Rolf Harris Guilty of twelve counts of indecent assault

From the Huffington Post

From the Huffington Post

Introduction

On 30th June 2014, Rolf Harris, 84, was convicted of 12 counts of indecent assault at Southwark Crown Court. 

Offences

Harris was charged with 12 counts of indecent assault (Sexual Offences Act 1956 s 14) 

The 12 charges were in relation to four different complainants occurring between 1968 and 1986. The complainants were aged between seven and 19.

We have a factsheet on historic sex offences.

Individual counts

Complainant 1 – C1

How many counts? Seven of the 12 counts related to this complainant

When were the offences alleged to have been committed? 1978 – 1985

How old was the complainant? 13 – 19 (although it was said that the complainant alleged she was abused by Harris up to age 29)

Who was she? A friend of Harris’ daughter. 

The alleged activity The Mirror reported: Harris approached the girl in her room after she came out of the shower wrapped only in a towel, then indecently assaulted her “on the pretext of a hug and tickle”.

Details During a family holiday to Hawaii in 1978, C1 was assaulted by Harris. He went on to touch C1 several more times during the holiday, including after they moved on to Australia for the trip. 

The Mirror reported: She said had just got out of the shower and was wrapped in only a towel when he came over and gave her a “cringey” hug.

She told the jury of six women and six men: “The way he hugged you and touched you all over, it was cringey.

“The way Rolf folded himself around you, he was a big man…he enfolded you in his arms and then touched you up and down over your body.

“He’d go ‘ooh’.”

He then sexually assaulted her before going back downstairs as if “nothing had happened”, the woman told the court.

C1 also said Harris twice led her away from a jetty where she had been sunbathing to abuse her down the side of the house.

However in cross examination Harris’ barrister questioned C1 about her diary,  particularly asking why there was no mention in her diary of the alleged abuse. The diary entry for that day commented “Today was great, we went on the beach and went swimming.”

Further assaults were said to have taken place in her own home during her teens and on one occasion when other people – including Harris’ wife – were present in the room. C1 developed a drinking problem at age 14 and would drink “shed loads of gin” when Harris visited her family home. C1 also alleged that Harris abused her when she was in bed next to Harris’ daughter Bindi. 

When C1 was 14, Harris followed her to her room, and said she “turned him on” before assaulting her.

After C1 turned 19 there were occasions when she consented to sexual encounters with Harris, which continued until she was 29.

On one occasion she performed a sex act on Harris on the M4 motorway in Harris’ red Mercedes when she was 22 in 1987.

C1 went to see Harris in Cinderella in Wimbledon in 1994.

She performed a sex act on him in his dressing room before the panto started.

She brought the abuse to an end when she was 29.

C1’s father wrote a letter to Harris after C1 told him of the abuse. Harris replied in 1997 admitting a sexual relationship, denying that it began when she was aged 13 and  he had been left feeling “sickened” to learn of the misery he had caused her.

Harris said he believed that “everything that had taken place had progressed from a feeling of love and friendship”, and there was “no rape, no physical forcing”.

Complainant 2 – C2

How many counts? 1

When were they committed? 1968

How old was the complainant? 7 or 8

Details When aged 8, C2 saw Harris at a community centre. in Portsmouth She went to get his autograph. He touched her indecently in an ‘intrusive’ way. 

The Mirror reported: C2 told jurors: “He was very very close, he was leaning into me.

“I thought he was warm, being accommodating to a small child.

“He was looking at me smiling and I smiled and was looking excited, then from out of nowhere I felt his hand go down my back and up between my legs.

“It was very quick, so quick that I thought to myself ‘what’s just happened’.”

The girl “could not process” what had happened and thought it may have been an accident but Harris then repeated the same move.

She said: “More or less instantly the hand was back. I don’t recall it on my back that time, but it was straight up between my legs quite aggressively and forcefully and it didn’t matter if it was going to hurt me or not.”

Complainant 3 – C3

How many counts? 1

When were they committed? 1975

How old was the complainant? 14

Details At an ‘It’s a Knockout’ event in Cambridge, C3 saw Harris playing with a dog. He said “oh look who’s here’ before fondling her.

The Mirror reported: C3 told the jury of six men and six women that Harris put his arm around her, and moved his hand up and down her back, before squeezing her bottom.

With her voice wavering, she said: “I can’t remember the exact words but he made some motion to me ‘ come up’, and I can see it in my mind’s eye as clear as if it was happening now. He came up and put his arm around my left shoulder.

“It was quite a firm hold. I just stood there. I couldn’t believe what was going on, this famous person putting his arm around me.

“To start it was a very nervous but a good feeling, however his hand then moved and his hand went up and down my back and his hand went over my bottom and it was very firm.”

Complainant 4 – C4

Anonymity – C4 had reportedly ‘waived’ her right to anonymity. Whilst there is provision for that under the relevant legislation, we will air on the side of caution and refer to her as C4.

How many counts? 3

When were they committed? ‘late 1980s’

How old was the complainant? 15

Details C4 met Harris whilst she was part of a theatre group in Australia. The group travelled to the UK in 1986 where they met Rolf and had dinner at a London pub where he told funny stories. He asked the girls to sit on his lap whilst he touched them inappropriately. C4 was in shock and went to the bathroom. When she left the bathroom Harris was waiting for her and groped her again. Harris stopped when someone walked by. 

The Mirror reported: C4 then aged 15, said she was invited to sit on the entertainer’s lap, and that his hand began to creep up her thigh.

She said: “I could feel that there was some movement happening beneath me. He was moving back and forth rubbing against me.”

The defence commented that C4’s decision to give press interviews about the alleged abuse demonstrated a desire to make money out of Harris. 

Other alleged victims

The court also heard from five other women who claimed to have been victims of Harris’ behaviour. As some of the behaviour was committed outside of the UK and before legislation enabled such offences to be tried in the UK, the evidence was adduced to attempt to demonstrate how Harris had a defined pattern of behaviour in relation to young women and girls. The jury were not asked to consider whether he was guilty of those allegations. The most notable allegation to feature in the papers was probably that Harris told an 11-year-old girl, “I want to be the first one to give you a tongue kiss,” as he lunged at her during a trip to Australia in 1969.

