Burglary offences; New proposed sentencing guidelines

The Sentencing Council has announced a consultation on the revision of sentencing guidelines for domestic, non-domestic and aggravated burglary offences.

The existing burglary definitive guideline was the second to be developed by the Sentencing Council and came into force under criminal law in 2012. The proposed guidelines have been developed following an evaluation of the existing ones.

The evaluation suggested that the severity of sentencing had increased for domestic burglary and aggravated burglary since introducing the guideline. There was also an increase in sentencing severity for non-domestic burglary, but it was not clear whether this was a result of the guideline or not. As a result of further evaluation, it was found the guideline had contributed to unanticipated increases in sentencing. The Sentencing Council intended to review the existing guidelines due to the evaluations but has been unable to do so until now.

Why is it being reviewed?

The Sentencing Council says that their methods for estimating the resource impact of a guideline are now more well developed. It was previously limited in its ability to assess how the offences would be categorised and sentenced under the guideline.

In developing the guideline, the Council considered data from the Crown Court Sentencing Survey, transcripts of judges’ sentencing remarks, and evidence of the reasons for the increases in sentencing severity.

The Council concluded that although the aggregate impact of the impact on sentencing outcomes had not been predicted, the sentencing practice was proportionate to the seriousness of the offence. The higher sentences are therefore expected to be maintained for the more serious offences under the proposed guidelines.

In particular, the changes proposed are to introduce middle categories for both culpability and harm. The Council says that the introduction of middle categories will provide greater flexibility for judges and magistrates in deciding the appropriate sentence.

Non-domestic burglary

The new medium culpability category is “some degree of planning or organisation”. It will also include other cases that fall within categories A and C because factors of A and C are present but balance each other out, or the offender’s culpability falls between the factors described in A and C.

In the categories of harm, the new version in category two is “theft of/damage to property causing some degree of loss to the victim (economic, commercial or personal value), and “greater emotional impact on the victim than would normally be expected”.

Domestic burglary

The Council decided that targeting is a very common feature of these offences, so including this factor in the high category could capture too many cases in the highest level of culpability. The factor is proposed to be changed to “targeting a vulnerable victim”.

The rest of the proposed changes to both culpability and harm factors are as per the non-domestic guideline.

Aggravated burglary

Considerable thought was given to the “weapon present on entry” factor in the existing guideline, noting the recent case of Sage. The point from Sage was that the presence of a weapon on entry was an essential element of the section 9(1)(a) offence, and there could be a risk of double counting. It is proposed to remove the factor from high culpability and for it to become an aggravating factor. In doing so, it would avoid the problem of double-counting and enable the court to deal more severely with an offender who used or threatened with a weapon brought to the premises and captures offences, where a burglar finds premises empty and so cannot use or threaten violence. A drop-down box will provide additional guidance on the use of the “weapon carried on premises” factor.

The harm factors are worded differently from the other two offences as the factors need to be more specific about actual physical and psychological injury.

In considering the sentence ranges, the Council was said to be mindful of the potential for an increase in sentencing severity. The concern needed to be balanced against the fact this was a serious offence carrying life imprisonment. As such, there was no mention of community orders with treatment requirements as an alternative to custody. Instead, it was decided that a link to the imposition guideline should be included.

Additionally, it is proposed to add wording around consideration of a community order with an alcohol treatment requirement for the domestic and non-domestic guidelines.

The sentencing ranges for all the burglary offences have been formulated using statistical data from the Ministry of Justice’s Court Proceedings database.

The consultation opens on 9th June and runs until 1st September 2021.

How can we help?

If you need specialist advice in relation to burglary offences or any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

[Image credit: “CCTV appeal: Burglary” by West Midlands Police is licensed under CC BY-SA 2.0 ]

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Malicious Communications offences and Holocaust Denial

In Israel and some 16 European countries, there is a specific offence of Holocaust denial.

Holocaust denial is denying that the genocide of Jews took place by the Nazis in the Holocaust. Deniers will, for example, say that significantly less than the accepted number of Jews died, that the camps were not used for murder or that the Nazis simply wanted to deport Jews rather than exterminate them.

