Sunday, 2 February 2014

A few items for Sunday afternoon.

Inquests and legal aid (absence of):

Legal aid for families at inquests has not been readily granted because, so the government argues, an inquest is an inquisitorial process and this should protect the interests of the family.  Exceptionally, legal aid may be made available - see page 17 of the Ministry of Justice document "Coroners and Justice."    A worrying case is reported in The Guardian 2nd February.

Alex Kelly died, aged 15, in 2012, by hanging himself with his laces. He was serving a 10-month sentence in a young offender institution, for burglary and theft from a vehicle. At six, he had been taken into care having been repeatedly raped by a relative (not his father), leaving him profoundly emotionally damaged. The serious case review into his death found failings by a number of professionals.

An inquest expected later this year will examine "allegations of systemic failure of the state". The prison, prison healthcare provider and two local authorities will have legal representation paid out of the public purse, but Alex's father has been refused legal aid.

Nigella Lawson:

The celebrity chef, Nigella Lawson, is not to be prosecuted for possession of drugs.  This decision was announced some time ago -Express 28th January 2014 and blogpost 23rd December 2013.  At the trial of the Grillo sisters, Lawson had admitted drug use in the past.  The decision not to prosecute her would therefore have been taken on public interest grounds.  The matter is discussed by Dan Bunting writing in The Justice Gap .  This is a case where there is some appearance of special treatment for a celebrity but such a view falls away in the light of the various factors in the case including the public interest in witnesses not fearing prosecution should they admit to offences of this nature when giving evidence in court.


The Daily Mail 1st February 2014 reported the story of a dwelling house burglary in Burnley -  Magistrate attacks soft touch justice system that allows criminals to walk free with a 'slapped wrist' after burglars ransack his home   This Lancashire, former cotton town, has rows of very small terrace houses (pictured).  It seems that many of those houses have been targeted by a gang and the cases may well have a racial element.  The victim mentioned by the Daily Mail is a Mr Abid Sharif who, as it happens, sits as a Justice of the Peace in Burnley.  Mr Sahrif's comments are similar to those heard from many a victim of this offence:

"The laws have gone too lenient.  In some cases everything points to custody but then they say they have medical problems and then they can't do unpaid work because they have bad luck.  By the end it is a conditional discharge."

Some of the reported facts in the case are:

During the daylight raid, a rear window was torn from off its hinges with a crowbar before the gang climbed into the house, breaking a dining table.  They tore doors off wardrobes and cupboards before stealing the gold jewellery, a watch and electrical goods including a PlayStation 3, a Sony laptop, a Samsung mobile phone and a digital camera.  Mr Sharif later took pictures of the aftermath of raid which is said to have cost almost £10,000.

In the light of such facts, how would the case of someone proceed in the courts?

Sentencing for ADULT offenders:

The Sentencing Council has issued Guidelines for sentencing in burglary cases - (Crown Court and Magistrates' Courts).

On facts such as these, there is little doubt that a Magistrates' Court would allocate the case for Crown Court trial.  The maximum sentencing powers of the magistrates would be considered to be too low.  A gang involved, attending the premises with equipment to break in, ransacking of the contents, damage to the furniture.  Under the guidelines, this seems to be a Category 1 Domestic Burglary - see page 8 of Crown Court Guidance

Such a burglary would entail a "starting point" for sentencing of 3 years custody (with a range of 2 to 6 years).  The judge would then look at the factors (set out on page 9) which indicate either greater seriousness or a reduction in seriousness or factors reflecting personal mitigation.   Page 9 also notes the minimum custodial term of at least 3 years for a qualifying third domestic burglary.  This term is to be applied, unless the court is satisfied that there are particular circumstances which relate to any of the offences or to the offender which would make it unjust to do so - (on the "three strikes" rule see Criminal Law blog).

Finally, the judge would consider the matters (set out at Page 10) such as reduction for a guilty plea and "dangerousness."

Hence, the likely outcome would be a substantial sentence of imprisonment.

In 2009, the Court of Appeal (Criminal Division) decided R v Rebecca Saw and others [2009] EWCA Crim 1.  Lord Judge CY stated:

"The starting point must always – we emphasise, always - be that burglary of a home is a serious criminal offence. The principle which must be grasped is that when we speak of dwelling house burglary, we are considering not only an offence against property, which it is, but also, and often more alarmingly and distressingly, an offence against the person. There is a longstanding, almost intuitive, belief that our homes should be our castles. The concept suggests impregnability and defiance against intrusion. In the phrase coined by Sir Edward Coke in 1628, when compiling his Third Institute of the Laws of England, our homes should be our "safest refuge", where above all we should enjoy secure tranquillity and untroubled peace. Something precious is violated by burglary of a home, and those who perpetrate this crime should be sentenced and punished accordingly. "  

The South Wales Argus reports on a recent case where the Court of Appeal reduced a sentence from three and a half years to 2 years 10 months.  Interestingly, it is reported that this defendant had already committed three burglaries and 19 thefts and was on licence from a previous sentence when he burgled the Cwmbran home.  For my part, I would not have thought 3 and a half years to be at all excessive.  However, here is the view of the Court of Appeal.

A further recent case is from the Nelson, Lancashire area (Pendle Today).   Here, a sentence was reduced by a year (to 2 years 2 months from 3 years 2 months) despite the appellant being a serial offender with 51 previous convictions.  Note: The sentence included a 2 month element for breach of conditions of bail.

Thus, despite the tough talk in R v Saw and others, actual sentencing for most domestic burglary is not especially high.  Whether a significantly tougher line needs to be taken is for you to consider.  Meanwhile, it seems that burglars are becoming increasingly sophisticated with their activities being planned and specific homes targeted etc. 

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ObiterJ - 2nd February 2014 - Blogpost No. 1000

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