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Introduction

One strand of historic sexual abuse in the UK that has only recently begun to come out is in relation to its existence in football (wikipedia has a good overview on it here).

On 19 February 2018 another high profile case, that of football coach Barry Bennell (known in Court as Richard Jones), ended as he was convicted of the bulk of a 48 count indictment relating to the sexual abuse of 11 different people).

He was sentenced to a total of 30 years for these offences (but see below for what that actually means).

Factual basis

This has been set out very well – have a look at the wikipedia article above, and a background piece by the BBC here, where it is set out in detail.

But, in summary, this was extensive sexual abuse of 11 boys, the more serious offences being buggery and penetrative offences.

Mr Bennell had pleaded guilty to some of the offences, but these were on the less ones and on a basis which was rejected.

There is a history – Mr Bennell had been convicted twice of similar (but less serious) offending in 1998 and got 9 years, as well as serving a sentence in the USA for similar offending.

The main point of mitigation was the fact that Mr Bennell had previously had cancer which had lead to the removal of most of his tongue and has a specialist feeding regime.

Sentence

The Judge’s Sentencing Remarks have been published. That is always required reading, but in this case particularly, it is set out very clearly.

The Judge sets out well why a life sentence or an extended sentence was not needed in this case. Essentially, as a 64 year old man who is now subject to a 30 year sentence, he will be 95 before he will be free of the sentence.

Bluntly, given his state of health and everything else, including simple statistics, he is unlikely to be alive by then. Even if he is, then it is very unlikely that he would present a risk to anyone.

Given that, the Judge passed a s236A sentence (see here for a bit of an overview of what that means). He had no choice about that under the law, but it does mean that Mr Bennell will not be released until by direction of the Parole Board, and he can only be considered for that after he has served 15 years (the sentence is actually 31 years – 30 years plus the one year extended licence).

This can cause confusion – the report on the BBC website for example wrongly states that he will be released after 15 years. Not so, he could be kept in custody until he has served the full 30 years.

The Judge also managed to avoid some of the pitfalls around these sorts of sentences (see the Ian Watkins case as an example) by making all sentences concurrent.

It is worth bearing in mind one practical point – if he had passed an extended sentence of, say, 30 years plus a 5 year extended licence, then he could not be considered for parole until after he had served 20 years – a big difference. Especially so as if he passed a life sentence, then the tariff (the earliest time that he could be considered for release) would have been set at 15 years.

The Supreme Court will soon be considering whether this difference is justified (on an appeal from the case of Stott – [2017] EWHC 214 (Admin)).

Will there be an appeal?

It is a very long sentence. The sort of sentence that would not have been contemplated twenty years ago. But things have changed and it is unlikely that the Court of Appeal will interfere with this.

One question is whether the sentence was enough? It seems strange to even contemplate that such a sentence could be unduly lenient (see here for what that means), but we would not rule it out. Probably not on the length itself, but potentially on whether there should have been an extended sentence (or even a life sentence).

One of the curiosities of the sentencing regime as set out above is that Mr Bennell would almost certainly prefer to be sentenced to a life sentence as opposed to an extended sentence, as (if he makes it that far) he will almost certainly serve less time in custody.

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We looked at the case of Chris Parker, the ‘hero’ of the Manchester bombings, who pleaded guilty in early January 2018 to stealing a purse and a phone from the victims of the attack and later using one of the cards that he had stolen.

Looking at the theft and fraud guidelines, we had said a sentence of up to 2 years after a trial could be coming. It was clear that the sentence would be much higher than the guidelines would suggest because of the circumstances of the theft.

We didn’t think it would be quite as high as it was however – Mr Parker was sentenced to 4 years and 3 months.

The latest reports do add a little more detail; there two separate thefts from different people – an iPhone from a teenager and a purse from Pauline Healey who’s granddaughter died in the attack. He used a care from Ms Healey’s purse in a local McDonalds.

We do not have the full sentencing remarks, but the Judge is reported as saying “because of the extraordinary nature of the case there is an argument to say that the ordinary guidelines for theft should not apply. […] this case demonstrates exceptional circumstances.”

The news reports also contain the Victim Impact Statement from Ms Healey and it is, unsurprisingly, profoundly moving.

So, although the sentence passed is more than we would have thought, given the background to it, it was a case where the Sentencing Guidelines go out the window. We would expect an appeal, but we doubt that it will be successful.

