Nuisance Calls: Cracking the Legal Whip

The Government is planning to make it easier to fine individuals and firms that hound members of the public with nuisance telephone calls.

We all intensely dislike nuisance telephone calls, which often inform us that we are ‘entitled’ to compensation or which are of another nonsensical and irritating nature. Whatever their exact nature, the vast majority of such calls are marketing calls.

From April-November 2013 the Information Commissioner’s Office received 120,310 complaints about ‘unsolicited marketing calls’.

Limited fines can be imposed on nuisance callers in certain circumstances. The Government is now considering whether to make it easier to impose harsher fines.

What is the current law? And what is being proposed?

Unsolicited Calls and the Telephone Preference Service

Under regulation 26 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 a register should be kept of individuals who have notified OFCOM (the communications regulator) that they do not wish to receive direct unsolicited marketing calls. The register is known as the Telephone Preference Service (TPS).

Regulation 21 of the 2003 Regulations prohibits all persons from making unsolicited marketing calls to those telephone numbers that are registered with the TPS, or from allowing their telephone line to be used for making such calls to numbers registered with the TPS.  Similarly, regulation 21 also prohibits unsolicited marketing calls if an individual has previously notified an unsolicited caller that calls should not be made to that line. There are two exceptions in regulation 21. Firstly, unsolicited calls may be made to numbers registered with the TPS if they have been listed on the register for less than 28 days. Secondly, unsolicited marketing calls may be made if an individual has indicated that they do not object to unsolicited telephone calls for the time being.

What happens where the Regulations are breached? Firstly, where an individual suffers damage by reason of a breach of the Regulations, they may bring a claim against the person who breached the Regulations under regulation 30 of the Regulations. Secondly, where the Regulations are breached, the Information Commissioner can impose monetary penalties on the wrongdoer under regulation 31 (and Schedule 1) of the 2003 Regulations, which imports the financial penalties in section 55A of the Data Protection Act 1998 into the Regulations (please note that the links to regulation 31 and Schedule 1 do not reflect the up to date text of the provisions). Under section 55A, financial penalties may only be imposed where breach of the rules is likely to result in ‘substantial damage’ or ‘substantial distress’ and may not exceed the ‘prescribed amount’. Regulation 2 of the Data Protection (Monetary Penalties) (Maximum Penalty and Notices) Regulations 2010 provides the prescribed amount is £500,000.

The Proposals

Despite the rules, nuisance calls are still a major problem. The Government is therefore consulting on whether to lower the substantial damage/distress threshold and whether to increase the maximum fine to 20% of a company’s financial turnover. This would make it easier to impose fines that would be more of a punishment and more of a deterrent.

Comment

These proposals are to be welcomed. Everyone has a right to privacy in their own homes. It is to be hoped the new rules are implemented swiftly.

What are your thoughts?

TV Licence Fee Dodging May Be Decriminalised: What are the Current Penalties?

It may no longer be a crime in future not to pay the television licence fee, after the Government announced it will consult on the issue.

The Government has agreed to an amendment to the Deregulation Bill currently passing through Parliament, that will see the review commencing within three months of the Bill passing into law and which will last no longer than one year.

The BBC, which is funded by the licence fee, is opposed to decriminalisation, arguing that it will lead to more individuals dodging the fee, resulting in reduced revenue and forcing it to cut services.

Failure to pay the £145.50 fee accounted for more than one in ten of all prosecutions last year, with 155,000 people convicted.

The amendment was initially proposed by Conservative MP Andrew Bridgen, who wants non-payment of the fee to be a civil offence, rather than a criminal one. As a civil offence, non-payment would not result in a criminal record and would require wrongdoers to pay the fee and legal costs.

When is a fee required? And what are the current criminal penalties for evasion?

The Television Licence Fee

Section 363(1) of the Communications Act 2003 provides that a television receiver must not be installed or used unless the installation and use is authorised by a licence.

Under section 363(2) of the 2003 Act, a person acting in breach of section 363(1) is guilty of an offence. Similarly, under section 363(3) of the 2003 Act, a person is guilty of an offence if they possess or are in control of a television and intend to install or use it without a licence, or knows or has reasonable grounds to believe that another person intends install or use it without a licence.

An offence is not committed by a person acting in the course of a business who installs a television receiver on delivery, or who demonstrates, tests or repairs televisions: section 363(5) of the 2003 Act.

A person guilty of an offence is liable to fine not exceeding level 3 on the standard scale: section 363(4) of the 2003 Act. The standard scale of fines is set out in section 37 of the Criminal Justice Act 1982. Level 3 allows a maximum fine of £1,000.

