In court

Benefit fraud: personal mitigation

In 1995 S. started claiming Income Support benefit on the valid and honest basis that she was a single person who had to spend her time as a carer and had no other form of income or any capital above the cutoff point at which benefits are affected. In 2002 she also secured council tax relief. In due course an investigation of her account showed that over a period of years very significant sums of money had passed through her bank and it came to notice that she had inherited £60,000 from an uncle in 2009, A further deposit of £213,000 in March 2010 had been the entirety of the money left under her mother’s will, for which she was an executor, she being a beneficiary in the sum of £95,000. In consequence of her failure to declare she had been overpaid by £33,500 over a four-year period, When asked why she had not notified the authorities, she stated that she had not had either amount in her account for very long, having used her uncle’s money to buy property and investing her mother’s money in an investment account to which she had no access for six years.

On her appeal against 18 months’ imprisonment for two counts of benefit fraud, following guilty pleas, the Court of Appeal confirmed that her extraordinary dishonesty without excuse required an immediate custodial sentence and that her two separate offences would raise the starting point when considering sentence. However, personal mitigation moved her case somewhat out of the ordinary bracket. At the time of sentence she was not working, being the main carer for her 21-year-old daughter who has cerebral palsy and requires help with almost every daily basic function. Aged 58, she posed ‘a remarkably low risk of re-offending’. The appropriate sentence was deemed to be six months’ imprisonment, having the effect of securing her immediate release.

R v SIRACUSA, January 2015 (not reported at time of writing).

Persistent, aggravated theft

On her release on licence from custody, having served one-half of a 21-month sentence imposed for offences of robbery, theft from the person and battery, V., aged in her mid-30s, went to live with a man whom she described as manipulative and controlling, who made her go out and steal handbags. She committed her initial offence 12 days after her release but was not caught until after she had committed four similar offences shortly thereafter. She incurred 18 months’ imprisonment for each offence to run concurrently, suspended for two years with drug rehabilitation and supervision requirements were attached to try to affect her rehabilitation by addressing her longstanding drug abuse. Though she attended her initial probation appointments, she almost immediately resumed theft of handbags, committed at busy railway stations. In consequence she incurred 30 months’ imprisonment for the further offences, 16 months of the suspended sentence being activated, to be served consecutively.

On her appeal against sentence, the Court of Appeal concluded that a substantial prison sentence was appropriate for offending with the significant aggravating feature of being committed by a person with a long history of similar offences, involving the planned targeting of people at railway stations, thereby depriving travellers of vital personal possessions and causing significant loss, distress and inconvenience. She was either unwilling or unable to take advantage of alternative sentences and she had reoffended on licence. The consequences of the offences and her culpability were indeed high. She had been rightly sentenced outside the range provided for in the Definitive Guideline of the Sentencing Guidelines Council for such offences and her appeal was dismissed.

R v VIGORS, February 2015 (not reported at time of writing).

Persistent, incorrigible thief: proportionality and totality

An experienced shop thief, adept at a variety of dishonest methods, F. had stolen a body warmer, then taking it to the till claiming she had purchased it as a gift for her father who had now died. She appeared to be upset and was crying. As she could not produce a receipt she was given £40 worth of store vouchers which she exchanged for £30 cash with a customer in the store. In ensuing police interview she claimed she had needed the money for rent arrears. About two weeks later, while on bail for that offence, she took items to the value of £47 to a clothing store’s changing room, cutting off the price and security tags before concealing the items and leaving without paying. She returned to the same store four days later and was arrested for the earlier offence and searched. Police found some secateurs and a cork screw in her possession. When the changing rooms were checked, clothes were found from which she had removed the electronic tags in preparation for theft. On being further bailed she stole an item valued £70 from another shop. Over the same period she knocked on the doors of at least eight houses giving a heart-rending story, usually about having a seriously ill child and needing to get her to hospital, but lacking funds to pay for a taxi. She was well-known in the area, having on several occasions unwittingly knocked on the doors of off-duty police officers. There were warnings about her on social networking sites. In consequence very few occupiers were taken in or parted with money.

Now in her early 30s F. had committed approximately 145 previous offences of dishonesty in the last 16 years. Though she had incurred a multiplicity of community orders, comprising drug treatment and rehabilitation orders (at least one of which was residential) supervision orders, curfews and many terms of imprisonment, none of these sentences has made any effect on her offending. She had breached her most recent community order. The PSR outlined her entrenched pattern of dishonest behaviour linked with her long-term drug addiction and concerns about her mental health, though she had failed to turn up for appointments to address this. She had previously been diagnosed with Emotionally Unstable Personality Disorder and had a long history of self-harm. She was assessed as at high risk of re-offending and being unlikely to comply with any further community order.

