Criminals jailed by magistrates to pay victim surcharge? So say the BBC

Ministry-of-Justice-006

Introduction

Robust, victim centred, blah blah blah, strictly enforced etc etc”. So said a Ministry of Justice spokesbot on 8th August when announcing that ‘up to’ £1.5 million will be extracted from offenders for the benefits of victims every year.

 

What’s this all about?

This is to do with extending the victim surcharge to all offenders, including, specifically, those sentenced to prison in the magistrates’ courts.

It is achieved by s179 Anti-social Behaviour, Crime and Policing Act 2014. This means that the Magistrates’ Court can’t order a surcharge deemed served by time in custody (a common way of getting rid of a minor offence is a fine of X, or one day deemed served).

The reason this is a block is that otherwise the government knew that magistrates, faced with penniless defendants and recognising the futility of ordering them to pay a surcharge whilst locking them up, would remit the surcharge. This preserves the important point of making the courts look as inefficient as possible by having a large number of unpaid financial penalties on the system.

According to the BBC, this will come in on 1st September 2014. The new s179 came in to force on 1st June,sowhat must (presumably) be coming in on 1st September is an amendment to The Criminal Justice 2003 (Surcharge) Order 2012 (2012/1696) to the table in the Schedule. This will extend the duty to impose a surcharge to the Magistrates’ Court. However, I can’t seem to find the Statutory Instrument that will give effect to this. Given that 1st September is only 3 weeks away, if there is to be one then there should have been a draft SI published by now. We will keep you up to date as and when this becomes clearer. If someone more ‘in the loop’ than us is aware of what is going on, please let us know.

 

Anyway. Do the MoJ’s statistics stand up?

Seriously, what do you think?

We are told that it will bite on 43,000 people a year. It’s always worth doing some maths when government releases statistics. £1.5 million shared between 43,000 people gives an average of £35 per person. But the surcharge for most of these people will be £80 (if the sentence is 6 months or less). For those who get 6-12 months (possible if there are two either way offences, but rare) the amount is £100.

So … even if everyone is at the lower £80 level, 43,000 multiplied 80 is £3,440,000. What’s the explanation – liars in the MoJ, general ennui, a recognition that this is doomed to fail? Who knows.

 

How much will it bring in?

‘Up to’ is the key phrase in the press release. For example, I earn ‘up to’ a billion pounds a year. I’ve never earned more than that, but that doesn’t mean I earn anywhere near to that.

Whilst there are a very few exceptions, those people that are sent to prison by magistrates have no money and non assets. They certainly won’t be able to pay an extra eighty quid, even if they were so inclined.

We will see, but this is unlikely to bring in much at all I would imagine. Certainly, it will cost more to administer than it will raise.

 

A loophole explained

This does explain one thing. I always thought that leaving people in the magistrates’ court sentenced to imprisonment out was an oversight. The sort of thing that happens when you belch out criminal legislation like a drunken hooligan after a curry and Stella binge. But it seems that it was a deliberate policy after all.

 

Conclusion

This is a good exercise in headline grabbing. The government look tough, but it’s all fairly meaningless. Expert more of this, it being an election year. Will it make much of a difference? I doubt it. 

 

Emily Fox – teacher admits sexual activity with pupil

BBC

BBC

Introduction

An attractive female teacher pleading guilty to sexual offences on a girl at a public school? You could almost feel the Daily Mail salivate. Actually, they weren’t too bad. They got the law wrong, but their coverage wasn’t too salacious.

Anyway. As the BBC reported, Emily Fox, a 26 year old teacher at the Royal Masonic School for Girls in Rickmansworth, pleaded guilty on 7th August 2014 to four charges relating to sexual activity that she had with a 15 year old pupil.

The case has been adjourned for sentence to obtain a pre-sentence report. Ms Fox was released on bail until then, but will have to register as a sex offender.

 

What were the charges?

It seems that it was four counts of sexual activity with a child in breach of trust, contrary to s16 Sexual Offences Act 2003.

This immediately causes problems. The maximum sentence is 5 years in prison. This was seem low, but it will only be charged where there is consent, which we can assume was present here, if those were in fact the correct charges.

However, it seems that the Judge was told that the “starting point for the offences was four years in jail with a range of three to seven years“. Looking at the Sentencing Guidelines (page 67), this is far above the figures given in the guidelines.