Jury questions

The media are always fascinated by these. Often they can give an inaccurate indication as to the stage or thought process of the jury and barristers tend to tell their clients not to take too much heart (or dismay) from a particular question asked by their jury.

The jury asked the Judge a question on Friday 20 June. The Guardian reported that they were sent home for the weekend early after asking the Judge what happens if they are unable to reach a unanimous verdict.

The Judge replied: “At the moment the only verdict on each count I can accept from you is one upon which you are all agreed.

Sentencing

Maximum sentences

Sexual Offences Act 1956 s 14 – the law was amended over the years and the maximum sentence changes depending on when the offence was committed. The relevant periods are:

1 January 1957 – 31 December 1960: 2 years

1 January 1961 – 15 September 1985: 2 years or 5 years if victim under 13 and age stated on indictment

16 September 1985 onwards: 10 years

What does this mean for Rolf Harris?

C1 – max sentence on each count 2 years

C2 – max sentence 5 years provided the indictment specifies C2 was aged under 13

C3 – max sentence 2 years

C4 – max sentence on each count 10 years

How will the Judge approach the case?

The starting point for sentencing historic sexual offences is the new sexual offences guideline. We have a fact sheet on the sentencing of historic sexual offences which explains the way the Judge will approach the sentencing exercise. 

Additionally, as there are multiple counts to sentence for, our guide on totality and concurrent and consecutive sentences may be of interest.

He will be sentenced on Friday 4 July at 10am. He was bailed until then.

Is biting someone serious? Obligatory World Cup shoe horn post

Photo from the Huffington Post

Photo from the Huffington Post

Introduction
Apparently, there’s some sort of sporting contest between gentlemen underway in the Southern Hemisphere, where one participant has behaved in a less than Corinthian-like way (allegedly).

 

Facts

During the Italy v Uruguay game there was an ‘incident’ between Giorgio Chiellini and Luis Suarez. The case against Mr Suarez is that during a clash in the Italian penalty box he bit Mr Chiellini on the shoulder.

This is backed up by not just the word of the Italian fellow, but by replays of the thousands of tv cameras in the stadium. There is also the aftermath of the alleged bite on the said italian’s neck.

There are two sides to every story of course. Mr Suarez has now put his forward. In his own words – “I lost my balance … falling on top of my opponent … I hit my face against [Chiellini], leaving a small bruise on my cheek and a strong pain in my teeth“.

It’s the sort of defence that any self-respecting magistrate would dispatch in an instant. And FIFA did not appear that troubled by it, banning him for nine matches and ‘any football related activities’ for four months. There was also a fine of £65,000 – small change to him.

There is an appeal mechanism but this ruling seems to be safe. Whilst there have been calls for a prosecution, there is no realistic possibility of that.

 

 

What would happen under English law?

We have a factsheet on the difference offences against the person. Whilst this is a ‘wound’ and could be charged as the more serious offences under s20 or s18 Offences against the Person Act 1861, it would be charged in practice as causing Actual Bodily Harm.

The Sentencing Guidelines for Assault would be, as always, the starting point. It’s slap bang in the middle, we would suggest, giving a sentence of six months after a trial.

Biting is taken very seriously by the courts – it is seen as being the same as an attack with a weapon (Attorney-General’s Reference No 7 of 1994 [1995] 16 Cr App R(S) 300) and would be seen as a severely aggravating feature.

Conclusion
People can be prosecuted for their actions on a pitch, although such prosecutions are rare.

If this were to happen in England then, despite the often trigger-happy nature of the police and CPS, it wouldn’t be prosecuted in a way it would be if it happened outside a nightclub on a Saturday night.

Is that right or not? Is it time the authorities clamped down on such behaviour by making an example of someone, or is it better to leave it to the FA and other relevant bodies to police?

 

Have Wonga commited a criminal offence?

Wonga.com_company_logo

Introduction

You may know Wonga from their cheery TV ads featuring knitted OAPs. Hopefully you don’t know them from borrowing money off them, given that their APR gets up to 5853%. They offer payday loans at huge interest rates. Whilst it may not be part of their official stchick, there is a general view that they target people who are the most vulnerable and cannot access finance from more mainstream financial institutions.

Well, on 25th June 2014 they got into a bit of trouble with the Financial Conduct Authority (‘FCA’) for sending letters who were in arrears with their payments from organisations that appeared to be solicitor firms. The names included “Chainey, D’Amato & Shannon” and “Barker and Lowe Legal Recoveries”. According to the BBC,  “The plan was to make customers in arrears believe that their outstanding debt had been passed to a law firm, with legal action threatened if the debt was not paid.” To make matters worse, “In some cases Wonga added fees for these letters to customers’ accounts.

You can read the FCA report here in full. They have given Wonga a firm rap round the knuckles and directed that the people affected be compensated to the tune of £2.6 million.

This is all a bit embarrassing  for Wonga, but is it more than that? As Stella Creasy, the MP for Walthamstow asked on twitter :

 

.

So. Are there any criminal offences here?

 

Possible Offences

Fraud

The Fraud Act is always a good start. What about s2 – Fraud by False Representation? Someone commits fraud if they dishonestly make a false representation, intending to make a gain for themselves or cause a loss to another, when they know that the representation is false and misleading.

Looking at that, under s2(5) “For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention)“. It is probable that a headed paper implying that a letter comes from a law firm is a false representation, so we can tick that box.

What about the fact that, under the contract with the customer, they were owed the money? There is a very wide definition of ‘gain’ and ‘loss’ in s5. It is likely that this would fall into the section, with the safety valve being the requirement of dishonesty. For that reason, subject to the question of whether Wonga were being dishonest, this offence would appear to be committed.

