Sydney cafe siege – A comment on Australian bail law [Guest post]

Following the horrific events at the Lindt Café in Sydney, dreadful messages have been sent to members of the judiciary and lawyers in New South Wales. People are looking for someone to blame, and as Man Haron Monis was on bail at the time, the courts have come under fire.

Man Haron Monis had previously been seen in court several times for a list of allegations including; sending offensive letters to families of soldiers killed in Afghanistan, being an accessory to his ex-wife’s murder; and over 40 sexual offences against women. On all these occasions, he was granted bail. This raises the question that many are asking – were magistrates right to grant such a dangerous man bail?

Australia and England have very similar justice systems, aside from the federal application in Australia, but in 2013 the NSW Bail Act was completely rewritten. It will now be explored again, in light of the public pressure questioning whether Man Haron Monis should have been allowed bail. England’s Bail Act 1976, reflects the previous evolutionist nature of the New South Wales Bail Act 1978, and is perhaps a good comparative in validating cries for reform.

So – Why was Man Haron Monis allowed Bail?

Bail must take into account potential risks to the community and victims as well as the presumption of innocence. For the majority of offences therefore there is a presumption of bail. This is true in most legal systems. To start from a position of innocence in the law, means the rules behind bail must reflect the severity of detaining a potentially innocent defendant before trial. There are certain exceptions for the most severe of crimes, murder for instance (and those who are already in custody), but the presumption in favour of bail remains for the majority of defendants.

In order to see why Monis was on bail, it’s necessary to turn to the New South Wales Bail Act 2013, a new law that operates on a risk calculating basis. If a defendant is considered to be an “unacceptable risk” that must be offset by conditions before they are released on bail.[1]

In 2013 Monis was charged as an accessory to the murder of his ex-wife. We do not know the extent of the role that Monis played in the murder but presumably it was a minor one as he was granted bail. The court, considering whether there was an “unacceptable risk”, decided; “If there is a threat, it was to this woman who was murdered”.[2] It was a crime linked to domestic and emotional abuse and although violent, it would be a long stretch to assume that Monis would go on to commit terror crimes whilst on bail.

At the time he was killed, he was on continued bail for separate charges of sexual and indecent assault. In that instance, the magistrates accepted that the Crown had a weak case, and because of that it seemed unlikely he would be serving a significant custodial sentence, if convicted. It would have been inappropriate, and indeed unlawful, to detain him simply whilst the Crown strengthened their case. There are a finite number of reasons for refusing bail for “unacceptable risk” in the 2013 Act, and in this case, the risk to victims or the community was considered alleviated by strict bail conditions.[3]

The issue of bail is often a tick box exercise. Is there a presumption of bail? Yes. Are there reasons that bail should not be granted? Yes. Are those reasons offset by conditions upon bail? Yes; bail granted.

Bail in Australia

The old Australian New South Wales Bail Act was a cumbersome creature, and had had somewhere near 80 amendments since 1978.[4] As a result, the Bail Act was completely rewritten in 2013.

The new act’s “unacceptable risk” calculation has, although being in force for only a few months, already come under attack. Amendments to this act will come into force in January of 2015, but the public are asking whether further amendments are necessary to prevent future devastation.[5] The Bail Act 2013, under section 17 defines unacceptable risks as “an unacceptable risk that an accused person… will; fail to appear at any proceedings…., commit a serious offence.., endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence”. [6] When considering whether there is an unacceptable risk, the Act sets out a finite list of matters to be brought to the court’s attention.

It is worth noting that there is no definition of “serious offence” in the Bail Act, rather another, much shorter, list of matters to be considered when deciding whether an offence is serious. This list is not finite, but interpretive and potentially suggestively specific. This means that in every individual case, it is up to the court to decide not only whether an offence may be committed but whether that offence will be serious enough to warrant detention. Section 17(4) specifies that sexual or violent offences, those involving a weapon are to be seen as potentially serious as well as the volume of offences and the likely effect on the community. [7]  In essence, the new Act is meant to leave a lot more to judicial discretion, which either encourages flexibility or uncertainty.

Cases of “lone-killings” are rarely predictable. Monis was a volatile man, but he was not obviously likely to murder, at least not as he presented in the courtroom. The outrage is focused around the multitude of his previous sexual and violent offences, and that he was released despite them, but why shouldn’t he have been granted bail? Was this simply a tragic but ultimately unpredictable incident?

The problems with the 2013 Act

We do not have details of the women alleged to have been assaulted and how well they were known to him. There have been suggestions Monis was violent in a domestic context, but that was not a reason of itself to refuse bail.