So. What is behind this? The range stated above is for offences of Causing a Person to engage in Sexual Activity without consent and without penetration (s4 Sexual Offences Act – p22 Guidelines). It doesn’t appear to be for any other applicable offences.

This is far more serious – it requires an absence of consent. It’s unclear in this case what actually happened, but the range stated puts it right in the top category. This requires, at the very least, a combination of the extreme nature or consequence of the following :

• Severe psychological or physical harm
• Penetration using large or dangerous object(s)
• Pregnancy or STI as a consequence of offence
• Additional degradation/humiliation
• Abduction
• Prolonged detention/sustained incident
• Violence or threats of violence
• Forced/uninvited entry into victim’s home
• Victim is particularly vulnerable due to personal circumstances

Some are clearly not relevant. As to the rest, and what the factors were, we can only guess. Even if those are present, further aggravating features (in Column A) are required.

At this stage, it is all a bit unsatisfactory. There’s not much more we can say until the sentence, where hopefully it will be spelt out in more detail.

Ghost-busted : Anthony Stallard fined for pretending to be a ghost

Phantom_(Hassle_in_the_Castle) (1)

Introduction

Truth is stranger than fiction, and sometimes the real world throw up headlines more ridiculous than can be one. Step forward Anthony Stallard, the hero of this story.

 

Facts

Mr Stallard had been drinking (as begins so many of our pieces) and, after a few, decided to go with some of his friends to the Kingston Cemetery in Portsmouth to play some football.

There were other people present (it’s not clear what time of the day was this) who were moved to complain to the police about Mr Stallard’s behaviour :

The witnesses reported the group engaging in rowdy behaviour and one of them throwing their arms in the air and saying ‘woooooo’,” he said

Mr Stallard was charged with criminal damage to a gravestone, but this was dropped. We’ve not idea what this related to. We do know that he was charged (and seemingly pleaded guilty to) one charge (we think) under s4A Public Order Act 1986 of using threatening, abusive or insulting words or behaviour with intent to cause harassment, alarm or distress.

 

Sentence

Mr Stallard was fined a whopping £35 (which seems to indicate the seriousness of it in the eye of the magistrates) as well as the £20 Victim Surcharge and £20 costs.

 

What to make of it?

It’s a good headline. I find it hard to see how the offence is made out on the face of it. It’s unlikely that Mr Stallard was trying to upset other people, even if that was the effect. For that reason, a s5 charge would have been more appropriate (and it may be that that is what it actually was, news reports get it wrong sometime).

Even then, was this a necessary and proportionate use of state power? It doesn’t seem it to me on the face of it. This would be a classic case where it would have been in everyones interest for the police to ask Mr Stannard to calm it down and move him and his friends on to a more suitable football venue.

Maybe that happened, and if so, then apologies to the police. If it didn’t, then remembering that the actual cost of this to you and I is thousands and thousands of pounds, it may be that a more sensible approach could have been taken to this.

 

Kingston cemetery in Portsmouth

Constance Briscoe sacked as a Judge, still a barrister though …

Briscoe

Introduction

On 1st May 2014, Barrister and Recorder (part-time Judge) Constance Briscoe was convicted of Perverting the Course of Justice, getting a 16 month prison sentence the next day.

Today, 6th August 2014, a mere three months later, she was summarily sacked as a Crown Court Recorder (as well as sitting as a tribunal chair).

 

Why did it take so long?

These things take time, don’t you know? Actually, there was no particular rush on this one. She can only sit as a Judge when she is allocated work, and she hasn’t had any since her arrest in October 2012.

Also, of course, for the last three months she has been in prison, and she wouldn’t have been let out to go judging.

Having said that, a conviction of any kind (bar minor driving offences) is pretty fatal for a judge, for obvious reasons. A conviction for perverting the course of justice goes right to the heart of an individual’s suitability as a Judge. The Judicial Conduct Investigation Office were only going to go one way on this one …

 

But she is still a barrister?

As we understand it, yes…

Again, this is a question of things going through the system, rather than anything else. She will not be allowed to practice as a barrister again – once the Bar Standards Board get their hands on her.

They may well be working on the assumption that, again, she won’t be getting work in prison and is so (in)famous that she won’t be getting any (legal) work when she is released (which will be in about a month we think).

Still, it’s not great for the public image is it?

 

 

Ian Watkins Appeal – Judgment released

Photo from the Independent

Photo from the Independent

Introduction

We have covered the case of Ian Watkins on several occasions on the blog so far. Most recently on the 23rd July 2014 when his appeal against conviction was dismissed.

