UK Criminal Law Blog - Explaining the criminal law from Arson to Zebra..
This blog was set up by Dan, Sara and Lyndon after a discussion on Twitter concerning inaccurate reports of criminal cases in the press, the lack of public understanding of the criminal justice system and the number of unlawful sentences handed out by the courts.
The case of Lavinia Woods, the Oxford student who received a suspended sentence after stabbing her former boyfriend, caused quite a controversy at the time over the perceived leniency of the way that she was dealt with.
And so it turned out. When she applied in writing, the ‘Single Judge’ said no. Ms Woods, like any other defendant, had the absolute right to try to persuade a Court of two or (in this case three) Judges that her sentence was too high.
But we found out on 8th June 2018 that that attempt didn’t get anywhere. The full judgment has not been published yet. There’s no great point of legal principle it would seem, but because of the public interest in the case it may be published. If so, we will come and have a quick look at it.
Way back in 2013 we looked at the case of James McCormick who was jailed for 10 years for selling fake bomb detectors. We said : “Thereafter we envisage that the police will pursue McCormick’s wealth under the Proceeds of Crime Act 2002 in order to prevent him benefiting financially from his crime. McCormick now faces loss of his several properties, including that previously belonging to Nicholas Cage”
That was what happened – Mr McCormick was made subject to a whopping £7,944,834 Confiscation Order which “included £4m from the sale of a house in The Circus in Bath; an £88,000 parking spot; a luxury villa in Limassol, Cyprus; a £345,000 Sunseeker motorcruiser as well as a family home in Somerset.”
To date this has not been paid in full, there is a shortfall of £1.8 million. Mr McCormick is still serving his original sentence, but is to be released very shortly.
On 26th April 2018, it was reported that Mr McCormick was back in Court having refused to make up the shortfall, as a result of which he was ordered to serve a further 842 days (almost 2 years and 4 months) in default.
Confiscation is a complicated and lengthy subject and we have always said that we would tackle it at some point. That day however, is not today. We may wait for a leap year …
We said that we would have another look at the case when the judgement was out, and so here we go …
Most cases that make the law reports don’t make the newspapers – they will deal with the legal principles rather than the stuff that sells newspapers.
But Mr Ford, although he is not a celebrity, will probably get into the Law Reports. The Court of Appeal heard several cases together to decide what sounds like a basic question – when the Court decides that a sentence is too high, what can it do?
On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may—
(a) quash any sentence or order which is the subject of the appeal; and
(b)in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence;
but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.
The underlined part is important. It means that when someone appeals there is no risk of their sentence going up. In many cases, s11 is pretty straightforward – if somebody gets a 3 year prison sentence then the Court can quash it and give him 2 years, but they can’t give him 4.
But due to the complexities of modern sentencing, it can get quite complicated. One particular question is how do you deal with extended sentences where there are different release provisions?
“The court must be satisfied that, taking the case as a whole, the appellant is not being dealt with more severely on appeal. That requires a detailed consideration of the impact of the sentence to be substituted which must involve considerations of entitlement to automatic release, parole eligibility and licence. If a custodial sentence is reduced, the addition of non-custodial orders (such as disqualification from driving or sexual offences prevention orders) may be added but, in every case, … that sentence must be tested for its severity (or potential punitive effect) compared to the original sentence.“
Mr Ford’s case was dealt with at paras 68-81. The Court were clear that the 45 year sentence “must be one of the longest determinate sentences ever passed by an English court“. In those circumstances, it is unsurprising that they held that “Plainly such an overall sentence is entirely disproportionate to the offences which he has committed and cannot be upheld“.
As we said before, the sentence he has ended up with is still severe – 20 years (made up of a custodial term of 12 years with an 8 year extended licence), but is a more reasonable one.
Incidentally, in relation to Dr Bradbury, there was a good namecheck for one of the founders of this blog. We said at the time “It is a basic rule that the Court of Appeal cannot increase a sentence on appeal, and it would seem to be arguable that this is what they have done here“.
Looking at para 22 Thompson & Others  EWCA Crim 639 (how Mr Ford’s case was reported) the Court said in relation to Dr Bradbury – “On any showing, it is difficult to see how it could be suggested that, taking the case as a whole, the offender in that case was not being dealt with more severely by the Court of Appeal. For the possible release on parole 6 months earlier than he would have been entitled to automatic release (at 11 years in a determinate sentence of 22 years), he is at potential risk of a further 5 years in custody (at the end of the custodial term of 16 years) without any change to the terminal date of the licence. In our judgment, that decision does not sit with s. 11(3) of the 1968 Act and should not be followed.”
The Court went on to state “in relation to this analysis, we acknowledge the assistance we have received from the commentary by Lyndon Harris in (2015) Crim LR 1005.“
Popular Saturday night entertainer Ant McPartlin (of Ant and Dec fame) got in to the news recently when he was arrested for drink driving on 18th March 2018 after being involved in a three car collision.
On 16th April 2018 he appeared in the Magistrates’ Court, where he pleaded guilty to drink driving. When he was breathalysed, his reading was 75mg (more that twice the legal limit of 35).
Sentence was passed on the day, which is not unusual. Mr McPartlin was fined, which was again unusual. What is unusual was the level of the fine – a huge £86,000.
It used to be the case that the maximum fine in the Magistrates’ Court was £5,000, but this was changed in 2015 for offences committed after 12th March 2015, and there is now no limit to the level of the fine.
