Monday, 30 March 2015

Council's creating "bizarre" criminal offences

People meeting to show off their cars in a car park
A car-meet at a retail park

Public Spaces Protection Orders (PSPOs) allow councils to ban all kinds of behaviour that would otherwise be lawful and, in effect, to turn that behaviour into a criminal offence.  Personally, I'm not keen on local authorities having too much power, particularly after many were found to be abusing powers under RIPA to undertake intrusive surveillance to catch relatively petty criminals.

A PSPO allows councils to impose on the spot fines of £100 against people breaching the orders.

Examples of current PSPOs include:
  • A ban on motorists entering a retail park in Colchester, Essex after 6pm unless they are using shops and facilities
  • Criminalisation of begging for money in certain areas of Poole, in Dorset
  • A ban on the consumption of alcohol and legal highs in public spaces in the city centre by Lincoln Council
  • Outlawing the possession of an open container of alcohol in Cambridge
All of these examples have very worthy aims; the retail park ban aims to stop people meeting in car parks and showing off their cars, something that is reasonably common in Essex.  The bans on begging, consuming alcohol and possessing open containers of alcohol are there to prevent anti-social behaviour.

But, there is one question I'm confused about.  It's already an offence to be drunk and disorderly.  It's already an offence to drive dangerously or without due care and consideration for other road users.  Why not simply rely on the existing law?  Why is it necessary to give local councils powers to effectively create criminal offences at will?

Councils should, in my opinion at least, ask themselves whether imposing a PSPO is the most proportionate response to the problem.  For example, if people are meeting in car parks at night then why not advise the land owner that the gates should be locked at the close of business.  Most shops close between 6 and 8pm - you'll find that if people attending car meets have their cars locked in the car park over night they will stop meeting there, which is surely the point of the PSPO.

If people are drunk and disorderly then deal with them for that offence - if they are not drunk and disorderly but just minding their own business then what is the problem with them having a drink in a public area?

It is the fashion in the UK currently to identify things we don't like and then ban them - or at least attempt to ban them.  I have long said that using the criminal law to modify behaviour is much like using a sledge hammer to de-shell a peanut

Monday, 16 March 2015

Alleged drink driver commits suicide

Joe Lawton
Joe Lawton, who committed suicide after a drink driving arrest
I read today of the inquest into the death of a 17-year-old who committed suicide in August 2012 after being arrested for drink driving two-days earlier.

There is a view among many that people who drink and drive are irredeemably evil and deserve nothing but the hatred of society.  My specialism is defending people accused of drink driving offences; I used to use Twitter quite a lot and on Twitter a well-know TV doctor once made a sly dig in my direction along the lines of you have the right name for somebody who represents drink drivers.  My name, of course, is Nick Diable and Old Nick is one of the names of the Devil while Diable is the French word for Devil.  I can only presume that he was implying that drink drivers are all as evil as the Devil.

The truth is that some of those accused of drink driving are not guilty at all.  While the overwhelming majority of accused people (even the guilty ones) are not in any way evil or even bad people.  Most people accused of drink driving that I come into contact with have made a genuine mistake in underestimating the effect alcohol will have on them (my science teacher at school - a biologist - was convinced he could drink three-pints and be under the drink driving limit, he was probably wrong) or they don't realise how long alcohol remains in their system after a night drinking (one driving instructor I represented had left 12-hours between drinking and driving thinking that would be enough time - it wasn't).

I often hear people saying that we should reduce the drink driving limit to zero and that way everybody will know that you cannot have a drink and drive.  But, that doesn't deal with the people who don't understand how long alcohol takes to be eliminated from their bodies.  I suspect that all a lower limit would do is increase the numbers arrested the following morning  and would include those below the level where their driving is impaired by the alcohol in their bodies.  As with most things, education is the key.

The case of Joe Lawton also highlights another, unrelated issue.  In police custody suites the law says that 17-year-olds are treated as adults, although they are not treated as adults in most other areas of life, for example a 17-year-old cannot join the army without their parents permission and cannot vote at all.  A 17-year-old at court is treated as a child and appears in the youth once charged.  So, why are 17-year-olds treated as adults in the police station?  It's a mystery that I cannot explain.

I was very sorry to hear of the death of Joe Lawton.  I hope that this does not happen again to any other families.

Tuesday, 24 February 2015

Is grooming girls to join ISIS different to grooming for sexual abuse?

