varied and must be quashed. Although the Court had the power to quash a sentence and sentence differently, they did not have the power to impose a sentence which was more severe than the sentence he was originally given. There was no power to vary the unlawful SOPO once the period for altering Crown Court sentences had elapsed. Consequently, the only course of action was to quash the order.
In sum, the Court accepted that the order was lawfully made, i.e. it was necessary to protect the public from serious sexual harm, but because of a slip of the tongue by the Judge, it was wrongfully made for a period of time for which there was no power. The minimum term was 5 years.
Would it not have been sensible and just to replace the unlawful order with a lawful one? Is the defendant really being treated more severely, if he is subject to an order which replaces one which could not take effect as there was no power to make the order in the first place?
It seems to me that the sensible, pragmatic and just result would to have been to recognise the mistake, recognise the need for the order, and explain why, despite the limited (legitimately held) sense of grievance the defendant had, he was not being sentenced more severely than in the Crown Court.
In R v Instone 2012 EWCA Crim 1792, again, the Lord Chief Justice was leading the court. Mr M had been made the subject of a SOPO in 2008. In 2011, the Court of Appeal gave guidance on SOPOs in the leading case of R v Smith and Others 2011 EWCA Crim 1772. This rendered many if not most SOPOs defective by reason of proportionality to the risk, clarity of the conditions and other reasons. The Court held, dismissing Mr M’s appeal, that
“An existing sentence should not be varied on appeal because of subsequent changes to them…this court is not a review body for every SOPO.”
Again, the common-sense, pragmatic, just and reasonable decision in my view would have been to quash what was tacitly accepted was an unlawful order (by reason of the decision in Smith). The ‘floodgates’ argument stands up here, certainly, but is it acceptable, or desirable, to refuse to correct an unlawful sentence because of the inconvenience caused?
Many have discussed the illiberal and misconceived nature of the section 127 offence, notably @DavidAllenGreen and, for his UKHRBlog, @AdamWagner1 here. The question as to exactly when reprehensible behaviour ought to become criminal is not an easy one, and can quickly divide conversation.
Matthew Woods was jailed for 12 weeks (subsequently reduced to 8 weeks on appeal) for posting ‘jokes’ about April Jones, the missing-presumed-dead, 3-year-old. Whilst drunk, Woods posted comments on Facebook about April Jones and Madelaine McCann which included sexual references. Mr Woods was arrested for his own safety and pleaded guilty. See more detail here.
Paul Chambers, the now infamous Twitter Joke Trial defendant, was convicted (but later had his conviction quashed) over a Tweet ‘threatening’ to blow up an airport. (See the Jack of Kent blog for the background)
Of course in Matthew Woods’ case, the making of such ‘jokes’ ought to be discouraged, but is it appropriate to criminalise a young man for doing so?
Have we learned nothing from poor Paul Chambers’ ordeal?
Do we wish to see Ricky Gervais, Frankie Boyle, Jimmy Carr for example, in the dock facing allegations of a section 127 offence?
Or is it more acceptable for them to make such jokes under the guise of it being ‘comedy’?
Ought there to be a ‘I’m a comedian’ defence?
The answer to all of those questions in my opinion is a resounding ‘no’.
Do we really want to live in a society where we criminalise all that we disgree with? It seems to be the way that we are heading…
Trenton Oldfield received 6 months for swimming in the River Thames (ok there was a little more to it than that. Read more here.)
Meanwhile, Justin Lee Collins received a community order with 140 hours of unpaid work for harassment against his girlfriend. Read more here.
Forgive the Daily Mail ranty language, but really, has the world gone mad?! Is the criminal law really putting disrupting a sporting event for 25 minutes as more serious and worthy of a much higher punishment and deterrent than a course of abuse against a partner, including physical and verbal bullying?
No wonder the public currently have little faith in, or respect for, the criminal justice system.