Lee Rigby Murderer to Appeal Sentence

It has emerged that one of the killers of soldier Lee Rigby has secured permission to appeal against his sentence.

The Facts

Michael Adebowale, 22, was sentenced alongside Michael Adebolajo, 29, at the Old Bailey in February this year for the murder of the soldier 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.

It has now emerged that a High Court judge has granted Adebowale permission to appeal against his sentence. It follows earlier news that Adebolajo is to appeal against both his conviction and sentence.

What is the law on appealing against a sentence?

Appeals Against Sentence: The Law

Adebowale had a right to appeal the length of his sentence, as do all convicted offenders, under section 9 of the Criminal Appeal Act 1968. However, leave (or permission) to appeal must be granted by the Court of Appeal, unless the sentencing judge grants leave within 28 days of passing sentence: section 11 of the 1968 Act.

Where it is necessary to seek leave to appeal from the Court of Appeal, the application must, under section 18 of the 1968 Act, be made within 28 days of the sentence.

The reasons (or grounds) for the appeal will then normally be considered by a single judge on the case papers alone; there will be no actual hearing. The judge can grant leave to appeal if they feel there are grounds for an appeal or they can reject the appeal if they find there are no grounds for an appeal. It appears in this case that permission was granted by a single High Court judge on the papers.

When an application for permission to appeal is rejected, the applicant can make a renewed application for appeal within 14 days of the refusal under rule 65.5 of the Criminal Procedure Rules 2013. These renewed applications are heard in person by a full court of at least two judges. It will often be three judges. If leave is granted the Court of Appeal can then proceed directly to consider the appeal itself.

Once leave is granted the appeal against sentence will be heard by at least two, and often three, judges. There are a variety of grounds for appealing against the sentence imposed. These include, but are not limited to:

- that the sentence was ‘manifestly excessive’ (the most common ground of appeal);

- that the sentence was wrong in law; and

- that there were procedural errors.

It is unclear what Adebowale’s grounds of appeal are.

If the Court of Appeal agrees that Adebowale’s sentence was inappropriate it can quash (cancel) the original sentence and substitute any sentence that could have been lawfully passed on Adebowale by the Crown Court, so long as it does not treat him more severely: section 11 of the 1968 Act.

The appeal is awaited with interest.

What are your thoughts on the original sentence?

A Right to Die – Part 2: The Judgment

The Supreme Court has ruled that there is no right to assisted suicide. Those who are physically unable to end their own lives cannot receive assistance to die from individuals and medical professionals.

For the full background to the case and the issues, see the first part of this article, ‘A Right to Die – Part 1: The Background’. This article proceeds directly to discuss the Supreme Court’s judgment.

The Judgment – Summary

The court, by a majority of seven to two, dismissed the appeals brought by Mr Nicklinson and Mr Lamb. It unanimously allowed the appeal brought by the DPP. Therefore there was no right to assisted suicide and the DPP was not required to clarify his policy on prosecutions for assisted suicide.

The Judgment

The Supreme Court was required to determine two issues. Firstly, it had to determine whether the present law on assisting suicide was incompatible with article 8. Secondly, it had to determine if the DPP was required to clarify his policy on when  a prosecution would be brought for assisted suicide.

Was the Present Law on Assisting Suicide Incompatible with Article 8?

The court unanimously held that the question of whether to impose a general ban on assisted suicide lied within the margin of appreciation accorded to the United Kingdom. The ‘margin of appreciation’ is the area of discretion left to each country by the European Court of Human Rights within which it will not interfere. The margin is often wider on controversial and sensitive issues where there is no consensus across the countries that make up the Council of Europe. Accordingly, whether the current law on assisted suicide was incompatible with article 8 fell to be decided by the Supreme Court under the Human rights Act 1998.

The court held that the ban on assisted suicide in section 2(1) of the Suicide Act 1961 did interfere with the right to a private life guaranteed by article 8 because it prevented those who were physically unable to end their own lives from determining how and when they should die. Thus the ban could only be justified if the ban satisfied the requirements of article 8(2) – the ban had to be ‘necessary in a democratic society’ for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights of others.

Five of the Justices, Lords Neuberger, Mance, Kerr, Wilson and Lady Hale, held that the court had the authority under our constitution to make a declaration of incompatibility in relation to section 2 of the 1961 Act. A declaration of incompatibility is a declaration under section 4 of the Human Rights Act 1998 that the law is incompatible with one or more of the rights guaranteed by the European Convention. However, Lords Neuberger, Mance and Wilson concluded that while the sensitive and controversial nature of the issue of assisted suicide did not prevent the court from making a declaration, it would be inappropriate to do so until Parliament had been given the opportunity to consider the issue, in essence because it and the courts had steadfastly been against assisted suicide in the past and the issue needs to be carefully considered.

Further, Lords Neuberger, Mance and Wilson said that the main justification for the ban was the apparent risk to the lives of vulnerable people who may feel a burden to their family or society and who might take their lives if assisted suicide were an option, but would otherwise not do so. The interference with Mr Nicklinson’s and Mr Lamb’s rights was grave and the arguments in favour of the current law were by no means overwhelming. However, even if it had been appropriate for the court to grant a declaration of incompatibility (which it was not in their judgment), their Lordships would not have done so because of evidential issues related to how death would actually be brought about and what safeguards would be in place.

On the other hand, Lady Hale and Lord Kerr would have issued a declaration of incompatibility. They concluded that article 8 confers a right on individuals to decide by what means and at what point their life will end. The ban on assisted suicide made no exception for those freely choosing to end their life and was therefore incompatible with article 8.