 There is no such offence in the UK, but that is not to say that Holocaust denial is accepted.

 In England and Wales, any similar behaviour is likely to be treated as an offence or offences under the Malicious Communications Act 1988 or the Communications Act 2003.

Alison Chabloz is a blogger who believes that “Hitler was right”. In 2018 she was convicted of two offences under section 127 of the Communications Act 2003. This followed the performance of anti-Semitic songs upload to YouTube; she then posted links to them on her blog. The judgment from her appeal against her conviction described the songs as weaving together Holocaust denial and hateful attacks on Jewish people generally and that they were grossly offensive. She was given a suspended sentence of 20 weeks imprisonment suspended for two years.

In May and July 2019, Chabloz made remarks on a radio show and shared the broadcasts on her blog. The Campaign Against Antisemitism said Chabloz argued that Jews who didn’t conform to her idea of western society should be deported, and that Jewish people used the Holocaust as an “eternal cash cow”. She further commented that the judge who convicted her previously had succumbed to the “Jewish lobby” and that there was nothing wrong with saying that Hitler was right.

At the end of March, she was convicted of further offences under the Communications Act 2003 due to the comments made on the show. The convictions placed her in breach of the suspended sentence, and she received an 18-week term of imprisonment. 

What about freedom of speech?

Chabloz asserted in her appeal against her first convictions that the proceedings were an “affront to her freedom of speech”. She said that she was being harassed and targeted by those who did not like her views. 

 The Court addressed the issue and agreed the right to freedom of speech and expression is a crucial one in a democratic society. However, the rights are not unqualified. As there is no specific offence of Holocaust denial, material that consists of this can only be an offence under section 127 if grossly offensive. In respect of Holocaust denial, the Court did go on to say:

 “That said, no tribunal of fact is required to proceed on the basis of absurdity or fiction. The Holocaust – by which we mean the systematic extermination of millions of people, predominantly although not exclusively Jews, by the forces of Nazi Germany and their collaborators, between 1941 and 1945 happened. World War II is surely the best documented and most extensively studied period of modern history, and the Holocaust is one of the best documented aspects of that conflict, if not the best. A mass of evidence, of various kinds attests to it. Moreover, the Holocaust has been the subject of extensive judicial enquiry, from the Nuremberg trials onwards, in a number of jurisdictions.”

Judicial notice was taken, therefore, that the Holocaust occurred, and the songs were judged in that context.

How can we help?

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

Image credit: “Holocaust Day 19147” by tedeytan is licensed under CC BY-SA 2.0

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Stalking and Stalking Protection Orders

A former premier league footballer, Shayne Bradley, recently pleaded guilty to stalking a former girlfriend.

It was said he followed her, watched her house, sent mails and made abusive phone calls. He hid in hedges near her home and set up a fake dating profile to make contact. The conduct was over a four-month period, but he also breached bail conditions that were imposed. He was sentenced to 2 years and 6 months imprisonment and was also made subject to a five-year restraining order preventing contact with the victim.

Stalking Protection Orders

Stalking protection orders were introduced in 2020 to provide support for victims. An application is made to court for an order, usually in place for two years. An interim order can also be obtained whilst a full order is considered. Breach of the order is punishable with up to five years imprisonment.

The order can be made if it appears a person has carried out acts associated with stalking where that person poses a risk to another, and the order is necessary to protect that third party from that risk. Such orders would usually prevent contact with the named party with a potential exclusion zone. In that regard, they are similar to bail conditions that the police and the courts can impose.

The difference between the order and bail conditions is that a breach of the order is a criminal offence. A breach of bail conditions leads to a reconsideration of the grant of bail and isn’t a criminal offence.

However, a BBC investigation found that only two orders have been granted in Wales compared to 3,000 stalking offences being reported to the police. In Sussex, the Police and Crime Commissioner said thirty orders had been imposed with more in the pipeline. The PCC is said to be a victim of stalking and is the lead for stalking in England and Wales, which may explain the disparity. She is urging other forces to make use of the power.

