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Case Updates
CASE UPDATES
PROCEDURAL
ASBOs
Langley v. Preston Crown Court and Others [2008] EWHC 2623 (Admin) (30th October 2008)
Langley’s “stand alone” ASBO was varied by Chorley Magistrates’ Court. He tried to appeal against that variation to Preston Crown Court, but the Crown Court refused to hear his appeal. Consequently, he sought judicial review of Preston Crown Court’s refusal to entertain the appeal.
The High Court held that there was no right of appeal against a decision by the magistrates' court to vary or discharge an ASBO. The absence of such right of appeal did not amount to a violation of Article 6 of the ECHR and therefore the application for judicial review was refused.
SUBSTANTIVE
ASBOsR (on the application of B) (Claimant) v GREENWICH MAGISTRATES' COURT (Defendant) & METROPOLITAN POLICE SERVICE (Interested Party) (2008)[unreported elsewhere] (10th November 2008)An ASBO prohibiting a defendant from wearing any item of clothing with an attached hood in a particular London borough was held to be both necessary and proportionate. Consequently, the defendant’s application for judicial review was refused. IDENTITY DOCUMENTSR v H [unreported elsewhere] (12th November 2008)The appellant, a man of Somali origin who had been arrested on entry to the UK, appealed against his conviction for possessing a false identity document with intent, despite having pleaded guilty to the offence. He appealed on the basis that his circumstances fell within the defence provided by section 31 of the Immigration and Asylum Act 1999.The Court of Appeal held that the appellant had not been specifically advised on the meaning of coming directly from a country where his life or freedom was threatened. As the appellant would have had a reasonable prospect of relying on section 31 and defending the charge, his conviction was unsafe.
SENTENCING UPDATES
MURDER
R v. Height and Anderson [2008] EWCA Crim 2500 (29th October 2008)
Anderson, aged 55, pleaded guilty to the murder of his wife and was sentenced to life imprisonment with a minimum term of 22 years. Height, aged 38, was convicted of the same murder after a trial and was also sentenced to life, but with a minimum term of 24 years. Anderson’s primary motive had been to rid himself of his wife. He arranged for the killing to be carried out by Height for £20,000. In the end, it was Anderson, and not his paid associate, who carried out the killing. Applying Section 269 and Schedule 21 of the Criminal Justice Act 2003, the sentencing judge determined that the starting point for Height was 30 years, as he had participated in the murder for financial gain. However, as none of the express criteria for the 30-year starting point applied to Anderson, the judge took a starting point of 15 years.
Held: Allowing Height’s appeal against sentence, the sentencing judge’s application of the statutory provisions had been too rigid. Section 269 itself provided that Schedule 21 reflected general principles. A judge had to decide whether the seriousness of the crime should be treated as exceptionally high or particularly high, or neither. That would provide him with the appropriate starting point. The appropriate starting point in Height's case, which fell squarely within the express criteria, was 30 years, it being a case of "particularly high" seriousness. However, it was difficult to conceive of many cases in which one defendant, acting for gain, should be subject to a different starting point to the individual who paid or agreed to pay him. The fact that the statutory framework omitted expressly to address this consideration did not preclude the sentencing judge from making the necessary judgment and deciding that the same starting point applied to both Anderson and to Height.
The aggravating circumstances in relation to Anderson made the seriousness "particularly high" even though none of the express criteria applied to it. Taking a starting point of 30 years, there could be no double counting of the aggravating features, and appropriate deductions would fall to be made for any mitigation, such as his guilty plea and the assistance he provided to police in securing Height’s conviction. However, as Height’s culpability was in fact less than Anderson’s, Height’s minimum term would be reduced to 22 years.
R v Herbert and others [2008] EWCA Crim 2501 (29th October 2008)
This judgment was delivered immediately after the appeal in R v. Height and Anderson and applied the principles laid down in that case.
This was a high profile case involving the murder of a 20-year-old girl who was killed trying to protect her boyfriend who had been beaten unconscious by the five appellants. The couple, dressed as “Goths” at the time of the attack, were targeted because of their appearance. All five appellants pleaded guilty to GBH with intent against the boyfriend. Herbert pleaded guilty to murder and Harris was convicted of murder after a trial. Both Herbert and Harris were 15 at the time of the offences and 16 when the appeals were heard.The judge was entitled to take the view that, had the defendants been over 18, the starting point would have been one of 30 years. Whilst the case did not strictly fall within the categories identified in paragraph 5(2) of Schedule 21, those categories were not exhaustive.
At paragraph 22, the Lord Chief Justice said: “The question for the judge under paragraph 5(1) is whether the seriousness of the offence, or the combination of the offence with one or more offences associated with it, is particularly high. Consideration of that question will be illuminated by the categories set out in paragraph 5(2), but it does not follow from the fact that a case does not fall within one of those categories, that the seriousness of the offence is not particularly high”.
A minimum term of 18 years was fully justified for Harris, who was convicted of murder after a trial. Herbert’s appeal was allowed to a very limited extent, with his minimum term being reduced from 16 years and 3 months to 15 years and 6 months to reflect his guilty plea.
In relation to the offence of GBH with intent, the judge had been entitled to conclude that all five appellants were dangerous, despite assessments by Probation to the contrary and despite an absence of previous convictions for some of the appellants.
R v Waters and Young [2008] EWCA Crim 2538 (8th October 2008)
The sentencing judge had indicated that the proper sentence was in the region of 9 to 12 months’ imprisonment. Such a sentence would have resulted in the immediate release of the appellants due to time spent on remand. The judge ruled that a sentence of immediate custody would therefore be meaningless. He imposed suspended sentences of 44 weeks suspended for 2 years, with requirements of 2 years of supervision and 85 hours of unpaid work. He also directed that the time spent on remand would not count towards custodial period if the suspended sentences were activated.
The Court of Appeal held that the sentences were wrong in principle. If the correct sentence was 9 months or even 12 months, then that is the sentence which should have been imposed. It would not have been meaningless as the judge thought; it would have been a real sentence, notwithstanding that the custodial portion had already been served. Furthermore, the judge did not have the power to direct that the time spent on remand should not count towards the period of detention if the suspended sentence were activated; such a direction could only be made by the court making the order under which the suspended sentence was to take effect. The imposition of immediate imprisonment, which had already been served on remand, did not offend against section 11(3) of the Criminal Appeal Act 1968 as no ordinary person would consider that the appellants were now being dealt with more severely than in the court below.
