Office: 0113 247 1477

Out of hours: 0779 352 7288

Archive for the ‘News’ Category

Helen’s Law

Posted on:

In 1998 a 22-year-old insurance clerk called Helen McCourt was murdered and Ian Simms was convicted of that murder. The Parole Board recently directed Simms’s release saying that they were satisfied that imprisonment was no longer required for the protection of the public. Helen’s family are objecting to the release as Simms has never revealed the whereabouts of Helen’s body as he continues to deny responsibility for her murder.

‘Helen’s Law’ would be the culmination of a campaign by Helen’s family to change the law to ensure that murderers must reveal the location of their victim before they were considered for parole.

What is being proposed?

The proposed law would require the Parole Board to take into account any failure by a prisoner serving a sentence for unlawful killing, or for taking or making an indecent image of a child, to disclose information about the victim.

In particular, with convictions for manslaughter or murder, where the Parole Board does not know where and how the victim’s remains were disposed of, and it believes the prisoner has information about it that has not been disclosed, it is proposed:

“when making the public protection decision about the life prisoner, the Parole Board must take into account –

  • the prisoner’s non-disclosure; and
  • the reasons, in the Parole Board’s view, for the prisoner’s non-disclosure.”

In respect of indecent images, the Parole Board must take account of the same non-disclosure in respect of the identity of a child in any relevant image.

What stage has been reached?

The Prisoners (Disclosure of Information about Victims) Bill 2019-20 was announced in the Queen’s Speech on 19th December 2019. A second reading took place on 8th January 2020.

What does the Parole Board do?

The Parole Board is required to protect the public from the risk of serious harm, a risk to life and limb. The test to be applied is that a direction for release cannot be given unless the Board is satisfied that it is no longer necessary for the protection of the public that the person should be confined.

What is taken into account?

The Board has to consider:

  • all information before it, including any written or oral evidence obtained by the Board;
  • each case on its merits, without discrimination on any grounds;
  • whether release is consistent with the general requirements and objectives of supervision in the community ie. protecting the public and securing the lifer’s successful re-integration into the community.

In assessing the level of risk, the Board take account of a list of issues including the nature and circumstances of the index offence, any impact on the victim’s family and the lifer’s awareness of the impact of the index offence

The current Parole Board guidance is already quite clear that the withholding of information by an offender has to be taken into consideration. It may mean that the offender still poses a risk to the public and would not, therefore, be eligible for parole.

Is Helen’s Law needed?

Strictly speaking, the Parole Board already considers the exact issues that it would be required to take into account under Helen’s Law. The only difference would be that the Parole Board’s established practice would become a legal requirement.

Other issues

The Criminal Justice Act 2003 specifically refers to an aggravating factor in sentencing being the “concealment, destruction or dismemberment of the body”. The Courts can, therefore, impose a longer sentence for those who conceal the location of their victim.

Helen’s Law is unlikely to amount to much of a change in criminal sentencing, but it does demonstrate the new government’s renewed focus on sentencing issues, suggesting that a tougher sentencing framework may be imminent.

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Date rape drugs and the law

Posted on:

Reynhard Sinaga was sentenced to life imprisonment for the rape and sexual assault of 48 victims. The student is believed to have laced drinks with GHB to make his victims lose consciousness and have no recollection of what happened. He denied the offences saying that the acts were all consensual and the men would “act” as though they were asleep in order to fulfil his fantasy.

GHB, sometimes referred to as the date-rape drug, is often used recreationally to reduce inhibitions. When taken in a larger quantity, it leads to unconsciousness, as with Sinaga’s victims. The drug is almost odourless and has a slightly salty or soapy taste which makes it easier to disguise in a drink. 

The Home Secretary, Priti Patel, has asked the Advisory Council on the Misuse of Drugs to review the classification of the drug. In her letter to the Council, the Home Secretary refers to the use of the drug by Sinaga and also by convicted murderers Stephen Port and Gerald Matovu. GHB, or gamma-hydroxybutyric acid, and GBL, gamma-butyrolactone, are currently Class C drugs. The drugs have a legitimate use, so it is legal to import, export, produce, supply, offer to supply or possess, except for the purpose of human ingestion, other than as a flavouring in food. 

