Photo from the Telegraph

Anwer Rosser – whole life tariff upheld

Introduction

It’s always good to follow cases that we have looked at as they get appealed. In February 2014 we looked at the case of Anwer Rosser, who got a whole life tariff for the murder (with a sexual motive) of a 4 year old child of a friend that he was staying with.

We stated that “a long determinate tariff (around 35-40 years) would have been appropriate. I doubt that the Court of Appeal will touch this one though.” Well, on 31st October 2014, the Court of Appeal considered his case, along with another (Jamie Reynolds).

As we predicted, the Court of Appeal did not interfere, and upheld the whole life tariff. We have seen the judgment, and there does not appear to be anything in that to change our initial view that a (very) length determinate tariff would have sufficed, but it is clear that even with that there was a good chance that Mr Rosser would have spent the rest of his meaningful life in prison in any event.

 

Are whole life tariffs legal?

Well, this issue is rumbling on and on. The latest from the ECHR is that they upheld their previous view that there should be a safety valve for whole life tariffs that the case should be looked at again after (about) 25 years to check that a whole life tariff is still needed.

The Court of Appeal have gone full steam ahead ignoring that and upheld again the principle of whole life tariffs (it is not clear whether it was argued here in fairness).

What happens next? Much more money will be wasted spent by the Government defending something that will have absolutely no practical effect. My views on the merits of this are fairly clear, but it seems that this will run and run as politicians use it as another proxy on the war over Europe. Maybe it will all calm down after the General Election. We shall see, I won’t be holding my breath.

Maked and using for LenSlider 9d1349576f banner. Dont delete from media library.

Rolf Harris Appeal – Single Judge says ‘no’ …

The case of Rolf Harris has been given plenty of media attention (our piece here has links back to our full coverage). He is currently serving his 5¾ year sentence, but has asked the Court of Appeal to review his conviction (and presumably his sentence as well).

The process of an appeal from the Crown Court is set out here. In essence, the paper application are put in front of a High Court Judge who will either grant or refuse permission to appeal. If s/he refuses permission, then the applicant can renew his application to the ‘Full Court’.

On 31st October 2014 Rolf lost the first round in his attempt to appeal – the High Court Judge refused his application for permission to appeal. This is a set back for him, but perhaps not a surprise. We will have to see whether Mr Harris renews his application.

At the moment, the grounds of appeal haven’t been made public, so we have no way of knowing what they are, and how strong they may be.

(c) Jessica Ward 
Taken from the Daily Mail.

Drunk mothers who abandoned their children aged 18months receive suspended sentences

On 30 October 2014, the Daily Mail covered the story of two mothers who had pleaded to child neglect.

Jessica Ward, aged 22, and Molly Couch, aged 21, pleaded guilty to (presumably) cruelty to a child (in the form of neglect). They had been caring for their young children – aged 17 and 18 months old – having planned a “girlie night in” at Ward’s house watching the tv and drinking some wine. Having put the children in their cots, they decided to have a drink (it’s tough looking after kids). Well, you know how it is, one drink leads to two, which leads to three….bottles.

Having – as the Mail described it – “binged” on three bottles of wine, the pair managed to lock themselves out of Ward’s house at 11pm, having decided to get some shoes from Couch’s address. They called their parents who called the police – which in the end may have been an error. Ward and Couch were seen in the street, drunkenly blaming each other, shouting, swearing and waving their arms around.

The fire brigade were called and they managed to gain access to the property through a first floor window. This was at about 11.40pm, the children having been left unattended for some 40 minutes. The Mail reported that the women were approximately three times the drink-drive limit and “reeked” of alcohol.

The prosecuting advocate said:

‘These defendants were fighting with one another in the street. Both parties said they had been drinking and were locked out and two young children were alone inside. Both defendants were verbally abusive to one another.

‘One child could be heard crying. The defendants were in no fit state to be caring for the children.’

Caution

Ward had previously been cautioned by police when her child was three months, over a drunken argument with her then boyfriend.

It was said on her behalf that she doesnt know when to stop drinking and had sought counselling.