In Bradley’s case, more stringent bail conditions were imposed following breaches of bail. If bail was breached while he was still under investigation, the only option available to the police was to charge him with the original offences or to re-bail him. If a stalking protection order had been in place, a breach could have resulted in further criminal charges.

Where now?

It may be that the use of these orders will increase due to calls being made for training for police officers on the orders. As the orders last for a minimum of two years, it is a severe restriction for an individual.

It is for this reason that expert advice is vital.

How can we help?

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

Image credit: “Lonely walk at night” by visually_conscious is licensed under CC BY 2.0

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Life sentences with further orders

A recent Court of Appeal case has ruled on the appropriateness of protective orders when a life sentence is in place.

In GD’s case, the Court imposed a Sexual Harm Prevention Order (SHPO) alongside an indeterminate life sentence.

On appeal, the question was whether making the SHPO was wrong in principle.

GD had committed several serious sexual offences against children, hence the life sentence.

The minimum term to be served is 12 years and 6 months. At the end of that period, he will be assessed by the Parole Board for release.

When can the Court make a SHPO?

The Court can make an SHPO if necessary, to protect the public from sexual harm from the defendant following a conviction for certain offences.

Conditions are attached to the order to prevent or limit contact with certain people or children, prevent the use of the internet or overseas travel.

Any conditions can be imposed that are necessary to protect the public or particular members of the public. Orders last for a minimum of five years.

The defendant in this case clearly fit the criteria, so why was the order being questioned?

Earlier cases have said that the order would not be appropriate where an indefinite sentence had been imposed.

Why? The reason is that release under a life sentence is not automatic. When GD has served the minimum term, he will be assessed by the Parole Board. If the risk level is such that he can be released, it will be subject to carefully considered licence terms.

Licence Terms

The licence terms are considered when release is being contemplated, rather than at the time of sentence many years earlier. If a licence condition is breached, a breach which would amount to a breach of SHPO, it would undoubtedly result in recall to prison.

The difference between a sentence for breach of an SHPO and a recall to prison for breach of licence conditions in these circumstances is unlikely to be significant.

There is an argument that a breach of the SHPO would feature on a list of previous convictions, providing greater transparency. The Court rejected that argument where an indeterminate sentence is imposed.

The general rule, therefore, is that an indeterminate sentence does not need an SHPO. As always, there are exceptions to every rule; if an order should be imposed, if there is some “very unusual feature”, that means an SHPO could add something useful, where it did not run the risk of later tying the offender manager’s hands.

The SHPO for GD was quashed as there was no unusual feature requiring departure from the general rule.

How can we help?

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

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Assault sentencing guidelines to be updated

The existing assault sentencing guidelines came into effect in January 2012; at the same time, the attempt murder guideline was revised.

Following an “extensive and complex project”, new sentencing guidelines have been announced for certain violent offences, including new guidance for assaults on emergency workers.

Sentencing guidelines are referred to by any sentencing tribunal to assist in setting the correct level of sentence.

Each guideline starts with a consideration of culpability or blameworthiness. Specific factors such as a leading or lesser role place the offence in the category of high or low culpability. The level of harm is then assessed and also placed into a category. The combination of culpability and harm sets the sentencing range into which the offence falls; the placement within the sentencing range depends on the aggravating and mitigating factors.

 The consultation

The consultation from the Sentencing Council sought views on seven draft guidelines for common assault, common assault of an emergency worker, assault with intent to resist arrest, assault occasioning actual bodily harm, inflicting grievous bodily harm with and without intent and attempted murder.

In particular, views were sought on the following:

• the principal factors that make any of the offences included within the guidelines more or less serious;
• the additional factors that should influence the sentence;
• the approach taken to structuring the draft guidelines;
• the types and lengths of sentence that should be passed;
• differences between the current guidelines and the new, revised guidelines.

What has changed?

New guidelines take effect from 1 July 2021.

Common assault

New factors have been added, including;

A high culpability factor of “intention to cause fear of serious harm, including disease transmission”.

