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".

Sunday, 20 September 2015

Asian girls suffer more as a result of sexual abuse than white girls

Reporting on the CJS is often ill-informed

On the 17th September 2015, the Daily Mail published a story entitled, “Judge rules it is right that child molester who abused ethnic minority girls got longer sentence because Asian sex crime victims suffer more than whites”.  Many people have commented on this story in the past few days including one barrister who said on Twitter, “HHJ Cahill and CA said Asian Children suffer more than white children of [sic] sexually abused.  Let that sink in for a second and then scream”

Now, if any court said that it would be an outrage but neither HHJ Cahill in the Crown Court nor their Lordships in the Court of Appeal said anything of the sort.  Giving judgment of the Court of Appeal, Mr Justice Walker said,

“The remaining point taken by Mr Shafi [advocate for the appellant] is that the judge had, he submitted, regarded the offending as aggravated because of the victims’ ethnic and religious origin. This point is, with great respect to Mr Shafi, a misconception.”

The Court of Appeal went on to list various ways in which the victims suffered ongoing harm, some of which will apply to many victims, others are more specific,

“In her sentencing remarks the judge observed that J was finding it difficult at school because her friends knew what had happened, leading to problems and shame for her. In relation to G, the judge observed that she had had difficulty as a result of what the applicant had done to her. This had caused G to behave completely out of character: she had previously been a young girl doing well at school, and now was not doing as well as expected. For the family as a whole there had been enormous implications.  The father had said that he and their mother were struggling and felt socially isolated because, within their particular community, it brought great shame on the whole family when things like this happened. He was also concerned about the future marriage prospects for his daughters. The applicant, coming from this community, knew only too well the effect upon the children and their family and this was an aggravating feature.”

So, it is clear that the point here is that these particular victims have suffered as a result of the crime against them in a way that other victims may not have suffered.  The attacker knew that the children would suffer this additional harm and those are the aggravating features, not the fact that the children are Asian.

It has been suggested to me that only Asian children could ever suffer in this way.  That is, with respect, utter rubbish.  Here are a few examples of situations where other, non-Asian, victims of rape could claim their attackers’ crime is aggravated in a similar way:

1.       In the Democratic Republic of Congo, rape was used as a weapon of war against the civilian populace – the BBC was reporting as far back as 2004 that victims were shunned by their communities as a result of the rapes.  
2.       DaisyColeman, a US teenager suffered abuse at the hands of her community following her attack 
4.       A rape victim in Manchester was ostracised from her family after she reported the crime against her 
5.       In Devon, a woman was shunned by the small tight-knit rural community in which she lived following an attack on her by a well-known and respected man in the community. 

All of the attackers listed above could find their offences aggravated in a similar way to the reported case if they came to be sentenced by an English court.  So, is it correct to say that the court is saying “Asian sex crime victims suffer more than whites”?  No it clearly is not.

On a side point, you may be aware that there are more colours of people in the UK than just “Asians” and “whites”, so I have to wonder why the Mail (and others) very first go to place when writing a story involving Asian people is to relate it back solely to white people?

Thursday, 17 September 2015

The ban it brigade ride again

Fat woman holding anti-thin people sign
If you're thin you're not coming in - classy

One of the things that annoys me the most is politicians who think that the criminal law is a way to solve all of society’s ills.  Quite often I’m annoyed that politicians are claiming that the thing they are discussing is one of society’s ills but that’s a different story.

The thing that is annoying me today is the French and Caroline Noakes MP, she heads the All Parliamentary Group on Body Image, which sounds at once both a very specific topic and yet one with a very wide reach.  The French have created a criminal offence of using a thin model in a fashion show and Ms Noakes wants to introduce the same crime here.

In France those caught breaking the law face up to six-months imprisonment – the reports I’ve read are unclear whether that means prison for the organiser, the model booker or the model herself.  Who knows, maybe if we’re going to be really tough on crimes like this we should be imprisoning anybody caught looking at underweight models too?

As I understand it, the law in France bans the use of models with a BMI of 18.5 or below.  For those who don’t know BMI is a really bad way to measure the weight of an individual.  BMI is a measure of body mass across populations of people, for individuals it can be wholly unreliable.  Arnold Schwarzenegger is 6’2” and in his prime weighed around 235lbs giving him a BMI of 30.1 and placing him in the obese category.  Andrew Flintoff, the former England cricketer and elite sportsman, is well into the overweight category.