Lords Sumption, Hughes, Reed and Clarke also accepted that the court had jurisdiction to determine whether the ban on assisted suicide violated article 8, but thought that the question turns on issues which Parliament is in principle better qualified to decide. Therefore, under the present circumstances, the courts should respect Parliament’s assessment. The question required a judgment to be made about the relative importance of the right to commit suicide and the right of the vulnerable, especially the old and sick, to be protected from pressure to so. In reality, it was unlikely the risk of pressure could ever be wholly eliminated and therefore the issue was how much risk was acceptable. That involved important issues of social policy and a moral value-judgment, which was more suited to determination by Parliament as the part of government which represents the people.

Accordingly, while the court unanimously held that it had the authority to determine the issue, it decided, by a majority of seven to two, that the current ban on assisted suicide does not violate article 8 of the European Convention.

Was the DPP’s Guidance Lawful?

As to the second part of the appeal, the court unanimously allowed the DPP’s appeal, overturning the Court of Appeal’s judgment. The court held that it was one thing for it to decide that the DPP must have a policy, but it was quite another for it to dictate what should be in that policy. That was for the DPP. The exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according the circumstances of each individual case, were all proper and necessary features of the system of prosecution in the public interest. Thus the appeal was allowed.

The full judgment can be read here.

Comment

The Supreme Court’s judgment is unsurprising. Whether assisted suicide should be permitted is a hugely controversial issue and it is not something the courts will feel content to definitively rule on until the issues are better understood. However, Parliament has been firmly warned; the Supreme Court has indicated that if Parliament does not satisfactorily deal with the issue in a reasonable time then there is the ‘real prospect that a further, and successful’ challenge will be made to the current ban.

Parliament is currently debating the issue as Lord Falconer attempts to navigate his Assisted Dying Bill through Parliament. This would permit the terminally ill to be assisted to die if they are terminally ill, have less than six months to live and have a clear and settled intention to end their own life. Interestingly, even if this Bill becomes law it would not assist any of the individuals in this case because they are not terminally ill. A wider law would be necessary. Developments in this area will be awaited with interest.

For my own part, I am in favour of assisted suicide. What are your thoughts?

Andy Coulson Sentenced to 18 Months Imprisonment Over Phone Hacking

Introduction

Last Friday the hacking trial culminated in the sentencing of Andy Coulson and four other individuals for conspiracy to hack phones.

The 46 year old, who had served as the editor of the News of the World and as Director of Communications for Prime Minister David Cameron, was found guilty at the Old Bailey in June. For more information, see this earlier article.

Coulson was sentenced alongside four ex-journalists at the tabloid, as well as private investigator Glenn Mulcaire. They had all pleaded guilty to conspiracy to hack phones.

 The sentences were as follows:

- Coulson, 46, of Canterbury – 18 months imprisonment.

- Former chief reporter Neville Thurlbeck, 52, of Esher, Surrey – six months imprisonment.

- Former news editor Greg Miskiw, 64, of Leeds – six months imprisonment.

- Private investigator Glenn Mulcaire, 43, of Sutton, Surrey – six months imprisonment suspended for twelve months with 200 hours of unpaid work (community service).

- Former reporter James Weatherup, 58, of Brentwood, Essex – four months imprisonment suspended for twelve months with 200 hours of unpaid work.

Sentencing Remarks

Sentencing the group, the judge, Mr Justice Saunders, said there was ‘a very great deal of phone hacking while Andy Coulson was editor’. It was ‘unforgivable’ how the News of the World had acted in relation to phone of murdered schoolgirl Milly Dowler. The defendants were all respected journalists whose careers were now ‘irreparably damaged’. Andy Coulson had to take ‘the major share of the blame for the hacking at the News of the World’. It was no defence, and no mitigation, that the individuals did not know they were behaving criminally; they all knew hacking was morally wrong.

Specifically in relation to Coulson, Mr Justice Saunders, said that the starting point for his sentence would be two years, the maximum sentence for the offence (on which, see below), because of the quantity of phone hacking he was involved in and because he was the editor controlling the investigative methods used by his reporters. However, that would be reduced by six months to reflect his former good character and that there had been delay in the matter coming to trial for which he was not responsible.

The Offence

The group were convicted of conspiracy to hack phones or, more technically, conspiracy to intercept communications in the course of their transmission.

This is an offence under section 1(1) of the Criminal Law Act 1977. Section 1(1) of the 1977 provides it is an offence for a person to agree with others to follow a course of conduct which, if it is carried out as they intended, would involve an offence being committed. In essence, it is planning to carry out another offence.

The offence that was planned and committed was the unlawful interception of communications, or ‘hacking’, under section 1 of the Regulation of the Investigatory Powers Act 2000. This provides it is an offence for a person to intentionally intercept communications in the course of their transmission without lawful authority.

Under section 3 of the 1977 Act, the maximum sentence for conspiracy is the maximum sentence of the offence planned. The maximum sentence for unlawful interception is two years imprisonment under section 1(7) of the 2000 Act. Thus the maximum sentence for conspiracy here was two years imprisonment.

Notes on the Sentence

Having been sentenced to imprisonment for 18 months Coulson will be entitled to be released on licence after serving one half of the sentence, under section 244 of the Criminal Justice Act 2003. So long as he complies with the licence conditions he will not then return to prison. However, it is likely that he will be released even sooner than the halfway point of his sentence under the Home Detention Curfew scheme, in accordance with section 246 of the 2003 Act. Under this scheme, Coulson will be subject to a curfew and electronically monitored (known as ‘tagging’). The scheme is designed to help the reintegration of prisoners back in to society.

What are your thoughts on the sentence?