 

Impersonating a solicitor

There are two possible offences here. Firstly, under the Solicitors Act 1974. There is an either way offence of acting as a solicitor when not being one (s20), but it is likely that there was nothing done here other than send the letter implying that it was from a lawyer.

It is also an offence (under s21) for someone who “ wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is, qualified or recognised by law as qualified to act as a solicitor“. This is summary only which looks like a problem (as there is normally a six month time limit for bringing proceedings and Wonga’s practice here stopped in 2010).

s26 extends this time period, but not by enough in this case - proceedings in respect of any offence under section 21 may be brought at any time before the expiration of two years from the commission of the offence or six months from its first discovery by the prosecutor, whichever period expires first“.

There is an offence of pretending to be entitled to carry out a reserved activity under s17 Legal Service Act 2007. This can get a bit complex, but it may well apply if the bogus letterhead said, as an example, ‘Commissioner for Oaths’ as oath taking is a reserved activity.

So, although this offence looks good on paper, it’s actually pretty unpromising. A further issue is that whilst pretending to be a solicitor is a criminal offence, stating that someone is a lawyer is not.

 

Blackmail

This is an offence under s21 Theft Act 1968 :

A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—

   (a) that he has reasonable grounds for making the demand; and

   (b) that the use of the menaces is a proper means of reinforcing the demand.

The fact that Wonga is entitled, under the general law of contract, to the money does not of itself mean that a threat to sue cannot be a ‘menace’ (although it may be hard to persuade a jury of this) or that a threat to sue (especially if it is using a fake law firm) is unwarranted. It is clear that ‘gain’ includes ‘getting money to which you are entitled to’.

So, whilst ‘blackmail’ conjures up connotations of masked men making a ransom demand after a kidnapping, this may well be close.

 

Harassment of Debtors

This is a little known offence under s40 Administration of Justice Act 1970. It is committed when someone:

with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he—

(a) harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;

(b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;

(c) falsely represents himself to be authorised in some official capacity to claim or enforce payment; or

(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

There is a general defence (s40(3)) if what was done was reasonable. It seems that the case against Wonga under either (c) or (d) is a pretty strong one. The difficulty here is that this offence is also summary only, with no extension period, and so it would appear to be time-barred.

 

Comments

Wonga was never one of those brands that is thought of highly by the public, but this won’t have done anything to help it. Have they broken the law? It’s an interesting question. It is unlikely that the police or CPS would get involved. If Ms Creasy wants to launch a private prosecution however, then she is perfectly entitled to…

 

From the Telegraph

From the Telegraph

Phone Hacking – the trial of Rebekah Brooks et al

Photo from the Guardian

Photo from the Guardian

Introduction

The trial of Rebeka Brooks, Andy Coulson and others began at the Central Criminal Court on 28th October 2013.  On 11th June 2014 the jury retired to consider their verdict.

Verdicts were returned on 24th June 2014. The headline news was the conviction of Andy Coulson on one count, but the acquittal of most other defendants.

On 25th June, the jury were discharged from giving a verdict on Mr Coulson and Clive Goodman on further counts. A decision as to whether there will be a re-trial will be on Monday 30th June 2014. We will keep this post factual until then.

What was the case about?

Phone hacking and the behaviour of the New of the World.  In particular, it was alleged that employees working at the News of the World hacked the phones of a number of individuals in an effort to obtain information about celebrities for publication in the newspaper.  This was a direct invasion of those individual’s right to privacy.  Many of the victims of hacking are celebrities.  Some were members of the public misfortunate enough to hold the same surname as a celebrity.

It was agreed by both the prosecution and the defence that phone hacking went on at the NoTW, the issues for trial are how much, when, and who knew about it.

There were also allegations that the newspaper was involved in paying various officials (primarily police officers for information and destroying evidence to cover their tracks.

Who were the defendants?

Rebekah Brooks – now aged 45, Brooks became the editor of the NoTW at just 30 years of age.

Andy Coulson – now aged 46, Coulson was deputy editor of the NoTW under Brooks’ role as editor.  Later he became editor.  He resigned to work for the Conservative Party, where he became the Prime Minister’s Director of Communication.

Stuart Kuttner – now aged about 73, Kuttner was the managing editor of the NoTW from 1987 to 2009.  He retired in 2009 suffering with ill health.

Clive Goodman – now aged 56.  Started working for the NoTW in 1985, eventually becoming the Royal Editor.  Goodman pleaded guilty in 2006 to conspiracy to hack phones between November 2005 and August 2006, this was on the basis that he conspired with Mulcaire to hack the phones of three individuals.

Cheryl Cater – now aged 50.  Worked for Rebekah Brooks as a Personal Assistant from 1995 until being made redundant a week following Brook’s resignation.

Charlie Brooks – now aged 51.  Husband of Rebekah Brooks.

Mark Hanna – A former head of security at News International.

Ian Edmondson – a formed executive at the News of the World was found unfit to continue with his trial on 13th December 2013 and the jury were discharged from continuing to consider his case.

What were the charges?

Count 1:

Conspiracy to intercept communications

Details : IAN EDMONDSON, REBEKAH BROOKS, ANDREW COULSON and STUART KUTTNER between 3 October 2000 and 9 August 2006 conspired together, and with Glenn Mulcaire, Clive Goodman, Greg Miskiw, Neville Thurlbeck, James Weatherup and persons unknown, to intercept, without lawful authority, communications in the course of their transmission by means of a public telecommunications system, namely mobile phone voicemail messages.

Verdicts

Andy Coulson – Guilty

Rebekah Brooks and Staurt Kuttner – Not Guilty

Count 2:

Conspiracy to commit misconduct in a public office

Details :CLIVE GOODMAN and ANDREW COULSON, between the 31st August 2002 and the 31st January 2003, conspired together and with persons unknown to commit misconduct in public office.

Verdicts :

Jury discharged

Count 3

Conspiracy to commit misconduct in a public office

Details : CLIVE GOODMAN and ANDREW COULSON, between 31 January 2005 and 3 June 2005, conspired together and with persons unknown to commit misconduct in public office.