Which is why, with a weekly income of £130,000, Mr McPartlin got such a large hit. He would also have had to pay a surcharge and prosecution costs, both of which would have paled in to significant in light of the fine.
He was also disqualified for 20 months, which is also in line with what we can expect.
So next time someone asks if celebrities get a good deal from the court, you can point to Mr McPartlin as in indication that they are treated as everyone else would be.
Incidentally, in the BBC report it is described as a ’31 year sentence’ – this is due to the operation of s236A Criminal Justice Act 2003 (see here for what that means).
Unfortunately, the BBC say in their report “The 64-year-old is due to serve 15 years of his sentence in custody, with the rest on licence.“. As we said on the last occasion, that is wrong. He is due to serve somewhere between 15 and 30 years in custody depending on the outcome of an application to the Parole Board.
We covered the case of Richard Ford who got an extremely lengthy sentence of 45 years for 10 offences of threats to kill. The twist was that he himself had asked to never be released from prison as he considered himself to be dangerous.
At the time we said that “we would expect this sentence to be appealed and to be reduced, by some margin.” And so, on 27th March 2018, it proved to be.
The Court of Appeal said that “Plainly, such an overall sentence is entirely disproportionate to the offences which he has committed and cannot be upheld“.
The appeal was allowed and reduced to an extended sentence of 12 years imprisonment with an 8 year extension period. He will be able to apply for Parole.
At twice the maximum sentence for Threats to kill, this is still a stiff sentence, although a much more reasonable one.
The judgement has not been published yet, but we will have a look at it again when it is out.
The confusion has come from the fact that Mr Ballin had savagely attacked his partner, Tara Newbold, before going to the police and saying that “I think I’ve killed my girlfriend”. Police duly attended his address and found that Ms Newbold had sadly died, displaying ‘at least 37 visible injuries’. A clear case of murder if ever there was?
Why wasn’t it murder?
The answer to that is pretty simple – for it to be murder you have to cause the death of the other person (there’s obviously more to it than that, but that’s a prerequisite).
In this case, as is standard and would happen in all cases of suspicious deaths for obvious reasons, there was an autopsy. This showed that there was a quantity of cocaine and the pathologist concluded that the most likely cause of death was cocaine toxicity.
And so on that basis Mr Ballin could not be charged with murder. Although it feels strange, it makes sense. Take a slightly more rarefied case of a doctor who gives a patient who is close to death a shot of potassium chloride to stop her heart. In those circumstances the charge may well be attempted murder as it is often very hard to prove the causal link. Whether or not you may think that Mr Ballin was fortunate (as some would say) is by the by.
Mr Ballin could obviously be charged with the offence of GBH (presumably as there was not sufficient evidence to say that he was intending to kill Ms Newbold).
It seems that he had a trial on the s18 charge (whilst admitting s20) claiming that he did not intend to cause her really serious harm.
Given the horrific injuries this was always going to be a hard sell, and it seems that the jury were not taken in, finding him guilty in February of this year.
The starting point is the Guidelines (page 5). It is clearly greater harm on all three grounds set out there. The culpability is always a bit more complicated, but here there is deliberate targeting of a vulnerable victim and use of a weapon at least (and there may be some more).
This makes it a Category 1 case with a starting point of 12 years and a range of 9-16 years. Here, the Judge seems to have taken a sentence at the top of the range which, in the circumstances, is not surprising and cannot be criticised. On what we have seen in the papers the sentence length is unlikely to be appealed.
The real consequence is that instead of being released after serving half the 15 years (7.5 years), Mr Ballin will only be released after the Parole Board has determined that it is safe for him to be released, and he can only apply for release after he has served 2/3 (10 years).
The consequences of extended sentences are something that often causes confusion in the press, so well done to the Guardian for getting it spot on on this occasion (at least once you look past the headline).
We looked last year at the case of the couple who lodged false compensation claims for fictitious illness picked up on holiday and got 15 months and 9 months imprisonment respectively. We said that although the length was what we would expect it might have been suspended if it had been less of a high profile case.
Leon Roberts and Jade Muzoka, now separated, went on holiday to Turkey in 2015. They had a good time, but a year later put in a fraudulent claim, falsely alleging that they had contracted food poising.
Their claim unravelled after Facebook postings were unearthed showing them having a great holiday and tucking into their food without concern.
They both claimed about £2,000 each, so a lot less than the case last year, but as the District Judge said “It would fly in the face of common sense for me to ignore the fact that a holiday company feel it necessary, because of a tsunami of claims, to bring a private prosecution”. It appears that this is a modern problem
The ex-couple got 26 weeks, suspended for 12 months on condition of completing 200 hours unpaid work, as well as financial orders.
Looking at the fraud guidelines, although many judges would have had it as a Cat 5B case, it seems that the DJ here put it in Cat 5A before giving credit for the plea of guilty.
In the circumstances, and given the public concern about this sort of fraud – easy to do, hard to detect – it is unlikely that any appeal would succeed. It seems a fair resolution in the circumstances.
After that, as a solicitor, his case was considered by the SRA (Solicitors Regulation Authority). When the case went to the Tribunal, he received an indefinite suspension (rather than being struck off).
The normal course for a solicitor who is convicted of a criminal offence, at least for one of the seriousness that Mr Farrimond pleaded guilty to, is that they are struck off.
It will still be open to Mr Farrimond, when he is released from prison, to apply to go back on the roll and given the medical issues it appears that that may not be an impossibility. But for the moment, and the foreseeable future, that is the end of Mr Farrimond’s legal career.
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