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?

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?

Lee Rigby Killer to Appeal Conviction

One of the two men found guilty of the horrific murder of solider Lee Rigby is to appeal against his conviction. What is the law on appeals?

Introduction

In December 2013, Michael Adebolajo and Michael Adebowale were found guilty of murdering the solider outside his army barracks in Woolwich, south London. The pair is yet to be sentenced. The judge, Mr Justice Sweeney, adjourned sentencing to await the outcome of another appeal which is considering whether whole life sentences are lawful (for more information on that appeal, see this article).

Adebolajo is now seeking to appeal against his conviction. He will be appealing on five separate grounds, one of which is that the judge refused to allow his defence – that he was acting as a soldier – to be determined by the jury. He alleges that the United Kingdom is at war with Muslims and therefore his attack was a military strike. In English law, murder cannot be committed in the heat and exercise of war, so a military strike can theoretically be a defence.

What is the law on appeals against conviction?

Appeals Against Conviction: Permission

Adebolajo is entitled, as are all convicted offenders, to appeal against his conviction under section 1 of the Criminal Appeal Act 1968. In order to appeal, section 1 of the 1968 Act provides that the offender has to obtain permission (or leave) to appeal from the Court of Appeal. Alternatively, the trial court can grant permission within 28 days of the conviction. Ordinarily it is necessary to seek permission from the Court of Appeal. The application for permission to appeal (which identifies the reasons, or grounds, for appeal) must be made within 28 days of the conviction, under section 18 of the 1968 Act.

The grounds for appeal are normally 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. Should the application for permission to appeal be 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, normally by three judges.

Appeal Against Conviction: Grounds for Appeal

In the event that leave to appeal is granted, the question to be determined at the appeal is set out in section 2 of the 1986 Act. That provides that an appeal will be successful if, and only if, the Court of Appeal considers that the conviction is ‘unsafe’.

Any argument can be deployed to contend that a conviction is unsafe. Common arguments focus on evidence that was arguably wrongfully admitted or excluded, alleged errors on the part of lawyers, defects in the indictment and the conduct of the judge.

In the event that the Court of Appeal agrees the conviction is unsafe, it shall quash the conviction under section 2 of the 1968 Act. It may order a retrial under section 7 of the 1968 Act if the interests of justice so require. Otherwise section 2 provides the defendant shall be treated as though they were acquitted at trial – that is, found not guilty.

Comment

I would be surprised if Adebolajo’s appeal is successful. The evidence against him was remarkably strong. It is almost impossible to argue he killed Lee Rigby in the course of a war, and certainly not in the heat of a war. Even if there were errors during the trial, it would be surprising if they were enough to convince the Court of Appeal that Adebolajo’s conviction is unsafe.

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?

Royal Marine Murder: Armed Forces Prosecutions

This week brought the unfortunate news that a Royal Marine has been found guilty by a Court Martial of murdering an Afghan insurgent. What happened and how do military prosecutions differ from civilian prosecutions?

The Facts

In September 2011 in Helmand province, an eight man patrol was tasked to deal with an Afghan insurgent who had been seriously injured in an Apache helicopter attack. Amongst the members of the patrol were Marines A, B and C. Everything the Marines did was captured on Marine B’s head camera. A portion of the audio taken from the camera recording can be listened to here.

They found the insurgent in the middle of a field and dragged him to the edge of the field. While dragging him, they were heard abusing him and laughing at him. Marine C, the youngest of accused Marines, was heard to say: ‘I’ll put one in his head if you want’. Marine A replied: ‘No, not in his head ‘cause that’ll be fucking obvious’.

Having reached the edge of the field Marine C said: ‘Maybe we should pump one in his heart’. The prosecution alleged that the marines waited for the Apache to depart the scene so their actions would not be seen. Marine A then shot the insurgent in the chest with a 9mm pistol before telling him: ‘There you are, shuffle off this mortal coil, you cunt. It’s nothing you wouldn’t do to us’.

Marine A was subsequently heard to say: ‘Obviously this doesn’t go anywhere fellas. I’ve just broken the Geneva convention’. The other agreed and Marine B suggested that they could claim the shot was a warning shot if anyone heard it.

The video was discovered by chance a year later when it was found on another marine’s computer during an unrelated investigation. Additionally, Marine C’s diary was later found to say that he had been disappointed not to shoot the insurgent.

