Image from the Daily Mail

Six month suspended sentence for revenge porn

On 1 October 2014, the Daily Mail ran a story about revenge porn.

The basic facts are that Thomas Samuel, aged 45, was in a relationship with a woman. The relationship came to an end after an argument. The woman posted “unsavoury” details about him on Facebook. Samuel sent the woman a number of messages warning her not to share such details. One read: ‘I see you like telling everyone our business. You won’t mind if I share a few photos with your friends.’ Another read: As we are sharing info with everyone, I will share your favourite photos.’

He then set up a spoof Facebook account and sent a number of the woman’s friends “friendship requests”. Thereafter he posted five intimate photographs, described in the Mail as “‘extremely explicit’ pictures of the woman performing a sex act and other photos of a similar nature.”

Facebook were made aware of the images and removed the profile within two hours. However, the images had been shared and been uploaded to pornographic websites, with one image being viewed 48,000 times.

Offence

He pleaded guilty to s.127 of the Communications Act 2003 – sending a message via a public communications network of an indecent character. The maximum sentence is 6 months imprisonment and can only be heard in the magistrates’ court.

Mitigation

In mitigation, it was said that the situation was ‘entirely regrettable’ and the full consequences ‘were not foreseen’. Further, that Samuel had uploaded the pictures ‘as a last resort’ to stop abuse he was getting as a result of damaging comments put online by his ex-partner. Finally, it was said that Samuel had performed community work and had lost his job when his employers found out about the case.

Sentence

He received a sentence of 6 months’ imprisonment, suspended for 2 years. That is interesting for two reasons.

First, the process by which a suspended sentence SHOULD (I say should because it is not always followed) be imposed is thus: 1) decide the length of the custodial term, 2) then decide whether it can be suspended. That means that the court determined that the maximum sentence was appropriate, notwithstanding that he pleaded guilty. Therefore the 6-month term is almost certainly manifestly excessive.

Second, the court considered there were circumstances which enabled the sentence to be suspended. The Mail report does not detail what these were (if they were identified by the court). In my view, I’m not sure there are such circumstances (based on the information provided) and although a suspended sentence is still a custodial sentence, in the eyes of much of the public, it is a “let off” which doesn’t really mark the seriousness of what is undoubtedly a potentially very damaging offence.

Appeal?

Because it would be an appeal against sentence from the Mags Court to the Crown Court, it is a re-hearing; that means the Crown Court has the power to impose any sentence that was available to the magistrates when they sentenced Samuels – including increasing the sentence.

So will there be an appeal? It is possible but probably unlikely. If I were Mr Samuels, I wouldn’t run the risk of a Crown Court judge finding that the 6-month term was excessive (and therefore reducing it) but finding that the sentence shouldn’t have been suspended.

Nb. Not an image of Cousins' operation.

Man inspired by Breaking Bad’s Walter White convicted of cannabis cultivation

For those of you who have seen Breaking Bad…lower your expectations a little. Ok, a lot. The Daily Mail ran a story on 28 September 2014 entitled “The Real Breaking Bad” – and having had a look at the details, we think that’s rather over-egging the pudding.

In Breaking Bad, Walter White – an ordinary school teacher in the US – begins to build a crystal meth empire after learning he has a terminal illness. This drug operation is a little different. Switch meth for cannabis, Albuquerque, New Mexico, USA for Abercraf, South Wales, and millions of dollars for…a few thousand pounds.

The facts

In mid-September 2014, Shane Cousins, a 40-year-old father of three, pleaded guilty to (presumably) cannabis cultivation. That is an offence under s.6(2) of the Misuse of Drugs Act 1971 carrying a maximum sentence of 14 years’ imprisonment.

After a visit to the doctors for sinus medication, the doctor noticed a lump on Cousins’ neck:

‘The doctor said to me: “What is that lump on your neck?” Cousins said. ‘It was by my ear, on the side of my neck by my ear. On the side of my cheek basically.

‘I said I had been there twice and had been told there was nothing wrong with it. But it had grown in size.’

The Mail report that “His life had fallen apart after his operation, which left him unable to work.”

‘The lump turned out to be benign,’ he said. ‘But I had to have an operation that lasted seven or eight hours to have it removed. I still cannot feel part of my neck because it went so deep.