Judge’s remarks

‘This is one of the worst cases of letting a child down … The obligations, duties and responsibilities of caring for a child are huge, not to be put to one side because you fancied a drink.’

He said to Couch:

‘You were not in a fit state to look after the baby … You got it very badly wrong, you put your child at risk.’

Sentence

Ward received 26 weeks’ imprisonment suspended for 18 months with an 18-month supervision requirement and 16-week electronic monitoring requirement.

Couch received 12 weeks’ imprisonment suspended for 12 months, with a 12-month supervision requirement and a six-month alcohol treatment requirement.

Comment

Couch must have expressed her willingness to comply with the alcohol treatment for it to be imposed –  that is a requirement of the order and an indication that she intends to address her behaviour which led to the offence.

There is no explanation as a) why the sentences were suspended or b) why the judge felt it appropriate to give Ward more than twice the sentence imposed upon Couch, however their disparate ages may have something to do with it, in addition to other mitigation of which we are  unaware.

Taking account of the fact that (seemingly) no harm came to the children, the incident was isolated, and that both women are young and dealing with very young children (which of course could cut both ways, and be treated as an aggravating factor) this sentence appears to be a sensible one. There is no point in sending them to custody and a look at the guidelines reveals that this falls squarely into the bottom category: “single incident of short term abandonment” with a sentencing range of a low community order to 26 weeks custody. Adding the “brawling” and alcohol to the equation and one can see how the judge came to the conclusion that 12 and 26 weeks were appropriate. We therefore would not expect an appeal against sentence.

Photograph: Guardian/Stefan Rousseau/PA

Eric Joyce MP arrested for assault (and the Guardian get the law wrong)

On 28 October 2014, the Guardian ran a story about Eric Joyce MP seemingly getting himself into another spot of bother.

You may well remember Mr Joyce’s name cropping up in 2012 for head butting someone in a House of Commons bar.

So what happened this time?

Well it’s a little unclear, however piecing things together from various news reports, it appears that Mr Joyce detained two boys in a shop after some damage had been caused (presumably by the boys). Mr Joyce asked the shop keeper to call the police, who upon arrival “found a man and two teenage boys involved in an altercation”.

One of the boys was arrested for possession of cannabis. It then appears that an allegation of assault was made against Mr Joyce. He was arrested on suspicion f committing assault occasioning actual bodily harm and taken to the police station where he was subsequently bailed until early December.

The offence

Well, the Guardian said he was arrested for “aggravated bodily harm” – unfortunately that is not an offence known to the law. The correct description is of course assault occasioning actual bodily harm (ABH) contrary to s.47 of the Offences against the Person Act 1861.

The maximum sentence is 5 years’ imprisonment.

Mr Joyce posted a statement on his website:

On the evening of Friday, 17th October I a detained a youth in a shop in London. Damage had been done to the store. I asked the shopkeeper to call the police, and when officers arrived they arrested the youth and informed me that drugs had been recovered from the scene.

The officers also informed me that the youth had immediately made a complaint that I had assaulted him by detaining him. I was questioned by the police and told that because of my identity the Crown Prosecution Service (CPS) and the Metropolitan Police Press Office would be informed of the incident.

I understand the Metropolitan Police has now made the matter public. I will make no further comment for now, other than to say a) that no alcohol was involved and b) I am not in the habit of summoning the police if I feel that I am in the wrong.

Photo from IB Times

Is the CCRC giving Ched Evans preferential treatment?

Introduction

The case of Ched Evans has been in the news seemingly non-stop recently. It throws up many complicated and serious issues that has engendered a lot of public debate. See here for our coverage of his first appeal being refused and a couple of thoughts as to whether he should play for Sheffield United.

One issue that has caused confusion is whether he received any special treatment either in the sentence he got, or when he got released. The answer is ‘no’ – he was treated like any other member of the public.

Another point is that Mr Evans has not exactly shown much remorse. He is still disputing his conviction and a dossier has been assembled and passed to the CCRC, but what does that mean?

 

What is the CCRC?