CCTV footage shows Shamima Begun, Amira Abase and Kadiza Sultana walking through security at Gatwick airport before boarding a flight to Turkey.
Amira Abase, 15, Kadiza Sultana, 16, and Shamima Begum, 15, at Gatwick airport
Last week three schoolgirls from Bethnal Green in east London secretly met and began travelling from the UK to Syria where they intend to join Islamic State (ISIS).  The thing that struck me most was not that they made this journey but that so many people in the UK have such a heartless attitude to the three girls.

Many people on Facebook and Twitter take the view that the girls are little more than terrorists and deserve what’s coming their way.  In the Independent, Grace Dent called the girls “ISIS fangirls” and went on to say that children running away to join ISIS should not be allowed to return to the UK.

I can understand why somebody would take that attitude but I don’t think it is a position that holds up to analysis.

Some years ago I represented a man who groomed children for sex.  I’ve met quite a few such men but this one was by far the most successful I’ve come across.  He convinced whole families of what a nice man he was.  He persuaded parents to sign “modelling” permission slips that allowed him to take teenage girls, aged from 13 to 18 years, into his home to photograph them - he managed to photograph all but one of the teenage girls who lived on the street in varying degrees of undress, about 10 girls in total.  Incidentally, he didn’t take them into his own home; so convincing was he that he took them into the home of his (adult) girlfriend and her teenage daughter whom he was secretly raping.  He was also raping other girls on the street.  These were not one-off incidents; this was a systematic targeting of girls and their families on an entire street over more than a year.  None of the girls complained and nearly all of them went back to this man, even introducing their friends for abuse by him.  Two 15-year-old sisters in particular clearly hated him but went back time and time again, often on a daily basis, knowing that they would be subjected to painful and humiliating sexual attacks, including vaginal and anal rape, bondage and beatings.

What made those girls return to him?  It was the work he did before and after the attacks to groom the girls.  He’d use a mix of gifts, kindness, cajoling and threats to get his victims to bend to his will.

The evidence seems to suggest that something very similar is happening to girls like the three currently heading to Syria.  They are contacted by people either on the internet or in person and are convinced that they should be joining ISIS.  These are not simply young girls sitting about at home watching the news and thinking “cor blimey that looks like a fun way to live”; these are girls who are young, still children and who are being manipulated by adults.  To me there seems to be very little difference between children groomed to join ISIS and children groomed for sexual abuse: same techniques used to control children for the fulfilment of an adult’s agenda.

I have little sympathy for adults who seek to join terrorist groups like ISIS, but I have a great deal of sympathy for children who have been manipulated so they can be taken from their homes to be abused, which seems to be what awaits these girls if they reach their destination.  They should be treated as victims, albeit potentially dangerous victims, and helped to see how they have been manipulated not banned from re-entering the UK as many, including the Independent seem to want.

Tuesday, 17 February 2015

Revenge porn... yet again

Revenge porn
This is the third time I have returned to the subject of revenge porn (previous posts are here and here) and I’d like to make clear from the outset that I am not some sort of pervert worried that his fun is going to be ruined by this new law… okay I’m not just a pervert (that’s a joke by the way).

The offence is now on the statue books and is contained within the brand new Criminal Justice and Courts Act 2015, which received Royal Assent last week.  Section 33 makes it a criminal offence:

“for a person to disclose a private sexual photograph or film if the disclosure is made—
(a)without the consent of an individual who appears in the photograph or film, and
(b)with the intention of causing that individual distress.”

Note there that the Act is talking about a “disclosure”, not a publication.  So, while it is convenient to think of somebody posting a picture of their ex to the internet this offence could be committed by showing the photograph, for example to people in the pub, without actually publishing it.

The section then goes on to create four defences:

  1. Disclosure to the person in the photograph;
  2. Disclosure of the images is necessary to prevent crime;
  3. Publication by the press (it might be illegal for you to put the pictures on an obscure website but it’s okay for Rupert Murdoch to put them on the newsstands for your mum to see); and
  4. The images have previously been publish “for reward” and the defendant had no reason to think that previous publication was done without the consent of the person in the image.

It’s worth noting that the offence is not limited to the original publisher.  So, if Kevin is upset because Melanie dumped him and he takes revenge by posting some saucy photographs on the Twitter then Kevin will be guilty.  However, if Mark sees them and wants to add to Melanie’s suffering then he commits an offence by hitting the retweet button (let’s be honest I think Facebookers are the more likely culprits of this sort of thing, so maybe I should say the “share” button). 