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For those that who’s main focus of criminal practice is the criminal trial, Archbold or Blackstones will still remain as the main book to pack on trial day, but this is a good adjunct to one of those, and will be of more use 95% of the time. It is for the busy criminal solicitor where this book truly comes into its own.

It doesn’t pretend to have the depth or minutiae of the weightier tomes, and it won’t help you with a complex legal argument. But that’s not necessarily a criticism – this is the book that you can have in your office and your bag to check anything that comes up, whenever or wherever you are.

It’s coverage is very much cradle to grave, starting at the police station and ending up with (hopefully) an acquittal, or failing that the CCRC and the Court of Appeal. It is practical, with the focus being on procedure and what you need to know about an issue as and when it arrives.

Much of this will already be known to us, or at least should be known from the PSRAS/PCQ/MCQ training, but it is helpful to have it set out in bite sized chunks – no topic is more than a page or so long, for ease of reference.

I tested this by reference to a question a colleague asked on fitness to plead in the magistrates’ court. In less than a minute it was possible to flag up the relevant sections and come up with a checklist for preparing and conducting the hearing. As stated, if you end up in a complex legal argument you will need to hit the library (or at least the internet), but if you need to cover yourself and get the lowdown on any particular issue, this will cover all the bases.

There are also good sections on legal aid (and funding in general) and the administrative side of practice, with helpful extracts from the General Criminal Contract. Although this, like the rest of the book, is aimed at solicitors rather than barristers, it may be that these sections will actually be of more use to the bar in giving an insight into how solicitors work in practice and the pressure that they’re under.

A good part of the book is the Appendices that have the sample forms and extracts of the Law Society Practice Notes (as well as pertinent extracts from the CPR and Practice Directions). It is stuff that it is all online of course, but it’s good to have it all in one place and even for the most tech savvy, sometimes it’s easier to have it flagged up. And it still works in the darkest of police stations where the internet doesn’t penetrate.

It will (rightly) never be advertised as such, but it is a book that would help people representing themselves to navigate the tactics and procedure of the criminal courts. It may be that the a few copies should be ordered by the prison libraries.

At just shy of 60 quid, it couldn’t be described as cheap, but it certainly is good value compared to some of the practitioner texts out there. And if you do get it, it’ll certainly be well thumbed by the time the 5th edition comes out.

The book is available from the Law Society Bookshop

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Introduction

In 2016, we looked at the case of Edward Vines a university contemporary of journalist Emily Maitlis. He had made Ms Maitlis’ life a ‘living hell’ for 25 years for repeatedly stalking her.

Back then, he was convicted of breaching Restraining Order and was sentenced to 3 years imprisonment.

Facts

On 16th January 2018, so less than 18 months after he was sent to prison, he was back in Court for further breaches.

It seems that these consisted of writing letters to her whilst he was in prison, and again after he had been released and was living in a bail hostel.

He pleaded guilty initially (we think in the Magistrates’ Court) and the case was sent to the Crown Court for sentence.

When he appeared at Court, he applied to vacate (change from guilty to not guilty) his plea of guilty. This was unsuccessful and he received another 3 year prison sentence.

In the news report, reports of the Victim Personal Statement that Ms Maitlis wrote to the Court are given, which make fairly harrowing reading.

Comment

There are Sentencing Guidelines for the offence of breaching a Restraining Order (see page 9).

As we said last time, the sentence passed (especially after credit for a plea of guilty) seems to be well over the odds. But when you consider the history of the case for the last few decades, the sentence is completely explicable – the Judge had no real choice.

It does raise the wider question of what do you do with someone like Mr Vines? It is clear that repeated prison sentences have not had any effect, and there is nothing to suggest that making the sentences longer and longer will do (and in any event, the maximum sentence is 5 years, not far off what Mr Vines got, given the plea of guilty).

Making the maximum sentence longer would not appear to help either, and there is no provision for an indeterminate sentence for these offences.

It’s tempting as a lay person to think that there must be ‘something wrong’ with Mr Vines, but we assume that this has been thoroughly considered and there is not an answer there.

But you clearly can’t do nothing. In the absence of a solution, or a change of heart from Mr Vines, it is likely that he will repeatedly find himself back in front of the Court, being sent to prison.

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It was one of the heart warming stories of the tragedies of the Manchester Arena bombing on 22 May 2017  – Chris Parker, a homeless man who was sleeping rough near where the attack happened, went to help and comforted a seriously injured girl and   a woman who died in his arms.