We have a full fact sheet on what it is, why it exists, and how it works. Briefly, it is the body that anyone who has been convicted and had their appeal refused (as Mr Evans has), but still feels that they have been wrongly convicted can go for help.

The CCRC will investigate Mr Evans case and decided in due course whether to refer his case to the Court of Appeal. If they do, this does not mean that his conviction will be quashed, but it does give him another go at it in the Court of Appeal.

They will be looking at the new material that people working on Mr Evans behalf have collected and see whether that raises a ‘real possibility’ that the Court of Appeal will find the conviction to be unsafe.

 

Why is he getting fast-tracked though?

This is an issue that has caused a lot of angst in the media, for obvious reasons. Should someone’s celebrity mean that they get their case looked at faster? Obviously, the answer to that is no, but is he getting special treatment here?

The CCRC have a policy as to how they prioritise cases. Firstly they screen the case to see if there is any potential merit in it. Once that is satisfied, then there are three level of priorities. If the factor below is ‘discretionary’, then the CCRC may look at whether there has been undue delay by the applicant which may mean that the case is ‘downgraded’ in priority :

First

If any of the following apply :

(i)  The case has been referred by the Court of Appeal for investigation by the CCRC

(ii)  The applicant has applied for review of sentence only and has less than two years to serve (automatic)

(iii)  There are exceptional circumstances that justify a prioritised review (discretionary) – taking account of the following factors:

  • The old age and/or ill health of the applicant where there is concern that the applicant may die before the case is dealt with
  • Evidence that the applicant’s serious ill health (or that of any close family member of the applicant) is directly and significantly aggravated by the delay
  • The youth of the applicant where, having regard to the nature of the offence, the sentence imposed and the applicant’s personal circumstances, the conviction has an exceptionally adverse impact on their welfare and/or educational and career prospects. In the same way, the young age of the applicant at the date of conviction will also be a consideration
  • The risk of being unable to secure or obtain relevant evidence, or of relevant evidence deteriorating, for whatever reason
  • Operational effectiveness
  • The impact of delay on the criminal justice system.

Second

If either of the following apply:

(i) the applicant is in custody, or

(ii) he is out but “but individual factors demonstrate that the conviction has an exceptionally adverse impact on the convicted person or on another individual or individuals

 

Third

All other cases.

 

Where is Ched Evans on this scale?

On the face of it, now that he has been released, he would be Level 3. However, given that this may impact on his employment, it is legitimate to say that this puts it into Level 2. For that reason, Mr Evans is not getting special treatment, the CCRC are applying their policy to him.

 

Conclusion

One of the real ironies here, perhaps, is that the outcry over whether or not he should play football on his release has bumped his case up from Level 3 to Level 2, which means it will be dealt with quicker.

However, it is not right to say that what the CCRC are doing is fast-tracking his case, he is being treated now, as he always has been, like any other member of the public.

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Criminal Cases Review Commission

Introduction

Every year, hundreds of thousands of people are convicted (either by a jury, by magistrates, or by their own plea of guilty) of criminal offences. And that’s before you start looking at traffic offences … So, against that backdrop, here’s a question:

Surely not all of these people can actually be guilty, can they?

Much as we like to think that our system is perfect, it clearly isn’t. It’s human, and so inevitably, mistakes are made. For those found guilty in the Crown Court, there is the possibility of an appeal to the Court of Appeal (here’s our fact sheet on that process). For those (the vast majority) who are convicted in the Magistrates’ Court, it’s a somewhat easier process.

Again though, as we know, this isn’t guaranteed to pick up every time a case has gone wrong. We have all seen the high profile miscarriages of justice, but there are even more ‘mundane’ cases where, for whatever reason, someone is wrongly convicted.

 

What happens if the Court of Appeal says no?

Looking at the Crown Court, once an appeal has been heard, or an application for permission to appeal refused, that is the end of the process. You can’t appeal to the Court of Appeal more than once.

Previously, a convicted person could petition the Home Secretary to look at their case again and hope that he or she would refer the case to the Court of Appeal. It was fairly clear that this wasn’t particularly satisfactory, so as a result an independent body was established.