On 31st July, with commendable swiftness, the judgment of the Court of Appeal was published. It is certainly worth reading in full

 

Reasons

The main points that were put forward were that firstly there should have been greater discount for the plea of guilty and, secondly, that the sentence was simply too long.

The Court of Appeal did not find it too difficult to reject these grounds. The circumstances of the offending were utterly horrific, and a long prison sentence was absolutely inevitable. The nature of the offences committed was so far outside the usual range, that it is difficult to criticise it.

I can see the argument that greater credit should have been given, but equally, it can’t be said that the trial Judge got it wrong, so the Court of Appeal’s finding on that is also unsurprising.

 

What the sentence means

The casual observer may be quite surprised at the contents of paras 4-7. In this it is clear that there was a dispute as to what the actual sentence was. How is it that, in one of the most high profile cases of the year where the public gallery was full of journalists, there can be a confusion as to what the sentence was?

The answer lies in the fact that current sentencing practice is needless complicated. Successive governments have spewed forth changes to legislation at the drop of a tabloid headline, which has lead to a situation of nearly continual revolution.

What was the issue? It revolved around the sentences on the following counts:

  • Count 1 – attempted oral rape – 15 years
  • Count 2 – attempted anal rape – 15 years, concurrent
  • Count 8 – aiding and abetting assault by penetration – 14 years, consecutive
  • Count 9 – conspiracy to rape – 14 years, concurrent with Count 8

The Judge stated that an extended sentence would be passed. What he actually said was :

The sentences on counts 1 and 2 will be 15 years. The sentences on counts 8 and 9 will be 14 years consecutive. Custodial term 29 years

There will be an extended period of licence under section 226A of 6 years on those counts

All other sentences will be concurrent. Your total sentence is therefore one of 35 years. 

In your case that means you will have to serve 2/3 of the custodial term before you can be considered for release by the Parole Board. If you are released you will remain on licence for the extended period.

The Court of Appeal noted that this was ambiguous. To what sentence does the extension apply? Is it all four, in which case the sentence is 29 years plus 6 years, so Mr Watkins has to 2/3 of 29 years – 19 1/3 years.

Or, is it a determinate sentence of 15 years on Counts 1 and 2, consecutive to an extended sentence of 14 years with 6 years extension. In which case Mr Watkins has to serve 7½ years (half the 15 years determinate) followed by 2/3 of the 14 years (which is 9 1/3 years) for a total of 16 5/6 years?

This makes a difference of 2½ years. A very big difference. There are in fact other ways of interpreting the remarks, but those are the main two…

The Court of Appeal concluded that it was the latter meaning. It also means that Mr Watkins has to serve (depending on the Parole Board of course) 2½ less than he thought. So, although Mr Watkins lost the appeal, he ended up getting a reduction in sentence of more than most successful appellants.

Was the Court of Appeal right? Yes and no, we would suggest. Yes because there are good reasons that the first way of phrasing the sentence is unlawful and it is a general principle that where there is an ambiguity, the benefit of the doubt should go the defendant.

And ‘no’, because we would suggest that it is clear from the Judge’s sentencing remarks that he talked of an extended sentence attaching to a custodial period of 29 years, meaning that the first interpretation is what the Judge wanted.

 

Conclusion

It should be a matter of concern that sentencing has got so complicated that this sort of ambiguity can occur. This can be addressed by a proper sentencing code and a bit of self-restraint from Parliament. That is of course unlikely.

Right thinking members of the public would probably be surprised that something so important as how long someone serves can be changed by a matter of years depending on how the sentence is announced.

Had the Judge said that he would pass a ‘global’ sentence on Counts 1, 2, 8 and 9 of 29 years with a 6 year extension period, Mr Watkins could not have complained. But he would now be serving an extra 2½ in prison.

Instead of legislating for more nonsense such as Alcohol Abstinence Orders, Parliament could look at the Frankenstein monster that they have created with the current sentencing regime.

Photo from the Express

Rolf Harris applies for permission to appeal against his convictions for indecent assault

On 1 August 2014 it was revealed that Rolf Harris had applied for permission to appeal against his convictions for indecent assault.

The process

An appeal must be lodged within 28 days of the conviction (so a defendant is not allowed to wait until the sentence – if it is adjourned – to see what the sentence is).