The Council is being asked to undertake an urgent review of the classification of GHB and GBL under the Misuse of Drugs Act 1971, and the scheduling of the drugs under the Misuse of Drugs Regulations 2001.

 

What does this mean?

It is already an offence to supply or possess the drug if you know or believe it will be swallowed or ingested. The Home Secretary is, presumably, wanting it to be a more serious offence. As a Class C drug, the maximum penalty for possession is 2 years imprisonment and 14 years for supply. As a Class B drug, for example, the maximum penalty for possession is 5 years, but for supply, the maximum is still 14 years. The only real difference would be the increase in the maximum penalty for possession of the drug.

 

Is a change of classification needed?

In the context of the case of Sinaga the issue wasn’t just the possession or supply of GHB but the fact it was used to incapacitate his victims. There is a separate offence under the Sexual Offences Act 2003 of administering a substance to a person with intent to overpower that person to enable sexual activity with them. Such a substance would include GHB, the offence is not changed in any way by the classification of the drug used as the offence refers to a ‘substance’ rather than a drug. That offence carries a maximum of 10 years imprisonment.

In reality, however, when a defendant is facing allegations of rape, or murder, it is unlikely that the administering of such a substance would need a separate offence to be charged. 

The offence of administering a substance with intent tends to be charged when, for example, a drink has been laced with the intent that sexual activity would take place, but the offence doesn’t get as far as the sexual activity.

The fact the drug was given would, undoubtedly, be treated as an aggravating factor during the sentencing process. The sentencing guidelines for rape specifically refer to the aggravating factor of the use of alcohol or drugs on a victim to facilitate the offence. As an aggravating factor, it demonstrates higher culpability placing the offence at a higher starting point for the sentence.

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Prisoners Abroad – Help is Available

Posted on:

The plight of a 19-year-old British lady hit the news last week, culminating in reports of her being sentenced by a Cypriot court for making what was said to be a false rape allegation. There are many features of this particular case that have caused alarm, and it brings into sharp focus the different legal systems that operate in other parts of the world. 

Relatives back in the UK often need to react quickly to assist relatives and friends, and this is something that we can help you with.

The first step is to ensure that consular assistance is provided – the speed of response will very much depend on the location of arrest and detention, as well as local custom. There may also be sensitive political considerations that need to be delicately balanced. 

We can ensure that the local consulate has been appropriately notified and liaise with them as to the next steps.

It is important to note that consular assistance does not extend to providing funds for legal advice, so an arrested person will be dependent on any local equivalent to our legal aid scheme unless family and friends can help. In some cases, a person may need to resort to charitable ventures.

The quality of legal advice and assistance abroad is somewhat variable. We can use our contacts to ensure that a competent lawyer is in place to represent your loved one.

The legal system in other countries can be very different from that in the UK, and the process is often prolonged. The primary consideration will be trying to secure bail, although as for foreign nationals charged in the UK, this is not always a certainty. 

If you are outside the UK and have a friend or relative detained here pending trial on criminal charges, we can offer considerable expertise. 

Securing bail can be difficult, depending on the allegation brought, but it is by no means impossible. We can discuss all available options with you. If being granted bail is not an option, we can assist with prison visits and arrangements for sending items to a person detained in a UK prison.

No matter what the charge is, our dedicated and experienced team will ensure all is done to secure the very best outcome.

With the consent of our client, we can liaise closely with you during the process, providing reassurance to those back home at a most challenging time. It is often not knowing what is going to happen, that is the most difficult for people to deal with.

So, if you have any concerns about a friend or relative, do not suffer in silence, get in touch.

 

Get in touch

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Notification Requirements – Removal

Posted on:

A large number of people are subject to notification requirements under Part 2 of the Sexual Offences Act 2003, many for an indeterminate period. The notification framework is often referred to as the ‘sex offender register’, and around 60,000 people are affected (although not all of those are subject to indeterminate notification).

