Thursday, 11 February 2016

Defendant’s told to plead guilty in return for reduced sentences

Man with back turned to camera wearing a hi-vis Community Payback tabard
New guilty plea reduction guidelines consulted upon

Today the media are reporting on a consultation by the Sentencing Guidelines Council to reduce the sentences of defendants who agree to plead guilty.  The Guardian says, “[d]raft guidelines say for maximum reduction, defendants must plead guilty at first opportunity in court, with cuts dropping thereafter until trial”.

This news will come as a shock to most criminal solicitors and barristers given that in 2003 Parliament passed the Criminal Justice Act, section 144 of which requires courts to take into account the guilty plea, when it was entered and the circumstances of the plea.  The provision in the CJA 2003 wasn’t even particularly new when it was passed.  Criminal solicitors and barristers will also be aware of the Sentencing Guidelines Council’s “Reduction in Sentence for a Guilty Plea – Definitive Guideline” document, which was last revised in 2007 and gives all sorts of guidance on reducing a sentence to reflect a guilty plea.

The changes proposed by the Council amount to little more than tinkering around the edges and are not a wholesale reform that you might expect from some of the media’s reporting.

Currently, a typical defendant who pleads guilty can expect a reduction in his or her sentence depending on the stage at which the case has reached.  The Definitive Guideline even contains this helpful diagram:

Extract from Definitive Guideline on sentence reductions 2007

You’ll remember that the Guardian told us that under the new proposals defendants will have to plead guilty at the first opportunity to get the maximum reduction and that reductions will drop thereafter?  As you can see from the diagram above that is a pretty accurate reflection of the situation as it stands right now.

Today, the judge may reduce the discount if it is felt there is a good reason to do so.  One such reason might be because the prosecution case is overwhelming and the defendant has no real choice but to admit his crime.

In practice, courts rarely cut the level of the reduction – bearing in mind that I specialise in defending drink driving cases and the prosecution case is often overwhelming, I have never had a court cut a sentence reduction.  Even before I began specialising in drink driving cases, I never had a court reduce the discount even where the offence was serious.

The Council’s main proposal seems to be to do away with the judge’s discretion to reduce the level of discount.  This would mean that if a defendant pleads guilty at the earliest opportunity he will receive the full discount no matter what.  This will mean that where a defendant pleads not guilty and changes his plea he will no longer be able to ask the judge to give him the full discount anyway.  There are often good reasons for not pleading guilty at the earliest opportunity; not least that the prosecution almost never bother to serve any evidence until a defendant pleads not guilty.  This makes it impossible for the defence to decide whether the Crown can prove their case and as we have an adversarial system that is the all-important question.

Another proposal by the Council is to remove any credit for a plea after the trial has begun.  This may seem sensible, but some trials can last months and if there is no incentive for a defendant to stop a trial that is clearly going against him he may be inclined to waste more court time by carrying on with it.

For the vast majority of cases heard in England and Wales these changes will make little if any difference.  But, there is an important point here.  When the sentencing guidelines were first introduced sentencing in courts became more rigid over night as courts began following the guidelines as if they were gospel law rather than just guidelines.  The higher courts were even called to rule that the guidelines are just guidelines and should not be followed slavishly.  Even today, getting magistrates to go outside a sentencing bracket in a drink driving case is an uphill struggle.  What we see here is another chip away at the power and discretion of the judiciary to decide cases justly. 

If adopted, will these proposals result in more guilty people pleading guilty earlier or simply less people changing their plea after the first hearing?  Experience tells me that very few clients are desperately concerned about the sentencing discount when there is a chance they might be found not guilty.

Wednesday, 27 January 2016

Misconduct in public office

Journalists were prosecuted for aiding and abetting misconduct in public office
by inducing police officers to leak information

The Law Commission has announced a review into the law on misconduct in public office saying that the offence is too vague.  In particular, the Commission says that the terms “public office” and “misconduct” are not well defined, which makes it difficult to know who is or is not in a public office and what conduct is or is not misconduct.

This report appears to have been inspired by a number of failed prosecutions of journalists for aiding and abetting misconduct in public office.