‘I never went back to work because I was recovering from that. At the time I had a mortgage and everything was great.’

With debts of £50,000, Cousins purchased cannabis seeds over the Internet and some equipment:

‘I paid £50 for the tents and the lights were about £50 each. It cost me about £250 in total. I borrowed that off a mate. It must have been going on for about three or four months.

The Mail reported that “Cousins was caught when a friend rang police in front of him after an argument.  ‘I don’t why he did it,’ he said. ‘It was spur of the moment and he was sorry after.’ “

The police attended and were, reportedly, “overcome” by the smell of cannabis. Cousins said: ‘There must have been about three or four weeks (to go) until they were ready.’ There were 23 plants: Fifteen in the attic, two in the bedroom and six in the car.

Finally, the Mail reported that the whole ordeal had made Cousins rethink his move into the world of drug supply: ‘I would never do this again,’ he said. ‘Never, never. No way in the whole wide world. The thing is, how many other people are out there in my position, with no money and on the edge of doing something like this?

The Mail article stated that he had no idea how to sell the drugs – some pre-emptive mitigation there perhaps.

He will be sentenced on 10 October 2014.

Sentence – what will the court consider?

So, to recap, we have:

  • 23 cannabis plants,
  • relatively sophisticated in that there was some equipment (tents and lights but apparently no ventilation or watering system)
  • an operation done for gain (to make money to pay off debts)
  • a lack of experience or contacts with people with whom to sell the drugs to

First off, it appears this has remained in the Magistrates’ Court, with a maximum sentence of 6 months imprisonment. That suggests that the view expressed below is inaccurate and that we are missing some important piece of information…

The drugs guideline (page 17) is the place to start. It seems appropriate to place him in the significant role category as he is motivated by financial gain, the operation is limited in its scale and sophistication and really lacks the characteristics of a “leading role” which is usually the preserve of larger scale operations.

Sentencing for drug production offences is based on the indicative or potential output of the operation. 23 cannabis plants would place this operation into category 3 (the midpoint of which is 28 plants). It is arguable, of course, that this might be the first crop of two or three – or more – productions. Any assumption like that must be based on evidence and it is likely that Cousins will remain in category 3.

That provides a starting point of 12 months – Cousins appears to be under the impression (mentioned in the Mail article) that he will be receiving a non-custodial sentence. That would seemingly be on the basis that he is considered to have played a “lesser role”. However it may be that there is some information we are unaware of.

Anyway, let’s continue on the premise that 12 months is the starting point. Making a (generous) reduction for the fact there are fewer than 28 plants – the midpoint of category 3) and further reductions for his good character and the motivation behind his offending (to pay off debts racked up after his operation, as opposed to greed and a desire to “live the high life”), remorse, dependent family and it being an isolated incident, the sentence may well be reduced to 8 months. With full credit for pleading guilty (which we assume is that case – and there being no reduction from that credit based on the overwhelming evidence), we might expect a sentence of around 5 months.

Whether or not that could be suspended will entirely depend on the circumstances and Mr Cousins’ background, about which we know very little.

As above, it appears that Cousins has been advised that he is likely to receive a non-custodial sentence and so our view is based purely on applying the guidelines to the facts as stated in the Mail (not a sentence uttered often).

Other points of note, because Cousins’ car was being used in the commission of the offence (to store the plants), the court could make a deprivation order and take his car from him; whether they do so or not remains to be seen but we would be unsurprised if that did not happen.

We’ll return to the case when Cousins is sentenced.

EDIT: Since writing the post, a journalist who covered the story for The Brecon & Radnor Express has got in touch and kindly provided some more information (as can be seen in the comments section, below). (It seems that the Mail picked up on it from there, without crediting the Express for the story nor the link to Breaking Bad – naughty Daily Mail]

Thanks to that information, we now know:

Cousins will be sentenced at the Crown Court – so our prediction of the sentence now seems more likely.

He pleaded guilty at the first opportunity – so he will be likely to receive 1/3 discount (if the court decides not to reduce the plea credit because the evidence is “overwhelming”)

His solicitor told the court Cousins had cancer nine years ago – this is likely to feature as further mitigation.