Last week several newspapers ran a headline in these or similar terms:

‘Sex offenders allowed to sign off danger list…’

and that:

Campaigners [have] called for an urgent review of a system they say gives sex offenders the ‘opportunity to manipulate and control’ their own status. [A campaigner] said: ‘We cannot allow this abhorrent process to continue as it is.’

So, what is the story here?

The press was reporting statistics concerning applications made by past offenders to remove notification requirements. These applications are permissible following a Supreme Court ruling. Still, despite what the press may report, this is no free for all, with many people having to wait a minimum of 15 years before an application can even be considered (it is much less for a person convicted as a child).

The procedure for removal is complicated, with an application first being made to the police. If the police refuse the request, which they often do, there can be a further appeal to a court. 

To stand a chance of success applicants must present a compelling case, supported by evidence. Published figures show a most remarkable difference in the success rate across police forces, whether that is statistically significant or not is unclear. Still, it does at least illustrate that nothing should be left to chance.

In deciding whether to discharge an order, the chief constable must take into account—

 

(a) the seriousness of the offence (or offences)—

(i) of which the relevant sex offender was convicted;

(ii) of which the relevant sex offender was found not guilty by reason of insanity;

(iii) in respect of which the relevant sex offender was found to be under a disability and to have done the act charged; or

(iv) in respect of which the relevant sex offender was cautioned in England and Wales or Northern Ireland, which made the relevant sex offender subject to the notification requirements of this Part for an indefinite period;

(b) the period of time which has elapsed since the relevant sex offender committed the offence (or offences);

(c) where the relevant sex offender falls within section 88A(1)(b)(ii), whether the relevant sex offender committed any offence under section 3 of the Sex Offenders Act 1997;

(d) whether the relevant sex offender has committed any offence under section 91 of this Act;

(e) the age of the relevant sex offender at the time of the decision;

(f) the age of the relevant sex offender at the time the offence (or offences) referred to in paragraph (a) was (or were) committed;

(g) the age of any person who was a victim of any such offence (where applicable) and the difference in age between the victim and the relevant sex offender at the time the offence was committed;

(h) any convictions or findings made by a court in respect of the relevant sex offender for any other offence listed in Schedule 3;

(i) any caution which the relevant sex offender has received for an offence in England and Wales or Northern Ireland which is listed in Schedule 3;

(j) whether any criminal proceedings for any offences listed in Schedule 3 have been instituted against the relevant sex offender but have not concluded;

(k) any assessment of the risk posed by the relevant sex offender which has been made by the responsible authorities under the joint arrangements for managing and assessing risk established under section 10 of the Management of Offenders etc. (Scotland) Act 2005;

(l) any other submission or evidence of the risk of sexual harm posed by the relevant sex offender to the public, or any particular members of the public, in the United Kingdom;

(m) any submission or evidence presented by or on behalf of the relevant sex offender which demonstrates that the relevant sex offender does not pose a risk of sexual harm to the public, or any particular members of the public, in the United Kingdom; and

(n) any other matter which the relevant chief constable considers to be appropriate.

Application building

We can assist with building a strong case and presenting an application that has the best chance of success. It can take some time to prepare applications and work should begin as early as possible.

Legal aid may be available for some people, but regrettably, for many, it will mean paying privately for legal advice and assistance. However, this will almost certainly not be as great an amount as you might think. So do not be put off from contacting us, we are always happy to discuss what options are available to you on a no-obligation basis.

How we can assist

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Interpreters

Posted on:

Many people face court proceedings who do not necessarily have a detailed grasp of the English language. A defendant mustn’t be a mere observer of legal proceedings and that they, as fully as anyone not legally qualified can, participate fully. 

It is therefore vital that a qualified and competent interpreter is engaged to assist in this task.

The legal right to such assistance is enshrined in law and encapsulated by this comment from the Court of Appeal:

“…unless a person fully comprehends the charge which that person faces, the full implications of it and the ways in which a defence may be raised to it, and further is able to give full instructions to solicitor and counsel so that the court can be sure that that person has pleaded with a free and understanding mind, a proper plea has not been tendered to the court. The effect of what has happened in such a situation as that is that no proper trial has taken place. The trial is a nullity.” 