What does the law say?

We will take this question in stages, working through the definition of the offence as it currently stands to see how clear (or murky) this offence really is.

Misconduct in judicial or public office is a judge-made crime, meaning that it was not created by any Act of Parliament and so is defined wholly according to cases that have come before the courts over the years.

The leading case is the AG’s Reference (No. 3 or 2003), in which Pill, LJ gave judgment stating that the offence is committed when:
1.       A public officer, acting as such;
2.       Wilfully neglects to perform his duty and/or wilfully misconducts himself;
3.       To such a degree as to amount to an abuse of the public’s trust in the office holder;
4.       Without reasonable excuse or justification.

Who is a public officer?

The court went on to say that a public officer is somebody who has a duty to fulfil one of the responsibilities of government to the extent that the public at large would have a significant interest in its proper discharge.  This does not require the person to be paid for holding his position, which clearly encompasses lay magistrates and special police constables.  In R v Mitchell (William), the court of appeal concluded that a paramedic is not a public officer because he owes duty to the individual patient and while the public at large may be concerned at the breach of a duty to an individual that is not the same as a general duty to the public.  Contrast that with the duty of a police officer or judge whose roles are to serve everybody not any particular individual.

What counts a misconduct and an abuse of the public’s trust?

A few things are obvious from the wording in AG’s Reference (No. 3 or 2003), first this must be a wilful failure to act or a wilful misconduct – so that would appear to exclude any mistakes or inaction where the office holder did not know there was a duty for him to act.

In AG’s Reference (No. 3 or 2003), Pill, LJ made clear that the threshold for an act to cross from the merely ill-advised into the realm of misconduct would be a high one.  To decide whether an act of omission is sufficiently serious, it is necessary to consider three things: i. the responsibility of the office and its holder; ii. the importance of the public objectives they serve; and iii; the extent and nature of the departure from those objectives.

The linked cases of R v Chapman and R v Sabey, told us that a breach of trust by an employee against their employer is insufficient.  So, a situation in which a PC relays to a journalist information intended to remain confidential within a police investigation, such as information given to him during a briefing, is unlikely to be an act serious enough to amount to a crime. 

Chapman and Sabey, are really concerned with what the jury should be told by the trial judge, i.e. what directions they should be given, but this does a lot to give us an idea of the correct position in law.  The jury should be told to consider whether the misconduct was sufficient serious so that it could amount to an abuse of the public’s trust.  In deciding this, the jury should consider whether the act of the defendant had the effect of harming the public interest.  If it did not, then no crime was committed.

This is called a fudge.  Whenever I imagine their Lordships sitting down to draft a judgment like this, I can’t help but picture them feasting on warm sticky chocolate fudge puddings – maybe accidentally pushing a finger through and getting the sticky fudge stuck to their fingers and that spilling over into their judgment.  Why do I imagine that?  It’s because this is one of those areas where they’ve thought to themselves, “this is way too hard to define… we’ll leave it to the jury”.  In a lot of cases, that’s a perfectly proper thing to do because so much can turn on the individual facts of a case so maybe we’ll let them off this once.

What the Hell does “without reasonable excuse or justification” mean?

This is one of those rare occasions in which I find myself in slight disagreement with their Lordships and wondering what they were thinking when they considered this point.  In R v L(D), the Court of Appeal found itself confused as to whether “without reasonable excuse or justification” is actually an ingredient of the offence and, if so, what it means.  Leveson, LJ said, “the words ‘without justification or reasonable excuse’ only served as an expansion of the word ‘culpably’… it would have been appropriate for the judge to explain that the phrase “without justification or reasonable excuse” meant no more than acting culpably or in a blameworthy fashion.”

The words “without reasonable excuse” are also found in section 7(6) of the Road Traffic Act 1988 when they said, “A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence.”  In motoring law, a defendant who wants to rely on a reasonable excuse must raise it as a defence but it is then for the Crown to disprove so that the court is sure

To my mind, it is difficult to see how “without reasonable excuse” could be simply an expansion of the word “culpably”.  It is, in my opinion at least, clearly a defence to the allegation.  Albeit, one that when raised the Crown must negative to prove their case.