EDIT 2: We now know the offence to which Cousins pleaded was s.4(2) of the Misuse of Drugs Act 1971. The same guideline and maximum sentence applies as the cultivation offence specified in the post above.

tanya-brookes

Tayna Brookes – Daily Mail and PCC outraged that law applies to everyone

Introduction

We covered the case of Tayna Brookes the (now ex-) Chief Inspector who was jailed for 2½ years for frauds totalling £11,000 on 6th May 2014.

Well, she was released towards the end of September 2014 which caused ‘outrage’ at the Daily Mail offices (to be fair, quite a lot does) that she was released “just four months into a two-and-a-half-year jail sentence for fraud.” This was backed up by outrage from ‘Surrey Police and Crime Commissioner Kevin Hurley said: ‘It is outrageous that Tanya Brookes has been allowed out of prison so soon. It looks wrong.’’ 

 

Questions

So. Is this outrageous? Should you be outraged? Can early release provisions cause cancer? Is the system soft on coppers? How did she persuade the prison to let her out?

Just a few questions that enquiring minds need to know…

 

What’s happened here?

Firstly, the Mail got the facts wrong.

When assessing the sentence, we said “An immediate prison sentence is no surprise. This does seem longer than would be expected (I would have thought 12-18 months would have been sufficient) so I imagine that there would be an appeal. I doubt it will get very far as the Courts are not impressed by police officers who go bad, but Ms Brookes has nothing to lose.”

It seems that we were right about the length, but not charitable enough to the Court of Appeal who heard the appeal against sentence on 30th July 2014 and reduced the sentence to 18 months (1½ years).

So, when the Mail said the she was released “just four months into a two-and-a-half-year jail sentence for fraud” that is wrong. It was a ‘one-and-a-half-year’ sentence.

Still, even though the Mail got the sentence wrong, why was she released after 4 months of an 18 month sentence?

We have a fact sheet on sentencing and release provisions which gives a full overview, but in essence, if someone gets a ‘normal’ prison sentence, they have to serve half before being released. So that takes us to 9 months. This looks a bit less outrageous, but we’re still five months adrift.

The answer that Ms Brookes got a ‘tag’ (officially Home Detention Curfew). This provides that for certain prisoners, they can serve part of their sentence at home. The prisoner has to not pose a risk to the public (and they can’t be serving, or have previous for, certain offences such as sexual offences, or ones relating to knives).

You then take 135 days off the 9 month period (being the maximum allowable time) which gives 141 days. This is the period of time that had to be served before Ms Brookes, or anyone in her position, would have to serve before getting out on a tag.

This is about 4½ months. Given that Ms Brookes was sentenced on 6th May 2014, she would be eligible for a tag on or about 21st September 2014.

But the Mail said ‘4 months’ – what’s the difference? Probably the Mail rounding down for the sake of the story.

 

Pension

Ms Brookes gets to keep her pension. Or, as the Mail puts it, she “will even keep her generous pension.” Is that a problem? I have to say that I don’t particularly see it as one – she had paid into it and this would be, in effect, an additional (and huge) fine on her. If the shops want compensation, then they can sue her for it.

Anyway, it’s not my decision. The person who makes the decision, a Mr Kevin Hurley, decided not, saying (amongst other things) “I have considered all the facts in the case, including the appeal where the judge said he didn’t believe she had used her role as a police officer to facilitate her crimes.” and decided not to order any of her pension forfeit.

If the name of Kevin Hurley sounds familiar, then yes, it is the same Kevin Hurley Crime Commissioner, who is ‘outraged’ about Mr Brookes being released.

 

Conclusion

When you look at it, the story here is simple – Tanya Brookes is treated exactly as anyone in her position would be treated, no more and no less. Whether you like the underlying law is a different matter (and remember that it was passed by a Labour Government and, despite the thousands of opportunities since, no attempt has been made to revisit by either wings of the coalition).

What is, to my mind, the bigger story (or stories) is (1) that the Daily Mail is being deliberately inaccurate in order to make a point and, (2) Kevin Hurley the Police and Crime Commissioner does not seem to know the law properly.

 

Stella_Creasy

Peter Nunn sentenced to 18 weeks for social media offences

On 2nd September 2014 Peter Nunn was convicted of a s127 Communications Act 2003 offence – sending “a message … that is grossly offensive or of an indecent, obscene or menacing character“.