On her appeal against a total of 28 months’ imprisonment following her guilty pleas to theft, attempted theft and deception (she was also made subject of an anti-social behaviour order for a period of 5 years), the Court of Appeal acknowledged that F. was a persistent offender with a dreadful record for dishonesty who had been subject to a community order when she committed these latest offences and had also offended on bail. A significant sentence of imprisonment was accordingly appropriate, of a length outside the relevant sentencing guideline. However, her sentence was manifestly excessive. Having regard to totality, the appropriate term was 18 months for the thefts with no additional, consecutive penalties for the fraud offending.

R v FUTCHER, February 2015 (not reported at time of writing).

Breach of SSO: activation length

On conviction of s20 GBH (kicking a man to the face, fracturing his jaw) C. aged 20 had incurred a suspended sentence order specifying YOI detention for 18 months, suspended for 24 months, with requirements of supervision, 200 hours’ unpaid work, an activity programme and a six-month curfew. When returned to court for failing to comply with his unpaid work obligations, he was made subject to additional curfew time. Three months later he again breached his order by missing probation appointments. By the time he appeared before the Crown Court he had completed the activity programme and over 180 hours’ unpaid work. The custodial element was partly activated, requiring him to serve nine months. He appealed, arguing that as he had virtually completed the unpaid requirement, had respected the curfews imposed upon him and had completed the specified activity requirement, the activation had been manifestly excessive, given too that he had committed no further offences. The Court of Appeal considered that the sentencing judge was entitled to activate part of the suspended term, given C.’s non-compliance, but determined that the appropriate period of activation should have been for four months.

R v COLLINS, January 2015 (not reported at time of writing).

Child cruelty by inaction

Aged in her early 20s and without prior convictions S., mother of a seven-week-old son, took her two older children with her for a weekend visit to her family, leaving the baby with her partner, the father. She was later to tell the police that the bond between the baby and his father was not particularly good and she had left the baby in his father’s care in the hope that time alone together might improve that relationship. On her return the baby was sleeping and apparently well but, on waking, he was clearly unsettled, distressed and in apparent discomfort. She had suggested to her partner that the baby should be taken to the doctor but he was not interested. She opted to do nothing until the following afternoon when they took the infant to a hospital where he was found to have a fractured arm and also to have an older and healing fracture to the other arm that she had been unaware of. The child had been seen by health visitors and other adults in the intervening period and none of them had noticed that injury. The father gave an account which was at odds with the medical evidence. She pleaded guilty to child cruelty by wilful neglect on the basis that she accepted that she had failed to secure medical attention for the child, that that failure had persisted over a period of about 24 hours but that she was unaware of any pre-existing injury to the right arm and she herself was not responsible for either of those two or indeed any other injuries. The sentencing range, according to the relevant guidelines, depending on the nature of the failure and the harm caused, is between a community order and 26 weeks’ custody. The pre-sentence report identified ‘deficits in her thinking’.

Refusing her appeal against 12 weeks’ immediate imprisonment, the Court of Appeal confirmed that the offence crossed the custody threshold. The Court noted that S. was an experienced mother who has to date cared for her two older children without similar criticism and had appreciated quickly that medical intervention was necessary. However, when the father was apparently unbothered, she simply did nothing. The case merited immediate custody and the term imposed could not be considered manifestly excessive.

R v SCANLON, January 2015 (not reported at time of writing).

Cynical profit from prison leaks

A serving prison officer kept contact with journalists from a number of national newspapers, using his employment sources to supply them with news stories. When Jon Venables was located at his prison following his recall from life licence he provided confidential details about him, including in particular the name with which Jon Venables had been provided in order to afford him some measure of protection, being paid a sum of just over £35,000 from four different media sources. His former long-term partner G., mother of his son and of positive good character, maintained an on-going arrangement with him to enable him to avoid detection; the money he was receiving from the journalists would be paid into her bank account and she paid him two-thirds of the gain, keeping one third for herself. This course of behaviour came to notice as part of the high-profile Operation Elveden investigation.

On her conviction of an offence of misconduct in public office the PSR writer reported that G. continued to deny that she had benefited financially from this matter, and claimed that the sums paid to her represented contributions by her ex-partner for the care of their teenage son. She also denied being aware of the source of these payments. The PSR recommended a suspended sentence order. The judge commented that she had wilfully associated herself with her ex-partner’s misconduct which was so serious as to amount to an abuse of the public’s trust in him as the holder of public office and for which he had no reasonable excuse or justification. The use of her bank account had played a vital and active role in the operation, amounting effectively to money laundering, when she was under no pressure to become involved, receiving substantial reward. Though weighing her offending to justify an immediate custodial sentence of 15 months’ imprisonment, the judge took into account not only G.’s good character but in particular the effect of separation upon the her two children which any period of imprisonment would entail.

