ECHRcourt

Whole Life Tariffs – Hutchinson v UK – victory in Europe?

Introduction

There was (no) outrage in the tabloids at the latest highly political judgment from the ECHR that was released on 3rd February 2015. This is because in the stand off between the UK and Strasbourg, Strasbourg has blinked first (the full judgment is available here).

The case involved Arthur Hutchinson. If whole life tariffs are lawful, then it is harder to think of a better candidate – “In October 1983, the applicant broke into a family home, stabbed to death a man, his wife and their adult son and repeatedly raped their 18 year-old daughter, having first dragged her past her father’s body. He was arrested several weeks later and charged with the offences“.

 

Background

Mr Hutchinson was convicted of the offences by a jury and sentenced to life imprisonment. The Judge suggested a tariff (the procedure was different then) of 18 years, which was upped to a whole life tariff by the then Lord Chief Justice, which was upheld by the Home Secretary.

When the Criminal Justice Act 2003 came into force, the whole life tariff was upheld. So, eventually, off to Europe Mr Hutchinson went.

 

Judgment

The ECHR set out the issues, and the fact that the English Court of Appeal had responded to the judgment in Vinter by issuing a 5 Judge decision in McLoughlin where they decided not to follow the ECHR.

They reiterated the point that a whole life tariff without a form of review is incompatible with Art 3, but set out the issue for their consideration “whether the Secretary of State’s discretion to release a whole life prisoner under section 30 of the 2003 Act … is sufficient to make the whole life sentence imposed on the applicant legally and effectively reducible” (para 22). If you want more information on this, then the links above contain a bit more analysis.

Then the Court said this (at para 25) “In the circumstances of this case where, following the Grand Chamber’s judgment in which it expressed doubts about the clarity of domestic law, the national court has specifically addressed those doubts and set out an unequivocal statement of the legal position, the Court must accept the national court’s interpretation of domestic law (see, mutatis mutandis, Cooper v. the United Kingdom [GC], no. 48843/99, § 125, ECHR 2003-XII). Further, as the Grand Chamber observed in Vinter and Others, the power to release under section 30 of the 2003 Act, exercised in the manner delineated in the Court of Appeal’s judgments in Bieber and Oakes, and now R. v. Newell; R v. McLoughlin, is sufficient to comply with the requirements of Article 3 (and compare, also, the review mechanisms accepted by the Court to be Article 3-compliant in Kafkaris, cited above, §§ 100-105 [and] Harakchiev and Tolumov, cited above, §§ 257-261“.

It seems that Court accepted that because there is a power to release a prisoner in exceptional circumstances, and because that would have to be done through the prism of Art 3, this is sufficient to uphold the lawfulness of whole life tariffs.

 

Is that it then for the argument on whole life tariffs?

This is, to my mind, a surprising result (see what I said on Magyar v Hungary as to why). The ECHR seemed to have a settled view and there was nothing in the judgment in McLoughlin that seemed to me to be remotely persuasive the other way.

One issue is that it is hard to see that s30 is sufficiently clear, given that there is no guidance issued on it. What counts as exceptional circumstances? A real concern here is that it would appear that it is the Secretary of State for Justice who will be making the decision. Whilst he will get advice of course, it is unacceptable for a politician to make this decision.

A further problem is that it also does not tackle the problem that a breach of Art 3 arose at the point of sentence if a prisoner did not know what he needed to do in order to get a reduction in due course.

This will (probably) go to the Grand Chamber, where (and it is obviously dangerous to predict – I got the last call wrong) it would not surprise me if the previous line of ECHR authorities were upheld, and this seen as a slight aberration.

Even if it does not (or it does, and is refused) then the next flashpoint will be when someone applies to have their whole life tariff considered and is refused. Either way, it is unlikely that this is the end of the arguments.

As stated previously, all of this time, energy and money could have been spared if the Government had just reverted to the policies of Margaret Thatcher – hardly the biggest burden for a Eurosceptic Tory, and offered a review.

