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?

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?

100-Year Prison Sentences for England and Wales?

This week it has been reported that whole life prison sentences in England and Wales might be replaced with 100-year prison terms.

It comes in response to a ruling from the European Court of Human Rights which declared that whole life orders amount to inhuman and degrading treatment, and therefore breach article 3 of the European Convention on Human Rights (ECHR), because there is no option for them to be reviewed and so no possibility of the release for the offender.

Background

The whole life prison order is imposed for exceptionally serious crimes. A whole life order means the offender will be imprisoned for the remainder of their life: life means life. Theoretically, a whole life order can be imposed whenever a life sentence is imposed, irrespective of the offence. However, whole life orders are almost always imposed for murder. Schedule 21, paragraph 4, of the Criminal Justice Act 2003 provides that a whole life order is appropriate for the offence of murder if the sentencing court considers that the seriousness of the offence is ‘exceptionally high’. For more information on murder sentences, see this earlier article.

In the case of Vinter v United Kingdom (2013) the European Court of Human Rights held that whole life orders breach the right in article 3 ECHR not to be subjected to inhuman and degrading treatment. In essence, this was because there is no review of whole life sentences and so no prospect of release ever for the offender. The court did not object to individuals spending the remainder of their lives in prison, it objected to the lack of a review. The reasons for the judgment are dealt with in detail in this earlier article.

In order to comply with article 3, the Government is considering replacing whole life orders with reviewable 100-year prison sentences.

So how would these differ? And is the change justified?

100-Year Prison Sentences

How would 100-year prison sentences differ from whole life sentences? Not a great deal. Owing to the length of 100-year prison terms they would be whole life sentences in all but name. But, crucially, the 100-year terms would be reviewable so that they are human rights compliant.

If 100-year terms would essentially be reviewable whole life orders, why not just make whole life orders reviewable? Presumably it is because it seems absurd to call the sentence a ‘whole life’ order if it may in fact not last for the remainder of the offender’s life owing the possibility of it being reduced upon review.

However, in attempting to avoid the absurdity of whole life sentences which are not for the whole of the offender’s life, the proposal is to introduce the similarly absurd notion of 100-year sentences. There is little possibility of an offender living long enough to serve a 100-year sentence. To impose such sentences is ridiculous. In America last year, Ariel Castro, who abducted three women and held them captive for more than a decade, was sentenced to life imprisonment without the possibility of release, plus 1,000 years. This sentence was self-evidently nonsense. Passing a sentence that cannot possibly be served in full is hollow. If a sentence for the remainder of an offender’s life is intended then that should be the sentence.

This leads us neatly to the question of whether it is justifiable to impose a whole life sentence.

Are Whole Life Sentences Justifiable?

In Vinter the European Court of Human Rights considered that reviews were necessary because it would violate human dignity not to allow an individual the chance to rehabilitate. However, as I pointed out in the earlier article, this missed the point. Whole life sentences in England and Wales are imposed when the seriousness of an offence is exceptionally high. We have adopted the policy that some offences are so serious that the only suitable punishment is imprisonment for the remainder of the offender’s life; the offender forfeits their right to rehabilitate. Punishment of the offender and, to a lesser extent, deterring others from committing similar crimes justifies the sentence alone. There is no issue of rehabilitation since we have determined that the severity of some offences warrants a punishment where there is no prospect of rehabilitation. The real issue, then, is whether that approach is justified.

Whether that approach is correct or not – whether punishment and deterrence should trump rehabilitation – is not, I do not believe, a question suited to determination by a court. It is a philosophical question which legislators should decide. Perhaps, then, our courts should continue to impose whole life sentences when it is thought such sentences are justified on the basis that the judgment in Vinter misunderstood the nature of English law. The issue can then be revisited in due course by the European Court of Human Rights.

What are your thoughts? Are whole life sentences justified? Should we move to 100-year prison sentences?

European Court of Human Rights Rules Whole Life Sentences Breach Human Rights

The European Court of Human Rights (ECtHR) has ruled that ordering prisoners to serve the rest of their lives in prison without the prospect of release breaches their human rights.

Three murderers, Douglas Vinter, Jeremy Bamber and Peter Moore, all had a whole life sentence imposed on them for their crimes. They could never expect to be released, apart from in exceptional circumstances, such as on compassionate grounds.

They argued that never having the option to be released back into the community breached their right under Article 3 of the European Convention on Human Rights not to be subject to ‘inhuman and degrading treatment’.

The Court agreed, although it noted that the prisoners did not have the prospect of imminent release.

Before commenting on the decision I shall explain the Court’s reasons (available here).