Many of us will have seen the Facebook posts where the party of the first part denounces the party of the second part as an adulterous bastard and accompanies the post with a photograph of the party of the first part’s part with a reference to its inferior size…no?  Just me then is it?  Well, take it from me that such posts are invariably shared with additional comments about just how awful the unhung scoundrel is.  It seems likely to me that such re-sharing of the image will constitute an offence under the Act.  Will there be an appetite to go after prosecutions on a Lord McAlpine scale?  I doubt it.

With that we move on to the real problem with the offence as I see it.  The definition of the offence requires the defendant to disclose the image “with the intention of causing [the person pictured] distress”.  How will we know if the defendant was motivated by a desire to cause distress?  You might think that the answer is obvious: if Ricky is upset at Bianca and shares tawdry image of her knowing it will cause her distress then he must have meant to cause her distress since that is the obvious outcome of his actions?  Well, subsection 8 has something to say about that:

“A person charged with an offence under this section is not to be taken to have disclosed a photograph or film with the intention of causing distress merely because that was a natural and probable consequence of the disclosure.”

So we have the dilemma of how to prove that Ricky meant to cause Bianca distress.  If Ricky says he didn't mean to cause distress then how are we to disprove that in light of subsection 8?

As I have said so often on this blog, there is a tendency for politicians to react to the outrage of the day by abusing the criminal law; twisting it to purposes it was never intended to handle.  I think that this might just be one of those situations.  It is easier for a politician to say, “this is a crime” (even with as many caveats as this offence has) then it is to say “look you lot need to take some responsibility for yourself.  If you don’t want mucky pictures of yourself on the internet then don’t share them with other people.”  It’s also an easier sell to the press to say “we've made this illegal” than it is to say “we’re encouraging parents and teachers to educate kids about how not to get into this situation as adults.”

The biggest problem is that it does little to address the actual harm at its heart.  Even if Ricky goes to prison for 20-years (which he obviously won't) the pictures will still be on-line for all to see.  That's why I see this offence as a shirking of politicians duty to protect those who might do their reputation some serious cyber-harm.

Time will tell how effective this law will be…and how badly I've ruined my browser history finding a picture for this post.

Tuesday, 3 February 2015

That bloody Europe

The European Court of Human Rights is much funkier than Ealing Magistrates' Court

As we all know Europe’s sole reason for existing is to frustrate the British Government and annoy the British people with their directives, regulations and pesky decisions of the European Court of Human Rights.

The minor fact that the European Union has nothing to do with the European Court of Human Rights (ECtHR) is just a technicality – they’re all in it together.

A big complaint among those opposed to Europe is the ban placed upon us by the ECtHR preventing us from locking up murderers and throwing away the key.  I did point out what a lot of nonsense this is more than a year ago in January 2014 in Aiming for a century.

In a nutshell the problem arose because the UK government abolished the review of whole of life sentences that used to take place when they were 25-years into their sentence.  The ECtHR, not unreasonably, puts rehabilitation at the core of the convention – the idea that somebody can atone for their crimes and one day earn their freedom.  This doesn’t mean it should be a fast process or that an offender shouldn’t be punished; it does mean that hope of freedom should not be taken away and recognises that people do change.  The man who commits a murder aged 25 is probably not the same man who hopes for release at age 60!  I know it’s only a film but Morgan Freeman’s character in Shawshank Redemption gives an excellent example of this in his speech to the parole board.

This morning the ECtHR handed down a judgment in Hutchinson v United Kingdom holding that whole of life sentences are lawful because section 30 Crime (Sentences) Act 1997 allows release on compassionate grounds and is a sufficient review process.

So, once again, we see that the criticism of human rights law and “Europe” is overblown and, generally speaking, incorrect.

Having said that, I disagree with the decision in Hutchinson.  Compassionate release is a process mainly aimed at situations where the offender is ill or elderly.  That may be sufficient in most cases, but I do think there should be a review possible to confirm that the original whole of life tariff remains correct even after 25-years have passed and public outcry has faded.

Saturday, 31 January 2015

False allegations: a short case study

Justice: weeding out the truth from the lies... well trying to at least

When we think of false allegations the thing that comes to mind, for me at least, is rape.  Everything about sexual offences is controversial.  There are people who believe that false rape allegations are rife and their polar opposites who cannot accept that anybody would ever lie about such a thing.  For what it’s worth, I fall in the middle.  I know that some people lie about being the victim of sexual offences (and all sorts of other offences for that matter) and I also think that most complainants are honest. 

When I say I know some people make false complaints I mean I have acted in two cases where I have no doubt at all that false allegations of sexual assaults were made – I’ve also acted in far more where I believed every word spoken by the victim(s).  But, today’s blog isn’t about sex (sorry if that disappoints you); today is about a false allegation of another type.