 

Gang Jailed for Brutal Attack on an American Student

The student from Florida (pictured in hospital) suffered series facial injuries in the attack - and was left with a smashed eye socket

Francesco Hounye had been in the UK for just three days when he was left with permanent scarring after sustaining a brutal attack at the hands of five men in June 2013. The men, Samad Uddin, Shadhat Hussain, Kamrul Hussain, Shaleem Uddin and Masoom Rahman, were caught on CCTV repeatedly punching and kicking the 23 year-old man in an apparent unprovoked attack. Three of the men pleaded guilty last year to causing Grevious Bodily Harm (s.20), also known as “wounding”.  A fourth man (Shaleem Uddin) pleaded to GBH with intent to cause really serious harm (s.18). The fifth man, Samad Uddin, claimed he was the victim of mistaken identity, was tried and found guilty of s.18 GBH by a jury sitting at Snaresbrook Crown Court.

CCTV images (published in the national press) showed Mr Hounye drinking from a bottle of Jagermeister when he was attacked by the group, who wrestled the bottle from his hands, smashed it over his head and beat him. It was a sustained and brutal attack, captured almost entirely on CCTV.  A passer-by intervened and the gang fled. Mr Hounye’s injuries were severe, requiring 23 stitches across his face. His eye socket was left fractured.  He is scarred for life and requires ongoing treatment from a psycho-therapist.

 

Sentencing

HH Judge Hammerson sentenced the gang on 2nd February 2015, to various sentences of imprisonment.

Shaleem Uddin, 22, was sentenced to six years for s.18 GBH, the longest sentence of the group, as he was alleged to be a ringleader and did not have the benefit of “credit” from a guilty plea to reduce his sentence.

Samad Uddin, 26, was sentenced to 66 months for s.18 GBH (5 years 6 months), also alleged to have been a ring-leader. He is currently serving 32 month sentence for possession with intent to supply drugs, and money laundering, which he received in January 2015. The GBH sentence will run concurrent to that sentence, due to the principle of totality.

Kamrul Hussain, 23, was sentenced to 27 months (2 years 3 months) for s.20 GBH (wounding)

Shadhat Hussain, 20, was sentenced to 22 months for s.20 GBH.

Masoom Rahman, 22, was given a suspended sentence of 18 months, suspended for two years, with 200 hours of unpaid work, £1000 compensation and £800 costs. The “suspended” sentence means that he will serve no prison time so long as he remains conviction-free for the next two years and completes his unpaid work.

 

Why the difference in sentences?

We don’t know the full extent of the mitigation, but it’s likely that there was considerable mitigation for Shadhat Hussain, who, it is suggested, had aspirations of going to medical school.  He he was the only man to receive a suspended sentence of imprisonment. Press reports state that he threw three punches, which clearly gives him a much lesser role in the overall offending.  Previous good character (having no convictions or cautions) and an early guilty plea (which can reduce sentences by up to a third) are both significant mitigating factors, which may have come into play here.

 

Will they appeal?

It seems unlikely that any appeal would be successful. This was a serious sustained attack, with a weapon, where s.18 charges were justified in respect of two members of the group.

The Sentencing Council guideline for assault can be found here. It seems that the Judge placed Shameem Uddin and Samad Uddin in category two, which carries a starting point of 6 years. Samad Uddin’s sentence would have been reduced on account of his guilty plea.

Wounding, under s.20 of the Offences Against the Person Act, carries a lesser sentence than that of s.18.  Sentences of 22, 27 and 18 months (suspended in respect of the latter) do not appear to be excessive given the nature of the attack.  Category one of the guideline specifies a three year starting point, with a range of 2 years six months to 4 years.  Category two has a starting point of one year and six months, and a range of 1-3 years.  It appears the Judge may have placed the offences between category one and two, which given the presence of the weapon (the glass bottle of Jegermeister) and the injuries caused, seems entirely appropriate.  Indeed, this appears to be a category one offence, which perhaps was mitigated down from a higher sentence due to the guilty pleas offered by these defendants.

