Any person charged with a criminal offence ought to be informed of the prosecution evidence in good time so that the appropriate plea may be entered and, if the plea is not guilty, the defence prepared before trial. This proposition appears self-evident if there is to be a fair trial (as required by English Law as well as Article 6) but, in practice, things do not appear to going too well according to solicitor Robin Murray - Minted Law - Despatches from the Disclosure Battle Front. Mr Murray was the winner of the Legal Aid Lawyer of Year Award in 2015. and also winner of Kent Law Society exceptional achievement award 2015.
There are laws and rules about Disclosure and Mr Murray's essential complaint is that, from a defence viewpoint, the courts are giving the Crown Prosecution Service too much leeway when, as appears to be frequently the situation, disclosure of evidence is at the last minute. Mr Murray complains that " ... there are no subterranean depths to which some courts will avoid to descending in their apparent enthusiasm to tilt the scales of justice against the defence" and "We have become like the old Soviet Union with a superficially attractive criminal code that the judicial establishment ignore."
Criminal Procedure and Investigations Act 1996 and Criminal Procedure Rules 2015 Part 15 Disclosure.
The model thief:
The media offered us their reports about the case of model Natalia Sikorska who pleaded guilty to stealing almost £1000 of goods from Harrods. The Daily Mail 4th August tells us that she was "spared jail" because of her "considerable talents." "Had she not been so very talented, Polish model Natalia Sikorska, 28, would have woken up this morning in a British prison cell."
It appears that Miss Sikorska has no previous convictions and pleaded guilty. According to the Daily Mail report (4th August) the plea was at "the earliest opportunity." Miss Sikorska received a Conditional Discharge and was ordered to pay costs (£85) and "victim surcharge" of £20. The magistrate is reported to have said to her -"Because of the fact that you pleaded guilty at the earliest opportunity and you do have a potentially bright future, we will deal with this more leniently than we should have."
Let's briefly look at this. The court is required to apply sentencing guidelines which would place the offence at Culpability level C and in Harm Category 2 - see page 330 of the guidance HERE. This points to a Band B fine as a starting point - (i.e. basically 100% of her "relevant weekly income"). There appear to be no factors increasing the seriousness of the offence. There are no previous convictions and a guilty plea.
Therefore, the court could either impose a fine or a discharge. The conditional discharge marks the conviction for this offence of dishonesty and will hopefully deter her from any further offending. The fact that Miss Sikorska had not previous convictions may have been a factor in persuading the court to impose a conditional discharge. The law relating to conditional discharges is in the Powers of Criminal Courts (Sentencing) Act 2000 section 12.
However one looks at this case, Miss Sikorska was not going to wake up in a prison cell. The case seems to be a fair enough application of sentencing guidance which, one hopes, would be applied in the same way to any similar offender.
On Saturday 12th August, Rebecca Hardy writing in the Daily Mail returned to the Sikorska case. "So, Natalia, what ARE the 'considerable talents' that made a magistrate let you off for stealing from Harrods?" Contrary to the 4th August report, this tells us that - "On the day of her appearance in court, a dry-eyed Natalia changed her plea to guilty." Late guilty pleas do not attract as much sentencing discount as earlier pleas - see Reduction in Sentence for Guilty Plea. Even so, it still remains correct to say that she was not going to wake up in a prison cell.
The child sex gang leader:
At the other end of the sentencing scale there is the case of Mubarek Ali who, according to media reports, was released 17 years early from a 22 year sentence. Secret Barrister took up the cudgels in a post explaining the reality - Why was this "child sex gang leader" released from prison 17 years early? Mubarek Ali was actually sentenced to an "extended sentence" totalling 22 years but made up of 14 years’ immediate custody and eight years on licence, for seven offences – four of controlling child prostitution and two offences of trafficking in the UK for the purpose of prostitution. He is also subject to a lifelong Sexual Offences Prevention Order. Very basically, Ali has to serve half* of the 14 years in prison and, in addition, allowance is made for time he spent in custody on remand prior to trial. Please read Secret Barrister's explainer - it is very good.
Sexual Offences Prevention Orders were pre-8th March 2015 - see HERE They are replaced by Sexual Harm Prevention Orders.
* Due to the law as it then stood, half applied to his sentence. The law relating to extended sentences has been altered by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and two-thirds has to be served before release can be considered.
Terrorist offenders:
Reported via the Judiciary Website are two examples of sentencing for terrorism offences. First there is former Royal Marine Ciaran Maxwell who received an extended sentence made up of 18 years custody and 5 years licence- see the remarks of Mr Justice Sweeney HERE . Maxwell acted in "flagrant breach of trust" and in betrayal of his position in the Armed Forces.
Then there is the sentencing of Naveed Ali, Khobaib Hussain, Mohibur Rahman and Tahir Aziz for offences under the Terrorism Act 2006 section 5. The remarks of Mr Justice Globe are HERE. Ali, Hussain and Rahman received life imprisonment sentences with a minimum term of 20 years. Aziz received life imprisonment with minimum term 15 years.
Law Commission:
The Law Commission has issued a Technical Consultation to simplify sentencing law. This is open until 26th January 2018.
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