Over the last year in New South Wales there have been several high profile murders and assaults committed by men on bail for domestic violence. [8] The way in which bail operates has lead to repeated glitches in the way domestic violence cases are treated. The presumption of bail in New South Wales, and some other states, was displaced in cases of “family violence offences” under the Bail Act 1978; where the accused had a history of violence; had previously been violent to the alleged victim; or had failed to comply with a previous bail condition.[9] 

The new Bail Act 2013 uses a risk assessment criteria when assessing bail applications. In relation to domestic violence, the same applies as it does under any other circumstances; if the “unacceptable risk” of endangering the victim or other “interested parties” cannot be alleviated by conditions of bail, then the defendant will not be granted bail. The cases occurring since the new act was in force appear to suggest that this system is not always effective in the instance of domestic violence. Defendants are still being released on bail under strict conditions; that they live elsewhere and report to the police station often enough that they can be kept track of.

Perhaps the system failed here in not recognising the severity of these crimes and not detaining Monis for them, rather than in not predicting his act of lone terrorism, although this may be with the benefit of hindsight. Although the exact facts of the case are not known, it does appear that Monis was under strict bail conditions, just like the men who were later convicted of murder of their partners. The way in which these men were considered by the Magistrates to no longer pose a threat whilst under those conditions, may be ultimately flawed in these cases. Either that, or an unfortunate coincidence.

Reform?

In the case of the Bail Act 2013, there seems to be two problems that relate to Monis’ case, but they are so closely intertwined they may as well be one and the same. The lack of definition in the act as to “serious offence”, and that domestic-based violence is not specifically considered a serious offence.

Bail is not a punishment, but a reflection of the presumption of innocence and used only as a protective measure to ensure justice. The fact is, conditions placed on bail are not necessarily going to protect someone from an abusive partner who has already decided their freedom is gone, and that there is some vigilante justice to be had. It may be that there is no way of protecting the victim apart from keeping the abuser in custody, but there has to be a certainty that that defendant will serve a significant custodial sentence.

That being said, England’s recently added ground that protects from the physical or mental abuse of the victim in indictable cases (and even summary offences) may be something that the Bail Act 2013 could learn from. The new ground “believing the defendant will cause physical or mental injury to a person or cause an associated person to fear the same”, was added in Dec 2012 to ensure that victims of domestic violence were protected from their abuser being released on bail immediately.[10] As it stands bail “need not be granted” if there is a prospect that the defendant will repeat the offences on that same person. Currently, the Australian Act has no equivalent, despite obviously targeting abusers in the 1978 act. The new act appears to be failing victims of domestic violence and there seems no justification not to reform.

Conclusion

So should the laws surrounding bail change again because of Monis’ act of lone terror? Hindsight is a misleading instrument, especially when paired with publicity. The new laws that will come into force in January should be merely comparatively considered; in the hope of preventing future offending. Those amendments shouldn’t be used to accuse magistrates of performing poorly, unless that would have been true under the rules in force at the time. In such a situation it is the legislature who can properly be blamed.

There is a great cause here, however, for acknowledging the poor way in which bail applies to domestic violence, terrorism aside. Perhaps it is time to concede that conditions on bail to prevent repeat offences are too lenient, too risky to victims, and perhaps it is time to acknowledge that domestic violence is an exception to the rules around conditions and “unacceptable risk”.

By Emily Lanham

Emily is a paralegal in a London barristers’ chambers, and works independently for Burton Copeland solicitors (burtoncopeland.com). In her spare time she is the  Director of the youth group Big Voice London.

Male_north_american_turkey_supersaturated

Adam Sykes gets bird for Christmas Turkey heist

You know what it’s like before Christmas – shopping becomes a nightmare, the right toys are sold out, turkeys fly off the shelf. What do you do when money gets a bit tight?

One unknown person decided to use an unorthodox method to procure their Christmas bird – s/he turned to Adam Sykes, who decided to use his initiative. In early December he stole to order a £19 turkey from Iceland and sold it on for £10. We don’t know how, but he was caught, arrested and charged with this theft.

On 3rd January 2015 Mr Sykes attended Court for this and other matters, where he was sentenced to 70 days in prison.

There are fewer details of the other offences. We know that one was criminal damage (kicking a door in causing £216.04 of damage). We are told that he breached, sorry – flouted, his bail conditions by not attending a (drugs) appointment on 22nd December and not complying with his tagged curfew on Boxing Day.

Breaching bail is not a criminal offence. You can be arrested and brought before a Court and remanded in custody, but it is not actually an offence (not turning up to Court is however). It is an offence under s12 Drugs Act 2005 to not attend at a drugs appointment arranged after a positive test for heroin or cocaine on arrest, but it does not appeal that this was the offence.

So, on that basis, there were just the two offences. The shoplifting is the more serious. But even then, it is not that serious. The Theft Guidelines apply – have a look at page 17. Even on this basis, the starting point is a Community Order.