Photo from the Sheffield Star

Alan Barnfield – 4 year for sexual abuse of a Shetland Pony

Introduction

Our attention was drawn by Matthew Bolt to the case of Alan Barnfield, the Doncaster man who was caught in 2012 in flagrante with a Shetland Pony named Sky.

He denied any wrongdoing, and was acquitted of having intercourse with Sky, but was convicted of Outraging Public Decency as ‘the jury were sure a sexual assault on the pony had taken place‘.

Sky suffered some injuries as a result of this and, in a slightly unusual feature, a victim impact statement was given. This was presented by Sky’s owner who said that Sky had “changed after the assault and she would avoid the area where the attack happened, ‘shake and tremble’ and kick out at people” before having to be rehoused.

Mr Barnfield was sentenced to 4 years in prison, with the Judge saying that “he had a ‘utterly disgusting perversion’.

 

Is the sentence too long?

Yes. Without a doubt. It is always hard working off a news report, but we can say here that unless there are other offences he was being sentenced for (and we’re pretty sure there’s not), the the sentence is certainly too long.

Although this offence is a sexual one, it is not covered by the Sexual Offences Guidelines, presumably because it is so rare that it is not needed very often.

The offence of intercourse with an animal is under s69 Sexual Offences Act 2003. This has a maximum sentence of 2 years in prison. The offence of outraging public decency actually has a maximum sentence of life imprisonment, but here it was clearly down as an alternative (and less serious offence).

It is a basic principle in a case such as this that sentence must be lower for the lesser offence. In the case of Hardy [2013] EWCA Crim 2125, Mr Hardy had been convicted of outraging public decency for masturbating in public. The Court of Appeal used the Sentencing Guidelines on exposure in determining the correct sentence.

Here, the Judge should have taken the sentence for the full offence of intercourse with Sky and reduced it to take account of the fact that he was convicted of a less serious offence. We don’t know anything about Mr Barnfield, but we would have expected a sentence certainly no higher than 18 months. We would expect an appeal do succeed and Mr Barnfield’s sentence to be halved (at least).

_60221355_jex_1405232_de23-1

Do short prison sentences work?

We need to lock more people up 

“Prison Works” said Michael Howard. He is a QC, so he must know what he’s talking about, right? No. Wrong. People who are sentenced to sentences in the community are less likely to offend than those getting a short prison sentence.

 

Says who, you lily-livered liberal?

Those notorious communists in the Ministry of Justice, that’s who.

They did a study looking at the data of re-offending rates between 2008 and 2011 and found that those who get a non-immediate custodial sentence commit fewer offences after sentencing that those who are locked up.

 

But surely locking up people cuts crime?

Well. The MoJ asked the following questions (with answers below):

Q : Are ‘court orders’ more / less effective at reducing re-offending than short term custody (prison sentences of less than 12 months)?

A : The one year re-offending rate was higher for those sentenced to short term custody than for those given ‘court orders’ overall (around 4 percentage points), community orders (around 3 percentage points) and suspended sentence orders (around 7 percentage points)

Also, the one year average frequency of re-offending per person was also higher for those sentenced to short term custody than those given court orders (by slightly under 1 re-offence on average)

This gap narrows, but is not extinguished and is still statistically significant, over time.

Q : Are there any specific requirements that are particularly effective, in terms of reducingre-offending? What is the impact of multiple requirements on re-offending?

In relation to Community Orders, adding requirements reduced recidivism rates. The data is not clear as to exactly which requirements are best. It does show that multiple requirements are more effective.

A similar, but less significant, effect is seen with suspended sentences. 

There is a nice table that shows all this on page 23.

 

Does this account for the fact that those who get a non-custodial sentence are less likely to have previous, so it’s more likely to be a one off?

Yes, it does. Have a look at Part 3.