To launch a successful appeal, there must (generally) be an ‘error of law’ identified. This means that the defendant will have to identify something that went wrong. Common examples of this are a ‘misdirection’ by the Judge to the jury (where the Judge gave the jury the wrong instruction as to the law) or that evidence should not have been admitted (for example, hearsay evidence).

Every application will be sent to a High Court Judge (called the ‘Single Judge’) who will consider the written application. This is done just by reading the papers and neither the person trying appeal or the Prosecution will appear in front of them.

Normally he or she will decide whether there is a reasonable prospect of an appeal succeeding. If there is, then they will grant permission and the case will go forward to a full hearing. If they think that there is no reasonable prospect of an appeal succeeding then they will refuse permission.

A full appeal hearing will be heard by three Judges, normally one Lord Justice of Appeal (who sits full time in the Court of Appeal) and two High Court Judges.

The appeal will not be a rehearing of the case and it is very rare for evidence to be heard. The Court will hear argument and decide whether the conviction is ‘unsafe’. This will normally be a two stage test – firstly, was there an error of law made and, secondly, if so then would it have made a difference to the trial?

The Court are supposed to ensure that they are not judging the case again, only deciding whether the verdict is safe. The case of Pendleton shows that they do not always do this, as well as giving a good overview of how the Court of Appeal should approach an appeal.

If permission is refused, then the individual can renew the application before the ‘Full Court’ – the panel of three Judges, who can dismiss the application or grant permission.

If the Court of Appeal allows the appeal then they can either quash the conviction and leave it at that, or order a re-trial. If they order a re-trial then the case will go back to the Crown Court for another trial. There a variety of factors that they will take into account in deciding whether there should be a re-trial, such as whether any sentence has been completed and how serious the offence is.

What does this mean for Rolf?

Well, the papers will be prepared and considered as outlined above. We aren’t aware of the grounds of appeal and so no speculation as to the likelihood of success can reasonably be made. When we hear of the result, we’ll post about it.

Rolf Harris : Attorney-General won’t be appealing the sentence

Photo from the Express

Photo from the Express

We have covered the case of Rolf Harris on the blog, sometimes with some very lively debate below the line (here’s the report on the conviction, our prediction of sentence as well as the details of the sentence that was actually passed).

In relation to the sentence, we said at the time “One thing about sentencing for historic offences is that nobody is satisfied. On the one hand it is lenient, in that it is around half of what he would get now. On the other hand, it is very severe, as it is probably about four times or so what he would have got had he been sentenced at the time.

There were plenty of calls for an appeal by the Prosecution (see here for a factsheet on Attorney-General’s References). We were sceptical whether this would happen for the reasons set above.

Well. On 30th July 2014 it was announced that there would not be a Prosecution Appeal against the sentence. You can see the full announcement on the AGs website – it’s the first announcement in fact by the new Attorney-General – Jeremy Wright QC.

Whilst this may be a disappointment to some people, it is completely understandable in the circumstances of the case. The sentence was, when looked at in the prism of the law at the time, if anything very severe rather than unduly lenient. It may be that Mr Harris will be appealing the sentence imposed on him.

Image from the BBC

Lorry driver convicted of murder over road rage incident

Mark Slater, aged 47, was convicted of murder on 29 July 2014.

It was suggested that the victim, Trevor Allen, aged 56, spotted Slater using his mobile phone whilst driving his 17T HGV. It is thought that Mr Allen indicated to Slater that he should stop using his mobile. What followed was a road rage incident which involved Mr Allen getting out of his vehicle and approaching Slater’s HGV. At that point, Slater drove over Mr Allen.

Trial

Slater pleaded not guilty on the basis that, whilst he was responsible for the killing, he did not see Mr Allen and therefore lacked the requisite intent for the offence of murder. The jury did not believe him and convicted him of murder.

The jury had heard evidence of previous road rage incidents involving Slater in which he had exited his HGV and proceeded to kick and punch another vehicle.

BBC

BBC News covered the story and more details – including an audio clip of the 999 call – are available here and here.

The BBC reported that Slater faces an automatic life sentence. That is not quite the case. Our explanation of what an automatic life sentence is, can be read here.

Sentence

The true position, as you are no doubt aware, is that Slater will receive a mandatory life sentence. That is the only sentence available for murder.

The judge must set a minimum term and in doing so will refer to Sch.21 of the Criminal Justice Act 2003 which sets out the starting points for murder tariffs.