The Judgment

Firstly, the Court was keen to stress there is nothing in principle wrong with a prisoner serving a whole life sentence, so long as there is the prospect of it being reviewed and potentially reduced. It said, for example, there was nothing wrong with detaining a prisoner for life if they posed a danger to society, so long as the sentence could be reviewed.

However, the Court held that a whole life sentence must be capable of being reduced (and therefore reviewed) for four reasons.

1) the reasons for detention are not static and can change over time. For example, if a whole life sentence is imposed to punish a prisoner and because they are a danger to society this may change if the prisoner alters their life and can show they are no longer a danger to the public;

2) a prisoner can never ‘make up’ for their offence if they have no prospect of ever being released. Instead the punishment becomes worse over time the longer the prisoner lives;

3) it is against human dignity for the State to deprive a person of their freedom indefinitely without at least providing some chance of freedom in the future; and

4) the emphasis in European penal policy is now on rehabilitation, returning people to useful life.

Therefore any sentencing regime that does not allow for the review of a life sentence will breach an individual’s right not to be subject to inhuman and degrading treatment. Reviews are necessary; it was suggested after 25 years might be appropriate. Essentially then, whole life sentences are unlawful.

English law does not allow a review of a whole life sentence. It only provides that the power to release a prisoner can be used in exceptional circumstances, such as on compassionate grounds. It therefore breaches the Article 3 right of whole life prisoners not to be subject to inhuman and degrading treatment.

From this it becomes clear why the applicants in this case cannot expect imminent release. Life sentences are not wrong in principle, but refusing to review, and potentially reduce, them is.

Comment

I personally find this decision a difficult one to agree with. I do not disagree agree at all with the notion of a review. After all granting a review merely demonstrates our compassion, compassion which an offender will have denied their victim. It differentiates society from the offender.

However, I am not sure the decision makes logical sense. Under current law (found in Schedule 21 of the Criminal Justice Act 2003) a whole life sentence can be imposed when the court considers the seriousness of the offence is ‘exceptionally high’. The order is imposed because the offence is so serious that our law judges it to be deserving of a whole life sentence. This assessment of seriousness, assuming it is correct, is unchanging: something that is exceptionally serious will remain exceptionally serious 25 years from now (presuming that murders do not become so much worse in the future that past murders appear less serious). So while a review may be necessary, what exactly will it achieve? If the assessment of the gravity of the offence remains the same then there will be no cause to reduce the sentence ever. It seems that any review will only be a formal process to satisfy the requirements of Article 3.

Our law on whole life sentences does not directly focus on the dangerousness of the offender or other related factors. It focuses only on the gravity of the offence. It makes the policy decision that those murders which are of exceptional gravity should be punished without the prospect of release. The real question therefore is not about the necessity to review any sentence. Instead, it is whether pure punishment alone can justify a whole life order? The UK Government would doubtlessly argue that it is our sovereign right to decide on which basis to sentence convicted individuals. Are we obliged to consider other factors, such as the rehabilitation of offenders?  I am not sure that a court is best placed to decide these inherently philosophical questions. Nevertheless, I believe that the European Court missed that this was the real point in this case.

It will be interesting to see how the Government decides to react to this judgment. It certainly is not pleased with it.

For more information generally on the European Convention on Human Rights, see this article.

What are your thoughts? Should we have whole life sentences? And should they be capable of review?

Huhne and Pryce Released from Prison

Today Chris Huhne and Vicky Pryce have been released from prison following their convictions for perverting the course of justice.

They were released after serving eight weeks of an eight month prison sentence.

They were convicted after Ms Pryce accepted Mr Huhne’s speeding penalty points. He was in danger of losing his driving licence. For the full original story, see this article.

Huhne pleaded guilty on the first day of his trial. Pryce was convicted at her second trial. Her first trial collapsed following concerns about the jury. On both occasions she pleaded the defence of marital coercion.

The pair is awaiting a decision on how much of the prosecution’s cost they will have to pay. The Crown Prosecution Service (CPS) is claiming £108,541 from Huhne. It is claiming £48,695 from Pryce.

Home Detention Curfew

Huhne and Pryce only served one quarter of their sentences. Normally, prisoners are released on licence at the half way point of their sentence. However the Home Detention Curfew (found in section 246 of the Criminal Justice Act 2003) provides that prisoners can be released on licence earlier. Prisoners will be subject to a curfew and electronically monitored (known as ‘tagging’).

Some prisoners are exempt from the Home Detention Curfew scheme, but for those who are eligible, most prisoners will be released on Home Detention Curfew. The scheme is designed to help reintegrate prisoners back into society.