Verdicts :

Jury discharged

Count 4

Conspiracy to commit misconduct in a public office

Details : REBEKAH BROOKS between 1 January 2004 and 31 January 2012, conspired with John Kay, Fergus Shanahan, Geoffrey Webster and Bettina Jordan-Barber and persons unknown to commit misconduct in public office.

Verdict

Acquitted (Judge found no case to answer)

Count 5

Conspiracy to commit misconduct in a public office

Details : REBEKAH BROOKS, between 9 February 2006 and 16 October 2008, conspired with Duncan Larcombe, John Hardy and Claire Hardy and with persons unknown to commit misconduct in public office.

Verdict:

Rebekah Brooks – Not Guilty

Count 6

Conspiracy to Pervert the Course of Justice

Details : REBEKAH BROOKS and CHERYL CARTER between 6 July 2011 and 9 July 2011 conspired together to do a series of acts which had a tendency to and were intended to pervert the course of public justice, namely permanently to remove seven boxes of archived material from the archive of News International.

Verdict:

Rebekah Brooks and Cheryl Carter – Not Guilty

Count 7

Conspiracy to Pervert the Course of Justice

Details : REBEKAH BROOKS, CHARLES BROOKS and MARK HANNA, between the 15 July 2011 and the 19 July 2011 conspired together and with Lee Sandell, David Johnson, Daryl Jorsling, Paul Edwards and persons unknown to do an act or a series of acts which had a tendency to and were intended to pervert the course of justice, namely to conceal documents, computers, and other electronic equipment from officers of the Metropolitan Police Service who were investigating allegations of phone hacking and corruption of public officials in relation to the News of the World and The Sun newspapers.

Verdict:

Rebekah Brooks, Charlie Brooks and Mark Hanna – Not Guilty.

Summary

Andy Coulson was Deputy Editor and then Editor.  SK was Managing Editor and then Editor.  Rebekah Brooks was the Assistant Editor from May 2000 to January 2003.

The Prosecution suggested that the more phone hacking there was, the stronger the inference that those running the paper would have known about it.

Rebekha Brooks argued that only a small amount of phone hacking can be proved during her editorship, and there is no inference that can be properly drawn that she knew anything about it.

Goodman and Evans admitted phone hacking between January 2005 until August 2006.  They were both journalists for NoTW at the time.  Goodman gave evidence of the “industrial scale” of the hacking between 2005 and 2006.

As you can imagine, after an 8 month trial there was a lot of evidence to be considered. It’s perhaps only right in the circumstances to direct you to the Guardian for full coverage.

Susan and Christopher Edwards – life for murder

BBC

BBC

Introduction

We looked at the case of Susan and Christopher Edwards who were convicted of the murder of Ms Edwards mother and father (Patricia and William Wycherley) on Friday. A life sentence was guaranteed – we predicted a tariff of 22-25 years how did we do?

Well. The actual tariff was set at 25 years when sentence was passed on 23rd June 2014.

 

Factual Background

The murders date from 1998 when (probably) Mr Edwards killed Ms Edwards’ parents at her instigation. They buried the bodies in the back garden and then started on a sophisticated series of frauds.

This was started by taking £40,000 out of the Wycherley’s bank accounts the day after the murders. Since that date the Edwards pretended that the Wycherleys were alive and well and living in (variously) Ireland, Blackpool and Morecambe in order to collect a further £245,000.

Most of this money seems to have gone on, bizarrely, celebrity memorabilia. They gave themselves up last year after having run out of money. At that point, they stated that the bodies were in the back garden, which were duly found.

 

Sentence

We have the sentencing remarks which, as always, repay reading. We have to say that the single thing that would help the public understanding of the criminal justice system is more publication of what happens in Court.

Anyway, the Judge sets out clearly what the starting point was – in this 14 years because of the time that they were committed. She states that it was a planned and premeditated murder, done for gain and carried out with a firearm (although the latter was not of such concern in 1998). The Judge accepted that the animosity from Ms Edwards to her father stemmed from the fact that he had sexually abused her, however it could not be said that that was the cause of the murder.

The tariff was increased by 11 years to 25 years to reflect all the aggravating features.

 

Comment

As we said last week, the starting point now would be over 30 years. Given that this offence pre-dates the huge increases in sentencing introduced by the Criminal Justice Act 2003, a much reduced term would be expected.

The tariff set  was at the top end of what we had suggested. Reading the sentencing remarks, it is a very strange and sad case, and presents a somewhat more mitigation than seemed at first sight. For that reason, we would have thought that a tariff of 20 years would have been more than sufficient.

For the reasons previously stated, we would have thought that whilst there will be an appeal, we would not expect it to be successful.

Susan and Christopher Edwards guilty of murder

BBC

BBC

Introduction and Facts

In 1998 Patricia Wycherley (63) and her husband William (85) were shot dead by their daughter, Susan Edwards (assisted by her husband Christopher) and buried in their back garden.

Mr and Mrs Edwards then took £40,000 out of the Wycherley’s bank accounts. Since that date the Edwards pretended that the Wycherleys were alive and well and living in (variously) Ireland, Blackpool and Morecambe in order to collect a further £245,000.

Most of this money seems to have gone on, bizarrely, celebrity memorabilia. They gave themselves up last year after having run out of money. At that point, they stated that the bodies were in the back garden, which were duly found.

 

Trial

At the trial, the couple admitting stealing money from the Wycherleys and obstructing the coroner. Mrs Edwards stated that her mother had shot her father which provoked her into shooting her mother after she found out. She was therefore not guilty of either murder, but guilty of the manslaughter of her mother. Mr Edwards came to help dispose of the body.

This account was disbelieved by the jury, who found them both guilty of murder on 20th June 2014. Sentence has been put off until Monday.

 

What will they get?

There will be the mandatory life sentence for murder, with concurrent, fixed length, sentences for the other offences. The key question is what the length of the tariff will be.