On G.’s appeal against 30 weeks’ imprisonment, one of the grounds relied on was that all those in court on the day of sentence had misheard the judge and understood that the sentence was 13 weeks’ imprisonment, that misapprehension not being resolved until the following day. The Court of Appeal noted that her former partner’s misconduct was of an extremely serious nature, involving as it did a significant risk of harm to Jon Venables and abuse of his position of significant trust, purely out of the desire for financial reward. Her contributing offence merited a significant custodial sentence and the reduction the judge had allowed her from the term he initially deemed justified had adequately reflected the available mitigation. Her appeal was dismissed.

R v GAFFNEY, February 2015 (not reported at time of writing).

Dwelling-house robbery: dangerousness

Aged in his early 30s, D. had been one of three men in a bid to rob, targeting a home to steal the occupier’s high-value car. Two of the men, wearing balaclava masks, forced entry in the early evening while the victims were at home, confronting them aggressively and threatening them to hand over two sets of car keys, their mobile phones and a watch of high sentimental value, before driving off, abandoning the car when it ran out of petrol. The prosecution was unable to say whether D. had gone inside the house or was the third man who remained outside. It was accepted that no weapons were used in the course of the robbery and that D. had been recruited for the crime by his co-defendant who stood to be sentenced for two other offences of conspiracy to rob, and had been involved five other dwelling-house robberies of a similar nature targeting high-value cars. D. had incurred four sets of prior convictions as a youth or young adult, initially for public disorder at age 16 and subsequently for resisting or obstructing a constable, for a section 20 wounding at age 18, for taking a vehicle without consent, three offences of affray, two offences of assault occasioning actual bodily harm and an aggravated burglary in a dwelling attracting a total sentence of four years’ YOI detention. Thereafter he had remained out of trouble and had developed into a hard-working family man.

In passing sentence the Crown Court judge referred to that earlier burglary and to the fact that the house occupier in that instance had been attacked with weapons, including a hammer. He observed that D.’s record of violence was a significantly aggravating feature in his case and concluded that his involvement in the current crime demonstrated an ongoing propensity to commit offences, posing a significant risk of serious harm. Though no physical violence had actually been used, it would have occurred had the victims put up a struggle. Accordingly, he was a danger to the public and an extended sentence was required.

On D.’s appeal against an extended sentence of 13 years 10 months, comprising a custodial term of 8 years 10 months’ imprisonment and an extended period of licence of five years, following a guilty plea, he did not challenge the length of sentence, only the finding of ‘dangerousness’. Refusing his appeal, the Court of Appeal considered that the judge had been fully entitled to conclude that D. met the criteria of dangerousness. He had been willing to use violence in the past and, albeit after a period of non-offending, had returned to his criminal behaviour once again. The type of harm envisaged by the judge was plainly both physical and psychological and could well result from an offence such as the one in which he had again became involved.

R v DIXON, January 2015 (not reported at time of writing).

Dwelling-house robbery: undue focus on personal mitigation

A couple asleep in bed at 04.00 were confronted by four masked intruders wielding torches and hammers and shouting: “Police, Police”. Money was demanded in violent terms before the male victim was taken from the bedroom into an adjoining room where he was attacked to the head and body with hammers by two of the gang who continued to demand money. His wife was kept in the bedroom, guarded by one of the gang, and could hear her husband crying out in the next room. The attackers departed suddenly, stealing nothing, leaving the male victim bloody, bruised and swollen. In addition both victims suffered significant and enduring psychological distress and anxiety. Having been traced through mobile phone evidence and the proximity of his car to the crime scene, L. (aged 18 at the time of the crime, without any prior convictions or cautions) initially denied any knowledge of the crime but when tried for attempted robbery he claimed that he had driven the attackers to and from the scene but had no idea what they were going to do and had believed he was driving them to a party and to collect some money owed to them.

On L.’s conviction the Crown Court judge took the view that he had become involved in the criminal enterprise during the journey to the address and that his role was as a driver rather than one of those who went into the property and inflicted violence. He was, however, aware of the general details of what was going to happen, even if not of the precise details. He had probably closed his mind to the implications of what was afoot. A PSR reported that L. had a stable and supportive family, impressive educational attainment and a sound work ethic. Shortly after this offence he had begun a University degree programme in Business Management and custody would have a negative effect on his life prospects. He was assessed to pose a low risk of reoffending. The judge stated that the sentence he was passing was lenient but not unduly lenient.

Following imposition of two years’ YOI detention, suspended for 18 months with supervision and unpaid work requirements, the Attorney General sought leave to refer the case, arguing undue lenience. The Court of Appeal observed that the crime was aggravated by its commission in a family home at night by a group of armed intruders wearing disguises, weapons being used as well as carried and causing significant, if not serious, physical injury and ongoing impact upon the victims. As to mitigation, the Court gave weight to the youth of the offender, his absence of previous convictions and his positive educational, work and family background. He could also legitimately rely on the fact that he did not enter the premises himself or inflict violence, albeit that his role was a vital one, carried out in the knowledge of what other members of the gang were going to do. On the trial judge’s findings he was not an initiator of the offence, but became involved at a relatively late stage, albeit that the offence could not have occurred without his participation.