An aggravating factor of “deliberate spitting or coughing.”

Offences of common assault are the highest volume offences covered in the violence guidelines.

Assault occasioning actual bodily harm

An aggravating factor of “deliberate spitting or coughing.”

Attempted murder

The guideline does not include a life sentence at any starting point, as it would be for murder. The determinate sentences are high though, to reflect that culpability in attempted murder is of the highest level, even higher than required for offences of murder.

The Council decided that the guidelines should be revised to reflect the gravity of the offences properly. There had apparently been concerns that some sentences in the existing guideline were too low. In some cases, much lower than for a murder on the same facts would have been, even though the intent was to cause death (for murder, the intent is to cause grievous bodily harm or death).

Extensive testing of sentences against cases was undertaken in developing the guideline, and the Council says it is satisfied that the descriptions and placement of factors relevant to the seriousness assessment will ensure appropriate sentences.

Emergency workers

This is an entirely new guideline coming into effect following consultation. Emergency worker includes police officers, NHS workers, those working for the fire service, prison officers and custody officers.

The elements of this offence are the same as for common assault, but there is a higher maximum sentence of 12 months. A more serious injury should be charged as a more serious assault offence.

In developing the guideline, the Sentencing Council considered whether an uplift to the common assault guideline should just be applied for assaults on emergency workers. This was dismissed due to demands from sentencers for a full guideline for the offence. However, the guideline contains an uplift approach for both aggravated offences of assaults on emergency workers and for racially and religiously aggravated offences.

Other changes 

All guidelines except attempt murder have a new high culpability factor of strangulation, including asphyxiation and suffocation. All guidelines will have a high culpability factor of “victim obviously vulnerable due to age, personal characteristics or circumstances.

The new guidelines contain more offence categories and starting points than previously. The reasoning behind this is to ensure appropriate assessments of culpability and harm so that proportionate sentences are imposed to reflect the seriousness of the offending.

Another substantial change is the addition of a further aggravating factor relating to those providing a public service. It is phrased as an “offence committed against those working in the public sector or providing a service to the public, or against a person coming to the assistance of an emergency worker”.

The Prison Reform Trust commented on the longer periods that individuals would be spending in custody. Their concern was that the government had not committed to further resources, which would lead to a decline in prison standards. The Council quite simply said that the provision of prion places was not a matter which should influence its determination of appropriate sentences.

Some guidelines indicate that higher sentences will be imposed, but this may or may not be the case. When the earlier guidelines were introduced, their impact was evaluated. For GBH, the guideline resulted in sentences increasing in excess of that estimated. For ABH, it was estimated that the guideline would result in less severe sentences, but they did not decrease as expected.

How can we help?

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

[Image credit: Arms over the entrance to the Crown Court and County Court in St Aldates’, Oxford. Photograph taken 2006-03-25. Copyright © 2006 Kaihsu Tai. ]

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Child sex offences

Draft revised sentencing guidelines have been produced to reflect recent Court of Appeal judgments. The guidelines clarify sentencing guidance for cases where no sexual activity occurs or where the targeted child does not exist.

The rise of ‘paedophile hunters‘ and the use of undercover police officers to catch online offenders attempting to commit child sex offences has led to a rise in convictions where there is no actual victim.

The revised guidelines are subject to consultation, which will close on 13^th August 2021.

The main revisions apply to offences of:

• arranging or facilitating the commission of a child sex offence.
• causing or inciting a child to engage in sexual activity.

Each of these offences carries a maximum sentence of 14 years imprisonment. The offences can be committed even when no activity occurs or is incited and when the child in question does not actually exist. This would be the case where a police officer uses a decoy or dummy account to catch sex offenders in a chat room, for example.

The draft guidelines state that where no sexual activity takes place, the court should:

1. identify the category of harm on the basis of the sexual activity the offender intended; and
2. then adjust the starting point downwards to reflect what actually happened.

The final sentence is decided with consideration of the offender’s culpability and the aggravating and mitigating factors specific to the offence and the offender.