If these murders had been committed in the last ten years then it would be a murder of two people which puts it in the 30 year starting point. It is probable that the Court will find that it was a murder for gain, which is another reason that puts it in the 30 year starting point.

The two together would mean  a starting point above the 30 years. The disposal of the bodies, and long period of time where it was pretended that the parents were still alive, is a further aggravating factor.

For this reason, this is probably a case where the starting point would be about 35 years. Susan Edwards is 56 and Christopher 57, which means with that tariff they would be in their early 90s before they can be considered for release. In effect, then, that would be a whole life tariff.

However. These murders pre-date the Criminal Justice Act 2003. At the time, sentencing was a lot more lenient – the starting point would have been about 16-18 years. Even so, with the aggravating features, there would be a higher tariff – about 19-20 years. In reality, sentencing for these historic cases are a bit inflated nowadays, so we would predict a tariff of 22-25 years.

 

No whole life tariff?

The starting point is a whole life tariff if there is the murder of two people where there is “a substantial degree of premeditation or planning“.Would this have applied here? Possibly. We would to need to know more about the facts to see whether there is the evidence for that. All we would say is that this doesn’t ‘feel’ like a whole life tariff, even under the new law.

We will have a look at this on Monday when they are sentenced.

 

 

Independent

Independent

The Crown Court

Here are UKCriminallawblog we’re not allowed to give legal advice, so please don’t ask for it.  We can only tell you that if you are charged with a criminal offence it’s best to be represented.  You can seek representation from a solicitors firm or a direct access barrister. This may be free of charge.  Contact them to find out.

What we can do is set out some basic facts to let you know what to expect when you’re charged with a criminal offence. This is one such example.

All criminal matters start life in the Magistrates’ Court but many conclude in the Crown Court.

Indictable-only offences, such as robbery, can only be tried in the Crown Court.

Either-way offences (those that can be tried either in the Crown Court or the Magistrates’ Court) that are deemed not suitable for summary trial due to their seriousness, will be sent to the Crown Court.

Alternatively an individual charged with an either-way offence can elect to be tried in the Crown Court.

The first hearing in the Crown Court is a Preliminary Hearing. This is often held a couple of weeks after the first appearance in the Magistrates’ Court. At this hearing the defendant will be afforded full “credit” (a 1/3 reduction in sentence) for entering a guilty plea. If no plea is entered, or if a not guilty plea is entered, trial preparations will begin by the fixing of a timetable. This will include a date for the CPS to serve their evidence on the defendant or his/her legal representatives, a date by which a Defence Statement should be served, a date for the next hearing (the Plea and Case Management Hearing) and, often, a provisional trial listing. If the defendant is in custody and is yet to apply for bail in the Crown Court, he Preliminary Hearing May afford an opportunity to do so.  If a guilty plea is entered the defendant may be sentenced straight away, although often a Pre-Sentence Report is sought, in which case the sentencing hearing will be adjourned. Even if a Pre-Sentence Report is not granted, sentence may be adjourned to a future date.

If no plea is entered at the Preliminary Hearing, or if a not guilty plea is entered, the Plea and Case Management Hearing (“PCMH”) will be the second hearing in the Crown Court. By this hearing the CPS should have served all of the evidence which they seek to rely upon. The defendant will be expected to enter a plea, be it guilty or not guilty. If a guilty plea is entered, the defendant will usually receive 25% credit. If a not guilty plea is entered, final trial preparations take place, such as determining witness requirements and fixing a date for trial. Often Defendants are given a “warned list” for trial, a one or two week duration during which their case should come into the list for trial.  The “lists”, detailing all of the Court hearings/trials for a particular day, will be published on Courtserve the previous afternoon.  Some cases, often those involving young witnesses, particularly serious offences or matters expected to last more than 4 days or so, will have a “fixture”, or a fixed date for trial.

Following the PCMH, a Pre-Trial Review may be fixed, to ensure both parties are ready for the trial.  Often, particularly in straightforward matters, these PTRs are dispensed with.

If there is no PTR, the next date is likely to be for trial.  You can find out more about Crown Court trials here.

 

‘Lex mitior’ – IPP, Extended sentences and giving defendants the benefit of new, lenient, legislation

prison wing

The transcript is available here: R v Docherty [2014] EWCA Crim 1197

Shaun Docherty pleaded guilty to two charges of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. On 20 December 2012 he was sentenced by the learned judge to a term of imprisonment for public protection (“IPP”) with a specified minimum custodial term of 5 years and 4 months.

The facts are unimportant for the purposes of the case, but are recounted in the judgment, with some additional information surrounding the proceedings, at paras [2] – [13].

The probation service concluded that a) he posed a high risk of serious harm – in summary, considered him to be ‘dangerous’ – b) there was a very high risk of violent re-offending, and c) the most appropriate sentence was IPP.

The Judge had regard to that report and found that Docherty was indeed ‘dangerous’ and imposed an IPP sentence.

There was no challenge to the length of the minimum term.

The issues

Where to start? Well IPP was repealed on 3 December 2012. Docherty was sentenced on 20 December 2012, a short while before the repeal was effective.

At that time, the scheme for sentencing dangerous offenders – where a judge considers that a defendant poses a significant risk of serious harm to members o the public – was as follows:

1)      Life sentence (discretionary, under common law or CJA 2003 s.225)

2)      IPP (CJA 2003 s.225)

3)      Extended sentences or ‘EPP’ (the previous incarnation, CJA 2003 s 227)

The grounds of appeal were as follows:

a)     The judge failed to consider whether lesser restrictions, including the old style extended sentence of public protection (“EPP”) under the 2003 Act, instead of IPP would have enabled proper protection of the public.

b)      The abolition of IPP prior to the sentencing in this case obliged the court to impose an EPP rather than an IPP in order to comply with Article 7 (or Articles 5 and 14) of the European Convention on Human Rights (“ECHR”) and the international norm and principle of “lex mitior”.

