Robert S Postbag: November 2010

Robert’s Postbag: November 2010

Q1 I went to court to support a friend and took a photograph of a witness on my mobile while he was giving evidence. I was nicked and sentenced by the judge to 3 months’ imprisonment. I am 23 with no significant previous. The judge didn’t seem to take any notice of my brief. My barrister says I have no appeal. Can I have your opinion?

A1 The guideline case says that photographs taken on mobile phones have become a real problem. The factors to consider are a) the nature of the trial, b) the potential disruption of the trial and c) the potential misuse. 12 months has been considered appropriate. You do not say why you took the photograph but photographs of wit- nesses and jurors are always considered seriously. There is nothing to suggest you have any appeal.

Q2 I am up for section 18, robbery and possession of a bladed article. The man was stabbed 14 times. I got bail and I was nicked for robbing an off licence of £320. I have previous robbery which was the same kind of thing. I also have 6 or 7 knife convictions. I have not had a psychiatric reports but I have been diagnosed with an anti-social personality on two occasions and have been described as borderline psy- chopath. Do you think I will get IPP? How long do you think I will get.

A2 The key factor is the 14 stab wounds. You don’t give any of the circumstances of the stabbing. You also don’t say what injuries were caused. Stab wounds to the leg can easily cause death. Even without the medical reports I suspect the judge may see it as a near murder frenzied attack. Without more detail it is impossible to say. There are 4 obvious sentences. Life, Hospital Order, IPP or a fixed term sentence. Which it is will depend on your reports and details about your previous and background. On the limited information I have, IPP would seem the most likely. A fixed term sentence is the least likely. Without knowing more details I cannot estimate the length. A rough guess would be the starting point would be into double figures. If it is life or IPP that figure would be divided in half, but that would not necessarily be the date of release.

Q3 There is an Albanian woman in our prison who I think may have been tricked to come here and forced to work as a prostitute. Police found a false passport and she is awaiting sentence. She is only 17 and hardly speaks any English. How will the court deal with her case?

A3 The first step is to consider how her solicitors should treat this possibility. The solicitors will have to apply the Law Society directions entitled, ‘Criminal prosecution of victims of trafficking’. Solicitors are required to make proper enquiry on this issue and share those enquiries with the CPS where appropriate. The instructions list the factors which may indicate the person is such a victim. The solicitor is under a duty to consider these. Such is the importance attached to helping these victims the code provides a duty for the solicitor to consider whether the threat to the child’s life or health etc. is sufficient to justify a breach of the duty of confidentiality to their client. This would be exceptionally rare as the code stresses the need for client confidentiality. An advice line is available by the Law Society to give them guidance about how to deal with this issue.

Copyright Robert Banks 2011 The next step is how the CPS should approach her case if they think what you are saying may be true. They too have instructions. Once they suspect a defendant might be a victim of trafficking the case worker must be ‘pro-active’ in making enquiries. They have to consider whether the defendant may have a duress defence. If there is credible evidence of duress the case has to be discontinued. They must work with the police and the immigration officials to discover the true situation. Everything is set out to help those who may be trafficked and particular emphasis is placed on helping children and everyone being aware these victims may be so intimidated and fearful they will be too frightened to reveal their plight. Similar guidance is given to police and immigration officials. Judges are similarly instructed and the judge has to have in mind the Council of Europe Convention on Action against Trafficking in Human Beings. One requirement is that where the age of the victim is uncertain and it believed he or she might be under 18 the person is presumed to be a child. They too have to ensure proper enquires have been made and they should where necessary raise these issues either privately to both parties or if it will not endanger the victim in open court. I suggest someone should inform the girl about the Poppy Project which assists these victims. Their number is 020 7735 2062. Q4 In the December issue you stated that extended licences cannot be imposed for crimes before 1998. I was sentenced to 7 years with an extended licence. My solicitor says this is correct. Which of you is correct? A4 Thank you for your letter which draws attention to the difficulty with different orders with similar names or objectives. Your letter also draws attention to the mess Parliament has made of the terms. There are the pre-1991 extended sentences, the 1991 powers to increase sentences, the 1998 longer than commensurate sentences and extended sentences, and the 2003 extended sentences. There are also the 2003 powers to extend the licence (section 86 which is a different power). In fact in my answer I referred to 2003 extended sentences and not as you say extended licences. Your solicitor and I are in fact both right because I dealt with a 2003 extended sentence and your solicitor dealt with an extended licence under section 86. To make it more complicated an extended sentence has a component part called an extended licence and an extended licence is often called an extended sentence. It shows perhaps parliamentarians are no better at drafting the law than they are at working out their expenses!