Applying relevant Sentencing Guidelines the Court noted that in respect of street robbery committed by an adult offender the starting point was four years’ imprisonment, with a range between two and seven years, for an offence where a weapon was produced and/or force is used resulting in injury to the victim. In addition an uplift would be merited to reflect the aggravating factors applicable in the current case. Guidance on robbery in the victim’s home involving physical violence suggests a range between 13 to 16 years. However, this would be applicable where a higher level of violence was used than took place in this case and so could not be regarded as applicable. The guideline on aggravated burglary suggested a starting point of 10 years and a range between nine and 13 years.

In light of these considerations the Appeal Court was ‘entirely satisfied’ that this sentence was not just lenient but unduly lenient. The judge failed to reflect the gravity of this offending with its aggravating features or to consider and apply the relevant guidelines, instead giving too much weight to the offender’s personal circumstances and the fact that this was his first offence and an offence which was well out of character. The Court had regard too to a report from the Probation Service which shows that in the last two months since sentence was passed L. had evidenced an excellent response to the requirements of his suspended sentence, having completed 100 hours unpaid work order and kept every supervision appointment. He had maintaining his university place while also working part-time at weekends to fund his studies. He was described as conscientious and hard-working. Though those factors were of course significant mitigating features, there should nevertheless have been a significant custodial sentence and a term of 66 months’ YOI detention was substituted.

ATTORNEY GENERAL’s REFERENCE No. 129 of 2014 (R v LISCOMBE),

February 2015 (not reported at time of writing).

Deterring knife crime v act of mercy

Believing that a man was spreading malicious sexual rumours about her G., aged in her mid-20s, went to the betting shop where he worked to confront him. During the altercation he grabbed hold of her throat and pushed her to the ground. Managing to break free she collected two large kitchen knives from her boyfriend’s home and returned. On seeing her coming he ran away to a nearby restaurant. She chased him inside where he defended himself with a broken bottle. He ran out of the restaurant and she again chased him, raising both knives above her head, but rather than stabbing or attempting to stab the complainant, she stabbed a nearby wall. Having thrown the knives to the ground just before the police arrived, G. was arrested and restrained. Whilst being taken to a police van, she kicked out, causing a dent to the side of the vehicle. She pleaded guilty at magistrates’ court to assault by beating, two of offensive weapon possession and criminal damage, on the following accepted basis: in relation to the assault, she only pushed the complainant; he was not injured. As to the weapon possession, she did not threaten anyone with the knives. As to criminal damage, she was reckless only; she had no intention to cause damage. On committal to the Crown Court for sentence the judge referred to the ‘very aggravating’ factors. She had returned to her boyfriend’s house specifically to collect the knives, returning in a very angry state. Even if she did not use the knives to stab the complainant she had put him, the public and even herself at risk of serious violence. By way of mitigation, it was accepted that there was an element of provocation in that the complainant, who was much larger than the appellant, had assaulted her (for which he was being prosecuted separately). However, her response had been totally out of proportion to any violence meted out to her.

On G.’s appeal against twelve months’ immediate imprisonment for the knife offences with two months’ concurrent for the assault, no separate penalty being imposed for criminal damage, it was argued on her behalf that her conduct had not been planned or premeditated; she was the victim herself of an assault and no injuries were caused to the complainant. She had no intention of using the knives and did not use them. She pleaded guilty at the first opportunity, had apologised and had expressed remorse. She had had a very difficult childhood. At the time of sentence she was six months’ pregnant and would be a single parent at the time of the birth. She was someone who had always in the main worked to support herself. The likelihood of her offending was assessed at minimal, and her imminent motherhood had helped to focus her thoughts on how to behave. It was submitted that she should have incurred a suspended term.

The Court of Appeal observed that G.’s previous convictions for disorderly behaviour and assaulting a constable in 2010 were aggravating factors. She had shown premeditation by returning to a house to collect knives. Her best mitigation was her early guilty pleas. The fact that immediate custodial sentence would result in her giving birth in custody was an important factor to take into account, specifically her Article 8 rights to family life. However, ‘the criminal law had to be upheld. The dangers of knives being brandished in public had been emphasised repeatedly by the Court of Appeal, and marked by increasingly serious maximum penalties. The only sentence that could be passed was one of immediate custody’. As has been noted previously, ‘having children is not some form of licence which entitles a mother to commit whatever offences she likes, however serious, and avoid the normal consequences of such offending. Even where the offender is the mother and sole carer of a young child, there can be a place for deterrent sentences. An offender who is sole carer is not thereby immune from a sentence of immediate custody’. However, ‘the impact of a sentence on young children must always be considered and sentencers must weigh up whether the disruption which immediate custody causes is proportionate in the circumstances of the case’. A balancing exercise is required. Though there was nothing wrong with the sentence imposed on the merits, as an act of mercy only, taking into account the imminent birth of G.’s child and her circumstances, the Court was prepared to reduce the sentence to eight months’ immediate imprisonment.