Why are there new guidelines?

The reasoning behind producing a new set of guidelines concerns that current sentencing guidelines have been misinterpreted. The interpretation being that the lack of actual harm to a child is a mitigating factor, or that the harm should be considered low.

A new guideline is also proposed for the offence of sexual communication with a child. A maximum of 2 years imprisonment can be imposed for sharing images, causing psychological harm, abuse of trust or the use of threats.

Other revisions put forward are to consider the age of the offender in the case of historic offences. A young and immature individual at the time of the offence may have reduced culpability. Guidance on Sexual Harm Prevention Orders will be added to the specific guidelines. The court’s assessment of psychological harm will be assisted with detailed guidance on interpretations of “abuse of trust”, “age and or lack of maturity”, and “physical disability or serious medical condition requiring urgent, intensive or long-term treatment”.

Finally, the Sentencing Council suggests that the guidelines for child sex offences clarify that remote offending with an overseas victim, is just as serious as offending against a child in England and Wales.

As with all guidelines, they are to be followed unless the court is satisfied that it would not be in the interests of justice to do so.

How can we help?

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

 

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Hillsborough Prosecutions

The events of 15th April 1989 at Hillsborough were a terrible tragedy, in which 96 people lost their lives. What followed in the immediate aftermath was an attempt to blame the Liverpool supporters for what happened, and to exonerate the police of all wrongdoing. Eventually, in 2016, a new inquest found that the 96 had been unlawfully killed and a series of criminal prosecutions began. The latest, and probably last of those, has just concluded.

Alan Foster, Donald Denton and Peter Metcalf were charged with perverting the course of justice, accused of altering the statements of 68 police officers following the Hillsborough disaster in 1989. Denton and Foster were former senior police officers, Metcalf was the former police force solicitor for South Yorkshire.

Their trial has been halted following a ruling by the trial judge that the offences could not have been committed. The reasoning behind this is that the amendments made were to prepare the statements for the public inquiry.

The amendments

The force solicitor and the police agreed that the evidence to be given to the inquiry had to be factual, without comment or feelings. As many of the officer’s statements contained both comment and feeling it was decided that editing was required. The process agreed was for the Metcalf to advise on editing, that advice to be passed to Denton (a Chief Superintendent) then for the editing to be carried out by Foster (a Chief Inspector).

The prosecution argued that the editing was intended to pervert the course of justice as passages were removed that referred to failings in the part of the police. Metcalf also produced a draft statement for four senior police officers in relation to whose responsibility it was to monitor the standing pens. The production of the statement was also argued by the prosecution as intending to pervert the course of justice.

At the inquests in 2014-2016, it was argued by the victims’ families that the amendments to the statements removed references to the police practice of closing a particular tunnel when the ‘pens’ were full.

On the day in question, it was said that the commanding officer had not ordered that the tunnel be closed after a high volume of supporters had been allowed entry via a wide exit gate.

The first inquiry concluded that the failure to close the tunnel gate was a “blunder of the first magnitude”. The police were seemingly aware of this error before the inquiry, which is perhaps why the references to the previous policy were removed. Arguably, it would have made the police look worse if a policy was in place showing they were aware that closing the tunnel would have an impact.

The inquiry

The first inquiry was a short one led by Lord Justice Taylor into what happened on the day and took place a few months after the disaster. The purpose was to set out new safety recommendations for football grounds before the start of the new season.

Why it took so long

The Crown Prosecution Service were aware of this issue, as it had also been raised during proceedings in 2018. The prosecution proceeded with the charges on the basis that although the statements were prepared for the Taylor inquiry, those involved would have known that other formal proceedings would follow. Proceedings such as inquests, criminal investigations and claims for damages.

The ruling

 The offence of perverting the course of justice refers to a “course of justice”, such as criminal proceedings. The public inquiry was a non-statutory inquiry, an administrative exercise rather than a “course of justice.” The prosecution had to show that there was a judicial process involved, and they couldn’t.