So, should the law be amended and if yes, then how?  Well those are questions for cleverer people than me.  Certainly, I can see why the Crown Prosecution Service might want to clarity as to who is a public officer but I wonder whether a prescriptive list might not lead to some perverse decision in the future where somebody who looks to all the world like a public officer cannot be prosecuted because his job ain’t on the list.  Although the current law fudges the question of the degree of the abuse of the public’s trust I also cannot see Parliament putting in place a better system than leaving the question to the jury – we are, after all, members of the public whose trust the Crown says has been abused.  There may well be scope for clarifying what is or is not a defence to the allegation, although as we saw in the Road Traffic Act, Parliament was not keen on setting out a test to be applied and left the question to the courts.

Wednesday, 9 December 2015

Votes for kids

Kids at a voting booth
Kids voting

Parliament today voted against giving 16 and 17 year olds a vote in the EU referendum.

Those in favour of reducing the voting age can often be heard saying “it’s their future” and “16 year olds can get married, join the army and have kids so why shouldn’t they be able to vote?”

Neither of these arguments is particularly strong.  First, well it is their future… but it’s also my son’s future – he’s five, should he have a vote?  Clearly not since he just about understands that he was born in London let alone that London is the capital of a country called the UK, which is a member of an international organisation called the EU.

So, what does my five year old son teach us?  He teaches us that there has to be a cut off.  There will be some children his age who understand that the UK is a country and London is its capital just as there are some 16 year olds who understand what the EU is and are capable of making a mature decision about the UK’s future.  But, we all know that there are 16 year olds who have no business exercising any sort of important right that can affect society as a whole.

What then of the suggestion that 16 year old’s can marry, have kids and join the army?  Let me begin by questioning the entire premise of the argument – what do marrying, reproducing and joining the army have to do with being able to vote?  In what way is a boy’s ability to convince a girl to sleep with him relevant to making an informed decision about the UK’s future in Europe?  How does deciding you’ve met the love of your life qualify you to make big decisions about the country? Equating these things with voting is simply not a valid argument.

While I don’t for a moment accept that these things are equivalent to voting why do those making the argument pick on those examples but ignore others?  It’s not so long ago that smoking was a hobby for those aged 16 and up, but nobody complained that 16 year olds can have babies but not smoke when the smoking age was raised to 18.  Also, why are those arguing that joining the army means a 16 year old should vote not complaining that these kids can choose to lay down their life for the country but not take a tot of rum when they join the Navy?  How is it that nobody is making the case for 16 year olds to be allowed to drive a car (current age 17) or an HGV (current age 18 if you complete a course in addition to passing your car licence).

Clearly there are plenty of things you can’t do at 16 so let’s not pretend that because you can make some adult decisions you should be allowed to make all adult decisions.

On a more important point, should we be letting 16 year olds join the military?  We regularly criticise tin-pot dictators abroad for using child soldiers yet we ignore our own recruitment of children into the military, no doubt consoling ourselves with the fact that we don’t deploy kids until they hit 18 years of age, which does somewhat undermine the argument that we should let kids vote if they can join up.

If we were to reduce the voting age – not just for EU referendums but for all elections – to 16 then how long will we have to wait until 15 year olds demand the vote?  Will we give it to them?  What about the 14 year olds?

I think two things are obvious: there has to be a cut off age for elections and there will never be a perfect age before which everybody is too immature to vote and after everybody is a wise soothsayer. 

Unless we are going to introduce exams to assess a person’s ability to vote, 18 strikes me as a good age to choose.

Wednesday, 21 October 2015

Harry Roberts – what sentence would he receive today?

Daily Mirror the day after the killings

For those who do not know, the Harry Roberts we are talking about today is a man who murdered three police officers in 1966 – not the doctor who dedicated his career to helping the sick of Stepney. Ironically, it is the doctor who is more worthy of our memories but it is the murderer who dominates out thoughts.