This is the Criminal Cases Review Commission, or CCRC for short.

 

Procedure with the CCRC

Anyone who has been convicted, and feels that they shouldn’t have been, can apply to the CCRC to look at their case. The CCRC produce a guide for applicants.

Sometimes an applicant may have, or be asking to obtain, a specific piece of evidence for example, a DNA test. Othertimes it may be that they are generally dissatisfied and want their case to be re-investigated without any specific trigger, although there are normally points that they would highlight.

This is important as the CCRC won’t refer a case unless there is some fresh evidence or a new understanding of the law. There are exceptions, the case of Barry George is generally seen as one where the general unease that was widely felt about the conviction caused the matter to go back to the Court of Appeal, but you need something for the Court of Appeal to look at and thing ‘ah yes, we got it wrong before because of ….

There is a requirement that the person has already ‘exhausted their rights of appeal’ – which means that they have already either appealed, or at least tried to appeal, their conviction

Sometimes, this can be waived if there is a very good reason, but they would often say to go and ask the Court of Appeal for permission to appeal out of time.

The CCRC will conduct an investigation and prepare a report. If they think that there is a ‘real possibility’ that the Court of Appeal would allow an appeal, then they have a discretion to refer the case.

The above is formalised in s13 Criminal Appeals Act 1995 that created the CCRC. This reads as follows:

A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12 unless—

 (a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,

 (b) the Commission so consider—

    (i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not  raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or

   (ii)in the case of a sentence, because of an argument on a point of law, or information, not so raised, and

(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.

This has been widely criticised as being too narrow. Both because there is (in theory) no referral on the grounds that the person is probably innocent and the Court has just got it wrong previously, and because the ‘real possibility’ test is too restrictive as well as meaning that the CCRC needs to second guess the Court of Appeal.

 

How long is the process?

Depends on the case. Some are straightforward and can have a very quick turnaround (sometimes a matter of days, although that is unusual). Others are a lot more complicated, and can take months, particularly if lengthy investigations are needed.

Other than that, the CCRC will prioritise some cases over others. Those where someone is in prison are an obvious example.

There are three levels of priority, and the CCRC have a formal policy statement of how they consider and prioritise cases.

 

What about the Magistrates’ Courts?

The procedure is the same, but the referral is back to the Crown Court for an appeal. For various reasons, applications to the CCRC from magistrates court cases are fewer, but they do still happen (I have had four successful referrals).

 

Does it cost anything?

Nope, it’s free.

 

Do I need a lawyer? Can I get one if I want one?

You don’t need a lawyer, the system is designed to operate without one, however we would advise that you get one to draft the application.

This is because it will make the process much smoother and much easier for the CCRC to deal with (which makes it more likely you’ll get the result you want). It’s also the case that a lawyer may pick up on things that you have not spotted (this has happened on a case that I have dealt with).

Having said that, there are plenty of cases that succeed without a lawyer. I have represented two people in the Court of Appeal who drafted their own application to the CCRC where I only got involved after the CCRC had referred the case).

You will often be eligible for legal aid for CCRC applications – speak to a solicitor who has a criminal legal aid franchise about that.

 

Can the CCRC refer a sentence?

Yes, although this is very rare. It does happen though if there is some particular point of principle.

 

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Scales of justice

Hidden camera TV show discovers people are prepared to hide evidence of a murder

On 22 October 2014, The Daily Mail covered a story about a TV show that, using hidden cameras, demonstrated that “ordinary people” – as the Mail termed them – are willing to hide seemingly incriminating evidence at the request of a friend.

The basic premise

Four “ordinary” – whatever that means – members of the public were asked by one of their friends to help cover up a crime. They were told about an incriminating bloody shirt and asked to hide it. Each of the four individuals helped their friend and took steps to either hide the shirt or were evasive with the ‘police’ who came to speak to them.

The TV show – How To Get Away With Murder – was shown on Universal on 22 October 2014 at 10pm.

Legal issues?

Unfortunately I did not see the show, and so I only have the Mail report to go on. However, one wonders whether the four individuals are slightly nervous about a potential prosecution.