It was not, therefore, a full public inquiry and the type of review that took place is not included within the meaning of a “course of justice”. For example, Lord Justice Taylor did not have any powers to make witnesses attend court to give evidence.

Although a course of justice can relate to cases where proceedings have not yet commenced the ruling was that the prosecution could not demonstrate how the defendants’’ acts had the tendency to pervert any investigation.

The draft statements that were prepared came with a clear indication that the officers should not adopt the statement unless it represented their recollection. In those circumstances it could not be said to have a tendency to pervert the course of justice.

At the conclusion of the prosecution case there was a submission made that there was no case for the defendants to answer. That submission was upheld, and the jury was directed to acquit. In doing so the trial judge said;

“The problem is that there is little or no evidence about those proceedings and/or there is no basis upon which to say that anything done by any of these defendants had a tendency to pervert the course of justice in relation to other proceedings … I have concluded that there is no case fit for the jury’s consideration.”

History

In 1991 a jury at the first inquest produced a verdict of accidental death. The victims’ families campaigned against that finding, resulting in a new inquest in 2016 that found that all 96 victims had been unlawfully killed due to the commanding officer’s gross negligence. However, a ruling at an inquest is not a criminal conviction, and the officer, Duckenfield, was acquitted of gross negligence at his criminal trial in 2019.

Only one person has ever been convicted of an offence in respect of the Hillsborough disaster. Graham Mackrell, then secretary of Sheffield Wednesday, was fined £6,500 for a safety offence.

Prosecution view

Following the trial judge’s decision, the Crown Prosecution Service said that many would find the ruling surprising. The CPS legal director commented that the ruling suggested a publicly funded authority “can lawfully withhold information from a public inquiry, without sanction of any sort”.

What now?

There have been calls for a “Hillsborough law” to compel public institutions, and those working there, to tell the whole truth in any inquiry or proceedings. If that had been the law at the time, the prosecution might not have failed. If it is a law passed in the future, it would not apply retrospectively, so it would not mean that a further prosecution could be brought against these three men.

How can we help?

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

[Image credit: “Soccer Stadium” by martha_chapa95 is licensed under CC BY 2.0 ]

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Coercive and controlling behaviour

The offence of controlling and coercive behaviour has been on the statute books for a few years now but has recently hit the headlines.

Ruth Dodsworth is an ITV Wales presenter who met her ex-husband, Jonathan Wignall, in 2001. She became the primary income earner when his business started to collapse, and his alcohol intake increased. It was at this time that his behaviour began to change to be controlling and coercive.

Incessant telephone calls began, with 150 on one day alone, he would go with her to the appointments, check her phone, open her mail and even stand outside the bathroom when she used it. After his arrest, he was bailed with conditions not to contact her but placed a tracker on her car. He had accessed the tracker via an app on his phone 250 times within 19 days. The behaviour continued for nine years.

The Court was told that Ruth Dodsworth had been left with severe debt and was facing eviction due to unpaid bills. Her health and confidence had also been affected by his behaviour.

Wignall pleaded guilty to controlling and coercive behaviour and stalking on the first day of his trial. He was sentenced to three years’ imprisonment.

What is the offence?

The prosecution must prove a person:

1. repeatedly or continuously engaged in behaviour towards another person;
2. that behaviour was controlling or coercive;
3. at the time of the behaviour, the defendant and the other person were personally connected; and
4. that behaviour had a serious effect on the other person; and
5. the defendant knew or ought to have known that the behaviour would have a serious effect on that other person.

What sentences can be imposed?

The maximum sentence for this offence is five years imprisonment and can be dealt with at the magistrates’ court or the crown court.

Three years imprisonment was deemed appropriate for Joshua Dalgarno for controlling and coercive behaviour with several incidents of violence and threats over four months.

Jordan Skeel was described as exercising control over her partner from an early stage of their relationship. She pleaded guilty to wounding with intent, causing grievous bodily harm with intent and controlling and coercive behaviour. She was sentenced to concurrent sentences of seven years for each assault with six months imprisonment, to be served consecutively, for the controlling and coercive behaviour. The Court of Appeal held that the sentence was very lenient but not so much that it needed to interfere.

