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Peter Nunn guilty of Twitter ‘trolling’

Introduction

We have looked previously at various cases of people convicted of sending abusive messages on the internet (Twitter being the general medium of choice). 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“.

The case has been adjourned for sentence to the 29th September. Mr Nunn has been warned that he faces 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. I imagine that there were also arguments about Art 10 ECHR and freedom of speech.

 

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 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.

 

Will he go to prison?

He probably should. I say this not because I think he should go to prison (I don’t think he should), but given that Ms Storey and Mr Nimmo went to prison for similar offending on a plea of guilty Mr Nunn should probably also (especially without the credit for a plea of guilty).

Having said that, there could be all sorts of mitigation for Mr Nunn that will be put forward which may result in a non-custodial sentence. Also, the amount of time that has passed since the incident may mean that there is less publicity, and less pressure for a custodial sentence.

We will come back to this at the end of the month …

 

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“It’s much easier to fall asleep in court than you think”

Poor old Recorder Philip Cattan. Imagine waking from a refreshing doze, taken during the trial over which one is presiding, only to be greeted with applications to dismiss the jury and relist the trial by defence counsel. Not very edifying, but what people don’t realise is that it is much easier to fall asleep in court than you might think.

Probably the highest-profile example of a judge nodding off during a trial is that of His Honour Judge Coombe in 2002. Perhaps you remember the ‘Millennium Dome Diamond Heist’ case? A criminal gang planned to ram-raid the De Beers diamond exhibition and steal the flawless 203 carat Millennium Star, worth around £200m. The plan, to escape up the Thames in a speedboat, was foiled by the Flying Squad. On the day of the raid the gang were within inches of the diamond display when they were pounced upon by 100 armed police disguised as maintenance men and cleaners. Basically everyone within a half-mile radius pulled a gun.

None of that, however, prevented the trial judge, HHJ Coombe, catching 40 winks during counsel’s closing speeches. That, by the way, is not my surmise: HHJ Coombe admitted as much to the Court of Appeal for the purpose of the Appeals against Conviction. Moreover, according to one witness, whose evidence was not challenged by the Crown, HHJ Coombe was ‘asleep on about half a dozen occasions, sometimes with head lolling forwards and on occasions there were snoring noises. On some occasions the judge woke with a start’. Another witness described a few instances when ‘the judge slumped in his chair, fell asleep and was awakened by the sound of his own snoring’. A third witness said that once ‘because the judge was asleep, he failed to notice that one of the jurors had also dozed off.’

Despite this picture of Dickensian semi-somnolent tribunals of law and fact, the Court of Appeal dismissed the appeals: the judge’s summing up had been impeccable and no-one had complained about his sleeping at the time. You may wonder why not. The difficulty is that as trial counsel one is always trying to keep the judge on-side, and, there is just no way of politely saying ‘Your Honour appears to have just been asleep’.

Through my own experience I can vouch that the atmosphere during a trial is surprisingly conducive to snoozing. Most court-rooms are windowless on grounds of security. The air-conditioning in modern buildings is of the municipal bargain-basement variety. In older court-rooms it is a few fans. Barristers are obliged to wear suits, heavy gowns, tight collars and wigs – the latter imparting a sensation a bit like going through one’s office day in a nice warm beanie. Many of the participants in a criminal trial travel long distances each day, and understandably do not always sleep well at night.

For every witness whose evidence is electric, edge-of-your-seat drama, probably half a dozen are called to deal with some minor point in contention but of utterly no consequence overall. Furthermore it must be owned that a typical criminal trial involves a great deal of repetition. It might be said that a barrister’s craft is his questions, unfortunately therefore in a case involving several defendants and barristers one hears the same question crafted a half-dozen different ways.

I was involved in a murder trial recently where, during the evidence of the principal defendant, I and the person next to me became aware of a low rhythmic noise emanating from the public gallery. Our surreptitious looks revealed the progenitor to be one of the teenage children of another defendant, snoring gently at the back of the court. The fact that one of their parents was on trial for murder had not put them off taking a little shut-eye.

What about myself? I’m sure you would love to know. I remember being junior counsel in a large drugs case a few years back. At the start of the trial my leader opened the case to the jury. I was sitting behind him, hidden by a large stack of files. I had a copy of his speech in front of me and, since I was already familiar with the case, was aware of what was coming. I started sprightly, keenly noting on my laptop any slight variations between the prepared speech and my leader’s comments in court.