As avid readers of the blog will know, a 25-year starting point is usually appropriate where a knife or other weapon is taken to the scene. In R v Beckford 2014 EWCA Crim 1299, the Court of Appeal held that a judge was correct to find that the 25-year starting point applied on the basis that the car was used as a weapon and was taken to the scene for the purposes of Sch.21 where, in his car, the defendant had chased the victim (who was riding a push bike) and driven into him.

In this case, it would appear that due to the spontaneity of the road rage incident, that would not apply. Consequently, the starting point is most likely going to be one of 15 years.

The judge will then take account of the aggravation (such as the nature of the death, the use of a vehicle as a weapon and the events leading up to the death) and mitigation (such as a lack of intent to kill, and the lack of premeditation). On the bare facts we have available, we’d expect a minimum term of just under 15 years – however that could of course rise depending on facts we may be unaware of.

Michael Adebolajo refused permission to appeal conviction and sentence

ADel

One of the most notorious murders of recent times is the killing of Lee Rigby. We have covered it a few times on the blog (see previous link). The latest news was that Mr Adebowale had received permission to appeal his tariff of 45 years.

We had looked previously at the fact that his co-defendant, Michael Adebolajo, had applied to appeal his conviction and sentence.

On 29th July 2014 it was announced that he had been refused permission to appeal. It seems that this will be renewed to the full court (see an explanation of how appeals work here), where it will be heard with the appeal of Mr Adebowale.

We will look at the appeal when it is heard. We stand by our prediction that his appeal against conviction will get absolutely nowhere. Because of the legal issues surrounding whole life tariffs, he has a better shot at the sentence appeal, but I wouldn’t hold your breath …

Christopher Copeland – guilty plea to defrauding three hundred grand from charity

Photo from the BBC

Photo from the BBC

Introduction

Some people, when you find out their offending, you know will get a hammering when they are sentenced. Christopher Copeland is one such gentleman.

On 28th July 2014 he pleaded guilty to one count of fraud (and one count of money laundering that related to hiding the proceeds of the fraud). Sentence has been adjourned until 15th September.

 

Facts

Mr Copeland was organising collections on behalf of the charity ‘Help for Heroes’ all over the UK. He was registered with them, and did in fact gives tens of thousands of pounds to them that he had collected.

However, he also kept about £300,000 for himself over an 18 month period, paying this into his own bank account. It is not clear how this came to light, but by his plea of guilty he accepted that this was the case.

It is not clear at what point of the proceedings Mr Copeland pleaded guilty, but it seems that there was some discussion as to the amount stolen and a plea was entered once the prosecution had agreed the total amount stolen.

 

What will he get?

There are two guidelines to look at – the Theft Guidelines and the Fraud Guidelines.

Looking at the Theft ones, this is theft in a high breach of trust (p11) and is right at the top of that bracket, giving a sentence of about 5-6 years after a trial.

With the Fraud guidelines, it’s probably best described as a confidence fraud. We’d say it was in the top bracket, which gives a starting point of 5 years after a trial.

So, pretty similar whichever way you look at it. Stealing from a charity doesn’t go down well at all (for pretty obvious reasons), and we’d say the Judge will probably start with 6 years (if not a little bit more) before giving whatever credit is appropriate. On the basis that this was a plea at the earliest opportunity, we’ll plump for a sentence of 4½ years.

 

What was he released on bail?

Having pleaded guilty to an offence for which he is almost certainly going to go to prison for, some might find it surprising that he wasn’t locked up there and then. Twenty or so years ago, he probably would have done, not least because some judges would have seen it as a kindness (the time spent on remand would count towards the sentence) and to spare the defendant a month or so in a state of having their liberty, but knowing that they are about to lose it.

Times have changed a bit and the Judge has to look at the Bail Act to see if there are reasons for the defendant to be remanded.

In this case, Mr Castelford appears to be a man of good character, and there is no reason to suggest that he won’t come to Court. After all, he turned up today knowing that he was pleading guilty.

Some defendants would actually ask to be remanded to start their sentence, some prefer to have time to put everything in order.

In this case, the fact that it has gone off until September indicates that more than just the usual pre-sentence report is needed. Probably a medical report, but we don’t know.

Either way, even if there’s something exceptional in the reports, we’d expect a pretty lengthy prison when he is back in six weeks time. We will return and look at it then.