 

Yeah, but I don’t like facts, I prefer my gut instinct – I know prison works – take that science!

Welcome to the House of Commons, and government policy making in general – you’ll fit in well.

Image from BBC News

Four men sentenced for brutal attack on lecturer Paul Kohler

In August 2014, four Polish men, Pawel Honc, 23, Mariusz Tomaszewski, 32, Oskar Pawlowicz, 29 and Dawid Tychon, 29 burst into the Wimbledon home of lecturer Paul Kohler.

They subjected him to a brutal attack leaving him with life changing injuries and requiring facial reconstruction surgery. The image above of Mr Kohler demonstrates the severity of the injuries.

On 30 January 2015, they were sentenced.

What happened?

Mr Kohler opened the front door to the property and the four men burst in shouting “Where’s the money?” His wife was threatened by two of the men who tried to tie her to a chair with duct tape. Mr Kohler was knocked to the floor and one of the gang knelt above him holding a heavy wooden cabinet door, demanding to know where his money was, after which he was badly beaten, with punches and kicks “raining down” on him. He suffered a fractured eye socket, a fractured left jawbone, a broken nose and bruising that left him “utterly unrecognisable”. Mr Kohler since said that he feared for his life.

One of Kohler’s daughters locked herself in an upstairs bedroom and managed to call the police. The police arrived and managed to intervene, preventing Mr Kohler from suffering any further injuries.

Items totalling £2,000 including a Mac laptop were taken but subsequently recovered.

Offences

On 26 November, Pawel Honc, 23, and Mariusz Tomaszewski, 32, pleaded guilty to aggravated burglary and s.18 GBH with intent. Oskar Pawlowicz, 29 and Dawid Tychon, 29 pleaded guilty to aggravated burglary but denied causing GBH with intent.

Aggravated burglary: Theft Act 1968 s.10 maximum sentence life imprisonment.

GBH with intent: Offences against the Person Act 1861 s.18 maximum sentence life imprisonment.

Additionally, Dawid Tychon will be sentenced for driving while disqualified and possession of cocaine, amphetamines, cannabis, biperazine and other class C drugs, to which he pleaded guilty on 26 November. He faces trial for taking a vehicle without consent, handling stolen goods and going equipped for theft, to which he entered not guilty pleas.

HH Judge Tapping told the four men that “only very substantial custodial sentences will be appropriate”.

Background

Tomaszewski believed that he was at Mr Kohler’s address to “enforce a debt” on the night of the attack.

Honc was a man of previous good character who claimed to have taken part in the attack – at Tomaszewski’s request – to settle a drug debt he had with Tomaszewski.

The men have been described in the press as “career criminals”; the Daily Mail reported that Tomaszewski had already served three sentences for a gun attack, theft, burglary and drugs offences, including 8 years for burglary.

Sentence

Mr Kohler read his victim impact statement aloud to the court, details of which can be seen here. This is a power which has long been at the disposal of the courts, but only really formalised in the recent Victims Code published in 2013.  He asked the men to reveal why his family were targeted, saying that in order to move on from the attack, they needed to understand why.

The judge would have had regard to the aggravated burglary guideline (see p.3) and the s.18 GBH guideline (see p.3). Under the burglary guideline, a category 1 offence (which this undoubtedly was by virtue of the significant injuries caused and the fact the men operated in a gang) carries a range of 9-13 years. Under the s.18 guideline, a category 1 offence (again, which this is, by virtue of the nature of the injuries, the men operating as a gang and the use of a weapon) carries a range of 9-16 years.

The men were sentenced as follows:

Tomaszewski and Honc – 19 years (agg. burglary and s.18)

Pawlowicz and Tychon – 13 years (agg. burglary)

HH Judge Susan Tapping said they had targeted Mr Kohler’s house either because they had the expectation of finding items of “significant value” to steal or because they chose the wrong address to collect a debt.