As the morning wore on, however, my eyelids began to droop. The power, oft taken for granted, to maintain the position of my head in contradistinction to that of the top of my desk, seemed to be failing. I felt, tangibly, chemical waves wash across my mind, intended to switch it into its unconscious state and which undoubtedly would have so done had I been lying down. I do not exaggerate when I say I determinedly gathered a corner of my lower lip between my teeth and savagely bit down on it.

 At the adjournment I gulped in the fresh air of the corridor and congratulated myself on not having succumbed – until I saw the wide grins on the faces of our police team at the lunchtime conference. I still maintain that I did not actually drop off, but I was glad that my leader did not ask for the part of my notes of his speech that related to the latter part of the morning.

So spare a thought for Recorder Cattan, and beware, next time it’s a warm September day but the winter heating has already been turned on – it’s much easier to fall asleep in court than you think.

By David Allan, barrister and HLE contributor

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Jordan Dunn pleads guilty to pitch invasion

 

It’s an early bath for Jordan Dunn as on 1 September 2014 he pleaded guilty to invading a football pitch and received a fine for his troubles. Details can be seen on the BBC website here.

What happened?

There’s not really any dispute as to what happened – it’s all here on TV.

During a Premier League match between West Ham and Tottenham, a free kick was awarded to Tottenham when it all got a bit much for young Mr Dunn. Aged just 22, it seems all the blood rushed to his head (and having consumed six – so he says – pints of beer prior to the game) he burst onto the pitch and ran the length of the field towards the West Ham goal.

The ball was lined up ready for Tottenham to take the free kick when Dunn, seizing his opportunity, ran at the ball and curled it around the wall. His effort was saved by West Ham’s goal keeper. The crowd cheered. He was then apprehended by six stewards who proceeded to drag him to the floor, sit on him for a little bit and drag him away. The crowd booed.

Judge’s comments

The judge commented that “I understand that the professional footballer who followed you did not do any better.” The judge also said it was a “small mercy” that Dunn had “decided to remain fully clothed”. 

Mitigation?

Well Dunn apologised and said it had been his dream to “run on the pitch and kick the ball” – one wonders what is next on his bucket list.

The offence

The offence is under Football (Offences) Act 1991 s.4 which states:

It is an offence for a person at a designated football match to go onto the playing area, or any area adjacent to the playing area to which spectators are not generally admitted, without lawful authority or lawful excuse (which shall be for him to prove). 

Section 1 of the Act gives the Secretary of State the power to make secondary legislation stating which games are “designated matches” for the purposes of the offence. Surprise surprise…a Premier League game is one of them.

By section 5, the maximum sentence is a level 3 fine – currently £1,000.

Sentence

He received a fine of £305. We don’t know whether he was also ordered to pay any costs, but it is likely. Additionally, he should have been ordered to pay the victim surcharge which, as he was sentenced to a fine, is 10% of that fine, rounded up or down, and so it is likely to have been made in the sum of £30.

As is usual with fines, it is difficult to assess whether this is lenient or harsh as reference has to be made to the means of the offender – which of course, we are not privy to. However, it seems that a slap on the wrist and being hit in the pocket is just punishment for what was a few moments of silliness.

Photo from the BBC

Dennis Harold – 4 years for a £3 million fraud

Introduction

Fraud in the city? Who’d have thought it, eh? This one though is a bit more ‘old school’. Dennis Harold was a payroll worker for Devonshire Appointments. He created a series of fake identities and caused payments to them through non-existent companies.

In total, he netted £2.9 million which went on “gambling (a whopping £1.2 million), an “expensive divorce” and sending money to a bride or fiancee in Thailand“. Other expenditures were “£300,000 towards a £600,000 house and bought a £54,000 car and jewellery for his wife“. When his house was searched, “Police also found £120,000 in cash stuffed in a rucksack, a bag and a jacket pocket“.

This had been obtained over a six year period from 2007 to 2013.

 

How did this come to light?

Officially an audit in 2013. In what some people might find amusing however Mr Harold’s fraud was discovered by a colleague Shamsur Rahman in 2008. Mr Rahman decided that the appropriate way of dealing with it was to blackmail Mr Harold and threaten to expose him unless he handed over a cut of the proceeds.