On 29th September 2014, Nunn was sentenced to 18 weeks’ imprisonment, having previously been warned that he faced a prison sentence.

 What had he said?

As is often the case with these sorts of offences, we don’t have the exact details. We know that he re-tweeted “messages threatening to sexually assault Walthamstow MP Stella Creasy“.

A few samples were given – “One message posted described the “best way to rape a witch” … He also wrote: “If you can’t threaten to rape a celebrity, what is the point in having them?

It seems that the defence was that “he was “satirising” the Twitter backlash to the campaign.” This seems a little bit optimistic. We imagine that there were also arguments about Art 10 ECHR and freedom of speech.

 Sentence

He received 18 weeks’ immediate imprisonment. This is entirely unsurprising given a) the nature of the offence, b) the seriousness with which social media offences are treated and c) the other sentences imposed for similar tweeters sending messages to Caroline Criado-Perez and Stella Creasy MP.

The Judge would have been guided by the Magistrates’ Court Sentencing Guidelines (page 40 for the s.127 offence). You can see that these are fairly out of date (referring mainly to telephone calls), but by analogy it is in the highest category – “Single call where extreme language used and substantial distress or fear caused to receiver; OR One of a series of similar calls as described in box above“.

The starting point is 6 weeks custody with a range of a Community Order to 12 weeks custody. Because these were a series of tweets, a sentence towards the top end of the bracket would be expected.

In this case, the judge has sentenced outside that bracket, having increased the sentence by some 50%. We therefore consider the sentence to be a little high (although we are rather liberal at UK Criminal Law Blog). It will be interesting to see the sentencing remarks (if they are released) as judges are required to provide their reasons for sentencing outside of the guidelines.

The Judge also imposed a restraining order reportedly banning “Nunn from any contact with either Ms Creasy or feminist Caroline Criado-Perez”.

How does this compare to other sentences for similar offences?

Compare Nunn’s sentence to the earlier concluded cases of Nimmo and Sorley. They were also prosecuted for social media offences under s.127 of the Communications Act 2003 in relation to messages sent to Caroline Criado-Perez and the MP Stella Creasy in relation to the campaign to ensure a female featured on an English and Welsh banknote.

They received 8 weeks and 12 weeks, respectively, after a discount for pleading guilty. Those sentences represent starting points (after a trial) of 12 and 18 weeks, with the difference between the two due to previous good character.

It can be seen then that Nunn’s sentence isn’t out of step with previous sentences for similar offences.

Will he appeal?

Well based on the length being over and above that suggested in the guidelines, you might think yes. However, based on the ‘going rate’ for social media offences, particularly where violence is threatened, 18 weeks seems what Nunn could have expected, particularly as he had a trial and therefore lost any possible credit for pleading guilty.

Why did he have a trial – why not plead guilty?

Well, that’s his right (although he may well have been advised to plead guilty). It is actually good to see someone have a trial and argue the point about freedom of speech – it’s an important thing that needs to be addressed, and hopefully (for our sake) it will be appealed higher so that we can get some further guidance from the higher courts as to the limits of free speech.

In a case like this, it is not one message that makes the offence – it is the combination of all of them. Which is why it is very hard to judge whether he should have been convicted. The two comments quoted above are clearly unpleasant, but equally – in our view – clearly fall below what is criminal.

It’s the nature of the beast that it may not be possible for the media to fully report the tweet – although there are ways to do it, and the media could be a bit better in doing this.

Photo from the BBC

Dave Lee Travis sentenced to 3-month suspended sentence

On 26 September 2014, Dave Lee Travis was sentenced to a 3-month suspended sentence for one count of indecent assault. He was convicted earlier in the week in relation to one of three allegations.

As you will no doubt recall, this was a retrial, as the jury in the first trial (in February 2014) were unable to agree. The offence of which Travis was convicted, however, was a new allegation added before the retrial.

In relation to the two allegations being retried, Travis was found not guilty of one and the jury could not agree as to the other. That, we understand, will not be pursued.

The (brief) facts

Paras [2]-[3] of the sentencing remarks deal with the facts as found by the jury:

The assault took place on 16th January 1995. The woman you assaulted was 22 years old and 4′ 11″ in height. She worked on the Mrs Merton Show; it was her first real job since University. You were in your late 40’s, an experienced presenter and DJ, and still a very well known media personality not only as perceived by the public but also through your own eyes, and, at over 6′ tall you towered over her.