In essence, the argument was that IPP was wrong in principle.

The first ground

‘The Judge failed to consider whether a lesser sentence would have enabled proper protection of the public.’

In C & Others [2009] 1 WLR 2158 the Lord Chief Justice stated that IPP was the “most draconian sentence” apart from life, and that it should not be imposed if an overall sentence package of lesser measures provides appropriate protection to the public. [20]

The Court of Appeal accepted that ‘ the judge did not expressly give reasons in his judgment for not adopting the alternative of an extended sentence, with other precautionary measures.’ [21]

However, the Court found that the reason was ‘entirely clear’, namely that:

i) the judge was unable to discern the time scale within which the danger posed by the appellant could be addressed, controlled and (hopefully) eliminated.

ii) a discretionary life sentence had been discounted (due to the availability of IPP.

iii) there was a perceived need for the parole board to assess the risk posed by Docherty (which was not available under the EPP regime). [21]

The Court concluded: ‘We have no doubt that he had the full range of options in mind, and that he gave the issues full consideration even if he did not spell them out explicitly.’ [21] and ‘The sentence of IPP was clearly suited to this case in a way that an old style extended sentence was not. [22]

The second (more interesting) ground

‘The abolition of IPP required the court to impose and EPP sentence (not IPP) as to not do so would offend ECHR article 7, 5 and 14 and the principle of lex mitior.’

The ECHR can be found here.

The Court divided the issues into two:

Article 5 and 14

It was agreed by the parties that the issue fell within the ambit of article 5 (the right to liberty and security-with listed exceptions) and so that if there has been discrimination towards the appellant on a ground encompassed by Article 14 (the prohibition on discrimination), that Article is breached in the absence of objective justification.

The basic argument was that there was no objective justification for the treatment received by Docherty since it was dictated by the date upon which he had been convicted in circumstances where a lesser penalty would have been imposed had he been convicted after 3 December 2012 (because IPP was not available), and thus prior to his date of sentencing on 20 December 2012.

Docherty claimed that the discrimination alleged did not fall into any of the listed catgeories, and so fell into the ‘other’ category.

The Court did not agree. The decision in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 held that classification as a prisoner was insufficient to amount to “other status” for the purposes of Article 14. [29]

Interestingly the European Court of Human Rights came to the opposite conclusion in Clift v UK [Application 7205/07] however, relying on Kay & Others v Lambeth LBC [2006] 2 AC 465, it was clear that domestic courts  are bound by the House of Lords precedent. [30]

The Court also expressed doubts as to whether there had ‘been unjustifiable discriminatory behaviour. The mere fact of an anomaly arising from the introduction of LASPO would not of itself constitute unwarranted discrimination – see paragraph 33 of Clift (H of L).’ [31]

The Court commented that whether legislative change was effective from the date of the offence (CJA 2003), the date of sentence (CJIA 2008 amendments) or the date of conviction (LASPOA 2012), there would inevitably be different treatment. [32-33]

The conclusion in relation to Articles 5 and 14 was as follows:

Given Parliament’s legitimate desire to reform the legislation relating to dangerous offenders, we doubt in the circumstances whether asserted incongruities of the sort arising in this case properly fall within the ambit of Article 14 discrimination, but even accepting that they do, it is hard to see how, unless the appellant is successful on the Article 7 point, the State could fail to establish the necessary objective justification.

The same conclusion applies to the appellant’s further submission asserting a violation of Article 14 within the context of Article 7. [34-35]

Article 7

The complaint was that there was a failure to comply with Article 7 of the ECHR and the international principle of “lex mitior”.

Lex mitior – the Rome Statute of the International Criminal Court defines it as: ‘In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.’ (Article 24(2))

Article 7(1) of the Convention reads as follows:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than one that was applicable at the time the criminal offence was committed.”

The Court commented: Clearly, on its face there was in fact no breach, because the penalty of IPP was available at the time when the offences were committed. There is nothing in Article 7 which expresses the concept of “lex mitior”. [39]

Interestingly, Article 7 is in contrast with other international instruments:

International Convention on Civil and Political Rights (ICCPR) Article 15 states:

“(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If subsequent to the commission of an offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.” (emphasis added by the Court)

It was suggested that the modern law of the ECHR applies more widely than the express wording of Article 7, relying on  the decision of the Strasbourg court in Scoppola v Italy (No.2) [2010] 51 EHRR 12, the facts of which are as follows.

The applicant murdered his wife on 2 September 1999; the offence was punishable by life imprisonment. On 18 February 2000, he agreed to be tried under a summary procedure. It lacked some of the safeguards of a full trial but carried the advantage of reducing the available sentence to 30 years. That provision came into force in December 1999. On 24 November 2000 he was found guilty and sentenced. The court noted his liability to a life sentence, but imposed a 30 year term, honouring the terms of the summary procedure. On the same day a new legislative decree took effect. It amended the provision relating to summary procedure which reduced life to 30 years. It provided that in the event of trial under the summary procedure life imprisonment could be imposed in place of life with daytime isolation. On an appeal hearing in January 2002, the applicant was sentenced to life imprisonment pursuant to the amending legislation. Further domestic appeals by the applicant against his life sentence were dismissed.