So it was that Mr Rahman came to plead guilty to money laundering.

 

Sentence

Mr Harold got 4 years. It seems that Mr Rahman also got the same sentence. This case falls with both the Theft and the Fraud Sentencing Guidelines.

Looking at the theft ones first (p11) this is right at the top of the highest bracket. Given the sums of money involved, this would suggest a sentence of 6 years for Mr Harold. Allowing for credit for a plea of guilty, this puts the 4 year sentence as bang on what one would expect.

In relation to the fraud guidelines, it’s probably closest to a banking fraud (p24). This gives a range of 4-7 years. Again, this is right at the top of the bracket in terms of seriousness and value.

Putting those two together, I’d suggest that Mr Harold can consider himself slightly fortunate, as we would expect a sentence slightly higher than he got (but not by much, about 4½-5 years). If Mr Rahman did get the same sentence, he may be entitled to feel slightly cheesed off. Mr Harold was clearly the prime mover and originator and we’d have expected him to get a slightly higher sentence to reflect that.

Having said that, it is hard to say that the sentence of 4 years is manifestly excessive, so we would not expect him to get very far in an appeal.

 

Was this a trial or a guilty plea?

That’s a strange aspect of the reporting. It reports a guilty plea for both of them, but states that “The jury heard Harold was motivated by “pure greed“. It may be that this is sloppy reporting, or that there was in fact a trial (or part of a trial at least) for one or other of them. The sentences would actually make more sense if Mr Rahman was found guilty after a trial – this would explain why he got the same sentence.

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Wayne Bamford sentenced to 28 days with his mum for courtroom tantrum

Introduction

27th August 2014 appeared to be a usual day in Blackpool Magistrates’ Court. We don’t have the full Court list, but we imagine the usual diet of sex, drugs, violence and unpaid parking tickets.

Any casual observer would have been jolted out of their complacency when a Mr Wayne Bamford appeared in front of the lay justices.

Facts

This wasn’t a murder, it wasn’t a serious offence at all – possession of cannabis (hardly an offence any more in many people’s eyes). There was £200 worth; enough for a couple of weeks. The sort of offence that passes through the magistrates’ courts up and down the land day in, day out, without comment. And the sort of case that would normally lead to a fine.

It’s not completely clear, but we think that Mr Bamford pleaded guilty and the magistrates stated that they were thinking of imposing a curfew (a pretty high sentence for this, but there may be facts that we’re not aware of).

To say that Mr Bamford objected is somewhat of an understatement. His exact words were ““You must be joking. I can’t stay in with my mum. You don’t 
understand what it’s like living with her. Why can’t I just have a fine?“. Upon being asked to be quiet, he stated I’m not having a curfew – no way” before throwing petrol on the fire by “repeatedly interrupted proceedings by calling members of the bench and the legal 
advisor obscene names.

Sentence

Mr Bamford was removed to the cells, where he was left to cool his heels for the rest of the day. This is common – Court proceedings can be stressful, and people often let off steam. Sometimes, the best way of dealing with it is to remove the person from the situation and letting them calm down.

After a few hours in the cells, Mr Bamford was a bit more contrite, and apologised for his behaviour. This spared him from an immediate custodial sentence, but he was still dealt with for the contempt.

The Chair of the bench sentenced Mr Bamford to a 28 day curfew. I hope that he paused briefly before announcing this, and gave Mr Bamford a little wink but, if it did happen, then it was not recorded.

What is contempt?

We have an overview here, as well as some specific examples here (defendants snogging in the dock – not that serious) and here (attacking the Judge after he’s sentenced your brother – much more serious).

Generally speaking, people who get convicted of contempt get a short spell inside. This is because Courts feel that this sort of behaviour tends to undermine the court of justice. In this case, the Court took a sensible way forward by giving him a curfew order rather that prison. Yes it was serious, but it’s not that serious a challenge to the authority of the court.

Hopefully Mr Bamford and his mother take the 28 days of enforced evenings in (no early release from a curfew) to learn to tolerate each other better. Maybe a game of scrabble and a good mother-son chat.

(c) Associated Press, from the Daily Mail

Could Jihadi John be tried in the UK?

We often receive tweets asking us to look at particular stories or to explain particular principles and yesterday was no different.