From the Magistrates Court Sentencing Guidelines, (page 44), the penalty for the Criminal Damage is at most a Community Order.

From the fact that Mr Sykes got 10 weeks in prison, we can assume that there are a fair number of previous convictions. He has spent some time on a tag which will count towards the prison sentence (2 days on a tag = 1 days in prison).

There is no mention of a Victim Surcharge. We would guess that the reason for this is that the Judge, having decided to order compensation for the criminal damage, thought that Mr Sykes could not afford to pay the surcharge as well. As to how he will pay the compensation? Well, unless Santa was nice to him this year and brought him a few hundred notes, he will have been given time to pay and in these times of austerity people always need Easter Eggs at knock down prices don’t they? Maybe Mr Sykes could facilitate that, for a suitable price at least …

 

Photo from IB Times

Can Ched Evans play football in Malta?

Introduction

Another day, another petition about Ched Evans. If you don’t know who Ched Evans is, then there is some background here. In short, he is a rapist and former footballer who has recently been released from prison, which has raised the difficult question of what the attitude of a football club should be in signing him to play for him. On 3rd January 2015 it was announced that Mr Evans has been offered a contract to play in Malta for the rest of the season.

The petition is calling on the MoJ to “Enforce the strict rules on allowing registered sex offenders to travel abroad by insisting Ched Evans serve his sentence in the UK as any other sex offender would.” It states that “If Ched Evans is allowed to travel either long term or regularly in the short term it flouts the “robust” system on sex offenders the Conservative Party promised

It isn’t entirely accurate in the way that it’s presented, but you can see the gist of what they are saying. What’s the law about this though?

 

Can he be stopped?

The position under the Sex Offenders Register is governed by The Sexual Offences Act 2003 (Notification Requirements) (England and Wales) Regulations 2012. In essence, there is a requirement to notify the police of any intention to travel abroad.

If they are concerned, the police can apply under s114 Sexual Offences Act 2003 for a ‘Foreign Travel Order‘. This requires that Mr Evans has behaved in such a way since his conviction ‘as to give reasonable cause to believe that it is necessary for such an order to be made‘. In reality, it is clear that this is not the case here.

There is no SOPO in place, as one was not deemed necessary.

So that leaves his licence conditions. There is a standard condition not to travel outside the UK. There is a lot of detail in 11/2014 Licence Conditions, Polygraph Testing and temporary travel abroad. A few extracts :

Requests for temporary travel abroad for the purposes of family, business, recreation or holiday must be considered on their individual merits, must not interfere with the sentence plan or increase any risk of re-offending or risk of serious harm, and should contribute positively to the rehabilitation and resettlement of the offender. It is crucial that each case is considered carefully and the aims of the licence are borne in mind, namely to:

  1. Protect the public;
  2. Prevent re-offending;
  3. Re-integrate the offender into the community.

para 3.12 The following criteria must be taken into account in considering requests for temporary travel abroad.

  1. Will the benefits to the offender of travelling abroad be realised if the travel is deferred until after the end of the licence period (for determinate sentence offenders) or suspension of the supervision element of the licence (for indeterminate sentence offenders)?;
  2. Are travel or activities carried out abroad connected or potentially connected to the offender’s index offence (e.g. importation of drugs; fraud involving companies set up outside of the United Kingdom; human trafficking)?;
  3. Will the travel interfere with the sentence plan or increase any risk of re-offending or risk of serious harm, including risk of serious harm to prior victims?; 
  4. Will the travel interfere with reporting requirements or attendance at offending behaviour programmes or interventions?;
  5. Have there been any concerns regarding a lack of compliance or any escalation in risk of reoffending or risk of serious harm in the past 12 months?;
  6. Is the Senior Manager satisfied that the offender can be trusted to return and resume the supervisory period?If the answers to questions 1 to 5 are “no” and questions 6 is “yes”, then it can be considered that an offender has met the requirements to qualify for temporary travel overseas, i.e. the case can be considered sufficiently “exceptional” in order to allow an offender to temporarily travel abroad. Any doubt whatsoever must give rise to a refusal and, if necessary, liaison with OMPPG for further advice. Contact details are on the front cover of this instruction.

So, looking at this, the difficulty for Mr Evans will be para 4.

However, the rules if the travel is for work are slightly different :

3.16 If the offender is applying to temporarily travel abroad for business purposes, i.e. in order to seek or undertake employment, the presumption is that the employment has already been reviewed by the supervising officer and found to be suitable. Criterion 1 of the general criteria can pose a potential problem for supervising officers to judge with business-related temporary travel abroad as they are often not in a position to be able to determine accurately whether this type of travel can wait until after a licence period has been completed. Therefore for business related travel abroad, the following criterion applies, replacing criterion 1.