The reasoning behind such a crime is that thin models are a bad influence on young girls, which causes them to feel bad that they are not skinny enough and ultimately causes eating disorders.  That’s an overly simplistic description but it is not without some merit.  But, does that make a new criminal offence a good idea?

Anti-fat shaming advocates are wide spread and, like many noisy minority pressure groups, are becoming very influential in the media and, apparently, among politicians.  The irony of anti-fat shaming advocates is that what they campaign against for fat people is precisely what they do to skinny people – not long ago I read an account by a naturally skinny teenage girl who had seen one of the anti-fat shaming advocates on TV and was feeling pretty shitty about herself for being skinny; I doubt she is the only one.

Being underweight is bad for you, but let’s be honest it’s not nearly as serious an epidemic for the country as being overweight.  That’s not to say that people who are underweight and need help shouldn’t get it but the campaign against underweight models by anti-fat shaming advocates has a darker side in my opinion.  It isn’t aimed at helping those who are underweight but rather at diverting attention away from the real problem out society faces, which is the obesity epidemic.  With the greatest of respect to anti-fat shaming advocates everywhere, they do tend to be on the larger side and many are quite proud of it too.

Last year 2,560 people were admitted to hospital witheating disorders – while this doesn’t necessarily mean underweight the vast majority of eating disorder diagnoses involve being underweight rather than overweight.  In 2011/12 there were 11,750 hospitaladmissions “with a primary diagnosis of obesity” and that number appears to be rising. 

Presumably campaigners would agree that being underweight is unhealthy and that the point of their campaign is to improve health.  If so a law banning underweight models sounds like only half a job.  Surely if the aim is to promote healthy role models then plus size models should also be outlawed?  In fact, given that obesity led to more than four times as many hospital admissions than being underweight you might be forgiven for thinking that if the government is going to ban either it should be the promotion of overweight bodies as the norm.

Before anybody tells me that underweight models are far more common than overweight ones let me just stop you there for a minute because there are plenty of plus size models and model agencies.  If the ban is going to have any impact it needs to extend beyond the catwalk and cover newspapers, magazines and TV else what’s the point since those are the places most models are seen?

Even if you think that thin women shouldn’t be seen by small children then I have to tell you that the criminal law is not the tool to use to bring about that particular social change.  Criminal law is great for making the point that killing your neighbour isn’t acceptable but it’s really bad at trying to change what society views as attractive.

Wednesday, 16 September 2015

Judges get it wrong too

Royal Courts of Justice - hopefully they all know the law here

Motoring law is a niche area of criminal law that not every criminal solicitor or barrister properly understands.  It’s no great surprise.  I wouldn’t want to get involved in a serious fraud case because, although I’m an experienced criminal solicitor who has conducted minor fraud trials in the distant past, I do not have the expertise to properly represent somebody facing trial in a major fraud case.

Motoring law, and the drink driving offences I mostly handle, is every bit as complex as any other area of law and can be a minefield for the solicitor who doesn’t fully understand it.  That applies every bit as much to courts as it does to defence or prosecution solicitors.

Recently, I was representing a client who I knew had a previous conviction for failing to provide a specimen of breath at the roadside.  So, I wasn’t surprised to see that on his list of previous convictions, what did surprise me is that he had been disqualified from driving for 18-months.  I told the court that simply could not be correct – the court’s legal advisor looked confused and told me that an 18-month disqualification is a normal sentence for failing to provide.  I confess to feeling a sigh rising inside me that I managed to suppress long enough to explain to both the magistrates and their legal advisor that there are two types of failing to provide: the most common one is failing to provide at the police station and often results in 18-month driving bans.  However, the second type is very rare (so rare I’ve never come across another) and is relevant where the suspect fails to provide at the roadside.  The starting point for that offence is 4 penalty points not any disqualification.  My client had been convicted of the second offence and had no other convictions whatsoever.  While it's possible for a court to impose a discretionary disqualification, I cannot think of circumstances in which the offence could be so drastically aggravated to move from 4 penalty points all the way to an 18 month driving ban.

In my client’s first case, he had been stopped and required to provide a preliminary breath test at the roadside.  He refused thinking that he didn’t have to comply and was arrested.  At the police station, he provided an evidential sample and was found to be completely alcohol free.