You saw her smoking in the dressing room corridor. You went over to her and said “Oh X you shouldn’t be smoking, think about your poor little lungs.” I have no doubt that you used this as an excuse to get close to her and to touch her. You pinned her up against the wall and started to touch her rib cage and then slid your hands up over her breasts and her clothes, and started squeezing them. You left your hands there for several seconds.

The approach to sentencing

Had DLT been convicted at the first trial, he would have been sentenced according to the “old” sentencing guideline for sexual offences, issued in 2007. This did not apply to indecent assault. However on 1 April 2014 a new guideline came into force. There is no guideline for the offence of indecent assault (as it is an historic offence) however the guideline does contain guidance on the sentencing of historic sexual offences. See Annexe B. We have an overview of the sentencing of historic sexual offences here.

The maximum sentence for indecent assault was amended by parliament on a couple of occasions. In relation to this offence, the maximum sentence is 10 years’ imprisonment.

Our prediction

Earlier in the week, we said:

Looking at the guidelines, if he were to be sentenced now then it would be an offence of Sexual Assault. It is a Category 3 offence, and there doesn’t appear to be any features that would put it in ‘A’ rather than ‘B’ (see page 19). On that basis, the starting point would be a Community Order.

His sentence

He received 3 months imprisonment, suspended for 2 years. Here, we have an explanation of a suspended sentence.

The sentencing remarks of the judge are available here. As usual, the Judiciary Press Office deserve a pat on the back for getting them out so quickly.

The Judge recounted aspects of the Victim Impact Statement – the opportunity given to victims to explain how the offence affected them. It noted that the victim used humour as a coping mechanism and how she felt scared and was left shaking after the assault.

The Judge considered that the offence crossed the custody threshold, referring to the guidelines for sexual assault, noting that the offence would have fitted into category 3B (as we predicted). However, the aggravating factor of the disparity in age and ‘status’ took the starting point beyond that suggested in the guidelines and therefore a custodial sentence was to be imposed.

It then fell to the judge to determine the appropriate length of the custodial sentence. He considered that 3 months was correct. It then fell to the Judge to considered whether that sentence could be suspended. It is worth noting that this is a very separate stage in the sentencing process – the Judge having already decided what the appropriate length of sentence was.

Due to the mitigation, the Judge felt able to suspend the sentence. It appears that no additional orders were imposed (such as unpaid work or a curfew).

Errors

The Judge stated at para [10] that the offence of indecent assault carried a maximum sentence of 2 years. That was correct…until the law changed in 1985 when the maximum was increased to 10 years. In fairness to the Judge, the sentencing remarks do not state that the 2-year maximum applied to DLT, but it is a little misleading.

The Judge added that the victim surcharge provisions applied to the case – that was incorrect as the offence pre-dates the introduction of the surcharge.

Consequences of a conviction for sexual offences

Generally, a conviction for a sexual offence results in the offender being placed on the sex offenders register. This is known as ‘notification’ as the offender has to notify the police of certain details such as where he or she lives, if they are staying away from their main address, their bank details etc. The length of the notification depends on the sentence they receive. There is fact sheet here. DLT will be placed on the register for a period of 7 years as, even though his sentence was suspended, it is regarded as a custodial sentence and so by virtue of the SOA 2003, a period of imprisonment for 6 months or less results in the notification regime applying for a period of 7 years.

Offenders convicted of sexual offences usually are able to be made subject to SOPOs – Sexual Offences Prevention Orders. There is a factsheet on SOPOs here. In this case, it appears no application was made and the Judge did not consider it necessary to impose one.

Comment

As to the length of sentence, I am not surprised. Despite having regard to the guidelines (and the starting point of a non-custodial sentence), one has to factor in the “celebrity premium” which we often see raise the sentence. In my view, it is correct to reflect the disparity in “status” between DLT and the victim and the Judge dealt with that aspect of the case rather well.