  1. Does the employer support the offender’s request to travel abroad, and is the employer fully aware of the restrictions placed on the offender by the licence period?

3.17 Any request to travel abroad for business requires that disclosure of the offender’s offending history has already occurred to that employer, and a written letter from that employer should be supplied to the supervising officer supporting the offender’s request. This should be seen as fulfilling the requirement in the criteria 1; however, the supervising officer may need to further discuss with the offender and employer the arrangements for reporting during this period and should seek to come to a compromise over the time spent overseas and any adjustments to the reporting schedule.

3.18 These requirements will be more difficult to fulfil for self-employed or freelance offenders, due to the need for independent evidence of the need to travel. Therefore criterion 7 will not apply in those cases, and it will be up to the offender to supply sufficient evidence to meet criterion 1.

This would seem to be a bit more promising. Mr Evans can at least afford to be based in the UK and comply with the various programs that are part of his licence conditions.

It is right to say that travel abroad should only be allowed in an exceptional case. But, as noted above, ‘exceptional’ has a specific meaning, in that anyone who satisfies the above criteria will be an exceptional case. On the face of it, Mr Evans probably does fit these requirements.

There is no appeal mechanism, but a refusal could be Judicially Reviewed. This would raise some interesting questions under Art 8 and EU freedom of movement rights.

The MoJ appear to have issued a statement saying ” Probation officers must give permission for sex offenders on licence to take up new jobs and this includes ensuring they hold regular face to face meetings – this effectively rules out working abroad“. We haven’t been able to find the statement on the MoJ or other government website, and are a bit cautious about relying on it as it is very unusual for the MoJ to give a statement about an individual case, and on a Saturday afternoon to boot. We will come back to look at this if the statement can be verified.

 

Comment

So, where does that leave Mr Evans? Difficult to say.

I’m not a huge fan of “the “robust” system on sex offenders the Conservative Party promised” as it tends to be hot air that achieves nothing. And without wishing to be too political, I’ve not been a fan of very much of what has come out from the Conservative party on legal matters.

I won’t be signing this petition. Partly because I’m fed up of petitions (particularly change.org ones), partly because petitions seeking to make the state act in a punitive manner against an individual are a bit too close to a Bill of Attainder for my liking, but mainly because I don’t see that the “strict rules on allowing registered sex offenders to travel abroad”, at least in the EU, is the best way of protecting potential victims.

I do agree that he should be treated ‘as any other sex offender would‘. This doesn’t mean that he should be banned from travelling however.

If he was a ‘normal’ person, I imagine that given his lack of previous, compliance to date, and the fact that being in work is generally the best way of stopping offending, Probation would be only to happy for him to work in Malta rather than being unemployed in the UK.

Mr Evans is not a normal offender however, and it it difficult to know how this one will pan out. The campaigns to stop him from playing football in the UK have been very successful, and there is no reason to think that that this will not continue. For that reason, if I were Mr Evans, I wouldn’t be dusting off my passport just yet …

 

 

 

Michael Broom court case

Michael Broom – Judge appeals himself over one punch manslaughter sentence?

Introduction

The headline in the Guardian reads “Judge slashes single-punch killer’s jail term”. I thought that maybe the had got it wrong by having ‘Judge’ in the singular rather than the plural – the Court of Appeal (where jail terms are slashed, very occasionally) always sits with at least two Judges when an appeal is allowed.

But, I was wrong, as the piece made clear. What actually happened was unusual, but perfectly legal.

Facts

In August 2011 Mr Broom lost his temper with Mark Haley for reasons unspecified and punched him once. As sometimes happens, these cases can have tragic consequences, and here Mr Haley went into a coma.

Mr Broom was charged with (and pleaded guilty to) an offence under s20 Offences against the Person Act 1861. He got three years, which is a long sentence given that the maximum sentence is 5 years.

Sadly, Mr Haley died last year. This was (presumably) a direct result of the punch. As such, Mr Broom was prosecuted for his manslaughter (there was clearly no intent to kill or cause really serious injury). Given that this is the same as the s20 offence, just with the result being death, Mr Broom pleaded guilty to the manslaughter.

The Judge (Richard Hone QC) passed a sentence of 2 years. Whilst this seems light for manslaughter, at least nowadays, this was to reflect the fact that Mr Broom had already spent time in prison for the same act of the punch. It seems that this sentence was passed on 22nd December 2014.

The next day, however, the Judge called the case back on and halved this. He is reported as saying “If you had been charged with manslaughter in 2011 from a starting point of six years you have been sentenced to four years after giving full credit to your plea of guilty.

“As you have already been sentenced to three years for the grievous bodily harm, I am on reflection persuaded that should be taken in to account. In those circumstances, I vary the sentence of two years imprisonment to one of 12 months imprisonment.

This makes sense when you think about it.