The three marines were charged with murder and faced a Court Martial. Marine A accepted that he had shot the man but argued that he believed the man was dead and had shot the corpse in ‘frustration’ at the end of a tough tour. He said that he had said he had broken the Geneva conventions by shooting a prisoner’s corpse. Marines B and C said they did not know Marine A would shoot the man and denied they encouraged or assisted him. Marine A was convicted. Marines B and C were acquitted.

Military Prosecutions

The marines are part of the armed services and therefore subject to service law. They were consequently charged with murder under section 42 of the Armed Forces Act 2006. Under the 2006 Act, serious offences can be tried only by a Court Martial. A trial at a Court Martial proceeds in a very similar way to ordinary civilian criminal trials in the Crown Court. Instead of being presided over by a circuit judge, a Court Martial is presided over by a judge advocate. The current Judge Advocate General, Jeff Blackett, presided at the marine’s Court Martial. A Court Martial also differs from an ordinary trial in the Crown Court in that there is no jury; instead there is a board made up of officers and warrant officers. There will be at least three members on the board but no more than seven. The number of members depends on the severity of the offence. In this case there were seven members on the board. Matters of law are decided by the judge advocate. Matters of fact are decided by the board only just as a jury in a civilian trial determines the facts. The board also decides any sentence to be imposed. This is unlike civilian trials where the judge determines the sentence in addition to the law.

Next Steps

Having been convicted of murder Marine A now faces a mandatory life sentence. Sentencing has been adjourned while a report is prepared to assist the Court Martial to determine the minimum sentence that must be served because he can be released on lifelong licence.

Marine B and Marine C can return to their units.

The marines had been granted anonymity as the judge agreed their lives would be at risk if their identities were known. He had, however, agreed to lift the anonymity order after the trial. The men have indicated they intend to appeal the lifting of the order so it has been left in place for the time being. That issue will now be determined by the Court Martial Appeal Court.

Conclusion

It is a huge shame that this murder occurred. Indeed the Royal Marines have called it ‘a truly shocking and appalling aberration’. Nothing will ever make this course of behaviour acceptable. However, on today of all days, Remembrance Sunday, we should not allow this to taint our view of the British military. Instead, we should remember their ordinarily high level of professionalism, courage and dedication. We should remember how many of them have given their lives in the pursuit of democracy.

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?

Ian Brady: How do prisoners get to and leave high security psychiatric hospitals?

This week Moors murderer Ian Brady is appearing at a Mental Health Tribunal arguing for his transfer back to prison.

The 75 year old and his partner, Myra Hindley, tortured and murdered five children, aged 10 to 17, between July 1963 and October 1965, burying some of their victims’ bodies on Saddleworth Moor, near Manchester. They were both sentenced to life in prison.

In November 1985 Brady was transferred from prison to Ashworth maximum-security hospital after being diagnosed a psychopath.

He has been on hunger strike since 1999 and is force fed through a tube. As he is detained under the Mental Health Act 1983 he can fed against his wishes. He wants to be returned to prison where he can then refuse food and die.

To be transferred he will have to convince the Tribunal that he no longer has a mental disorder.

So how exactly do prisoners get to and leave high security psychiatric hospitals?

Transferring Prisoners to Psychiatric Hospitals

Where an individual is serving a sentence of imprisonment and the Secretary of State for Justice is satisfied, by reports from at least two registered medical practitioners, that the prisoner is suffering from a mental disorder to an extent that make its appropriate for them to receive treatment in hospital and that appropriate treatment is available for them, then the Secretary of State can direct that the prisoner is transferred to hospital from prison. This is called a ‘transfer direction’ and is made under section 47 of the Mental Health Act 1983.

The Secretary of State can also add a ‘restriction direction’ to the transfer direction if they think it is suitable (under section 49 of the 1983 Act). This basically means that only the Secretary of State can approve the release of the prisoner. A restriction direction was made in the case of Brady.

Applications by prisoners

So how can a prisoner apply to be returned to prison? Under section 70 of the Act, a prisoner can apply to the Mental Health Tribunal after six months of being in hospital and may then apply once a year thereafter.

Return to Prison

Under section 50 of the Act, if the Mental Health Tribunal (or another authorised person) notifies the Secretary of State that the prisoner no longer requires treatment or there is no effective treatment, the Secretary of State may order the transfer of the prisoner back to prison. However, the decision remains with the Secretary of State.

Application to Brady

Brady is arguing that he no longer requires treatment; indeed he is arguing that he faked psychotic episodes. If he succeeds the Mental Health Tribunal will notify the Justice Secretary, who will then decide whether to return Brady to prison. However, the Justice Secretary could decide not to transfer Brady.