I recently advised a man who I am very confident had been the victim of a false allegation that he held a knife to the throat of a woman and threatened to kill her.  The complainant named the suspect saying that she had known him for many years as a neighbour, albeit that they had not had contact for nearly a decade.

Why do I say that this was a false allegation?  Well for a start he had an alibi and not one from his mum!  His alibi is that he was home awaiting a delivery and the delivery slot has been confirmed by the delivery company.  My second reason is that the complainant has made multiple false allegations against this man in the past and has been convicted of wasting police time after she falsely claimed he had a gun, causing armed police to kick in the door of the home he shares with his partner and children.

The frustrating thing is that there isn’t very much the police can do to help this man.  As the officer said, the police cannot prove conclusively that the allegation is malicious.  It’s possible that it did happen and the suspect is very convincing; it’s also possible that it never happened.  It might even be that it did happen by the complainant really was threatened but misidentified the suspect.  The police just cannot prove it one way or another.

As a police officer once told me, “people make false complaints to us all the time”.  The real problem for everyone (because any of us might receive a letter on Monday morning requiring us to attend court to sit on a jury) is separating the false complaints from the genuine.

Wednesday, 28 January 2015

How do the police decide whether to charge a suspect?

Islington Police case you weren't sure

A question I’m often asked by clients (and in a roundabout way by people arriving at this blog using searches that ask the question in a variety of ways), is “how do the police decide whether to charge or take no further action (NFA)?”

What are the options?

Let’s have a quick think about what options are available to the police at the end of an investigation.

First, they can charge or report you for summons to attend court.  Charging means that you are given police bail and are required to attend court in person.  A summons is an order from the court for you to attend or for you to send a solicitor on your behalf.  In many cases where a person is summonsed, the court will allow you the option of entering a plea by post.

Second, you may be given a caution.  These can be a simple caution, which on the face of it is a warning not to be naughty in future, or it can be a conditional caution.  Conditions could include a requirement to pay for the cost of damage or compensation, etc.  Either way, you should ALWAYS take legal advice from an experienced solicitor before accepting a police caution.  Cautions may prevent you working in certain areas, such as with children or vulnerable adults and may prevent you entering some countries like Australia and the USA.

Third, the police can issue you with a fixed penalty notice.  If you decide to accept the notice – and there’s not usually a good reason to refuse to accept one – then you can decide whether to admit the offence or contest it and ask for a court date.  Accepting the fixed penalty notice does not mean you accept you committed a crime.

Finally, the police may decide to take no further action.  This means that they have not been able to find sufficient evidence to choose one of the other options and so the case is finished.  If they receive further evidence in future the case can be resurrected.

How do they decide whether to charge?


First, the police or a CPS solicitor will consider the evidence obtained by the police and decide whether there is sufficient evidence to charge.

They should consider whether the evidence is admissible, reliable and credible.  Experience makes me wonder how well versed in the law of evidence the decision makers are since they frequently seek to rely upon inadmissible evidence – in one case I’m handling at the moment they have failed to serve any admissible evidence whatsoever!

Once the CPS solicitor has identified the relevant evidence they should move on to consider whether there is a realistic prospect of conviction if the evidence were to be put before a jury or magistrate.  If the answer is “no” then the decision should be to take no further action.  If they answer is “yes” then the solicitor should move on to the public interest test.

Public interest

Lord Shawcross was Attorney General in 1951 when he said, “[i]t has never been the rule in this country, I hope it never will be, that suspected criminal offences must automatically be the subject of prosecution.”  The point he is getting at is that just because somebody has committed a crime it does not mean that it is always in the public interest to prosecute them.

The Crown Prosecution Service takes the view that crimes should always be prosecuted unless there is a good reason not to.  Good reasons typically mean some kind of infirmity or disability of the defendant, the fact that they are already serving a lengthy sentence and national security issues.  In cases of mercy killings it is common for the CPS to decide that pursuing the relative who ended their loved one’s life is not in the public interest.

Putting it together

Once the prosecutor has decided that there is sufficient evidence to charge and that it is in the public interest he or she will make a final decision on the outcome.  If the offence is minor and the suspect has made a full confession then it is likely that the decision will be to caution.  If the offence is more serious or there has not been a confession then the prosecutor will authorise the police to charge and bail (or hold in custody) the person to appear in court.

This process is called the Full Code Test and should be applied before any decision is made to charge a person with an offence or continue with a prosecution after one has begun.