R v GOZE, February 2015 (not reported at time of writing).

Imitation firearm: avoiding rigidity

Aged in his late 40s and previously of ‘excellent character’, R. had been smoking late at night outside his home, he and his partner’s movements triggering a movement-sensitive security light. Irritated that their sleep was being disturbed on that account P., a near neighbour, and his partner opted to drive round to R.’s home where P. climbed over the fence into R.’s garden to check if he had the right house. When R. challenged him and P. did not respond. R. and his partner felt very frightened, in light of recent anti-social behaviour in that neighbourhood, and P. shouted to his partner to ‘get the gun’. This was a BB (ball bearing) gun capable of firing pellets which, although lawful to possess, in certain circumstances counts in law as an imitation firearm. It was unloaded. On being handed the gun R. went out into the street in pursuit of P., pointing the gun at him intending to frighten him. When R.’s partner came out to take P.’s car number he challenged her, asking her what she was doing. R. approached the car, still carrying the gun and threatened the P. and his partner. The car reversed but then stopped, rather than drive off, and. further abuse was exchanged before P. drove away. Both P. and R. then phoned the police to complain. After initial denials, R. eventually pleaded guilty to being in possession of an imitation firearm with intent to cause fear of violence (Firearms Act 1968 s16A, an indictable-only crime). The PSR reported R.’s concession that had he been in the position of P. and his partner, he would have been absolutely terrified but assessed the offence to have been a specific, isolated incident. Noting that R. had never previously offended and held a trusted position of employment (he was said to be a hard-working, highly respected and trusted public servant who did a difficult job; any prison sentence would mean the end of that career; he was also said to be a well-loved family man and friend, generous and kind-hearted who puts himself before others) the PSR author did not foresee his offending in the future and considered him to pose a low/medium risk of causing psychological harm and a low risk of re-offending.

Following imposition of a 12-month conditional discharge (plus £300 costs and order for the forfeiture of the gun) the Attorney General sought leave to refer the case, arguing undue lenience. The Court of Appeal observed at the outset that there had been marked difference between the account of P. and his partner on the one hand and R. and his partner on the other as to whether or not R. had used the imitation firearm to threaten the complainants by pointing the gun through the window of P.’s car. Despite this there was no submitted basis of plea and no call for a Newton hearing, as would have been justified and desirable. The Crown Court judge had considered that he had no option but to sentence on the basis most favourable to the defendant. Though the factual issues should have been resolved prior to sentence the Appeal Court concluded that it had no choice but to approach the case on the same basis.

In the absence of any Sentencing Council Guideline for offending of this nature the case had to be approached using the guidance offered in the leading case of Avis (1998), requiring attention to the type of weapon, the use to which it was put, the offender’s intentions and his antecedents, including any record of violence or use of weapons. The Court reiterated that ‘there should be an element of deterrence when sentencing for this offence’. ‘The use of an imitation firearm pointed towards another, especially in a public place or at night, involves not only culpability but the risk of serious psychological harm. It also brings with it the risk of a reaction or over-reaction from the person at whom the gun is pointed and it can lead to revenge attacks’. In this instance the offence was one of low culpability but greater harm. On the face of it application of Avis would have led to the imposition of a custodial sentence, either a short immediate custodial sentence, in the region of four months, or the suspension of such a sentence.

However, on the facts as presented to the judge and now to us, we are satisfied that this was an exceptional case. The offender reacted spontaneously to what he genuinely believed was a threat to him and to his partner in their own home from a night-time intruder. His culpability was undoubtedly low. The harm caused was part and parcel of the offence charged. The offender may have continued threatening the complainant with the gun for a short time after any threat to him and [his partner] had passed and he certainly terrified [P. and his partner], but the length of that terror must have been exceedingly short. It can only have been a matter of just a few seconds. At that time the offender was undoubtedly in a state of great fear and agitation himself, as was his partner.

ATTORNEY GENERAL’s REFERENCE No. 130 of 2014 (R v ROADES),

February 2015 (not reported at time of writing).