EDIT: We have since been contacted by Mr Broom’s representative in the case, Mr Khalid Missouri of LLM Solicitors. He informed us of the following:

Five minutes after the 2-year sentence was imposed, the defence asked for the matter to come back in court as in his view the judge had got the law wrong in that he had not given the defendant full credit for the time served in respect of the s 20 GBH. The judge said he had a discretion not to, and the prosecutor agreed. The defence submitted that he didn’t. The judge adjourned the case overnight to think about it.

The following morning, the defence referred the judge to a case which wasn’t totally “on point” but suggested that it was “a given” that in such a case the time served on a s 20 should be fully taken into account.

The Law

Two points arise here. Firstly, it was always the case that you could only be prosecuted for murder for acts done within a year and a day of the death. This made sense hundreds of years ago, but modern medicine meant that people could survive for years with before succumbing to an injury that would have proved fatal in hours or days previously.

In light of that, Parliament passed a refreshingly simple people of legislation to deal with this. The Law Reform (Year and a Day Rule) Act 1996 runs to a mere 397 words, and simply abolishes this rule, thus paving the way for people to be prosecuted in circumstances like this.

Secondly, it raises the question of when a Judge can revisit the sentence. For obvious reasons this is rare – you have to have a level of certainty about these things. Equally, however, sometimes new information comes to light that means that the original sentence was incorrect. Often, some formality relating to the sentence was forgotten.

The compromise was reached that allowed a Judge to vary a sentence, but only if it done with 56 days of the sentence being passed. There is no fixed rule, but a Judge should not really ‘tinker’ with the sentence just because he’s had second thoughts. Especially if this results in an increased sentence.

There are exceptions – when mitigation that is put forward is shown to be false, a Judge is entitled to increase the sentence (R v Hart (1983)), but it is most often used when something has gone wrong and an appeal to the Court of Appeal seems likely to succeed, and therefore a Judge can correct a mistake.

It’s a sensible power to have, and should be used sparingly, but HHJ Hone QC is to be congratulated for using it on this occasion.

Image from BBC News

Air passenger calmed by Boris Johnson admits assault and drunk

A few weeks ago you may have seen a story in the press about Boris Johnson urging a fellow passenger on his flight from Kuala Lumpar to London to “calm down” or risk being arrested.

What happened?

It appears that the passenger in question, David Morris, 43, was drunk and had been violent and abusive towards members of the crew. It had been alleged that Morris had been racially abusive to members of the crew, demanding more drinks and being aggressive. A witness said after several attempts to calm him down, six cabin staff handcuffed him, tied his legs and then strapped him in his seat.

The BBC covered the story here if you’d like a few more details.

Offences

It appears that on Thursday 18 December, Mr Morris pleaded guilty at Uxbridge Mags’ Court. There appears to be a little confusion as to why his case is being sent to Isleworth Crown Court for sentencing – after all, the headlines suggest that Morris pleaded to common assault, which regular readers of the blog will know is a summary only offence meaning it can only be dealt with in the Magistrates’ Court save for certain exceptions.

Morris in fact pleaded guilty to common assault and drunkenness in an aircraft.

Common assault (Criminal Justice Act 1988 s.39) – summary only offence with a maximum penalty of 6 months’ custody.

Drunkenness in an aircraft (Air Navigation Order 2009 art.139). Article 139 is listed in Schedule 13 Part C of the Order and accordingly, art.241(7) states that such offences are triable either way and the maximum sentence is one of two years’ custody.

Therefore, although it may appear to many that the assault is the more serious offence, it is due to the drunknness offence that Magistrates have the ability to send this case up to the Crown Court. The common assault offence, being “joined’ to the drunknness offence (by virtue of it arising out of the same set of facts) will also be sentenced in the Crown Court.

Sentence

Morris pleaded guilty and so we can expect a reduction of a third or thereabouts (it seems unlikely that a judge would consider the evidence in this case “overwhelming” – but you never know).

The judge will obviously have to bear in mind totality and we would expect concurrent sentences to be imposed for this reason; however, as always, it is the total that matters, not the way in which the sentence is made up.

Courts (rightly) take instances of drunknness etc. on aircraft very seriously; it is easy to see why. The potential for disaster need not be explained. The Court of Appeal have said that offences of drunkenness in an aircraft will always require condign punishment, especially for the reason of deterrence.

We would expect an immediate custodial sentence (there being nothing in the news reports that indicate a suspended sentence would be appropriate) in the order of 6-12 months, though 12 months may be a little on the high side considering the plea and the apparent remorse.

We’ll come back to the story in January when he is sentenced.

One man and his eagle – Jonathan Marshall avoids bird for dodgy documents

Introduction

Jonathan Marshall was a man with a dream – he was a falconer and, with his favourite bird Samson (a golden eagle), would go around the country giving falconry displays. Tragedy had struck in 2012 when Samson flew off from a wedding and seemed lost. A Hollywood ending followed however when it transpired he had flown the 107 mile journey home.