Where it is suspected that lack of understanding of the language of the court would interfere with the defendant’s participation in the trial the judge has a duty to verify the need for interpretation facilities with the defendant, and to satisfy him/herself as to the adequacy of the arrangements made; failure to do so is a violation of the right to a fair trial guaranteed by Art.6(3)(e) of the ECHR (Cuscani v United Kingdom (2003) 36 EHRR 11, ECtHR92). 

What is often not understood fully is that the right to an interpreter includes a right to have documents translated. 

If the defendant’s command of English is such that they need an interpreter, the defendant cannot waive that right merely because they have legal representation. 

Where a defendant is represented, evidence should still be translated unless the defendant or their advocate requests otherwise and the judge also thinks that is appropriate having regard to whether the defendant substantially understands the nature of the evidence that is going to be given against them. 

The Welsh Language Act 1993 sets out the principle that the Welsh and English languages should, in the administration of justice in Wales, be treated on a basis or equality. s22(1) stipulates that in legal proceedings in Wales, the Welsh language may be used by any party, witness or other person who desires to use it, subject in the case of proceedings in a court other than a magistrates’ court to such prior notice as may be required by rules of court; and any necessary provision for interpretation must be made accordingly. See Crim PR 3.26. If a defendant in a court in England asks to give or call evidence in the Welsh language interpreters can be provided on request.

The outsourcing of contracts for interpreter services has led to widespread concern concerning the quality of interpretation provided by some people. Our solicitors are acutely aware of this danger and will ensure at all times that those instructed are competent to act.

 

How we can assist

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Passport Offences

Posted on:

Immigration is a very political issue at the present time, and the hurdles facing those wishing to settle in the UK are getting harder to surmount, tempting some people to buy false passports to try and secure entry and in some cases gainful employment.

Section 4 of the Identity Documents Act 2010 makes it an offence to possess a false identity document with improper intention. The offence is punishable with up to 10 years imprisonment.

A number of cases make clear that those caught face the prospect of a custodial sentence, making it all the more important for us to prepare robust mitigation. 

Ovieriakhi [2009] EWCA Crim 452 – “Wherever the case is on the spectrum, a custodial sentence is likely, save in exceptional circumstances…In cases in which a false passport is to be used for the purpose of securing entry into the United Kingdom, the guidance contained in Kolawole applies. Where, however, a false passport is used to obtain work or a bank account, its use does not enable the offender to obtain entry to the United Kingdom and for that reason it may properly be treated less severely than the use of a passport which does, or may, have that effect. What the use of a passport to obtain work does, however, do is to facilitate the offender remaining in the United Kingdom in breach of immigration controls. For that reason a custodial sentence is usually required. But it can justifiably be less, particularly if the offender is of good character and has done no more than use or try to use it to seek employment in order to maintain himself/herself or his/her family.”

Jammeh [2014] EWCA Crim 549 – “The use of a passport to obtain work is less serious than the use of a passport for the purposes of securing entry to the UK. However, what the use of a passport to obtain work does do is to facilitate the offender remaining in the UK in breach of immigration controls. In the present case the appellant admits the use of a passport on two occasions. In the circumstances we consider that a sentence of eight months imprisonment is appropriate.”

Buriticia-Castrillon and Omotade [2008] EWCA Crim 1972 – “This court has repeatedly emphasised that the use of false passports must be treated seriously, as in Kolawole, even where one passport is used, on a plea of guilty, by a person of good character in relation to gaining entry. That is because the use of false passports to obtain entry to this country disrupts the fabric of immigration control or has the potential to do so. There is, as the authorities show, a lower level of gravity involving the use of a false passport in this country to obtain a job or to obtain benefit — in other words, to obtain something to which the user of the passport is not entitled by means of a forged passport.”

Who is the victim?