As to the Victim Impact Statement and the comments made by DLT, this is a somewhat thorny issue. The VIS mentioned that “Being called a liar and a fantasist and forced to relive events [...] has been painful[...] I simply wanted to tell the truth”. The Judge did not refer to that in his sentencing remarks, but did mention the Stuart Hall Attorney General’s Reference – in which it was said the use of the media to protest innocence (and state that the complainants – as they were at that stage) were liars, was an aggravating feature. The prosecution submitted that the same applied to DLT. The Judge took no account of it on the basis that the two situations were very different – Stuart Hall had been convicted of multiple offences, DLT having only been convicted of one and acquitted of many others.

The interesting issue it raises is that after the Stuart Hall AGs Ref, there seems to be a practice of penalising a celebrity for making public comments and some would argue, for the way in which they conduct their defence. It is a divisive issue as, undoubtedly publicly branding complainants (who are later validated in their claims by a conviction) liars is upsetting for them and can increase the harm caused by the offence and the proceedings, however on the other hand, is there not a disparity where the CPS make a statement setting out the allegations and the celebrity is asked (or feels bound) to comment? If so, then it will often be the case that if they are denying the offences, a statement to that effect will include an allegation that the complaints are false and constitute lies.

Appeal?

I wouldn’t have thought so. Although the sentence seems a little bit high (and perhaps had DLT not been in the public eye he would have received a non-custodial sentence) it is certainly within the permissible range. The “celeb premium” is hard to quantify but I’m not convinced in this case 3 months is wrong. As for the suspension, this was granted on the basis of the mitigation; it is unlikely DLT will offend again (not being a multiple offender and having not offended since 1995) and so a suspension was on the cards. It seems to be a sensible, pragmatic, and cost-effective way of marking a serious incident but without unnecessarily imprisoning an ageing man with health problems.

Might there be calls for an Attorney General’s reference? Probably. But that would be a waste of scarce public money, in my view.

Convicted sex offender Lee Pearson’s sentence doubled

Lee Pearson

 

Following a trial at Sheffield Crown Court in June 2013, Lee Pearson, 28 from Rotherham, was convicted of rape, sexual assault and six counts of having sexual activity with a child.  He was sentenced by Mr Recorder Lodge QC to six years’ imprisonment.

The facts are somewhat unclear, but the BBC reports that Pearson befriended two fourteen year-old girls in 2011.  The abuse began several months later and lasted almost a year before one of his victims contacted the police.

The Attorney General’s office referred the sentence to the Court of Appeal as it was considered to be unduly lenient. It was argued on behalf of the AG that the sentence should be increased. We don’t yet have the judgment and so we cannot say on what grounds the sentence was said to be unduly lenient.

The Court of Appeal increased his sentence to one of twelve years, finding that the original sentence was unduly lenient.  In increasing the sentence, Lord Justice Fulford said the twelve-year term reflected the “violence and coercion and degradation” that had accompanied the offences.  He added, “It is clear from the evidence that he dominated these two young victims and used this coercion to maintain their compliance…He groomed these victims”.

The increase in sentence is pretty staggering, and is not something that happens often.  Most recently, back in July 2013, Stuart Hall had his sentence doubled by the Court of Appeal from 15 months to 30 months, and in February 2012 Zephen Rollings had his sentenced increased from 5 to 10 years by the Court of Appeal having been found guilty of possession of a (loaded) firearm with intent to endanger life.

The sentencing guidelines for sexual offences can be found here.  We don’t have full details of the offences, nor the mitigation, and so can’t comment on the dramatic increase, but we will update this post when the judgment and sentencing remarks are published.

Photo from the BBC

Dave Lee Travis re-trial – Guilty of one indecent assault

The jury in the case of R v David Griffin, better known as Dave Lee Travis, retired to consider their verdicts on 18th September 2014. They were given a majority direction on 22nd September,  and on 23rd September 2014, they returned their verdicts.

There were two counts being re-tried and one new count. The jury returned a guilty verdict (10-2 majority) in respect of one count of indecent assault (the new allegation), a not guilty verdict in respect of a second count of indecent assault and failed to reach a verdict on a count of sexual assault.

We understand that the CPS have stated they will not proceed with the allegation on which the jury failed to reach a verdict – this is what we would expect, given that twice have the CPS failed to achieve a conviction on this allegation.