The tearful reunion was caught on camera :

Seeking to capitalise on this human interest story, Mr Marshall applied to go on the Alan Titchmarsh show. Unfortunately, he didn’t have the right permit for Samson, and so using an other bird’s certificate as a template, falsified Samson’s permit.

This lead him to being arrested and taken to Court, where he pleaded guilty to “falsifying an endangered species permit and keeping the eagle without registration“. He got 5 months, suspended for two years.

 

What were the offences?

Well, it’s not quite clear. But whatever it was, it was a pretty dull one we would think…

Our best guess would be that it was one under Reg 4 The Control of Trade in Endangered Species (Enforcement) Regulations 1997. This creates an either way offence (maximum sentence 2 years) that applies when “A person who knowingly falsifies or alters any permit or certificate”.

Golden Eagles are Part 1, Schedule 1 birds for the purposes of the Wildlife and Countryside Act 1981 (that attract the highest protection all year round. On a side note, it’s good to see that no fewer than three buntings make it on to that list – you have been warned). There are also registration requirements for Golden Eagles as they are listed in Schedule 4 Wildlife and Countryside Act 1981. There is an offence of failing to register under s7 Wildlife and Countryside Act 1981.

This offence is summary only (s21 Wildlife and Countryside Act 1981). The sentence was presumably passed for the first offence, under the regulations.

 

No offence, but that’s rather dull, isn’t it?

Well, yes. Although if you go and look at the Regulations made under the 1981 Act you can see the impact of Welsh devolution – they started back in 1982 as joint between England and Wales but have been diverging in recent years (Rheoliadau Bywyd Gwyllt a Chefn Gwlad (Cofrestru, Modrwyo a Marcio Adar Caeth Penodol) (Cymru) 2011). How long before Wales becomes a separate jurisdiction? A very interesting constitutional question.

 

Is it so serious you get bird for it?

Apparently so.

The British do like their animals, but it seems hard to imagine that this passed the custody threshold. The fraudulent offence is clearly the most serious, and whilst fraud is fraud, it doesn’t seem to me that this was the most serious. Importantly, there doesn’t appear to be any suggestion that Samson was ill-treated, or any harm was done to the animals.

It may be that there is more to it than in the news reports, at least we hope so, because this does seem over the top. Although the sentence is suspended, it will still cost a lot of money to supervise which is money that could be better spent on more serious criminals.

 

Bet Samson will be pleased to have Mr Marshall home though, eh?

Ah. Apparently Samson was shot by a gamekeeper last year. RIP.

 

A Beretta pistol

Prohibited Weapons: The exceptional case of Manuel Wallner [Guest post]

A Beretta pistol

The recent prosecution of Manuel Wallner culminated with Swansea Crown Court deciding exceptional circumstances existed to justify not sentencing Mr. Wallner to at least 5 years in prison for possession of prohibited weapons. Any finding that deviates from the statutory minimum is rare in firearms cases. However, Mr. Wallner’s case was exceptional due to a number of factors, including a deeply concerning communication breakdown between French and UK border officials.

Background

In June 2014, Mr. Wallner travelled to Wales for a pre-booked £4,200 “close protection and hostile environment operation course” offered by a specialist security training company. His decision to bring his personal weapons from Austria to Wales would lead to him being arrested and charged with multiple allegations, including two of possession of prohibited weapons.

Before travelling to Wales, Mr. Wallner sought advice from local Austrian government authorities on the permits required to transport his firearms to the UK. He already held Austrian firearms permits for his semi-automatic assault rifle and semi-automatic Beretta pistol and was told that in addition he required a European Weapons Pass, which he duly obtained. Whilst these documents allow holders to travel with firearms for specific purposes between most EU countries, they are necessary, but not sufficient, to authorise EU nationals to bring prohibited firearms into the UK. Section 17 Firearms (Amendment) Act 1988 stipulates that all overseas residents must also have a visitor’s permit to travel to the UK with their weapons.

Relying on the advice he obtained from the Austrian authorities, Mr. Wallner drove to Wales unaware he was unlawfully transporting his personal weapons into the UK. When he arrived in Calais to catch a car ferry to Dover, Mr. Wallner declared his firearms to French authorities, which triggered a procedure known as ‘Code 100’, whereby the Ferry Operators took specified security steps. Crucially, the intelligence that Mr. Wallner was carrying firearms was apparently not conveyed to UK Border Agency staff and he was able to proceed into the UK without being challenged or having his weapons being seized. He was only arrested after showing his weapons to other people attending the course.