You are no doubt all aware of the dreadful murder of the American journalist James Foley. He was kidnapped and held hostage before being beheaded by a man wearing a face covering. The man is believed to be English. In fact, news outlets are reporting his name. Toronto’s ‘The Star’ state:  “According to British media outlets, they have a “key suspect:” Abdel-Majed Abdel Bary, a 23-year-old British-Egyptian rapper from west London.”

So, could the man dubbed Jihadi John be tried in the UK?

Unusually, the answer appears to be extremely simple. Yes.

Offences against the Person Act 1861 s.9 is entitled  ‘Murder or manslaughter abroad” and states:

Where any murder or manslaughter shall be committed on land out of the United Kingdom, whether within the Queen’s dominions or without, and whether the person killed were a subject of Her Majesty or not, every offence committed by any subject of Her Majesty in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, . . . , may be dealt with, inquired of, tried, determined, and punished . . . in England or Ireland . . .: Provided, that nothing herein contained shall prevent any person from being tried in any place out of England or Ireland for any murder or manslaughter committed out of England or Ireland, in the same manner as such person might have been tried before the passing of this Act.

So, there you have it. It matters not that the victim was not a British subject. Nor that it was committed abroad, outside “the Queen’s dominions” – all that matters it that “Jihadi John” is a “subject of Her Majesty”, (which, if the reports are correct and he is English, would appear to be satisfied) and that the conduct constitutes and offence of murder (or manslaughter) had it been committed in the UK (which again, appears to be satisfied).

Photo from the BBC

Liam King jailed for the murder of Rebecca Ayres

Introduction

On 4th March 2014 Liam King (26) got into an argument with Rebecca Ayres (24), his partner. The argument was about christening arrangements for Ms Ayres three year old daughter. Mr King was concerned that Ms Ayres was in too much contact with her former partner in the lead up to the ceremony.

The full details aren’t clear, but Ms Ayres threatened to end the relationship unless Mr King did not come to the christening. This escalated the argument and Mr King got a knife and stabbed Ms Ayres 11 times, killing her.

On 26th August 2014, Mr King was sentenced for the murder. The only sentence available was life imprisonment, with the Judge setting the tariff, the minimum period that has to be served, as 15 years (see here for our factsheet on sentencing for murder).

 

Comment

The starting point for a murder of this sort is 15 years. Here, it seems that there was a prompt guilty plea – in interview Mr King “admitted he had an argument with Miss Ayres and then stabbed her in her chest and arms as she tried to defend herself“.

This would indicate that the Judge had taken a starting point of 18 years (there are different rules relating to credit for a plea of guilty to murder).

As to why the Judge increased the sentence? Probably because of a history of violent and controlling behaviour on the part of Mr King, which is generally seen now as an aggravating feature, even if it has not lead to a conviction.

On a separate note, it would not surprise me if, on the back of cases like this, there are calls at some point for an increase in the starting point for murders committed in a domestic context.

 

Photo from the BBC

Photo from the BBC

Photo from the BBC, via ?Universal Pictures

Phillip Danks jailed for filming in cinema

Introduction

Honestly. You get a suspended sentence for glassing someone, a Community Order for rape, does anyone go to prison anymore? Well, in the Midlands they’re a bit robust, with one Judge leading the way by jailing Phillip Danks for nearly 3 years (2 years, 9 months to be precise) for filming in a cinema.

 

Facts

Obviously, there’s a bit more to it than that … Mr Danks not only filmed Fast and Furious 6, but he uploaded it to the internet where it was downloaded 700,000 times. He also offered to sell it via his facebook page. An assistant of his, Michael Bell, got a Community Order.

Apparently this lead to a loss of revenue to the film company of ‘millions of pounds’. This needs to be approached with a slight degree of scepticism as it is extremely unlikely that all those who downloaded it would otherwise have paid the full price to go and watch it.

What isn’t clear is exactly how much money Mr Danks made from this operation. According to a FACT press release (Federation Against Copyright Theft – the body that prosecuted this) he offered to sell copies of the film for £1.50, and it may be that he made something from all the downloads. It is doubtful if he would have made more than a couple of thousand pounds for this.

 

What were the charges?

They are said to be under the Fraud Act and (probably) s198 Copyright, Designs and Patents Act 1998 (maximum sentence of ten years).

There are guidelines for fraud, but this doesn’t fit too well into any of the categories. At a push we’d say it was a kind of confidence fraud constituting a single transaction of a non-vulnerable victim (page 20), but even then it’s not ideal.