Charges

There were three charges that DLT faced this time round:

• Indecent assault of a woman between November 1990 and January 1991 (groping a stage hand during a pantomime by putting his hand up her skirt – this is the ‘Chuckle Brothers’ incident) – Not Guilty

• Sexual assault of a journalist between June and November 2008 (touching her breasts over clothing) – Not Guilty

• Indecent assault alleged to have taken place on 17th January 1995 (sexual touching of the breasts over clothing) – Guilty

All of these were separate complainants. The first two were allegations that DLT had been tried on earlier this year, but the jury could not agree on a verdict. We should say that, despite the enormous publicity, it is very hard to get the exact details of what was alleged.

It seems that the offence of which he was convicted of consisted of, in the words of the complainant “He started touching the bottom of my rib cage. Without saying anything else he just slid his hands up to and over my breasts and then kind of left them there and started squeezing“.

Sentencing

Had DLT been convicted at the first trial, he would have been sentenced according to the “old” sentencing guideline for sexual offences, issued in 2007. This did not apply to indecent assault. However on 1 April 2014 a new guideline came into force. There is no guideline for the offence of indecent assault (as it is an historic offence) however the guideline does contain guidance on the sentencing of historic sexual offences. See Annexe B. We have an overview of the sentencing of historic sexual offences here.

Looking at the guidelines, if he were to be sentenced now then it would be an offence of Sexual Assault. It is a Category 3 offence, and there doesn’t appear to be any features that would put it in ‘A’ rather than ‘B’ (see page 19). On that basis, the starting point would be a Community Order.

Even if you shoehorn it in to A on the basis that there was an abuse of trust, we would normally expect a non-custodial sentence. Different rules apply to celebrities however, and it would not be that surprising if he was sent to prison for a short period of time. We would have thought that anything more that 6 months would be manifestly excessive.

He will be sentenced on Friday 26th September 2014.

Maximum sentence

The maximum sentence for indecent assault was amended by parliament on a couple of occasions. We know (because of their dates) that the maximum sentence will be 10 years’ imprisonment.

Consequences of a conviction for sexual offences

Generally, a conviction for a sexual offence results in the offender being placed on the sex offenders register. This is known as ‘notification’ as the offender has to notify the police of certain details such as where he or she lives, if they are staying away from their main address, their bank details etc. The length of the notification depends on the sentence they receive. There is fact sheet here.

Offenders convicted of sexual offences usually are able to be made subject to SOPOs – Sexual Offences Prevention Orders. There is a factsheet on SOPOs here.

Indecent assault

In relation to indecent assault, a SOPO may only be made if the victim was aged under 18 or the offender is sentenced to 30 months or more.

A conviction or caution for indecent assault will result in the offender’s inclusion on the adult and child barred list subject to the consideration of representations. This means that they will be prevented from working with children and vulnerable adults, but they do have the opportunity to make representations as to why such a prohibition should not apply to them.

Further details

 We will update this post as and when further details become clear.

Photo from the Standard

Lura Pacheco – Community Order for ‘Educational Tourism’

Introduction

It has to be the most middle class offence imaginable. Lura Pacheco lived in Chadwell Heath (the in the London Borough of Barking & Dagenham) with her 11 year old daughter (and maybe others). She wanted her daughter to go to a school in the neighbouring, and some believe posher, London Borough of Havering.

Rather than move, she presumably became the toast of thousands of Islington dinner parties by sending Haveringa forged tenancy agreement for a home in nearby Hornchurch with a bogus property company to hoodwink the council into offering her a place“.

 

What’s the offence?

It’s not completely clear from the news report, but seemingly an offence under the Forgery and Counterfeiting Act 1981, we’d have a guess at s3 – “It is an offence for a person to use an instrument which is, and which he knows or believes to be, false, with the intention of inducing somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice“.

The ‘prejudice’ here would be the fact that school places are allocated on a council by council basis, and the system breaks down if people cross borough boundaries as they please.

 

What was the sentence?

It was reported as ‘100 hours Community Service’ and a £500 pound fine. This is a bit old-school as Community Service went out ten years or so ago.

We’re guessing that it was a Community Order (it’s not really serious enough for a Suspended Sentence) with a condition of undertaking 100 hours unpaid work. There may well have been some costs as well, but there would also have been the victim surcharge.