‘Not mere fumbles’: persistent penetrative assault

Aged in her late 20s and without prior convictions a woman serving in the Royal Navy undertook a course with other naval personnel including M. Both women were openly gay but neither had expressed any romantic or sexual interest in the other. The offender was in a long-term relationship and M. was married, although in the process of divorce. At the end of an evening drinking to mark the end of the course the offender had asked M. if she was ‘coming for a cuddle’ but M. declined and went to bed. A few minutes later, the offender entered M.’s unlocked room without permission. On awaking and asking her what was doing the offender told M. that she had ‘come for that cuddle’. Though M. replied that this wasn’t ‘a good idea’ she later accepted that she had acquiesced and may have lifted the duvet cover to provide space for her to get into bed with her. M. did not feel threatened because the offender was drunk, they were friends and she did not believe that there was any sexual intent. Having gone back to sleep M. was awoken when the offender tried to touch her breasts and when she resisted the offender put her hand inside her underwear and touched her vagina, persisting, despite resistance, to penetration. M. immediately pushed the offender’s hand away and told her to stop, saying: ‘It’s not going to happen. You should go’. Though the offender did not leave M. decided not to argue and assumed she had made her point. However, after M. had resumed sleep she was reawakened to find that her vagina was being forcibly and painfully penetrated. She was able to persuade the offender to stop and the two remained in the same bed until the morning when the offender repeatedly apologised for what she had done. M. made a prompt complaint. In interview and at trial the offender claimed that the sexual activity had been consensual and she denied that M. ever asked to stop or to leave the room. M. had since been diagnosed with an adjustment disorder; she had struggled to form and maintain new relationships and found it hard to trust people intimately.

On her conviction at a military court of two counts of sexual assault by penetration the judge stated that none of this would have happened had not both the offender and M. been inebriated but observed that the offender knew well that by doing what she was doing she was in the territory of what was firmly forbidden and had ‘gone way beyond trying it on’. However, she was not ‘in any sense a cold blooded sexual predator who has been prowling corridors or dormitories looking for sleeping victims’. Account was taken of her extremely good service record, her ‘genuine remorse’ and the desirability of maintaining her service career, there being a presumption that an offender will be discharged on incurring detention in excess of 12 months. She was sentenced to nine months’ detention.

The Attorney General referred the case on grounds of undue leniency, having regard to the Sentencing Council’s Guideline which specifies a starting point of two years custody, with a category range from a high-level community order to four years. The Court of Appeal agreed that this was a serious incident with aggravating features ‘To assert as the judge did, that neither would have been in that situation if they had not both in drink is to ascribe responsibility to M. where she had none at all. She had not invited the offender into her room; she had twice rejected her advances but had relented as a consequence of persistence. She was then assaulted not once but twice. These were not mere fumbles but deliberate assaults. After the first occasion the victim told her to stop and to go back to her room. The offender remained and persisted’. Her conduct was not ‘spur of the moment’ and showed determined escalation. As for her ‘remorse’, ‘it must be underlined that she pleaded not guilty, asserting a positive case that there was but one incident which was consensual. It is clear from the correspondence that we have seen that she continues to maintain this’.

Though clearly concluding that the sentence had been unduly lenient, the Appeal Court had regard to the Navy’s decision since the court-martial to dismiss the offender on the basis that her retention would be detrimental to the service. Further, fresh psychiatric evidence now available made it clear that the offender had a long history of anxiety symptoms dating back to childhood, partially due to a very disturbed and abusive upbringing. A psychiatric assessment concluded that she was constitutionally prone to anxiety and had received psychiatric care previously, although this had ceased since she had become an adult. She dealt with her remaining symptoms by self-medicating with alcohol. She was currently at high risk of suicidal ideation. She was due for release in around four weeks. If her custodial sentence was extended, her mental health was likely to deteriorate further. While ‘in the normal course, we would not have hesitated to increase it … the circumstances of the offender’s continued mental ill-health and the requirement to pay regard to double jeopardy principles, have allowed us exceptionally to conclude that it is unnecessary to do so’.

ATTORNEY GENERAL’s REFERENCE No. 122 of 2014,

February 2015 (not reported at time of writing).

Penetration and degradation

Aged in his late 40s and without prior convictions F. and his co-offender K. indulged in an extended drinking session with their victim, aged 55 and alcohol dependent. When she became incapacitated and comatose in drink they both took the opportunity to assault her by inserting glass bottles into her vagina. She awoke to find herself on the floor on her back with her lower clothing removed and the two men jointly sexually assaulting her. When she protested the assault terminated but she discovered that F. had written on her left thigh ‘Dez sucks dick’ and had also drawn a crude picture of male genitalia. On medical examination she was found to have sustained some genital injury. When K.’s mobile phone was seized, still and moving images were found of the penetrative assault in action, including F. posing for the camera. In interview F. denied sexual assault, stated that K. and the victim had engaged in sexual activity in which he was not involved, though he admitted that he had written on her inner thigh ‘for fun’.

On F.’s conviction following contested trial the judge referred to the relevant sexual offending guidelines (placing him in category 2A), noting that two different offences had been committed: the penetration involving use of large or dangerous objects, coupled with degradation and humiliation, namely the writing on the victim’s inner thigh. Further, there was more than one defendant and they had acted together; the offences were committed under the influence of alcohol against a person similarly intoxicated and thus vulnerable at the time. On F.’s appeal against sentence of 11 years’ imprisonment the Court of Appeal considered that the judge had been plainly entitled to pass a sentence higher than the Sentencing Council’s starting point of eight years, but still well within the top of the range (thirteen years).