Their acts, although “set up”, would likely constitute an offence of attempting to pervert the course of justice.

Perverting the course of justice is a common law offence, triable on indictment only, and for which the maximum sentence is life imprisonment. The offence is made out where a person

  • does an act (a positive act or series of acts is required; mere inaction is insufficient)
  • which has a tendency to pervert and
  • which is intended to pervert
  • the course of public justice.

The ‘course of public justice’ includes the police investigation into a possible crime and does not require legal proceedings to have begun.

On the face of it, acts to hide evidence or to assist in the avoidance of detection for a crime, would be sufficient to find that the offence was made out.

As we know, the courts treat this type of offence seriously – cast your mind back to the Chris Huhne/Vicky Pryce/Constance Briscoe matter, which saw all three serve a custodial sentence for perverting the course of justice.

Would they actually be prosecuted?

Unlikely. Aside from the public interest (although I can see an argument that such a prosecution would meet this test) there would no doubt be issues surrounding the intention, the feature of entrapment and the lack of knowledge as to the origin of the shirt.

No doubt Universal had their lawyers consider these issues (and whether the TV channel could be prosecuted also and came to the conclusion that legal proceedings were highly unlikely.

A lesson?

A lesson to the “ordinary” member of the public; in different circumstances, hiding your friend’s bloody claw hammer or discretely disposing of a blood-stained rug is likely to get you into trouble. But you probably knew that anyway.

If anyone saw the show and has any comments on it, please do let us know what you thought.

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The Criminal Justice and Courts Bill and MoJ misinformation

The Criminal Justice and Courts Bill is currently making its way through Parliament, containing, among other things, amendments to sentencing legislation. Thanks to David Allen Green (@JackofKent), @JoshuaRozenberg and others – who over the weekend were discussing the “non-news story” that was the plans to increase the maximum sentence for offences committed by internet trolls (s.1 Malicious Comms Act 1988) from 6 months to 2 years – I had cause to read an MoJ press release about the Bill…

Ending automatic early release

What is likely to become section 4 of the Act when enacted makes provision for ending automatic early release for those serving extended sentences.

An extended sentence is one which includes a custodial part and a licence part. The licence part is designed to deal with the risk posed by the offender, whereas the custodial part is designed (predominantly) to satisfy the punitive aspect of the sentence. An extended sentence can only be imposed where the court has found the offender to be ‘dangerous’ – that is that they pose ‘a significant risk of serious harm to members of the public’.

There are currently two types of extended sentence, for the purposes of determining release. The first, is where the custodial period of the sentence is 10 years or more and the offender has a previous conviction for a Schedule 15B offence (this includes things such as manslaughter, s.18 GBH and rape). In those circumstances, release is discretionary at the 2/3 point, and the offender has to apply to the parole board. If the parole board consider that the offender is safe to release, the offender is released on licence (to serve the remained of the custodial period on licence, and then the period of extended licence on top of that). If the parole board do not consider that the offender is safe to release, the offender is not released and is liable to automatic release at the expiry of the custodial term, at which point he or she will be released to serve their extended licence.

The second type of extended sentence for the purposes of release is cases which do not fall into the first type (which is most of them). In such cases, the offender is automatically released at the 2/3 point and the parole board do not get the opportunity to consider the offender’s case. The offender is released to serve the remainder of the custodial period on licence, and then the extended licence on top of that.

The provisions contained in the Bill will change that. Automatic early release will end, and so all offenders serving an extended sentence, of any length, irrespective of whether they have a previous conviction for a Schedule 15B offence, will have to go before the parole board.

Wasted money and misinformation

Where to start? Well firstly, the extended sentence legislation was brought in by the current government, with the current Sec of State for Justice at the helm, in December 2012.