If Brady is transferred he can then, theoretically, refuse food and die. English law provides that a capable adult can refuse medical treatment (which includes force feeding) even if it leads to their death. This principle is set out in the case of Re C (Adult)(Refusal of Treatment) [1994] 1 WLR 290.

Conclusion

It is vital to remember that the Mental Health Tribunal will not consider Brady’s crimes. It will not examine whether it is right to allow a convicted murderer to refuse food and die. It is simply considering whether Brady still requires treatment in hospital. The Justice Secretary, however, might well be considering this issue. After all, it remains his decision to return Brady to prison, even if the Mental Health Tribunal agrees Brady no longer needs to be in hospital.

It will be interesting to see what the outcome is.

Twitter Users Beware

This week has seen the conviction of two individuals over comments made on Twitter. It also saw another individual narrowly escape prosecution for Twitter comments.

Each of the comments was made in relation to the murder of soldier Lee Rigby in Woolwich, on 22 May.

Deyka Ayan Hassan, a 21 year old student, suggested on Twitter that those who wear Help for Heroes T-shirts ‘deserve to be beheaded’. She was subsequently threatened by a large number of people and when she reported this to the police was herself arrested. She pleaded guilty to sending a malicious message and was sentenced to complete 250 hours of unpaid work by Hendon Magistrates’ Court.

Benjamin Flatters, 22, from Lincoln, also made offensive comments  on Twitter following the brutal murder. He too pleaded guilty to sending malicious communications. However, unlike Ms Hassan, Skegness Magistrates’ Court sentenced him to 14 days imprisonment.

Mohammed Mazar, 19, of Woking, Surrey, was charged with improper use of a public electronic communication network following offensive comments made on Twitter related to the killing. He was due to appear at Guildford Magistrates’ Court on 11 June; however, the case against him was discontinued.

So what, exactly, were these individuals charged with?

Communications Offences

Ms Hassan and Mr Flatters were convicted of sending an article with intent to cause distress or anxiety, under section 1 of the Malicious Communications Act 1988.

Under that section, a person is guilty of an offence when they send to another a message which is ‘indecently or grossly offensive’, a threat, or information which is false (or believed to be false by the sender). The message can be sent by electronic communication (such as Twitter), a letter or by any other article. To be guilty of the offence the person must intend to cause distress or anxiety to the recipient or any other person to whom the message is intended to be sent to.

For this offence it does matter if the message ever actually reaches anybody. The offence is simply to send the message.

The maximum penalty for this offence is 6 months imprisonment and a £5,000 fine.

Mr Mazar was charged with improper use of a public communications network, under section 127 of the Communications Act 2003. Under that section, a person is guilty of an offence if they send a grossly offensive, indecent, obscene or menacing message by means of a public communications network (such as by Twitter). Again, it does not matter if the message actually reaches anybody. The maximum penalty is the same: 6 months imprisonment and a £5,000 fine.

Social Networking and the Law

It is very easy to say things on social networks, such as Twitter and Facebook, which would not ordinarily be said in person. It is also very easy to forget the very public nature of what is said. Comments made on social networking websites are capable of worldwide exposure in a few mere hours. However, we are just as responsible for what we say online as what we say in reality. Social networkers should beware of the potential consequences.

Understanding Murder Sentences: When Does ‘Life’ Mean Life?

Last week Mark Bridger was jailed for life for the murder of five year old April Jones. The attack was sexually motivated.

Bridger had said that he accidently ran April over and that he could not remember where he had put her body. He was convicted unanimously by the jury. He was sentenced to life in prison and will remain in prison for the rest of his life.

A number of people I spoke to afterwards expressed confusion about life sentences, saying that others who receive a life sentence are told they may be released in future, even though they were sentenced to life imprisonment. So how does sentencing for murder work?

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’

The Criminal Justice Act 2003 (section 269) 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 must 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 provides guidelines for what the tariff will be in certain cases. For example, the murder of a police officer ordinarily attracts a tariff of 30 years. A murder with no especially bad features will ordinarily attract a tariff of 15 years.

However, in certain cases, if the court decides the seriousness of the murder is exceptionally high then it can make a ‘whole life order’. A whole life order is where an offender is sentenced to imprisonment for the rest of their life and will never be released. 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 (terrorism).This is the order that was made in the case of Mark Bridger. He murdered a child with a sexual motivation. In these circumstances ‘life’ means life.

The Early Release Provisions

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

Therefore once a life prisoner has served their tariff they may be released if they are no longer a danger to the public.

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.