The sentence does seem pretty high. We don’t know if there was a guilty plea, but we think so. Either way, this does seem out of line with sentenced for other offences. We’d expect an appeal.

Confiscation proceedings for cable thieves yields £7

Introduction

Last December (17th December 2013 to be precise), seven men were jailed for Conspiracy to Steal. They had stolen about 7,000 metres of copper cable, valued at about £150,000 – not to be sniffed at. The prison sentences varied from 21 to 30 months.

Confiscation As is often the case with financial offences, the Court proceeds to confiscation. This has a laudable aim of depriving criminals of the proceeds of their crime. It has, however, caused a whole lot of problems, with many trips to the Court of Appeal and Supreme Court. It has, in fact, almost certainly cost more money than it has brought in.

On 20th August 2014 the Confiscation Proceedings in this case were heard. In relation to all seven defendants, the Judge determined that, basically, they didn’t have any money. And so there was a nominal order against all defendants of £1 each.

How much did this cost? We don’t know. There are hugely different estimates of how much a Crown Court costs to run, but let’s take a figure of £3,000 a day. It is hard to imagine that a case such as this would have been resolved in less than a day in total. Add in the same amount, if not more, for the prosecution to investigate and prosecute the confiscation and a couple of hundred for the defence lawyers, and it’s already quite a lot of money. It wouldn’t surprise me if the total cost was over ten grand, all for seven quid – so not a great return on your investment.

Is it worth it? It is right that if one of them one the lottery tomorrow then this means that the government can go back for more. This is pretty unlikely however, and whilst if there is legitimate earnings down the line, then I would question whether this is a proper use of state funds.

The argument is that it shouldn’t be a cost benefit analysis when it comes to this sort of thing. I sort of agree with that, but equally, confiscation is not supposed to be a penalty (even though it is now, given the way that it has developed).

On balance, justice shouldn’t come down to cost. But, the government is happy to sacrifice that principle in other areas of law, so why not this one? Maybe it’s time to cut back on the confiscation…

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Lee Jezard – drunk man sentenced for comandeering a plane

Introduction

Drunk people doing stupid things is always a good source of amusement. And sometimes a good source of work for the CPS in generating prosecutions. On 20th August 2014 a Mr Lee Jezard served up another example of this.

 

Facts

Mr Jezard was at Birmingham Airport for reasons unknown. He was very drunk, and all he was aware of was that he probably got a train there.

What was reconstructed was that he had swiped £36.45 of food from Caffe Nero (based on our experience this may have been a sandwich and a packet of crisps) for which he pleaded guilty to theft before heading for a baggage carousel. He climbed through this onto the tarmac before seeing an empty Lufthansa plane and boarded it.

When confronted by cleaning staff, he initially claimed to be the pilot. When that failed, he showed a level of drunken ingenuity claiming firstly that he worked for the navy, and then said that he was “ breaking into places to see if people can catch me – I go to prisons and other places’“. This failed to convince however, and he was in due course arrested.

 

What were the offences?

Theft is straightforward. The news states that there were three charges. We imagine that the other two related to the trespass onto the tarmac and then getting onto the plane.

There are a large number of offences relating to airport and aviation security (see here for a list and discussion document from ACPO if you’re bored).

As a guess, we’d go for trespassing in an airport (under the Civil Aviation Act 1982) and/or a bylaw offence under Airports Act 1986. Both of these are (probably) summary only and can only be dealt with by a fine.

 

What did he get?

A fine. In total he got £285 in fines, £185 costs and a £20 Victim Surcharge. The fines were three lots of £95 and so the surcharge is 10% of the fine or, if there are more than one, the largest fine (with a minimum of £20). That’s the reason why the surcharge is £20.

There was also compensation to Caffe Nero for the full amount.

 

Comment

If there was any suggestion that there was any nefarious reasons for this then in these days of heightened concern over terrorism, he would have been facing far more serious charges and years in prison.

However, Mr Jezard was a man of good character, and this was obviously someone being very drunk rather than trying anything more serious. For that reason, this seems a sensible way of dealing with the matter. He has learnt a costly lesson.

As has, hopefully, the airport as to how easy it appears to be to trespass in the airport … we are told that there has been a review of security and the gaps that Mr Jezard exploited have now been closed.