The MoJ brought in legislation which repealed the IPP (Imprisonment for Public Protection) sentence (an IPP sentence was very close to a life sentence as an offender receiving such a sentence was given a minimum term of custody which had to be served before an application to the parole board could be made for their release; this meant that an offender receiving an IPP sentence may never be released, and could only be released if the parole board deemed it safe to do so). This repeal left a gap in the sentencing powers for dangerous offenders, as the only options were an extended sentence or a life sentence. In December 2012, I predicted this would result in more life sentences. In 2013, the Court of Appeal made the same comment. 

In October 2014, Minister of State for Justice Lord Faulks QC made a speech at the Criminal Justice Management Conference, during which he said:

The government is tackling automatic early release. It cannot be right that serious sex offenders and terrorists may serve only half their sentence in prison and – regardless of how they have progressed with their rehabilitation – are then released automatically midway through their sentence.

The Bill therefore introduces measures to end automatic early release for anyone given an extended determinate sentence, or sentenced to standard determinate custody for the rape of a child or for serious terrorism offences. No such offenders will be released before the end of their custodial term, unless the Parole Board judges that they no longer pose a risk of serious harm to the public.

The effect is to require the parole board to assess every single extended sentence prisoner at the 2/3 point of their sentence to determine whether they ought to be released. If release is not granted, the offender will be released at the expiry of the custodial term. (Interestingly, if we compare this to the previous extended sentences under the 2003 Act, release was granted at the half way point, so in a little under 3 years, the practical effect of receiving an extended sentence will have potentially doubled. Take the following example of a 6 year extended sentence with 1 year licence:

2003 extended sentence: automatic release after 3 years: 3 years on licence + 1 year extended licence

2012 extended sentence: automatic release after 4 years: 2 years on licence + 1 year extended licence

2014 (?) extended sentence: possible release at 4 and automatic release at 6 years (with balance of custody spent on licence) + 1 year extended licence.

So some 18 months after the MoJ introduced this legislation, it amends it, to plug the gap left by the legislation they repealed. Not only is this a waste of money (because, had they conducted their research properly in the first place this change could have been implemented by one piece of primary legislation rather than two (at god only knows what cost) but the MoJ then conveniently omit from their press release the fact that they are making a significant amendment to a piece of legislation they brought in to force only 18 months ago.

Terrorism and sexual offences

The Bill also includes a provision to end automatic release for “offenders of particular concern” – that is someone who has committed an offence listed in Schedule 18A when aged 18+.Where a court imposes a determinate sentence (i.e. not a life sentence or extended sentence, because the offender is ‘dangerous’) for an offence listed in Schedule 18A (e.g. rape of a child under 13 or possessing an article for terrorist purposes), then the offender will have to apply to the parole board upon reaching the half way point in his or her sentence before they can be released. Again, the parole board will only release the prisoner if it is safe to do so. This is notwithstanding that the court has not found the offender to be ‘dangerous’ and therefore not imposed a sentence which requires the parole board to assess the safety of release. Is this purely political? If the government considers that the current dangerousness test is adequate, and that judges are applying it correctly (which we must assume, as there are no amendments to it in the Bill – ideal time to make any), then it must expect the parole board to grant release to all of the offenders caught by this change. What as waste of time and money for the parole board; but you can’t put a price on good political capital, and everyone dislikes terrorists and child rapists.

One truly wonders who is responsible for such errant law-making…

This post was sponsored by Tranter Cleere Solicitors.

Tranter

 

Photos from the BBC

Robert Cerqua – life imprisonment for murdering his twin

Introduction

We looked yesterday, 20th October 2014, at the case of Robert Cerqua who was convicted of the murder of his twin bother last New Years Eve. The case was adjourned overnight and on 21st October, Robert was sentenced to life imprisonment.

This is a mandatory sentence, the question being how long the tariff should be. We found out a little bit more about Robert’s background – he “had served previous prison sentences for offences of battery and affray relating to domestic incidents involving his former partners. He also had previous convictions for motoring offences and criminal damage“.

We predicted that the tariff would be in the region of 13-14 years. How did we do? The sentencing remarks haven’t been published yet, but from the news reports, the tariff was actually set at 13 years, so pretty much what we expected. It is, in the circumstances of sentencing for murder, a (relatively) humane way of bringing this tragic case to a close.

 

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