Conclusion

A sentence of life imprisonment only means life in prison when the offender receives a whole life order. All other life prisoners have a chance to be released at some point in the future. However, the life sentence will remain with them for the rest of their life. It can be reactivated in certain circumstances and they can be returned to prison.

Contempt proceedings started for ‘Bulger killer images’

The Attorney General has confirmed that contempt of court proceedings have been begun against a number of individuals who posted photographs online said to be current images of one of the killers of James Bulger.

There is an injunction (court order) in force which bans anyone from publishing anything which identifies the killers, Jon Venables or Robert Thompson, or which might lead to their identification.

Venables and Thompson were 10 years old when, in 1993, they abducted James Bulger, aged two, and savagely attacked and murdered him. They were released from prison in 2001 and given secret new identities and addresses.

The Attorney General’s Office has said that those breaching the injunction risk a fine or imprisonment. It explained that the terms of the order mean that if a picture claims to be of Venables or Thompson, even if it is not actually them, then the order is breached. It added that there are many images on the internet claiming to be Venables or Thompson which could potentially lead to innocent individuals being incorrectly identified as one of the killers and thereby placed in danger. The Attorney General’s Office therefore says that the order protects not only Venables and Thompson but also those who have been incorrectly identified as one of them.

The Injunction

So why exactly are the identities of Venables and Thompson protected? In 2001, before they were released from prison, they brought legal proceedings against three news groups arguing that the reporting restrictions which had been ordered after their trial in 1993 should be continued indefinitely. The news groups had argued, essentially, that the right to freedom of expression meant that details about the killers should be permitted to be published.

The High Court agreed that freedom of expression was important but said that it could be restricted if it was ‘in accordance with the law’ and a ‘proportionate’ response to a ‘pressing social need’ (as set out in Article 10 of the European Convention on Human Rights, which deals with freedom of expression). The Court held that the killers’ new identities and personal information were confidential and that there was a very real possibility that they would be physically harmed or killed if their new identities became known. It also held, following cases from the European Court of Human Rights, that there is a duty to protect an individual’s right to life where there is a known risk to it. The Court therefore held that it was proportionate to restrict free speech and granted an injunction indefinitely against the whole world preventing the publication of information about the killers’ identities.

The judgment that originally ordered the injunction can be read here: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2001/32.html&query=venables+and+v+and+news+and+group&method=boolean

The injunction itself can be read here: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/venables-order-butler-sloss-july2010.pdf

British Death Sentence

It is a rare thing indeed for a British person to receive the death sentence, but today that is exactly what has happened. Lindsay Sandiford, 56, has been found guilty of drug trafficking in Bali, after 4.8kg of cocaine was found in her suitcase lining during a routine inspection. She says she was coerced by gang members threatening to harm one her children into carrying the drugs. Sandiford has been sentenced to death and faces execution by firing squad.

There was surprise at the verdict as the prosecutors had only recommended a 15 year prison sentence. The UK government has condemned the sentence. The judges, however, said that Sandiford did not appear to be concerned about the consequences of her actions, namely damaging Bali’s tourism image and the government’s anti-drugs programme. It is almost certain that Sandiford will appeal the decision.

The Death Penalty in the United Kingdom

The last execution was in 1964 and the death penalty was finally abolished in the United Kingdom for all offences (even during the time of war) in 1998. Furthermore, in 2004, the UK became bound by Protocol 13 to the European Convention on Human Rights (for more on the Convention see this post: http://lawscapeuk.blogspot.co.uk/2013/01/a-new-bill-of-rights.html) which prohibits the death penalty in all circumstances and which prevents us from reintroducing the death penalty so long as we remain a party to the Convention.

That the death penalty is unlawful and will remain so must surely be correct in my view. Despite frequent calls for its reintroduction there are good reasons not to have the death penalty. Firstly, there is always the risk that mistakes will be made in the conviction of an offender. Say, for example, that we convict the wrong individual; there is no opportunity to vindicate them once they have been executed. There have been plenty enough wrongful convictions in the past for us to be concerned about executing the wrong individuals. Secondly, the death penalty simply represents an easy way out of long term punishment. Why should an offender be allowed to escape life in prison? Thirdly, it is not acceptable for the state to kill individuals when it condemns the killing of individuals by its citizens. If killing another if unacceptable it does not become acceptable simply because the state sanctions it; it is barbaric either way.

Arguments in favour of the death penalty are often at their strongest in relation to murder, but Lindsay Sandiford has not even been convicted of murder. She has been convicted of a drug offence, albeit a serious one. I certainly hope that any appeal she makes is successful.