In all cases, we are acutely aware that our client may, in fact, be a victim of trafficking and entitled to protections offered by s45 of the Modern Slavery Act 2015. We pride ourselves on thoroughly investigating the background circumstances to ensure that no defence or piece of mitigation is missed. 

It is a crucial feature of our case preparation to ensure that the criminal justice process does not become a hostile environment for those seeking refuge.

 

How we can assist

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Investigating and Prosecuting Rape Cases

Posted on:

Her Majesty’s Crown Prosecution Service Inspectorate has published a new report in relation to the investigation and prosecution of rape cases. The significant findings are:

 

  • Since 2016, the number of cases prosecuted by the CPS has fallen by 52%. This is despite the fact that there has been a 43% rise in the number of rape allegations to the police.
  • But there has been a 23% fall in the number of cases referred to the CPS for a decision by the police. This reduction means that while reports of rape to the police have nearly doubled, a significant number of these cases have not been referred to the CPS.
  • Nearly a third of all the cases which the CPS received from the police were ‘admin finalised’. These are cases which are sent back by the CPS to the police for further investigation.
  • There have been concerns that the CPS were only charging easy cases where a conviction was more likely, rather than applying the appropriate legal test (known as the Code for Crown Prosecutors). That view is not supported by the findings from this inspection.
  • CPS has improved its application of the Code for Crown Prosecutors – the test for prosecutions: in the 2016 inspection there was a 10% failure rate but in this inspection there was a 2% failure rate.

 

From the perspective of a firm that represents persons accused of having committed sexual offences, a number of the report findings are quite alarming.

 

For example:

“[In a] sample of 250 cases the police were generally not very good at accurately identifying the strengths and weaknesses of the case they were submitting, only doing so fully in 49% of charged or NFA cases, and partially in another 38.5% of those cases. This left 12.6% of cases where the analysis was very weak or missing.”

 

This has significant implications for defendants being wrongly charged with offences due to inadequate evidence being provided to prosecutors.

 

“Relevant unused material, or an adequate report on it, was supplied in 81.3% of relevant charged or NFA cases. The standard file submission for RASSO cases does not have to include unused material schedules, except where local agreement mandates them. About a third of police submissions in charged or NFA cases included schedules, but only 34.9% of them were satisfactory. Missing items from a schedule was the most common error, but listing things on the wrong schedule and poor descriptions also featured, and interviewees expressed concerns that officers did not understand their duties or the concept of relevance in relation to unused material. If the schedules or summaries of unused material are deficient, either they are sent back to the police, causing delay, or the lawyer proceeds on the basis of incomplete or inaccurate information, which carries a risk that relevant undermining material is overlooked.”

 

History demonstrates that unused material often unlocks the truth in cases; it is a matter of grave concern that the police are still not able to properly address the fundamentals of investigative work.

 

“Of the 250 cases, there were five (2%) which featured a wholly unreasonable decision, so the Code was applied correctly in 98% of cases.”

 

Two per cent sounds a low number, but in this small sample alone, that is five wrong decisions. The report suggests that two people were wrongly charged as a result.

 

The report authors demand a better response from police and prosecutors, observing:

 

“The extent of the work that is now being carried out on a rape or serious sexual offences investigation, and the quantity of material that now needs to be reviewed pre-charge, has led to much more work on each case. While that is work that ought to have been done in any event, it is apparent that it was not happening in all cases, and certainly not at the right stage. There is a need to address that, while also recognising that it is important to devote time and care to ensuring that the right cases proceed on the right evidence and with the right disclosure made to the defence. If this takes more time, as long as the time is not wasted, then it is inevitable and right that it should do so.”

 

What Can We Do?

In many respects, this report simply confirms what we already know, that the investigative and prosecution process is lacking in many respects. We will continue to robustly monitor these and other cases to ensure a fair outcome for those we represent. 

 

How we can assist

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Pre-sentence Reports

Posted on:

In some cases, a court must order a pre-sentence report (s 156 Criminal Justice Act 2003), and a report will be appropriate in many instances when it is not a legal requirement. Sometimes a court may not be receptive to the idea of ordering a report, so we are always alive to the necessity of having a robust line of argument ready to advance in this regard.