R v FULTON, February 2015 (not reported at time of writing).

Duty to rehabilitate: finite resources

Recent case law has established that the Prison Service has a public law duty to provide the systems and resources that prisoners serving indeterminate sentences need to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it is no longer necessary for the protection of the public that they should remain in detention; in other words, to provide a reasonable opportunity for these prisoners to demonstrate that they are no longer dangerous by facilitating their progress of such prisoners towards release by providing appropriate courses and facilities. As expounded by the Supreme Court in R (on the application of Kaiyam) v Secretary of State for Justice [2014] UKSC 66 the Secretary of State has a duty: (i) to act rationally in the provision of courses and assessments; (ii) to provide and operate a reasonable and sufficient system of courses and assessments in accordance with the statutory scheme and its underlying policy; and (iii) to follow his own policy that is current at the material time. The Minister cannot rationally operate a system which made release dependent on undertaking courses without making reasonable provision for such courses.

These tenets have been explored further in the context of D., a mandatory lifer sentenced in July 2006 with a minimum term of 26 years expiring in 2031 and classified as a Category A prisoner. Having completed a short unaccredited course on victim awareness (‘Sycamore Tree’) he had applied in 2010 to undertake the ‘CALM’ programme, at that time the standard accredited groupwork course addressing anger control, and he embarked on ‘TSP’ (Thinking Skills Programme). For reasons beyond his control, he was not able to complete the TSP course, missing two sessions. The ensuing non-completion report recorded his motivation to continue with the programme. Having been transferred to a different high-security prison he was informed that he could undertake TSP in September 2011, but in August he was moved again to another prison, HMP Frankland. Shortly after arrival there he applied to be put on the TSP course and was advised that he had been placed on a short list to be considered for that programme. Among targets set for him at a sentence planning meeting in October 2011 was the completion of TSP. When D.’s solicitors sought to establish when he would have that opportunity it became apparent that he was going to have to redo the whole of the TSP course and not just the uncompleted two sessions, despite the fact that an independent psychologist instructed by those solicitors had reported that there was no need for him to redo the whole course and, further, that he was fit and ready to be recategorised to Category B and thus progress from the High Security estate. When his Category A status was reviewed in the autumn of 2012 one of the grounds given for him remaining Category A was that he ‘had not achieved progress addressing offence-related issues that might assist in assessing risk reduction’. A further sentence planning meeting in March 2014 determined that he should be assessed for his suitability for the Self-Change Programme (SCP). An HCR-20 risk assessment undertaken by a prison psychologist indicated that he was suitable for the SCP on the basis of his level of risk and treatment needs. However, he was informed that the programme providers were accepting referrals only for those with tariff expiry dates up to 2020. Faced with these frustrations and clearly keen to progress beyond Category A confinement, D. sought to challenge the system by seeking judicial review, arguing that the Secretary of State had failed to fulfil his duty towards him.

The Administrative Court noted the shortfall of supply over demand in relation to the TSP and SCP courses but considered this unsurprising.

It is not a breach of the duty for the [Prison Service] to be unable to plan to have all courses available to every prisoner willing and suitable to participate in them at all times. It is evident that in HMP Frankland the approach has been to prioritise for courses those with a tariff expiry date up to 2020. That is a sensible response so as to enable those prisoners to progress their rehabilitation and risk reduction and thereafter achieve their goal of release when their tariff period expires. That necessarily has the consequence of making it more difficult in the short term for [D.] to progress to category B by undertaking the TSP and SCP courses. But it is not an unreasonable or unlawful response.… The duty is not breached by allowing those others to access courses earlier than [D.]; nor does it suggest that he will not have the opportunity to progress and to address his risk in time to be ready for release at his tariff expiry. [D.] will no doubt have that opportunity provided he sustains his current attitude and intentions.… In the context of an extremely long sentence the delay in being able to complete the courses which the claimant wishes to participate in is relatively short and not, in my view, excessive or a breach of the duty. Whilst the duty runs throughout the sentence it is, as set out above, in sharpest focus as the possibility of release becomes greater.

R (on the application of DUNN) v GOVERNOR of HMP FRANKLAND and SECRETARY of STATE for JUSTICE, February 2015 (not reported at time of writing).

Abscond policy: irrational and unfair

In the face of a few instances of Category D prisoners resorting to serious reoffending, coupled with some high-profile absconding from open conditions, and wishing to maintain confidence in the system of transferring prisoners to open conditions and of allowing them temporary release (ROTL) from open prisons, the Secretary of State for Justice (SoS) introduced an ‘absconder policy’ in May 2014 with immediate effect, the nub of which was to exercise a very strong presumption against either transfer to open conditions or ROTL for any prisoner with a history of escape, abscond or serious ROTL failure. This self-evidently impacted on prisoners seeking a recommendation from the Parole Board of their suitability for open conditions.