The story turned sour in August when he was charged with stealing property from the victims.

On 3 January 2018 Mr Parker pleaded guilty to two counts of theft and one of fraud. These related to the theft or a purse and a phone (it’s not clear if this was from different victims or not) and the later use of a card from the purse at a local fast food restaurant.

The case was adjourned until 30 January for sentence.

This may be a good example of a case where the Sentencing Guidelines go out the window due to the circumstances of the offence. Looking at the theft guidelines, at its highest this is a Cat 4A case probably, which would be a non-custodial sentence (the fraud guidelines give a similar result).

It is likely that it will be treated as being more serious than that due to circumstances of the case – anyone looking at it will have an inevitable feeling of revulsion at stealing property in those circumstances – and we would expect a custodial sentence, maybe of up to two years after a trial.

It is likely that the only thing that would save Mr Parker is the fact that he appears to have had a couple of months in custody. It might be that that, along with the guilty pleas, persuades the Judge to take a view that that is punishment enough to avoid an immediate custodial sentence. We shall see…

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We looked at the case of Aaron Barley earlier this year. It was a horrible case; Mr Barley had attacked and killed two members of a family who had gone out of their way to help him. The motiveless killing is still unexplained.

Mr Barley got a life sentence with a tariff of 30 years. The Judge had started with 35 years and reduced it due to the credit for a plea of guilty.

The Attorney-General referred the case to the Court of Appeal as being unduly lenient, the argument being that he should have got a whole life tariff, or at least a longer tariff.

It did not seem an obvious case for such a reference, but on 21st December 2017, the Court of Appeal agreed with the AG and increased the tariff to 35 years.

We haven’t seen the transcript yet with the full reasons, so it’s hard to comment on what happened,, but they will probably be published next year.

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We looked in September at the case of Lavinia Woods, the Oxford medical student who received a suspended sentence for stabbing her ex-boyfriend.

The sentence caused quite a lively debate, both here and generally, as to whether it was indicative of the fact that women tended to get more lenient treatment from the Courts.

Our view was that the sentence passed was “well within the range of what we would expect” and that given her personal circumstances, there were plenty of reasons to suspend the sentence.

Well, we shall find out soon what the higher courts make of it all as we found out on 7th December 2017 that Ms Woods has lodged grounds to appeal her sentence.

It’s still early days – it seems that it is at the initial application stage – we will keep our eye on it and see what happens when it is considered.

But here’s our factsheet on how appeals in criminal cases are determined.

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Introduction

We have covered the case of Rolf Harris in detail before (the original conviction and sentence, the application for permission to appeal and his acquittal on a second set of allegations).

On 16th November 2017, the Court of Appeal gave judgement in his appeal against his 12 count conviction. The result was that Mr Harris one an appeal against one of the counts of indecent assault, but his application to appeal against the remaining of the convictions was refused.

The judgement has been published ([2017] EWCA Crim 1849) and is obviously required reading.

Grounds of Appeal

Ground 1 – Count 1

The successful appeal was against Count 1 – the victim was WR. The allegation was that Mr Harris had touched her vagina, over her clothing, in 1969 when she was aged 7 or 8. This was at a Community Centre in Portsmouth. One of the issues at the trial was whether Mr Harris had been to the Community Centre at all.

At the trial, there were various admissions as to the fact that there was no record in the local newspapers of Mr Harris having an event there.

There was fresh evidence in the Court of Appeal from a variety of sources, all that tended to indicate that Mr Harris had not been at the Community Centre in this period of time.

Interestingly, all of these had been called at the trial of the second set of allegations this year. This was because the prosecution adduced the fact of these convictions to show that he was guilty of the new offences.

There was also fresh evidence that had been found that went to the credibility of a David James – the only witness other than WR herself who placed Mr Harris at the Community Centre.

The Court of Appeal allowed the appeal on this ground, primarily on the grounds of the fresh evidence relating to Mr James.

Ground 2 – Counts 10-12

This ground related to a different complainant. The main issues was further medical evidence relating to her that had raised when she had sued Mr Harris after the conviction. This showed that there had been more counselling sessions that had previously disclosed. The Court said that as the jury already had a good picture of this at trial, the extra material (which did not take matters much further) would not have made a difference.

There was a further issue as to tactical decisions relating to the cross-examination of the complainant (paras 83-91).