Had the offence been committed at the police station on the evidential breath machine then the sentence imposed would match with the sentencing guidelines for that offence.  This leads me to the conclusion that when my client was originally sentenced, the magistrates used the wrong set of guidelines to pass sentence.  The thing that riles me most about this is that nobody in the court room noticed – not the legal advisor, not the prosecutor and not the duty solicitor who represented him back then!  That’s six people (3 magistrates and the others) who failed to appreciate that they were passing an outrageously inflated sentence because not a single person in the courtroom had sufficient knowledge of motoring law, i.e. the law the solicitors were being paid to know and that the magistrates had sworn to uphold.

Not so long ago many solicitors were general practitioners, maybe drafting a commercial contract on a Monday, appearing in the magistrates court on a Tuesday and preparing petitions for divorce on Wednesday but today the law is becoming so complex that GP solicitors are becoming a rare breed.  Even in criminal law, which used to be a specialism itself, the law has developed to a point where an entire room full of criminal solicitors can get the law wrong on what should be a very simple sentencing issue.

As a point of public policy I’m not sure that overly complex law is a good thing for the public; however, it is the reality of the world we live in.  So, whether you need a contract drafted, an ex-divorced or a minor motoring offence defended make sure the solicitor you instruct has the necessary skills to handle your case.

Thursday, 3 September 2015

Should the drink driving limit be lowered? A personal view

Group of friends drinking large beers
Which one is the Des?

I am regularly asked… well often… sometimes?  Okay, okay… I’ve been asked two or three times whether I think that they drink driving limit should be lowered to match the Scottish limit or even dropped to zero.

Obviously as I am a solicitor who represents an awful lot of drink drivers through London Drink Driving Solicitor and Oxford DrinkDriving Solicitor, everybody assumes that I have a vested interest in keeping the limit where it is and making sentences less onerous on drink drivers – presumably because they see me as the drink driver’s friend.  I am sure that this is the reason they ask me: everybody knows drink drivers are evil (link to blog) so when they meet me they assume they can start a debate (or maybe have an excuse to shout at me).  Let’s get one thing out of the way: I don’t feel like I have a vested interest in where the drink driving limit is set!  Murder, rape and drugs are illegal and people are in court for all three every day of the week.  I seriously doubt that reducing the drink driving limit would have a catastrophic effect on my business and, if drink driving were eliminated overnight then great.  I’ll go do something else.

The truth is that I don’t really have a strong opinion one way or the other.  I think that if there is good evidence that supports moving the drink driving limit then move it.  If the evidence says raise it (which it doesn’t) then go up… if it says drop it to zero then drop it to zero.  By the way, I have previously predicted thatEngland and Wales will drop the limit to match that of Scotland and I still think that is inevitable.

Currently, the limit in blood in England and Wales is 80 milligrams per 100 ml of blood.  The Centresfor Disease Control and Prevention (CDC) in the USA says that a 72.6kg man will reach this level after about 2 and a half pints of 5% beer.  At that level they predict that you will have impaired perception, reduced information processing capability, poorer ability to control speed, a lack of concentration, you will struggle to detect danger and your judgment, self-control, reasoning and memory all become impaired.

My own experience suggests that many people will not notice any of these things.  I can certainly say that I have had a higher alcohol level and felt absolutely fine.  But, that may be because alcohol begins to impair your judgment at just 20 milligrams per 100 ml of blood and at around 50 milligrams you will begin to get that good feeling even as your judgment, inhibition and ability to detect danger all ebb away.

Most of my clients are not persistent drink drivers – I’ve had a few but they are very much in the minority.  The overwhelming majority are people who have absolutely no understanding of how alcohol affects them and at what level they will be over the drink driving limit.  None of them want to cause any harm – in fact among my clients are doctors who spend their days saving the lives of small children with nasty diseases and school teachers who want the best for their kids.

It is quite possible that a zero alcohol limit would make clear to people like that that they should not be consuming any alcohol before driving.  But, I’m not so sure because a very common theme among people I meet is that they leave a gap between their drinking and their driving.  Very few of the people I meet go direct from pub to car.  Would the doctor who had a couple of glasses of wine with his lunch while celebrating some new funding for his department really think he’d still be over the limit some hours later when he goes home?  There are already plenty of people who are convicted for drink driving the morning after drinking the previous evening.  Will reducing the limit stop them?

I’m all for taking action that will reduce the number of people who are killed or injured on the roads provided the action is being taken for the right reasons, i.e. because it is likely to work.  All too often, decisions are made in criminal law on the basis of politician’s logic: something must be done, this is something, let’s do that.