In Shepherd’s Bush, Roberts shot DC Con Wombwell, 25, in the face then shot DS Christopher Head, 30, killing both officers instantly.  His accomplice shot PC Geoffrey Fox, 41, killing him too.  Roberts had been sitting in a van with John Duddy and John Witney after the three committed an armed robbery.  The three police officers approached the van to ask some questions when the gang opened fire on the unarmed officers, killing all three.

Following the doctrine of joint enterprise, Roberts was convicted of all three murders even though he actually killed two of the officers himself.

After his trial, he was sentenced to life imprisonment with a minimum sentence of 30 years.  He escaped the death sentence as it was abolished a few months before his case came to trial.  In the end, Roberts served a massive 48 years’ imprisonment, 18 years over his sentence tariff.  When he was released he became the longest serving prisoner ever to be released.

The Daily Mirror dedicated its front page to publishing the story that Roberts had passed his driving test and “chuckled” at his achievement.  This led to comments like this on Twitter:

The Mirror’s story is not about whether he served long enough in prison – my personal view is that it is purely a story designed to caused outrage and sell more newspapers, but then what do I know about producing newspapers?  But, if he received a 30 year tariff in 1966 what sentence would he get if he were sentence half a century later in 2015?

The Criminal Justice Act 2003, section 4, indicates that certain murders will carry, not only a mandatory life sentence, but a starting point of a whole of life sentence.  Various circumstances can put a murder into the whole of life category, such as:

  1. The murder of 2 or more people where there is a substantial degree of planning, kidnapping or sexual/sadistic conduct;
  2.  Murder of a child which involves kidnapping or sexual/sadistic conduct;
  3.  A murder done to advance a political, religious or ideological cause; and
  4. Murder committed by an offender previously convicted of murder.
Personally, I think I would remove the need for sexual/sadistic conduct from the murder of a child but that is a side issue not for today.

As of the 13th April 2015, the Criminal Justice and Courts Act 2015, section 27, is in force in England and Wales.  The effect of the 2015 Act is to amend the Criminal Justice Act 2003, section 4 by adding in section 4(2)(ba), which adds the murder of a police or prison officer in the course of their duty to the list of crimes that attract a whole of life sentence.

So, let’s apply modern sentencing to the facts of Robert’s case.  He had committed an armed robbery and was approached by three police officers.  He must have realised, or at least thought, that the officers were investigating the robbery.  He and his accomplices decided to avoid arrest by opening fire on the police officers knowing that if the van were searched their firearms would be discovered and they would go to prison.

There can be no doubt that the three police officers were acting in the course of their duty when they were killed.  Therefore, section 4(2)(ba) of the Criminal Justice Act 2003 applies and the starting sentence for an offence of this kind would be a whole of life sentence.

So, outrage that a “cop killer” doesn’t receive a whole of life sentence is outrage at the past and not at current sentencing policy.

Wednesday, 14 October 2015

Serco hire stretch Hummer limo to transport asylum seekers

Stretched Hummer limousine similar to the one used to transport asylum seekers

Serco, one of the Government's favourite outsourcing companies and, it seems still a suspect in an ongoing fraud investigation by the Serious Fraud Office, caused controversy recently by hiring a stretched limousine to transport a group of asylum seekers from London to Manchester.

The Government says that Serco are required to use "appropriate" transport and that Serco pay the cost of whatever vehicle they buy/hire for the purpose.  What does the Government mean by "appropriate"?  I'd assume it means things like, "able to carry the number of people required", "safe", "able to complete the journey in a reasonable time" and so on.  Why then has the use of a limo caused any controversy at all when a) it costs the taxpayer no more or less than using a coach, 10 taxis, a bus or any other mode of transport; and b) it seems to have got the job done, on time and without any problems.

What then is the problem?

Voters elected a Conservative government that, like most Conservative governments, enjoys privatising thing and getting work done in the private sector because they believe that this offers the best value for taxpayer's money and gets the work done more efficiently.  Whether that belief is right or wrong, it is what voters elected just a few months ago.

The Government has outsourced the work of transporting asylum seekers from temporary accommodation to more permanent accommodation.  The private company employed for the task has carried out the work at the agreed price.  I'm quite sure that Serco is not going to hire vehicles for a laugh or that reduce its profit.  But, if it did decide to reduce its profit on the job then (assuming you are not a shareholder in Serco) what does it have to do with you?  In short, what is everybody complaining about?  This is the small-state, free-market in action that you voted for.