The primary purpose of a report is to:

‘…assist the court in determining the most suitable method of dealing with an offender’.

Reports can, therefore, be a significant part of sentencing, and it is surprising that some people, including some lawyers, appear to consider them only in passing. 

Our view is that clients need to be fully prepared for the report process.

 

Why is preparation essential?

The report is an opportunity for defendants to advance significant mitigation well in advance of their advocate standing up to mitigate formally on their behalf. 

As reports are often (although not always) supplied in advance to sentencing magistrates’ and Judges, it is an early opportunity to try and influence, positively, the sentencing outcome.

A Judge will always be looking for signs of regret and remorse, not just because they were brought to justice, but because they have genuine victim empathy and regret their actions.

Report writers will be looking for evidence of insight into offending, as that often provides compelling evidence of an individual’s willingness and ability to change behaviour. Such positive signs might weigh heavily in a decision to impose a community penalty as opposed to custody.

In cases where a person does not wish to evidence remorse, for example, because they are maintaining their innocence, it will generally be better to say nothing than suggest that they do not care.

It is also vital not to implicate yourself in criminality more severe than for which you were convicted. If this does happen, all parties will need to ensure that the proper process is followed (see, for example, cases such as Cunnah (1996) 1 Cr App R (S) 393).

In appropriate cases, we will robustly challenge assertions made by the report author (for an extreme example see R (S) v Leicestershire and Rutland Probation Service [2014] EWHC 3154 (Admin)).

It may also be necessary for us to apply to cross-examine the author of a report to challenge assertions that are being made (Green [2002] EWCA Crim 2075).

As you can see, we take sentencing reports seriously and will offer you detailed guidance and support to ensure that all opportunities to secure the most favourable sentencing outcome are taken.

 

How we can assist

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Animals – Disqualification from Keeping

Posted on:

Section 34 of the Animal Welfare Act 2006 states that a court may make an order disqualifying a defendant from keeping animals.

When can the order be made?

The defendant must have been convicted of a specified offence under the Act (section 4, 5, 6(1), 6(2), 7, 8 or 9).
The purpose of the order is not to punish the offender; The sole purpose is to protect the future welfare of other animals (Barker v RSPCA [2018] EWHC 880 (Admin)).
When considering the making of a disqualification order regard can properly be had to previous convictions (Ward v RSPCA [2010] EWHC 347 (Admin)).

 

What is the scope of the order?

Disqualification can include one or more of the following parts:

Part 1
(a) from owning animals,
(b) from keeping animals,
(c) from participating in the keeping of animals, and
(d) from being party to an arrangement under which he is entitled to control or influence the way in which animals are kept.

 

Part 2
(a) disqualifies a person from dealing in animals.

 

Part 3
Disqualifies a person –

(a) from transporting animals, and
(b) from arranging for the transport of animals.

 

Disqualification may be imposed in relation to animals generally, or in relation to animals of one or more kinds.
In R (RSPCA) v Guildford Crown Court (2012) the court held that whilst ordinarily the exclusions contained in [Part 1] must be included as part of a disqualification order, it may be appropriate not to do so if the defendant’s human rights would be infringed.
It is not permissible when making a disqualification order to allow for the keeping of a maximum number of animals (R (RSPCA) v Chester Crown Court [2006] EWHC 1273 (Admin), a case based on section 1(1) Protection of Animals (Amendment) Act 1954, which was couched in the same terms as section 34 of the 2006 Act).
This case also emphasises an important point in relation to the making of a discharge as a way of avoiding disqualification in an appropriate case.

 

Can an order be avoided?

We realise that orders of this type can cause significant distress and upset; it is vital that all the safeguards in case law and legislation are followed before such orders are made.
If you face proceedings for an offence under the 2006 Act or have been made subject to an order of this type and wish to discuss whether it can be challenged, get in touch with one of our specialist team.