JB was sentenced to 1 year and 8 months imprisonment for the offence, with 3 months for a sexual assault. Incidents of previous violence were found against him, and that the sexual assault was part of a pattern of controlling behaviour.

How can we help?

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

[Image credit: “204/365 – Fear not, for I am with you always.” by Www.CourtneyCarmody.com/ is licensed under CC BY-SA 2.0 ]

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BBC in the Dock for Contempt of Court

The British Broadcasting Corporation (‘BBC’) found itself in the embarrassing position of being fined £28,000 recently after admitting being in contempt of Court.

Why was the BBC in trouble?

On the morning of 17 November 2020, the BBC made a video and audio recording of half a day’s hearing in the Planning Court before Holgate J. The Judge was hearing argument on the first day of a 2-day judicial review of a controversial decision by Surrey County Council to grant planning permission to UK Oil and Gas to carry out “fracking” operations at a site at Horse Hill, near Horley.

BBC South East Today is the BBC’s regional television news programme for the South East of England, covering Kent, East Sussex, part of West Sussex and part of Surrey. On the evening of 17 November 2020, South East Today broadcast in its 18.30 and 22.30 news bulletins a special report on the Horse Hill case, which included a short clip from the video. All of this was done without the knowledge or consent of the Court.

This behaviour, as the BBC admitted, was a breach of the statutory prohibitions on making and transmitting unauthorised recordings of court proceedings, and therefore involved at least two criminal offences. In the Court’s judgment (and as the BBC also admitted) the number and seriousness of the breaches makes this a case of contempt of Court.

There were two potential criminal offences, one under s 41 of the Criminal Justice Act 1925 (taking of photographs in Court), the second under section 85B of the Courts Act 2003 which was enacted due to the Coronavirus Act 2020.

A schoolboy error?

Given the BBC’s expertise in broadcast journalism, it is difficult to comprehend how such a basic mistake was made.

The Court observed:

‘This was not a minor oversight by an inexperienced individual within a large organisation, but a catalogue of serious errors by a number of people that should have been, but were not picked up by any of the internal systems and safeguards that were put in place to regulate what is broadcast. It beggars belief that a team of very experienced BBC journalists, all but one of whom did not need to hear the Judge’s warning at the start of the proceedings because they were well aware of the prohibition on recording court hearings, should have given no thought to the propriety of getting the Hub to record the morning’s proceedings that were being conducted in the Royal Courts of Justice and viewed through live links by those who were unable to be physically present.’

How was the penalty of £28,000 arrived at?

In re Yaxley-Lennon (Practice Note) [2018] EWCA Crim 1856 [2018] 1 WLR 5400 at [80], the Court of Appeal set out the factors which would be likely to be relevant to cases involving breach of reporting restrictions, namely:

i) the effect or potential consequences of the breach upon the trial or trials and those participating in them;

ii) the scale of the breach, with particular reference to the numbers of people to whom the report was made, over what period and the medium or media through which it was made;

iii) the gravity of the offences being tried in the trial or trials to which the reporting restrictions applied;

iv) the contemnor’s level of culpability and his or her reasons for acting in breach of the reporting restrictions;

v) whether or not the contempt was aggravated by subsequent defiance or lack of remorse;

vi) the scale of sentences in similar cases, albeit each case must turn on its own facts;

vii) the antecedents, personal circumstances and characteristics of the contemnor, and

viii) whether a special deterrent was needed in the particular circumstances of the case.

The BBC accepted that it was an aggravating factor that the BBC is the principal news provider in this country and that this unfortunate sequence of acts in contempt of Court was a departure from the high standards that are rightly expected of it and which it sets for itself.

The broadcast was repeated. The clip was seen by around half a million viewers, though none of them complained about it. The problem could and probably would have been avoided had the BBC taken more proactive steps to ensure that their journalists were properly advised of the restrictions that were introduced in the Coronavirus Act and reminded of the existing restrictions on recording and broadcasting court proceedings, at a time when more and more hearings had to be conducted remotely.