The only logical answer I can see is that people don't like the idea of asylum seekers receiving any sort of "luxury" even if it is just a ride in a ridiculous-looking car that people normally hire for special occasions.  I doubt they had access to a free bar for the ride.  I doubt a tour of the local bars and clubs was included in the ride.  Once those are gone then it's basically just a funny looking coach.

If you think that maybe Serco shouldn't be charging the Government so much that they can afford to hire a Limo for a job like this then you are wrong.  Serco are required, by law, to get the best deal for their shareholders and to make the most profit for their shareholders - another Conservative government law by the way.  If you think that Serco is being paid too much for this contract then you should direct your ire at the politicians who a) awarded this contract; and b) allow it to continue, not at Serco and definitely not at the asylum seekers.

Wednesday, 23 September 2015

“Fantasist” convicted of terror offence

His Majesty King Harry: the goal of Colborne's plans


News emerged from the Old Bailey this morning that Mark Colborne, a 37-year-old white man, has been convicted of an offence under the Terrorism Act 2006.

The prosecution said that Colborne had planned to shoot Princes Charles and William so that Prince Harry would accede to the throne (apparently he is unaware of Prince George’s claim).  The reason he wanted to Harry to become king is that he felt marginalised by society following bullying as a child for having ginger hair.

The prosecution alleged that he had written down plans for the assassinations – although owned no weapons capable of fulfilling his plans – and had been stockpiling chemicals that could be used to produce cyanide.  I assume that he also made plans for a cyanide attack; however, the newspaper reports I’ve seen do not make that clear.  In addition to the notes and chemicals there was evidence that Colborne had been searching the internet and buying books containing information on the manufacture and use of poisons and explosives.

The law

Colborne was convicted under the Terrorism Act 2006, judging from the press most likely under section 5, which makes preparation of terrorist acts a crime.

Criminal attempts

Before we look at terrorism it is worth a quick word about the law of criminal attempts as contained in the Criminal Attempts Act 1981.  Section 1 of the 1981 Act makes any, “… act which is more than merely preparatory to the commission of the offence …” a crime in its own right where the person intends to go on and commit the actual offence.  It is the attempt coupled with the intention that is important and it is no defence to say that the defendant would have found committing the actual offence (beyond the attempt) impossible.

Terrorism Act 2006

Now let us turn to the Terrorism Act 2006, as we have already said section 5 of the 2006 Act criminalises the preparation of terrorist acts.  It says that,

“(1) A person commits an offence if, with the intention of–
(a) committing acts of terrorism, or
(b) assisting another to commit such acts, he engages in any conduct in preparation for giving effect to his intention.
(2) It is irrelevant for the purposes of subsection (1) whether the intention and preparations relate to one or more particular acts of terrorism, acts of terrorism of a particular description or acts of terrorism generally.”

Leaving aside offences involving radioactive devices and materials (and nuclear weapons under the Anti-terrorism, Crime and Security Act 2001) there is no actual offence of committing a terrorist act within the UK.  This means that if a terrorist committed an attack that killed people and was apprehended he or she would be charged under the normal law, e.g. with offences of murder or under the Chemical Weapons Act 1996 or Biological Weapons Act 1974 etc etc.

Immediately, we see a significant difference with the 1981 Act and that is how far we need to go to commit an offence.  If John decides to kill Kevin and begins hunting around the internet for information about how to do it and buys the weapons but goes no further then he is unlikely to be guilty of attempted murder because his actions are “merely preparatory” to the murder.  However, if John decides to carry out a bomb attack on the tube and goes to the same lengths he is guilty of an offence under section 5 of the 1996 Act because all that is required is for him to prepare to commit the attack.

What is “terrorism”?