The Court of Appeal concluded that neither of these matters were sufficient to allow the appeal and so refused permission.

Ground 3 – cross-admissibility 

The third issue was whether the fact that the conviction on Count 1 was unsafe impacted on the safety of the other convictions.

The Court decided that this did not make the conviction unsafe. Firstly, the fact of the real uncertainty as to whether Mr Harris had met WR was not an issue on the other counts.

Secondly, even if the conviction on Count 1 was unsafe, the Court concluded that there were sufficient other allegations to mean that the withdrawal of this one did not mean that the rest were unsafe.

Comment

This is obviously somewhat of a pyrrhic victory for Mr Harris, given that the rest of his convictions remain, and the sentence remains unchanged.

It does again raise the issue of how to ensure that juries trying cases from 40 or 50 years ago have all the information that they need to determine the guilt of the defendant. It is a difficult issue, but one that is not going to go away.

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Oh dear. We have had dodgy lawyers before unfortunately. Too many of them really – here’s a recent example and QC who got jailed, someone dodgy who impersonated a lawyer, a law lecturer and a CPS clerk who is serving life for murder – sadly there’s plenty more.

But on 15th November 2017 there was another example to add to the ‘rogues gallery’; Keith Shaw.

Mr Shaw was a solicitor who was practicing (seemingly in property law) in the North of England. He lived in Whitby in Yorkshire and the fraud appear to relate to planning applications that he made for land near where he lived.

Between 2012 and 2015, Mr Shaw put in letters that purported to be from local residents, but he had actually made himself. He also claimed £2,747 for a surveyor’s report that he claimed to have paid, but did not go ahead.

He pleaded guilty to several charges of fraud relating to this. The case was heard in Westminster Magistrates’ Court, presumably because of his role as a Judge.

Mr Shaw was sentenced to 20 weeks, but this was suspended for 2 years on condition of undertaking 200 hours unpaid work in the community. He was ordered to pay compensation in the sum of £2,747 (presumably for the surveyor’s report), costs of £7,285 (quite a lot of money for a Court case).

Did Mr Shaw get let of lightly because he was a Judge? The starting point for the Court would have been the Sentencing Guidelines for Fraud (see page 6). It’s not really a ‘guidelines’ case; mainly because of the fact that the real issue was not the financial gain relating to the survey.

But if you look at it as a High Culpability case (on the basis that Mr Shaw was abusing his position as a lawyer), then the starting point would be 36 weeks custody. Given the guilty plea and his good character, the sentence of 20 weeks seems bang on the money. And given everything, and everything that he has lost, it would seem right to suspend Mr Shaw’s sentence.

Mr Shaw is only 37 still. He was appointed as a Deputy District Judge in the Magistrates’ Court in 2013 at the very young age of 32 (here, from happier times, appears to be the announcement of his appointment).

As for Mr Shaw’s future, this will end his judicial career (if he still has one) and will also end his career as a solicitor.

He’s not the first part time Judge to get into trouble with the law. Constance Briscoe (Crown Court Recorder) and Michael Shrimpton (immigration Judge) are two recent (and pretty notorious) examples. But sadly he probably will not be the last.

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Introduction and facts

Cases where false allegations of rape (or other sexual offending) are prosecuted are very rare, but they always attract the attention of the media.

Recently, the case of Rebecca Palmer was in the press. On 19th October 2017, Ms Palmer was sentenced to 5 years having been convicted of four counts of perverting the course of justice.

It was also reported that she had pleaded guilty to three further counts of perverting, as well as 5 counts under the malicious communications act.

In Court it was said that Ms Palmer had “ indulged in consensual sexual activity” with the victim, 22, and launched a “malicious campaign” after he rejected her“.

Comment

Our first reaction on hearing the sentence of 5 years was that that was very high for this offence.

As a vague guide, the starting point for this offence goes up to about 2-3 years (see here for one example, and some links to others).

This sentence is well above that, and more akin to what the victim would have got had he been convicted of rape. It may be that there is more to it than was reported – it is not clear what the 3 other counts of perverting the course of justice were and what they related to, as well as the malicious communications (although it appears that those may have related to harassment type offences against the victim).

Even with that, the sentence is a high one. It would be useful to know more about the facts, as it would probably be the case that that will resolve it. As it is, we will have to wait for the Court of Appeal if they decide to hear it, to say whether it was merited on its facts, an indication of higher sentences for such offences, or a sentence that was (perhaps too) harsh.

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