The applicant’s Article 6 and 7 challenges were upheld and the 30 year term reinstated. [41-42]

In so deciding, the European Court decided to depart from its earlier decision in X v Germany [Application No 7900/77] that Article 7 did not guarantee the right to a more lenient penalty provided for in a law subsequent to the offence. [43]

The basis for that decision was in essence that ‘a consensus had gradually emerged in Europe and internationally around the view that application of a criminal law providing for a more lenient penalty, even one enacted after the commission of the offence, has become a fundamental principle of criminal law.’ Additionally, Italian law had recognised the principle since 1930. [para 106 of the Scoppola judgment]

Further, the absence of recognising lex mitior in Article 7 was not decisive when viewed in light of the developments in attitude to the principle. [para 107 of the Scoppola judgment]

Inflicting a heavier penalty for the sole reason that it was prescribed at the time of the commission of the offence would mean applying to the defendant’s detriment the rules governing the succession of criminal laws in time. In addition, it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State – and the community it represents – now consider excessive. [para 108 of the Scoppola judgment]

The Grand Chamber felt it appropriate to depart from the decision in X v Germany and reinstated the 30-year term. [para 109 of the Scoppola judgment]

Counsel for Docherty sought to claim the benefit of this ruling and urged that, in consequence, the IPP having been abolished by the date of sentence for convictions recorded on or after 3 December 2012 and the new style extended sentence only being available for convictions on or after that date, the lesser sentence of an old style extended sentence should have been imposed. [45]

The Court of Appeal considered the Scoppola decision and the possible arguments for not applying it [46]

a)     The lesser sentence sought cannot be the one provided for by the new legislation (LASPO) since the new style extended sentence can only be imposed in post 3 December 2012 cases. What Mr Rule sought to obtain is the imposition of the old style extended sentence under the 2008 Act which was repealed by LASPO from 3 December 2012, as were the provisions relating to the sentence of IPP, and retaining both sentences as available to a court where a conviction had occurred before that date. Thus, while it is sought to consign the IPP to history in advance of the date provided for by Parliament, it is sought to retain the benefit of a closely-related provision which was repealed in the same way. To do so is not impossible, if Scoppola were applied, but there is an anomalous feel to it.

b)     There is a tension between the phrases “it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction” (paragraph 108), and “differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered” (paragraph 109). The latter phrase is repeated at paragraph 119. The difference between conviction and sentence was irrelevant in Scoppola: it is central in this case. The applicant’s conviction was recorded prior to the commencement date for the relevant provisions LASPO, and prior to the making of the relevant commencement order.

c)     The reference in paragraph 108 to “foreseeability of penalties” as an essential element of Article 7 is hard to follow in the present context. The available penalties for the appellant’s crimes were clear and certain at the date of his offence. Uncertainty is only a function of retrospectivity which is prohibited by Article 7. If anything the possibility of some later, more lenient legislation applying retrospectively introduces uncertainty instead of applying foreseeability of penalties.

d)     The decision in Scoppola was by a majority of 11 votes to 6 with a strong dissenting judgment in relation to Article 7. The Article 6 violation was clear and was found unanimously. The case could have been decided on that basis alone. The Article 7 decision required the setting aside of longstanding authority.

e)     In Scoppola, there had been in place since the 1930s a provision of the Italian Criminal Code which contained the lex mitior principle.

Did Scoppola have to be followed?

The Court said:

Noting that Scoppola is a decision of the Grand Chamber, we do not consider that it can be said that the judgment represents a misunderstanding or overlooking of a significant feature of English law or practice which would or could lead to a review by the European Court. Any argument that Scoppola does not represent a “clear and constant” line of authority will founder since the decision is one of the Grand Chamber. Thus the obligation is to follow the Scoppola interpretation, subject to its application to the particular facts of the case. [51]

In essence, yes it had to be followed unless the Court considered it did not apply to the facts of Docherty’s case.

Legislative changes and domestic law

The court commented:

As our domestic law currently stands, it is clear that the subsequent legislative changes in the criminal law are presumed not to have any retrospective effect (Section 16(1)(d) and (e) of the Interpretation Act 1978), and it is well established that legislation enacted after the conviction and sentence does not affect the correctness of anything done under the law as it stood and was properly applied at the time of trial: Bentley [2001] 1 Cr App R 21, at 24 by Lord Bingham CJ. Even a later interpretation of the common law that is favourable to a convicted person does not in itself confer a right to an extension of time for appealing to the Court of Appeal: see, for example, Hawkins [1997] 1 Cr App R 234. [48]

The LASPO regime

The effect of the LASPO changes (after 3 December 2012) was that the hierarchy of sentences available prior to LASPO had changed:

Formerly, Life, IPP and EPP were available. Post 3/12/12, the sentences available were now Life and EDS (the new extended sentence).

The gap left by the IPP repeal did not mean that defendants who formerly would have received IPP would automatically receive a life sentence, but it was accepted that the repeal would mean that more life sentences would be imposed. (See R v Burinskas and our blog in December 2012)

The question for the court was whether there was a real possibility of Docherty receiving a life sentence if he was sentenced after the LASPO changes were in force (3 December 2012 onwards). [57]

The Court said: a judge under the new sentencing regime could properly and reasonably consider a life sentence as a real possibility. [58]

The sentencing judge himself recognised this in his sentencing remarks. He did not consider that a life sentence was needed when an IPP was available to him. However he went on to comment that “the position may well change with the changes in the law”. [59]

Therefore (even if it were to be recognised in English law) lex mitior did not apply as there was a real possibility that Docherty would have received a life sentence (more severe than his EPP sentence) had he been sentenced under (what he considered the benefit of) the new LASPO regime.

The appeal was dismissed.

N-Dubz singer Dappy fined for assault by beating

 

 4Music Tumblr

4Music Tumblr

Dappy (real name Dino Costas Contostavlos) aged 27 was convicted of common assault on 19 June 2014.

What happened?

On 27 February in the early hours of the morning, Dappy, was making a public appearance at Chicago Rock Cafe in Chelmsford, Essex. He claimed he was abused three times by George Chittock.

The Daily Mail reported:

The prosecutor ‘told the court the pair were in a smoking area along with Contostavlos’s minder and two of the club’s own door staff at about 2am when he was seen to slap Mr Chittock. The incident was caught on CCTV. Witnesses claimed Contostavlos had consumed half of bottle of vodka that night.’

When closing the case before the Magistrates, the prosecutor said:

‘Whether Mr Chittock called this defendant a mug is neither here nor there.

‘You may think what he is really saying is that he was provoked – provocation is no defence.

‘It is no defence for anybody, celebrity or otherwise, to say “I lashed out because he was rude to me”.