Comment

It is not clear how the sentences were structured, i.e. whether for Tomaszewski and Honc consecutive sentences were imposed, and which was the lead sentence. We can assume the lead sentence was the aggravated burglary.

With credit for pleading guilty (we presume 1/3 in absence of any other information, though it may well be that the credit is reduced because it was an “overwhelming case”) the judge took a starting point of 21-27 years for the first two defendants, and 15-17 years for the second two.

Without seeing the sentencing remarks we would not wish to say more, other than that these are very long sentences for what was exceptionally serious offending. The men may well appeal but with an increasingly punitive Court of Appeal, I would be holding my breath if I were them.

Photo from the BBC

Will Cornick loses appeal against sentence

Well, I called that one wrong.

On 29th January 2015 Will Cornick appealed against the 20 year tariff imposed on him. We looked at in advance and gave our view that the sentence was manifestly excessive and that he would win a (modest) reduction in that tariff.

It turns out that our analysis wasn’t shared by the Court of Appeal, who upheld the sentence saying that it was ‘entirely the right decision‘. Obviously the Court of Appeal have the benefit of all the information and so are ahead of us on that one.

At the moment all we have to go on is the news reports. We will have a look at this again when the judgement is out.

Photo from ITV

William Cornick to appeal sentence for murder of Anne Maguire

Last year William Cornick was sentenced to life with a 20 year tariff for the murder of Anne Maguire. We covered it here and explained why, in our view, the tariff was too long.

The Court of Appeal is to hear his appeal against sentence on 29th January 2015 (in a court presided over by the Lord Chief Justice). It seems that he has been given permission, which may indicate that the appeal has merits (see our overview on appeals here).

We will have a look at it when the Court has given its ruling, but we would expect the appeal to be allowed and a tariff of about 18 years substituted. This will come with a strong warning that this is a minimum and he may well be in detention for a lot longer than that.

Thanks to CrimeLine for highlighting that it’s in Court tomorrow.

Photo from the Bury Free Press

Myles Bradbury Struck Off

It what is perhaps not particularly surprising news, Myles Bradbury, the doctor who was sentenced to 22 years for various cases of child abuse, has been struck off the medical register.

This was obviously inevitable given the offence and sentence, but it is still a formality that needs to be undertaken (perhaps a point of relevance to the Ched Evans case). The sentence of the GMC (General Medical Council) of erasure from the record is the most severe sentence that can be passed.

In theory, Dr Bradbury can apply in five years time to be restored to the register (see here for details of this). It is unlikely that he would make an application (and he will be in prison for the next 11 years anyway) at any time, and if he does then it is even more unlikely that he will practice again.

We commented that the sentence seemed very high, but even if he appeals successfully, this will only be against the sentence and even if it reduced to, say, 14 years (the maximum for these offences), then it won’t change anything in terms of the GMC.

Photos from the BBC

Patrick Curran jailed for life for murder of Joan Roddam

Introduction 

In November 2003 Patrick Curran, who had a sexual fetish towards older woman, made a sexual advance towards Joan Roddam. She rebuffed this and, as a result of the anger this triggered, or to ensure her silence, Mr Curran strangled her.

At the time there was some circumstantial evidence against Mr Curran, but not enough to charge him. Last year, advances in forensic technology lead to the case being looked at again, and the proverbial ‘1 in a billion’ DNA match to the blanket that Ms Roddam was wrapped in after she was killed (and, probably less significantly, fibres found at the scene matched Mr Curran’s clothing).

Although Mr Curran denied responsibility for the killing, he was convicted of murder and sentenced on 27th January 2015 to life imprisonment with a tariff of 18 years.

 

Seems rather low doesn’t it?

On the face of it, considering that it was probably ‘involving sexual or sadistic conduct‘ or was done to ‘obstruct or interfere with the course of justice‘, it should attract a 30 year starting point (see here for our fact sheet on how murder tariffs are calculated)?