Among these was G., an IPP prisoner whose tariff expired on 9 January 2012, who in January 2013 had been transferred to an open prison on the Board’s recommendation. Having complied successfully with the regime there for some five months, including three opportunities for RDR (resettlement day release) on ROTL, he did not return after a further day away from the prison in early June. By his account he had missed the last train that would have returned him to prison by his due time of 19.00. Having repeatedly called the telephone number the prison had provided for him to ring in the event of a problem while on ROTL and a further number given in his licence booklet, all without success, he had surrendered to custody the next morning at a police station close to his home area. He was immediately returned to closed conditions.

A month later, in July 2013, his case was referred again to the Board to consider release or, in the alternative, his suitability for open conditions and in September 2013 a further referral, known as ‘an advice case’, sought the Board’s view on G.’s continued suitability for open conditions. He was listed for an oral hearing of the combined referrals in July 2014, by which point the SoS’s absconder policy was in operation with the consequence that prisoners in G’s position were no longer eligible for transfer to open conditions unless they could establish ‘exceptional circumstances’. Accordingly, the Board sought ‘urgent clarification of the full terms of the referral’ to establish the basis on which the hearing should proceed, the reply being that the Board should consider G.’s case ‘in accordance with the existing referral note’.

Having read and heard evidence from his offender supervisor and offender manager recommending that he should return to open conditions, the Panel recommended that step to the SoS, observing in the Decision Letter: ‘In view of the Secretary of State’s current interim policy on prisoners who have previously absconded from open prison, this panel makes a finding that the circumstances surrounding your abscond, although avoidable, were not an attempt to escape, but represent a minor error of judgement on your part, which you fully accept, and your risk of future abscond does not appear to be increased as a result’. In August 2014, the SoS issued further details about the ‘absconder policy’, setting out the ‘exceptional circumstances’ criteria, and then refused to accept the Board’s advice regarding G., also dismissing his ‘exceptional circumstances’ appeal. In due course G. was transferred to the new ‘Progression Regime’ at a designated Category C prison.

In seeking the remedy of judicial review G. argued that the ‘absconder policy’ itself and the decision to refuse his return to Open conditions were unlawful, on the basis that the policy was inconsistent with the SoS’s Directions to the Parole Board (2004) which remained in force. He asserted that the policy was irrational in so far as it failed to require the SoS to have regard to any views which the Parole Board may have expressed in a particular case as to the suitability of a prisoner for Open conditions and the risk to the public arising from such a transfer. Further, the policy breached the SoS’s duties imposed by public law and/or ECHR Article 5 to provide a reasonable opportunity for indeterminate prisoners to demonstrate to the Parole Board that they no longer present an unacceptable danger to the public. He claimed too that he had been treated unfairly and unlawfully in the specifics, in that ‘the rules had been changed half way through the match’.

Giving the judgment of the Divisional Court Bean LJ first addressed the tension between the Directions and the Policy, stating: ‘It is irrational to say in two policy documents in force at the same time (a) in most cases phased release via open conditions will be necessary to test whether the prisoner can safely be released into the community, but (b) if the prisoner has failed on one occasion to return from ROTL, only in exceptional circumstances will it be necessary (or “absolutely necessary”) to operate a phased release via open conditions to test whether the prisoner can safely be released into the community’. Accordingly, the Court upheld the claim for judicial review of the policy on the ground of inconsistency. As for the particular circumstances of G.’s review by the Board, his case should have been considered in accordance with the existing referral note. The SoS made no submissions to the Board at or before the oral hearing. ‘In those circumstances the Board’s recommendation should have been considered by the Secretary of State on its merits, rather than being rejected on the grounds that he was no longer eligible for transfer’. The Court directed that the SoS should reconsider his rejection of the Board’s recommendation, adding that the SoS had been ‘plainly entitled to react to a series of high-profile ROTL failures by tightening the rules on eligibility for ROTL’; further, ‘it may be that the Progression Regime will be found over time to be an alternative method of testing the suitability of at least some ISPs for release, although these are early days …’

R (on the application of GILBERT) v SECRETARY of STATE for JUSTICE,

April 2015 (not reported at time of writing).

Note The SoS has indicated that he will appeal the Divisional Court’s ruling and in the meantime has issued new Directions to the Parole Board, replacing and reining back from the 2004 version, stating instead that a period in open conditions ‘can in certain circumstances be beneficial for those indeterminate sentence prisoners who are eligible to be considered for such a transfer’. Further, prisoners who are not eligible for transfer to open conditions will be considered by the SoS as to their suitability for the Progression Regime, designed to be an alternative regime to open conditions. However, ‘the Parole Board is not invited to advise the Secretary of State on the suitability of a prisoner for the Progression Regime’.

Since In Court went to press the Court of Appeal has upheld the SoS’s appeal. This development will be detailed in a future In Court.