On the other hand, steps were taken to address the problem as soon as the BBC was made aware of it; it is obvious that senior personnel have taken the case extremely seriously. The offending material was swiftly removed from the iPlayer and the memo was circulated to journalists to remind them of the legal position. Counsel for the BBC also relied on the general reputation of the BBC and its staff for acting responsibly and to the isolated nature of the incident. He submitted that the BBC had taken the matter to heart and responded appropriately. It was highly unlikely that this would ever be repeated; all the journalists concerned have learned a salutary lesson. The BBC is a public service provider, funded by the licence fee, and any fine will detract from the services it can provide.

The Court thought that ‘there is an obvious danger that if the BBC is seen to be treated too leniently, it will send out the wrong message to those with a more cavalier attitude towards restrictions on reporting, recording and broadcasting court proceedings; on the other hand, the sentence must be fair and proportionate.’

In assessing the final penalty, the Court held:

‘Standing back, and making an overall assessment, we consider that but for the early acceptance of liability and the apology a fine in the order of £40,000 – £45,000 would have been merited. Discounting by approximately 1/3 for those matters, we will order that the BBC should pay a fine of £28,000.’

This case should stand as a warning to all that court proceedings must never be broadcast without permission, failing to heed this warning could be a costly reputational and financial mistake.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

[Image credit: “BBC Television Centre” by Mike_fleming is licensed under CC BY 2.0)

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Parole Board Hearings – Public Scrutiny

Currently, all parole hearings are held in private – this is set out in legislation in the Parole Board Rules. Following a consultation exercise, the government has now committed to opening up the hearings and allowing public access. Legislative change is expected in the next few months.

The government has stated that:

‘…we are persuaded that the current blanket ban in legislation on public hearings is unnecessary, and that victims, offenders, the media or the wider public should have the right to make a request for a public hearing, and to have that request considered.’

A “virtual” attendance, primarily through video link, is likely to be the preferred option in most cases where an open hearing is agreed. This has the advantage of minimising the risk of disruption, increasing capacity and allowing victims to easily step away if they become distressed or would rather not hear certain details of the case discussed.

New legislation will allow the Parole Board to consider an application for access mirroring the approach taken at the First-tier Tribunal (Mental Health), so that the Parole Board consider the “interests of justice” when making such a decision.

As the independent decision-making body, it will be for the Parole Board to decide the criteria for the interests of justice test it will use to determine applications for public hearings.

These will in due course be reflected in guidance the Board will produce on how it intends to approach applications. The types of factors the Board may wish to consider may include but not be limited to:

• If it would assist public understanding of how the decision is reached in a case of particular public interest;
• The participants in the hearings – in particular the prisoner and the victim (where there is one) – do not object to the hearing being heard in public;
• To hold a public hearing would not create an unacceptable risk (of mental or physical harm) to any of the participants;
• Whether the Board consider that the integrity of the evidence may be compromised and prevent a true and accurate assessment of the prisoner’s risk being provided by the witnesses;
• The presence of strong and valid objections from participants which could jeopardise their co-operation if the hearing were to be in public.

The Board will be able to consider an application for a public hearing submitted by anyone, but it would most frequently be victims, offenders, or the media.

The Parole Board will also be able to initiate the consideration process of its own volition if they see a need – for example, if there is significant public interest in a particular case.

Regardless of who has made the application, both the victim and the offender will be invited to submit their views before a decision is reached and the Board would take the final decision having taken account of the representations received. But ultimately the decision will depend on whether the Board is satisfied that it would be in the interests of justice to open up the hearing, having taken everything relating to the particular case into consideration.

Anyone who attends a hearing under these new provisions will be an observer to the proceedings in a similar way to attendance at court. They will not be entitled to intervene, ask questions of the witnesses or address the panel in any way – other than where a victim is presenting their Victim Personal Statement to the Board.

 How can we help?

 We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

[Image credit: “Into the Prison” by Bill Nicholls is licensed under CC BY-SA 2.0)

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