Fines

What happens when an individual is prosecuted and fined for non-payment of a television licence? The fine is due to be paid in full immediately, although the magistrates’ court may allow payment by instalments under section 75(1) of the Magistrates’ Court Act 1980.

If an offender fails to pay the whole or any part of the fine in the time allowed by the court, the court may require the offender to appear before the court and consider the offender’s ability to pay, under section 83 of the 1980 Act. Ultimately, if the court has considered the offender’s ability to pay and concludes that the offender has wilfully refused or neglected to pay and that the court has tried all other methods of enforcing the fine but they are inappropriate or unsuccessful, the court may order the immediate imprisonment of the offender: section 82 of the 1980 Act. For a £1,000 fine, the maximum period of imprisonment under Schedule 4 of the Act is 28 days.

Comment

The review on decriminalising non-payment of the television licence fee will have to consider very carefully whether decriminalisation would affect the quality and sustainability of the BBC, which is a rightly treasured national institution.

What are your thoughts?

Boy Who Raped Sister Sentenced: What is a Referral Order?

It emerged last week that a 12-year-old boy who raped his seven-year-old sister after watching hardcore pornography on the internet has avoided a custodial sentence.

The boy, now 13, pleaded guilty to rape, two counts of indecent assault and inciting a child to engage in sexual activity at Blackburn Youth Court. The court heard that he had viewed pornography with friends and had gained a ‘desire to try it out’.

The boy is currently living away from the family home, although social workers are hoping to return him soon. In a victim impact statement his sister said she wanted her brother to return. She said: ‘I feel sad what [he] did…I want him to go to our house so I can play games with him. I love [him]’.

In a statement, the boy said he was ‘disgusted’ with his actions and promised there would be no repeat.

Sentencing the boy, District Judge James Prowse said he thought it ‘highly improbable’ he would reoffend. He said that detaining the boy would ‘tear the family apart’ and introduce the ‘immature’ boy to ‘hardened and sophisticated’ youth offenders.

The boy was sentenced to a 12 month referral order and placed on the sex offenders register for two and a half years.

What is a referral order? How do they work?

Referral Orders – General

A referral order orders a youth offender to be referred to a youth offender panel. It is the role of the panel to agree a ‘contract’ between the youth offender and the panel which aims to repair the harm caused by the youth’s offending and tackle its causes so as to avoid reoffending in the future.

Eligibility for a Referral Order

The law on referral orders is set out in the Powers of Criminal Courts (Sentencing) Act 2000 (please note the following links to the Act do not reflect the up to date text of the Act). According to section 16 of the Act, a referral order can only be made where the sentence for the offence is not fixed by law (such as murder), the court is not considering a custodial sentence (prison (called detention in relation to a young person)) or a hospital order, or discharging the young offender absolutely or conditionally, and arrangements have been made in the local area for referral orders.

In certain circumstances, a court is required to impose a referral order. Section 17(1) provides that a referral order must be imposed where the offence is punishable with imprisonment, the youth has pleaded guilty to the offence and any connected offences, and the youth has never been convicted of an offence previously in the UK or the European Union (EU).

A court may also impose a referral order, under section 17(2) of the Act, where the youth offender has pleaded guilty to the offence and pleaded guilty to at least one other offence if he or she is being dealt with for other offences at the same time.

Under section 18 of the Act, a referral order must last for at least 3 months and may last for up to 12 months. Under section 20 of the Act, a court is empowered to order the youth’s parent or guardian to attend the youth offender panel meetings. It will always order this if the youth is under 16 years of age, unless it would be unreasonable to do so.

The Youth Offender Panel

A youth offender panel must consist of at least three members – one member of the local youth offending team and two other members (who are local volunteers). The aim of panel meetings is to discuss the offending behaviour, how it has affected the victim and the cause or causes of the behaviour. The victim may themselves be present to explain the effect of the offending. The aim is then to agree a contract which seeks to repair the harm done and reduce the risk of future reoffending. It might involve, for example, a requirement to do some work in the community, to write a letter of explanation to the victim, or to undertake work focusing on decisions and consequences. 

Once the contract is agreed and signed the youth is kept under review until the end of the order. The youth is then discharged if they have satisfactorily complied with the contract.

Breaching an Order

What happens when a youth offender fails to attend their appointments, fails to agree to sign the contract, or fails to comply with the requirements set out in the contract? In essence, the panel is entitled to allow the youth offender another opportunity or to ‘breach’ them and return them to court. If the youth is returned to court then, according to Schedule 1 of the Act, the court is empowered to revoke the order and deal with the youth in any way it could have when it first sentenced the youth or allow the order to continue.