‘It is not reasonable to slap somebody when surrounded by bodyguards because somebody says to you “Oi, what?”.’

Dappy claimed he was acting self-defence but was disbelieved by the Magistrates.

The Mail reported:

Asked if he feared he was going to be stabbed on the night of the incident, he added: ‘Yeah of course, I’m always concerned about that.

‘I was scared someone was going to put a hole in me.’

During cross-examination, the performer said he was ‘a million per cent’ sure that it was Mr Chittock who called him a ‘mug’.

‘It was a violation,’ he said. ‘Tesco, Asda, everywhere I go, there’s always one person to make a rude remark. This is a stitch-up. This is what’s happening in this case.’

In an odd twist, ‘comedian’ Jim Davidson claimed he had offered his services as a character witness but that Dappy’s defence team had declined. The pair were in the Celebrity Big Brother house together. But I suppose it is always nice to have friends, eh?

Previous

Dappy has previous convictions including affray and assault in February 2012 when he received a 6-month suspended sentence.

Mitigation

On Dappy’s behalf it was said that ‘It was no doubt a regrettable incident but one that was over very quickly and left a person red-faced and very, very angry.

‘He is a polarising figure who is clearly liked by a great many people but he is equally disliked by many others.’

Further, in relation to his financial means, the defence said that Dappy was well paid but his earnings are sporadic and he is currently awaiting a five-figure payment and that his finances were limited by a recent tax settlement.

Sentence

He was fined £800 with £930 in costs and the mandatory £80 surcharge (representing 10% of the fine up to a maximum of £120)

The Magistrates would have considered the Assault guidelines for common assault (p23).

As we don’t know Dappy’s Relevant Weekly Income (on which the level of fine is calculated) it is hard to say how this offence was categorised. However, we can say that a fine seems to be the most appropriate disposal.

It is likely the court would have increased the fine from the starting point to take account of his previous, and reduced it to take account of the mitigation, such as the limit provocation.

All in all, it sounds like a decent result for Dappy – he can afford the fine and it is unlikely he will be appealing.

Note: When writing this I searched for some N-Dubz song titles to include throughout the post. Unfortunately, I could see no way of including:

  • Na Na
  • Toot It and Boot It
  • Duku Man Skit
  • Sex
  • Papa Can You Hear Me

If any readers are more creative than I, please make any suggestions below!

Kevin Nunn Case – Supreme Court application dismissed

Photo from EADT

Photo from EADT

Introduction

After someone has been convicted, to what extent is there a duty on the prosecution to disclose material to the defence? That, in a nutshell, was the question that Kevin Nunn posed, firstly to Suffolk Police and later the Courts, that was answered by the Supreme Court on 18th June 2014.

Background

Kevin Nunn was convicted on 20th November 2006 of the murder of Dawn Walker in February of the year before and sentenced to the obligatory life imprisonment (with a tariff of 22 years). He appealed the conviction, but this was unsuccessful. He has always maintained his innocence.

A good overview of the facts that lead to the conviction and the proceedings since can be found in the judgment of the Divisional Court here. In essence, Mr Nunn requested the police to hand over to his lawyers certain material and exhibits to be tested or further tested, particularly in light of the developments in forensic evidence since the trial.

The police refused and Mr Nunn applied to the High Court to force them to do so, but they sided with the police on that point. Permission was later granted to the Supreme Court.

Supreme Court Judgment
It is a short and unanimous judgement that is worth reading in full.

They set out the question above and answer it by saying that there remains a duty on the prosecution post-conviction, but it is a lower one than during a criminal trial. In essence, if the police come in to possession of material (for example a confession by a third party) that casts doubt on the conviction then this is disclosable.

Other matters, such as the requests in this case, were not generally disclosable. Whilst this may seem harsh, the ‘safety valve’ identified was that the CCRC could investigate and order further testing and collecting of further evidence in suitable cases.

For that reason, the appeal was dismissed.

Comment

One of the oddities of the case could be thought to be this : the cost to the public of defending the Judicial Review in the High Court and the Supreme Court would have been monstrous. We haven’t got a figure, but it will be well over six figures. The cost of allowing the scientists instructed by Mr Nunn (he was willing to pay for it) was minimal. On that basis, what was the point in opposing it?

The Supreme Court points out that in a case of this nature there will often be huge amount of material and it is often costly to sift through it all. That is certainly a fair point, although if you are in prison, having been convicted of a crime that you didn’t do, you may not be too impressed by it.

Also, is it right to stand by the letter of the law, if that were the case? What is at issue here is whether an innocent person has been condemned to a life in prison, whilst a murderer has gone free. In those circumstances, the stakes couldn’t be much higher.

Where is the harm in allowing the material to be tested? If you’re right, then fine – the testing will back you and no harm done. But if you’ve got it wrong, the truth will out at some point and you are going to look not just ridiculous, but also malicious.

That is a separate point and as the Supreme Court make clear, the police and CPS do sometimes do this in certain cases. One where, in their view, the results of the testing would be determinative of guilt is an example.

The key issue will be how effective and co-operative the CCRC are. One concern here is that they are hugely under-resourced with a large backlog of cases.

But if they do, this is not the end of the matter. This judgment makes them the arbiter of whether there should be further testing or investigation. Fine if they agree to what you ask for, less so if they refuse.

The remedy would then be a Judicial Review with a very high threshold (and great expense) which means, inevitably, that good cases will slip through the cracks.

Disclosure is a perennial problem. Non-disclosure of one sort or another is generally at the heart of every miscarriage of justice. It is clear that there are currently failings in the way that the disclosure system operates in most cases and that these will get worse as the cuts to defence, courts and CPS bite.

I have experience of cases that have collapsed after the start of the trial when material that has been described as non-disclosable has finally been teased out, showing that a defendant is innocent.

Those are clear cut cases. There are many others where disclosure would not be a knock out blow, but may well have made a difference to the verdict. The case of Mr Nunn is one of those. Whilst I can understand the Supreme Court judgment, it does leave me uneasy.