 

How we can assist

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Online Abuse, Courts Keep Up with Modern Techniques

Posted on:

In Chabloz v Crown Prosecution Service [2019] EWHC 3094 (Admin) the High Court dealt definitively with several highly technical legal challenges concerning Communications Act defences.

On 25 May 2018 at Westminster Magistrates’ Court,  Alison Chabloz, was convicted of three offences under section 127(1)(a) and (b) of the Communications Act 2003. She appealed her convictions to Southwark Crown Court, but on 13 February 2019 her appeal was dismissed. She then appealed by way of judicial review.

 

What were the charges?

The first two charges against the applicant in the present case were that on or about 28 September 2016, contrary to section 127(1)(b), she had caused to be sent by means of a public electronic communications network, namely the internet, a message or matter that was grossly offensive, being a hyperlink on her blog to two performances of her antisemitic songs entitled “Nemo’s Antisemitic Universe” and “(((Survivors)))”. These songs had been performed by her four days earlier at a meeting of a right-wing organisation called the London Forum at the Grosvenor Hotel in London. The performances had been video-recorded and then uploaded onto YouTube.

She had not been involved in the uploading, but she had a free account with wordpress.com and had been allocated a subdomain entitled “tellmemorelies.wordpress.com”, a blog which allowed her to publish and manage multimedia content. On this blog site the applicant informed those looking at the site that she had performed the songs, and pasted a hyperlink which connected with the YouTube site and allowed immediate streaming of the London Forum video of her performances.

The third charge concerned section 127(1)(a). The applicant accepted that on 2 September 2017 she had uploaded the video of her performing another song called “I like the story as it is – SATIRE!” onto the YouTube website. This song was grossly offensive for the same reasons.

 

Appeal points

The claimant did not take issue that the songs were grossly offensive but submitted that the posting of a hyperlink was a neutral act which did not cause an offensive message to be sent. In respect of the third offence, she submitted that she had sent the video to a server in California, which was an inanimate object, so communication with it was not possible.

 

What did the Court say?

In relation to the hyperlink defence, it held:

“It is possible to approach Issue 1 in three different ways and reach the same conclusion: that, on the facts of this case, the applicant was properly convicted under section 127(1)(b). 

The first is by reference to ordinary common sense: the applicant told those looking at her blog that she performed these songs and that her performances had been uploaded onto YouTube. To facilitate their access to those performances, she pasted onto her blog page the hyperlink to the YouTube video. That was not in any sense a neutral footnote or a passive reference to something unconnected to her, but instead a direct signpost to the performance of her own songs. She was endeavouring to widen the distribution of her own material. 

It was the applicant who set in train the sending process. She used the internet to put in place an interface between the two websites (the embedded deep link between her blog and YouTube) which ensured the conveyance of the contents of a video from one to the other. The software created a direct link to where the video was stored and enabled immediate access to it by the push of a button. As long as it remained on YouTube, it was accessible via the applicant’s blog.

Moreover, the purpose of setting up the link was to cause the material to be sent. Without the applicant going onto the YouTube site, copying the hyperlink and pasting it onto her own wordpress.blog page, it would not have been possible for others to access the material from that location. The applicant put in place the process by which the video was sent, which is why it can be said that she caused the message to be sent. It is not tenable to argue, as Mr Davies attempted to do, that the Court should ignore all of that and to say that the causing of it to be sent was the act of the visitor to her blog who clicked on the hyperlink.

The second analysis of Issue 1 considers the posting of the hyperlink by reference to the decisions in Collins and in Chambers. As Lord Bingham stated in Collins, the aim of section 21 is to protect the integrity of a public service and to prevent it being a means by which grossly offensive material may be enabled. That is precisely what the applicant was doing here. In addition, the answering machine situation in Collins is directly analogous to the hyperlink here, and, as per Chambers, it makes no difference if the message (in this case the hyperlink to the YouTube video) was stored as content or as a separate message. I agree with [Counsel] that it would be wrong to place undue emphasis on the technology that was involved in achieving the applicant’s aim.