There aren’t any sentencing guidelines for this offence. Presuming that this is the first time that Ms Pacheco has never been in trouble before, this seems a little bit steep – whilst it was wrong, it wasn’t actually done for personal gain. I imagine that it may have been to send out a message to the wider public that this sort of behaviour is not going to be tolerated.

We doubt that there will be an appeal however, the sentence could have been a bit shorter, but I doubt any Crown Court Judge would have much sympathy with her.

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Is Ed Balls going to prison for GBH (spoiler alert – no)?

Introduction

How to win friends and influence people? As a politician that is a particularly pressing question. Especially with journalists. Journalists are the people that can make or break your career. Their significance as people that shape the news cannot be overstated.

Best off then not elbowing them in the face like Ed Balls did on 21st September 2014, putting Rob Merrick (a journalist for the Northern Echo) into hospital to have some stitches.

What happened?
The context was a football game. Specifically, the annual Labour Party v Journalists charity football game that kicks off the Labour Party Conference.

It is a hard fought contest and the Shadow Chancellor was out for revenge after losing last year.

Over to Mr Balls as to how it happened – “”I was about to score a brilliant goal in the top right hand corner … As I steadied myself to shoot Rob came piling in from behind attempting to nick the ball and came off worst.”

By ‘coming off worst’, the BBC said Mr Balls meant “The pair were contesting a 50-50 ball on the edge of the journalists’ penalty area when an elbow from Mr Balls left a cut under Mr Merrick’s right eye.”

Fortunately, after treatment in the hospital, Mr Merrick was discharged in time to return to the game and collect his man of the match award as his team won a 3-1 victory.

The Law
You obviously can’t go round elbowing people in the face. On the other hand, to be guilty of a crime you need to have (usually) some form of guilty mind.

By way of example if I go up to someone on the tube and punch them, then that’s a crime. If, however, when I’m getting off the tube I slip over and, whilst flailing around trying to get balanced, hit someone in the face, then this is an accident and I’m not guilty of any offence.

As always, context is everything. In a football game people can expect a bit of ‘rough and tumble’. Deliberate punching or elbowing is obviously off the table, but people playing football are deemed to consent to the potential for injury by a late misjudged tackle, or something like what happened here.

So. Here what happened was an unfortunate accident and not a crime. As, in fairness, Mr Merrick himself readily agreed. So you won’t be seeing Mr Balls in the dock anytime soon.
 

 

 

Photos from the BBC

Photos from the BBC

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Pensioner not to be prosecuted for growing cannabis

Introduction

When I was a kid I occasionally listened to Gardener’s Question Time – not out of choice I hasten to add. I never paid any particular attention to it, but I always thought that what it needed was someone to come along with their latest crop of skunk and distribute it round the Radio 4 audience.

Well, that hasn’t happened yet. Sadly. But we got close as we’re ever realistically likely to get when a “Patricia Hewitson, from Exmouth, contacted BBC Radio Devon’s gardening programme asking for help identifying ‘a weed’” that had been growing in her garden.

She emailed a couple of photos of the weed that turned out to be, er, weed. Fortunately for Ms Hewitson the police have decided to take no action against her with a Sgt Ryan Canning from the Devon & Cornwall Constabulary  saying ““The lady has committed an offence although there are mitigating circumstances so we would not look to take it further although we would take it away.

So all’s well that ends well…

 

The Law

It is illegal (s6 Misuse of Drugs Act 1971) “ for a person to cultivate any plant of the genus Cannabis” unless they are authorised by the Home Secretary – there are provisions for people engaged in research and the like to be permitted to grow cannabis if licensed.

Whilst it is absolutely right that someone in the position of Ms Hewitson should not be prosecuted for what was clearly an accident, we would disagree with Sgt Canning that she has necessarily ‘committed an offence‘.

There is a specific defence of ‘lack of knowledge’ contained in s28(2) Misuse of Drugs Act 1971. This states “it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged“.

Further, s28(3) states :

(3) Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused—

     (a) shall not be acquitted of the offence charged by reason only of proving that he neither        knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but

     (b) shall be acquitted thereof—

         (i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or

         (ii) if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies.

In this case it is clear that Ms Hewtison had no idea that what was growing was cannabis. In those circumstances, it seems to us that she clearly falls into the defence in s28 without further ado and, therefore, she hasn’t committed an offence.

But, either way, the police have acted very sensibly in not taking this case on…

 

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