What if the youth is convicted of another offence while subject to an order? Schedule 1 provides a number of options. Where the later offence is committed before the referral order was made, the court may sentence the offender for the second offence by extending the time for which the youth must comply with the referral order. If the offence is committed after the referral, the court may again extend the period if there are exceptional circumstances justifying this. Otherwise, sentencing for the new offence will have the effect of revoking the referral order and the court may, if it is in the interests of justice to do so, resentence the youth for the original offence that initially resulted in a referral order.

Conclusion

Referral orders attempt to repair and address offending behaviour in young persons so that they are adequately punished while their future risk of reoffending is reduced. They are designed to prevent the young offender returning to the criminal justice system.

What are your thoughts on referral orders? Are they appropriate in these serious cases?

Rigby Murderers Sentenced to Life Imprisonment

This week the murderers of solider Lee Rigby were sentenced to life imprisonment. What is the law behind these sentences?

The Facts

Michael Adebolajo, 29, and Michael Adebowale, 22, were sentenced at the Old Bailey following their conviction for murdering soldier Lee Rigby in Woolwich last year.

The pair ran down the solider in a car before attacking him brutally with knives. Adebolajo hacked at the soldier’s head, while Adebowale stabbed his torso. For more information on the facts, see this earlier article.

Mr Justice Sweeney sentenced the pair to life imprisonment. Adebolajo received a whole life term, meaning he will spend the remainder of his life in prison. Adebowale was sentenced to a minimum of 45 years in prison before he can be considered for release. They were sentenced in their absence after being removed for disrupting the proceedings.

The judge described their actions as ‘sickening and pitiless conduct’, adding that the pair had shown no remorse.

What is the law behind these sentences?

The Sentence for Murder

Section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 abolished the death penalty for murder. It provides that convicted murderers will instead be sentenced to life imprisonment. There is no other sentence: all murderers receive a life sentence.

Setting the Tariff

Section 269 of the Criminal Justice Act 2003 provides that when a court is sentencing an individual to life imprisonment for murder it must set a ‘tariff’. This is a fixed minimum period that the offender will serve in prison.

The court is required to fix the tariff by reference to the seriousness of the murder. The more serious the murder is the higher the tariff will be. Schedule 21 of the 2003 Act details guidelines for what the tariff will be in certain cases. For example, a murder with no especially bad features will typically attract a tariff of 15 years.

However, if the court decides the seriousness of the murder is ‘exceptionally high’ then it can make a whole life order, where the offender is required to spend the rest of their life in prison: life means life Schedule 21 suggests that whole life orders are appropriate in cases such as the murder of a child which involves sexual motivation and murder for the purpose of advancing a political, religious, racial or ideological cause (essentially a terrorist act).

Having decided the starting point, the court is then required to consider any factors that aggravate or mitigate the severity of the offence and increase or decrease the tariff accordingly.

The Early Release Provisions

In all cases where a whole life order is not imposed, section 269 requires the court to order that the ‘early release provisions’ will apply as soon as the offender has served the period of their tariff. The early release provisions are found in Chapter 2 of Part II of the Crime (Sentences) Act 1997. They provide that once an offender has served their tariff they must be released when the Parole Board recommends their release. The Parole Board will recommend the offender’s release only if it is satisfied it is no longer necessary for the protection of the public to continue to detain the offender in prison.

After Release

When a life prisoner is released they are released on licence. They must comply with any conditions set out in the licence. The life sentence still hangs over the offender for the rest of their life. If they commit a further offence, breach their licence conditions, or otherwise become a danger to the public, they can be returned to prison under their life sentence. They will only be released again when the Parole Board recommends it.

Application to the Rigby Murderers

Mr Justice Sweeney concluded that the murder was a terrorist act and the seriousness of the offence was exceptionally high. Therefore the starting point for both Adebolajo and Adebowale was a whole life order. The judge then had to consider whether there were any mitigating factors to reduce the sentence.

In the case of Adebolajo, Mr Justice Sweeney concluded that there was no mitigation. He had been the leader. The seriousness of what he did was exceptionally high and the requirements of punishment and retribution made a whole life order a just penalty. Therefore a whole life order was imposed. Following the Court of Appeal’s recent decision in R v McCoughlin there was nothing objectionable in imposing this sentence. For more on that decision, see this article.

In respect of Adebowale, the judge concluded that a whole life sentence was not appropriate because of his lesser role, younger age and continuing mental condition. Therefore a tariff of 45 years was imposed. He will be eligible for release after that period if the Parole Board considers he is no longer a danger to the public.

Conclusion

The murder of Lee Rigby was a brutal crime that shook the country. The strong sentences imposed are to be welcomed. However, it must be remembered that Adebolajo is appealing his conviction, arguing that the judge made various legal errors. His appeal is unlikely to succeed. For more information on the appeal, see this article.

What are your thoughts on the sentences?