We don’t have the sentencing remarks, and so don’t know what the judge found in relation to this, but the first thing to note was that the murder was in 2003. This was before the Criminal Justice Act 2003 that hugely increased sentences for murder.

The starting point for Mr Curran would have been the sentence at the time. Assuming it was seen as the more serious murder, then the starting point would have been 16 years. In that sense, we are left with an unexplained increase of 2 years (we don’t know much about the facts of the murder or Mr Curran’s previous convictions as two reasons that could explain it).

So. Whilst he would probably have got a tariff about ten years longer, had the offence been committed now, in the circumstances the sentence he got is easily explicable.

In any event, that is the minimum period – it may well be that Mr Curran is not released until much longer than that if he presents a risk to the public.

 

crown-court1.png

[Guest post] The UK’s first FGM prosecution is not what you might expect…

Background

The country’s first prosecution under the Female Genital Mutilation Act 2003 (“FGMA 2003”) is currently underway at Southwark Crown Court, in front of HHJ Sweeney. The Defendant is Dr Dhanuson Dharmasena, a junior registrar in obstretics and gynaecology, who is on trial for the ‘reifibulation’ of female genital mutilation (“FGM”) – in layman’s terms, the re-stitching of FGM.

Facts of the case

The victim, known only as ‘AB’, was admitted to Whittington Hospital in November 2012 in the early stages of labour. When she was first examined, the midwife noted that AB had FGM. It appears AB first underwent FGM aged six, in her native Somalia. The next midwife to examine AB did not feel comfortable proceeding without a doctor and called for the assistance of Dr. Dharmasena. AB was examined by Dr Dharmasena, and he deinfibulated so that she was able to deliver the baby (in other words, he cut open the scar tissue from the FGM).

Dr Dharmasena faces no criticism for the deinfibulation. Rather, he faces prosecution because, after the baby had been delivered, he reinfibulated AB, sewing up both the episiotomy and part of the inner vaginal lips. This is the act that the Prosecution assert was contrary to the Female Genital Mutilation Act 2003 (“the FGMA 2003”). A midwife who was present at the time told Dr. Dharmasena that the procedure was not practiced in this country, and a hospital investigation was launched.

Another man is charged with aiding and abetting Dr. Dharmasena, and with an alternative count of encouraging or assisting another to carry out an offence.

The law

Section 1 of the FGMA 2003, ‘Offence of female genital mutilation’ provides that “a person is guilty of an offence is he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris”.

The offence appears to be strict liability, in that it has no corresponding mental element i.e. intention or recklessness.

Kate Bex, prosecuting, told the court that Dr Dharmasena originally gave the explanation that he carried out the procedure because AB wanted him to, but that he subsequently told police in August 2013 that the operation was ‘medically justified’. The defences to the offence of FGM are set out in section 2 of the Act, which provides that no offence is committed by an approved person (a medical practitioner or midwife, or trainee) who performs (a) a surgical operation on a girl which is necessary for her physical or mental health, or (b) a surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth. It is not yet clear on which of these two defences Dr Dharmasena seeks to rely.

Key Issues

Dr Dhamasena’s belief in the legality of the procedure he was performing will be somewhat irrelevant. What matter is whether he reinfibulated AB’s vagina for a legitimate medical purpose.

This is not the clear-cut case one might have imagined for the first prosecution under the FGMA 2003. Kate Bex, prosecuting, told the court “if you do know a little bit about FGM, you may be expecting to hear that the offence took place in a back-street clinic, by an unqualified and uncaring person, on a young child. This is quite different”.

The secrecy surrounding FGM makes it difficult to pinpoint cases, and it can be even more difficult to put together a case when the complainant will not give evidence, as in AB’s case. However the fact that the reinfibultation happened in a hospital has allowed the Crown to carve a case from witness accounts of medical practitioners and medical evidence.

Dr Dharmasena has been suspended by the General Medical Council pending the outcome of the trial.

By Merry van Woodenberg (@MerryVW), pupil barrister.