Terrorism is defined by section 1 of the Terrorism Act 2000 and is:

(1) In this Act “terrorism” means the use or threat of action where–
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government [ or an international govermental organisation] 1 or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious [, racial] 2 or ideological cause.
(2) Action falls within this subsection if it–
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

So at a very basic level terrorism is an action made for the purpose of advancing a political, religious, racial or ideological cause where serious violence or damage is planned.  If firearms or explosives are used that is all that is required, where no firearms or weapons are used there must be an intention to influence government or intimidate the public.

Given that Colborne’s ideological cause was the advancement of ginger people in society, one has to conclude that a bizarre and somewhat deranged aim is no bar to conviction.

The Colborne case

At this stage you will no doubt be thinking a law that criminalises terrorists long before they deploy their weapons against the public is a jolly good thing and you’ll get no arguments from me.  But, it is a widely drafted offence and there is a risk of people being caught by the offence who maybe shouldn’t have been.

Mark Colborne was described by DS Andy Hedley as a “fantasist” who “had ideas and plans about committing acts that could cause great harm to other people… he didn’t ever carry out any of these plans and from all the evidence we found, Colborne had not progressed to actually making poisons or viable devices that would have presented an immediate threat to the community.”

Colborne was described in court as a loner who suffers with depression and agoraphobia, which is an extreme and irrational fear of open or public places.  At 37 years of age he lived with his mother and rarely left his bedroom.  Given he was terrified of the world outside his bedroom it is difficult to see how he could have ever put his plans into action.

His ideological cause was the advancement of ginger-haired people in society, which you may think gives some insight into his mental condition at the time.

One jury failed to reach a verdict while the second acquitted him of possessing chemicals to produce cyanide and only convicted him of the terrorism offence by a majority decision.

I think we have to ask ourselves whether Mark Colborne really is a terrorist who deserves to be convicted of this very serious offence, which carries a life sentence, or whether he isn’t, as the police officer said, a “fantasist”.

The police praised his family for reporting him when they discovered his cluttered bedroom full of various chemicals, but I can’t help wondering whether the family weren’t hoping he would get some help to pull him away from his obsession with this bizarre pro-ginger cause and help him integrate into the world from which he had been absent since childhood.

There can be no doubt that Colborne committed this offence (because he was convicted) but I cannot help being reminded of Lord Shawcross’s words to the House of Lords when he served as Attorney General in 1951,

“It 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”.

I do wonder whether a better approach to the actions of Mark Colborne would not have been to ensure he received treatment for his very obvious mental health issues.

Can Corbyn renationalise the railways?

The EU flag: like a ref flag to a bull

New Labour leader Jeremy Corbyn has suggested he would consider re-nationalising the railways.  In response, UKIP leader Nigel Farage stated that this was impossible due to EU Directive 2012/34/EU, which he says requires railways in member states to be in private ownership.

EU law is not my area of expertise; however, I have done my best to research this topic and from what I have found I must disagree with Mr Farage.

First, Directive 2012/34/EU does say in the preamble:
"In order to render railway transport efficient and competitive with other modes of transport, Member States should ensure that railway undertakings have the status of independent operators behaving in a commercial manner and adapting to market needs."

However, when you read through the directive (which is very long and very tediously drafted) it does not actually appear to require the railway to be in private ownership.  At most, the directive requires the track to be owned independently of the trains and for the trains to be operated in a commercial manner.  That is not the same as saying that the train operators cannot be a publicly owned body... as they are in France.  Provided the train operating company is operated on a commercial footing then they can be in public ownership is my reading.  The reason for this requirement is that EU law appears to impose limits on state-aid that can be given to businesses, presumably to avoid prejudicing competitors in other member states that do not benefit from state funding.

Further, Article 345 of the Treaty on the Functioning of the European Union (TFEU) specifically states, "The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership."  When the question of nationalisation was put before the Court of Justice of the European Free Trade Association States (more commonly known as the EFTA Court), the Court held that a member state "...may legitimately pursue the objective of establishing a system of public ownership over these properties, provided that the objective is pursued in a non-discriminatory and proportionate manner".  In that case, the property in question was Norwegian waterfalls but the same questions of proportionality and non-discrimination apply to railways in the same way.

So, does EU law prevent the UK (or any other member state) re-nationalising the railway, or any other privately owned business?  The answer appears to be "no".