The third approach to Issue 1 is by reference to the non-binding authorities to which Mr Davies himself referred which dealt expressly with hyperlinks, albeit, as I have said, in the context of defamation. In my view, those authorities are not inconsistent with the approach that I have already outlined. On a proper analysis, both the Canadian Supreme Court in Crookes and the European Court of Human Rights in Magyar suggest that what might matter is the connection between the person posting the hyperlink and the underlying message. Was the defendant endorsing the underlying message, or was it just a footnote? There was room in both cases to say that the defendants were neutral hosts of current affairs sites who were not endorsing the particular message in question, but in the present case the answer is plainly different: the applicant was telling people that there was a video of her singing her songs and providing them with the means by which with one click they could access those performances. That was an unequivocal endorsement of the material.

During the course of his helpful submissions, Mr Davies attempted a number of analogies in order to advance his arguments, including references to blackmail letters sent from abroad, messages to the speaking clock and even a libretto prepared without the author’s permission. As my Lady pointed out during argument, in the modern digital age such analogies are unhelpful. The Court has to deal with the modern world as it is, in order to see whether or not the offence is created by this relatively recent statute have captured this particular type of behaviour. That is at root a relatively simple task, and analogies with other means of communication do not assist.”

 

The Californian server point

Counsel argued on her behalf that a communication could not be made with or to an inanimate object. Therefore, in relation to the third charge, he said that the sending of the video to YouTube’s server meant that there was no communication and therefore no basis for a conviction under section 127(1)(a).

This argument received short shrift from the Court, which held:

“In my view, this argument fails for four separate reasons. First, there is nothing in the Act to provide any support for the proposition that the message had to be received by a human being in order for the offence to have occurred. [Counsel] accepted that the intended recipient did not need actually to receive it, but maintained that there had to be such an intended recipient in the first place. Such a qualification would, in my view, be contrary to the words of section 127, which is dealing with individuals using a public electronic communications system to send or cause to be sent messages of a particular kind, and does not stipulate if, when, how or by whom any such message has to be received.

Secondly, assuming that [Counsel] is right and there had to be an intended recipient, it is wholly unrealistic to suggest that the video uploaded to YouTube was “a packet of data always intended for an inanimate object” (paragraph 39 of Mr Davies’s skeleton). In my view, it was no such thing: it was a video of a song performed by the applicant, uploaded to YouTube by the applicant, intended solely to be seen by other people. So there were intended recipients, and the criminal offence cannot disappear because the applicant used the YouTube platform as her chosen method of communication. 

Thirdly, I consider that [Counsel’s] contentions are contrary to Collins. Lord Bingham made clear that the offence was complete when the message was sent to the inanimate answer machine (see [8] of his judgment, which I have cited); what happened thereafter was irrelevant to the offence. Otherwise, as he pointed out, criminal liability would turn on the happenstance of, for example, whether the message was received by an individual or not. Moreover, in the light of Collins and the challenges of the digital age, I would suggest that John Stephenson J’s remark in Treacy v DPP [1971] AC 537, on which Mr Davies also relied, that the sort of demand with menaces required for blackmail “cannot of course be an offence if made to the winds” was not meant in a general way but went specifically to a necessary ingredient of the offence of blackmail. It is not applicable here, save perhaps to note that, 50 years on, it might be thought that sending messages to the winds (or certainly the clouds) was a prescient, if rather romantic, description of the internet itself.

Fourthly, [Counsel’s] submissions are contrary to the approach in Chambers, Kingsley Anthony Smith and Sutherland. There is no reason to depart from either the reasoning or the result in any of those cases. There is no reason at all to distinguish between Twitter and YouTube for these purposes. 

For these reasons, the fact that the message in question was sent to the YouTube bunker in California, rather than, say, to the applicant’s next-door neighbour, is irrelevant in law. The offence under section 127(1)(a) was made out when the video was downloaded to YouTube by the applicant with the intention that people might view it. That is therefore the answer to Issue 2.”

Our crime team carefully monitor all developments in case law and legislation to ensure our clients always receive the best advice. At all stages we seek to test the boundaries of current law in order to protect your best interests.

 

How we can assist

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.