The law

Section 51A (2) Firearms Act 1968 requires courts to impose a custodial sentence of at least five years against any adult found guilty of possessing prohibited firearms unless exceptional circumstances apply. English courts have traditionally been reluctant to grant exceptional circumstances in firearms cases.  Exceptional circumstances were however found in last year’s case of Zhekov, where a Bulgarian Lorry driver was found in possession of a prohibited gun when he was stopped in Dover. The Court of Appeal judgment relied on the interpretation of ‘deterrence’ adopted in the 2005 case of Rehman and Wood that “if an offender has no idea that he is doing anything wrong, a deterrent sentence will have no deterrent
effect upon him.”

Mr. Wallner’s exceptional circumstances

Mr. Wallner entered a plea of guilty but argued his case involved exceptional circumstances that justified departing from the statutory minimum of five years in prison. His submissions were based on multiple grounds.

Mr. Wallner had followed advice from a government official in Austria to apply for a European Weapons Pass, which he thought enabled him to transport his weapons to England. He had a legitimate reason for travelling to the UK for his pre-booked course and had declared his weapons to the French authorities at Calais. He had lawfully purchased all of his weapons in Austria and legally held all his firearms, which were in a safe condition when they were seized by police. He had co-operated throughout the Police investigation and admitted his possession of all the items, providing a full explanation in his interview under caution. Further, a promotional video for the course featured combatants wielding heavy artillery and written material from the course providers stated attendees could “bring their own kit”, which Mr. Wallner interpreted as an invitation to bring his own weapons.  Mr. Wallner’s personal background was also relevant to his submissions. He had been promoted to the rank of Corporal during his national service in the Austrian Army and had passed psychological tests to obtain his Austrian Firearms Permit.

The Court’s decision

Mr. Wallner was sentenced to a period of 18 months imprisonment, suspended for 2 years. His weapons were confiscated. Although Mr. Wallner avoided an immediate prison sentence, he now has a criminal record which will remain on the police national computer until he reaches the age of 100. This is likely to restrict his ability to fulfil his ambition of working in personal security. It may also impede his ability to travel.

Lingering lessons

An important lesson arising from Mr. Wallner’s case is that EU nationals intending to transport weapons within the EU should always consult the authorities within the jurisdiction they are intending to visit rather than relying on advice from local officials in their home state. Although Mr. Wallner followed advice given in Austria, he should never have been allowed to progress as far as the UK unchallenged by government authorities. The reasons for the fundamental communication breakdown between French and UK officials must be identified and remedied to ensure UK border security standards are upheld.

Some may wonder why in these circumstances the Crown Prosecution Service felt it was necessary to mount a prosecution.  Convicting those who commit offences in sheer inadvertence has no deterrent effect.

By Aileen Colhoun, a Partner in the Criminal Law Division of Hickman and Rose.

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Colin Ash-Smith – life with a tariff of 21 years for murder

Introduction

On 11th December 2014 Colin Ash-Smith was convicted of the murder in 1993 of Claire Tiltman. The next day he was sentenced to life imprisonment (mandatory) with the tariff set at 21 years.

 

Facts

In 1993 Mr Ash-Smith, then aged 25, stabbed Ms Tiltman, then aged 16, nine times. As to the motive, Mr Ash-Smith had “described himself as an “animal”, plagued by a hatred of women whom he said “humiliated” him. Asked why he attacked, he said: “I wanted to feel empowered, that I had control over someone, that I wasn’t a doormat.”

It is important to note that “In 1988, he attempted to rape and murder a young mother in a quarry and in 1995 he stabbed 22-year-old Charlotte Barnard 14 times, just yards from where he killed Claire“. For this he received three life sentences, with a 15 year tariff.

That was 19 years ago and he had not been released. He was, in fact, arrested in February 2014 coincidentally (or most likely not) the day of his Parole Board hearing.

 

Sentence

This was a difficult sentencing exercise because of all the changes in the criminal law since then, and the fact that some allowance had to be made for the time that Mr Ash-Smith had been in custody.

We have the sentencing remarks, which is always helpful. The Judge decided that if the offence was committed now, the tariff would have started at 25 years. That seems, if anything, generous in that it would have been hard to argue with a 30 year starting point.

It may not matter as the Judge considered that the aggravating features would have taken it up to 30 years in any event.

So far, so good. The problem is that at the time Mr Ash-Smith would have received a tariff with a starting point of 16 years. We would have thought that the aggravating features would have taken the tariff up to 18-20 years.

It seems that Mr Ash-Smith’s lawyer said that the tariff for this murder, and the other offences, would not have exceeded 40 years. On that basis, the Judge set the tariff at 21 years.

We would have thought that the tariff at the time would have been much higher than the 18-20 years had it just been the murder of Ms Tiltman. However it is hard to see that it would have been more than 25 years, and certainly not likely to be more than 30.

It is not a science though, and we would not expect any appeal to succeed, as it is not a mathematical exercise.

It is, in any event, probably academic as even if the tariff for the murder was reduced to 11 years, it is clear that Mr Ash-Smith is a very dangerous man and it is likely that he would spend far longer than that in custody. Whatever the length of the tariff, he will remain in prison until it is safe to release him which may well be never.

Photo from the BBC

Ray Teret jailed for 25 years for historic sex offences

Introduction

I got rebuked a few weeks ago for saying “in the current climate” it was hard to know whether an appeal against sentences for sexual offences would succeed. Maybe I shouldn’t use those words, maybe I should, but I stand by the point that sentencing on sexual offences has gone somewhat askew, with new principles being developed on the hoof.  There are perfectly respectable arguments as to whether this is principled or welcome, indeed, different writers of this blog have different views.

But a further example of this was given on 11th December 2014 when Ray Teret, who would probably be described by a newspaper as a ‘disgraced former BBC DJ’ was sentenced to 25 years imprisonment for various sexual offences. We had previously covered this, in brief, when he was convicted.

 

Facts and Sentence

We have the Sentencing Remarks. They are brief, and certainly worth a read. Essentially, Mr Teret groomed the victims (‘In the main you did not have to use force to abuse these girls, as the combination of their naivety and your celebrity was such that they willingly came with you to the various locations where you abused them‘), who were all girls aged between 13 and 15.

We don’t have the exact dates (relevant for the maximum sentences at the time), but the offending appeared to be between the mid-60s and mid-70s. He was convicted “of having sexually abused 11 different girls during this period of time, 6 of whom you raped and 5 of whom were, as I have said, so awed by your celebrity status that they consented to having sexual intercourse with you. Some of those you raped were forcibly penetrated by you“.

We don’t really have any more details than that. For 5 of the indecent assaults he received 12 months, for the other 6, 18 months. These were concurrent, and concurrent with the 25 years he got for the 7 counts of rape.

The Judge said that, had he been convicted of this at the time, he would have got a life sentence, but accepted that given his age (73) and the length of the custodial sentence, he was no longer a risk.

 

Comment

Why 25 years? Here, the brevity of the sentencing remarks we are left somewhat in the dark. The starting point is the current Sentencing Guidelines (starting at page 9). This gives a range of up to 19 years for the most serious cases.

A Judge is perfectly entitled to go above that in a suitable case, but s/he should really explain why this is the case.

It is clear that it is Culpability A. Given the sentence passed, we assume that the Judge put the Harm as Cat 1, although it is not clear why this should necessarily be the case.

It should be remembered that the sentence of 25 years is a ‘global’ sentence, so has to reflect the multiple counts of rape as well as all the indecent assaults. Even then, the sentence seems much higher than what we would expect. We would have expected a sentence in the region of 18 years. It could be said that we didn’t hear the trial and therefore the Judge saw much more than we did. That is absolutely true, and the Judge – Baker J, certainly knows what he is doing, but one of the purposes of the Sentencing Remarks is to give us – the public – a view of what is being done in our name, and why.

We imagine that there will be an appeal but, and I hesitate to say it, in the current climate if I were Mr Teret I would not get my hopes up.

Daniel Pelka

Life with minimum of 30 years upheld for murder of 4yr old Daniel Pelka

Earlier this year we covered the tragic case of Daniel Pelka.

Daniel, aged 4, was starved and beaten by his mother and her partner, Magdelena Luczak and  Mariusz Krezolek.

The facts are distressing to say the least; Daniel was starved and given salt water to the point where he was sick, thereby causing him to vomit. He was also beaten and ultimately died of severe head injuries. Each blamed the other but ultimately, they were convicted and received life sentences for murder, with minimum terms of 30 years. Our write up of the sentencing hearing can be read here.

Well, on 9 December 2014, their applications to appeal against sentence were refused. It appears also that Krezolek also had an application to appeal against conviction refused. We have a fact sheet on how the appeal process works, to explain the difference between an applicant and an appellant.

Lady Justice Hallet said:

“That anyone could treat a child this way is incomprehensible. That his mother and stepfather could is beyond any belief and understanding,”

“Both applicants were plainly far more concerned about their own future and their own responsibility than about getting help to a dying child.”

And that the judge was  “fully entitled to treat this as one of the most serious offences of murder to come before the courts”.

See the BBC News website for more details.

Comment

Until we see the transcript it is difficult to assess the decision of the court. However, at the time, we said that an appeal was likely (because they have nothing to lose) but that it would be considerably difficult to persuade a court that the sentences were manifestly excessive. We’re unsurprised that this has been the result of the challenges to the sentences. As for the conviction appeal, it is not possible to say as we do not know the grounds, however the court described it as “unarguable”.