Tuesday, June 18, 2013

Balancing Act

The sentence passed on disgraced TV person Stuart Hall has attracted a predictable mob reaction that it was too short, so it is good to read a considered and informed analysis here. Sentencing can be a delicate thing to get right, and in many cases (such as this one) there is no 'right' answer.
Incarcerating an 83 year-old serves only as a punishment and a possible deterrent, and the prison authorities will be obliged to make special provision for him.  Once an offender reaches a certain age, he has already been by time's fell hand defac'd, and the time approaches when nature will wreak its havoc on him, mocking anything that the justice system can inflict. The trickle of very old men who were involved in the Holocaust has slowed but I often wondered what would be achieved by punishing them.

30 comments:

  1. This is a strange case.I can't believe he pleaded guilty as surely if he denied the offences he wouldn't have been found guilty.I then thought having plead guilty he might have done so expecting a suspended sentence.Couldn't be more wrong!
    Jaded

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    1. Anonymous John19 June 2013 at 11:35

      The CPS only prosecute if they think there is a realistic prospect of conviction.

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  2. Ruin hath taught me thus to ruminate, too, and I share your musings. By odd coincidence, a 98 year old war crimes suspect was arrested in Hungary today following a "Sun" investigation that tracked him down to Budapest.

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    1. 'Ruin' being the inexorable effects of time's fell hand of course, as said sonnet 64 goes on to clarify.

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  3. How much plea bargaining occurs in magistrates courts ?

    The plea of guilty in the Huhne case was qualified; Mr Huhne only said publicly that he took responsibility for the swapping of motoring points. He never admitted publicly that he had done it. The guilty plea covers both committing the crime and accepting responsibility for a crime. These are different admissions. At least in English if not in law.

    In this case, Mr Hall, aged 83, pleaded guilty to 14 counts of indecent behaviour occurring a quarter of a century ago. Excellent article, by the way. Did he admit he committed the offences ? Is an 83 year old's memory reliable ? Whether he pleaded guilty or not guilty, the stigma of paedophilia would remain thanks to the media so he is in a lose/lose situation. And at 83, do you have the energy to take on such an arduous and expensive defence when you will never be believed ?

    So does a plea bargain happen in magistrates' courts where a defendant pleads guilty in expectation of a predictable and shorter sentence. Lord MacAlpine is 71-ish and wealthier. Neither he nor Mr Hall have had the case against them proved anywhere. In the one case because of lack of substance and in the second because of what... Absolute Guilt or lack of stamina or just choosing the lesser of two weevils...Who knows ?

    Seems to me the answer to your concentration camp guard point is this: an individual is irrelevant to the State but maintaining the peace and the law is important. Showing that occasionally the law has a long arm, that however mighty the law is above you, that the law grinds slowly but mighty fine, benefits the State. Because imprisoning the elderly has nothing to do with punishment, protecting the public or rehabilitation. It is simply muscle-flexing. Pity about Pinochet, though.

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    1. If the court considers the plea to be 'equivocal', it can still - of its own motion - list the matter for trial or proceed to trial according to circumstances. It would always in such circumstances urge the defendant to seek legal advice. Should the plea be "yes, but...", the court can hold a "Newton hearing", which will determine which version of the facts (alleged or admitted) it can accept on the evidence offered, provided it is convinced that a finding one way or another will make a significant difference to sentence.

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    2. A guilty plea is an acceptance by the defendant of the prosecution case.

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  4. I have followed the link to the New Statesman article , I have also read the Judge's Sentencing Remarks here

    ...http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/stuart-hall-sentencing-remarks-17062013.pdf

    I am impressed by the Judge's care, reasoning and lucidity, and must believe that those who jump on the "lenient sentencing" bandwagon have either not read the remarks or choose to disregard them.

    We should accept his judgement.

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  5. Ah, Sonnet 64. I pay so little attention to the sonnets any more, and yet I am rapidly approaching the ages when I myself am "by time's fell hand defac'd". Thank you for the reminder, BS.

    But that is as it may be. Yes, I do believe that in such horrific cases as genocide and other associated war crimes it behooves us to prosecute. We do this in large part to bring the nature and horror of such crimes once again into the light of exposure.

    "Punishment?" Not so much I think. Many are those in their 90's who would lead a better end-of-life in custodial medical care than they otherwise would confined at home.

    In grammar school we were sometimes "punished" by writing some sentence (presumably of contrition) over and over again. Maybe, in the comfort of their prison geriatric medical suite, these convicts should write, over and over again, the names of their putative victims.

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  6. I'm old enough to remember the horror of seeing the photographs from the concentration and death camps in 1945. If pursuing and dealing with old men now does anything to make other evil people believe they will be hounded until caught or they die if they do not reconsider any intended action then it is well worth pursuing those that offend or have offended.

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    1. I agree. Which makes it even more regrettable that Pinochet escaped. Having the right allies is so important...

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  7. It *is* worth punishing the old - otherwise they will think that if they can keep it secret for long enough, they will get away with it. That cannot be right.

    On the other hand, 20 months in the context of a maximum 24 month sentence seems reasonable - then a 25% guilty discount gives 15 months. That *is* unreasonably short, which is why the law now allows for a much higher sentence.

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  8. Even as you wrote this, BBC News reported a 97-year old German was being charged with further Holocaust crimes

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  9. Having read the judge's sentencing remarks (Thank you, Swansong), I am still left with a question; if the sentences have to reflect the maxima at the time,- and I accept that they do - then why does the practice of giving a discount for a guilty plea, which only came in long after the offences were committed, have to apply?

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  10. I agree with Unknown @08.17. It is worth pursuing the old and those guilty of historic offences.

    I think this is particularly true where there are living victims who may gain some measure of comfort and feeling of safety that the perpetrator has (finally) had to face some punishment for his / her acts.

    There is already the option for prosecutors to decide not to proceed, where they consider that there is no public interest in proceeding with a matter.

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  11. Bowstreet runner19 June 2013 at 12:13

    Shame is a leveller in these circumstances, given the fall this offender took that is a mighty punishment in itself. His gong will be taken away- hopefully quickly, or he might have the courage to hand it back. These are old offences and whilst serious at 83 probably of no danger to anyone He might be an odd-ball, and a pervet but he is an old man now. The justice of the sentence is manifest in the way the Judge went through the reasoning. After all it was the old law and when the way these things were dealt with was a lot different.

    There is nothin unusual with the AG reviewing a sentence such as this. After the sentence is handed down it is the duty of Pros counsel to advise if a Referral would be right or not- on these facts I cannot believe he/she or it would, nor do I believer Treasury Counsel would advise a referral either, but at the End of the day it is up to the AG- but he is an asstute lawyer who will bnot either. That can't be said for the Shadow AG who's arguments in writing to the AG were poor to say the least. Politicians should keep their noses out at this stage.

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  12. I haven't been following the Hall case (and these emarks are not prompted by R v. Hall, but are more general ), but I do wonder whether there really ought to be a statute of limitations for criminal offences.

    Evidence must become increasingly unreliable with the passing of time. This applies especially to identification evidence (always a bit dodgy at the best of times). Can surviving victims be sure that this is the person who committed the offence(s)? In Hall's case, identification was not an issue, but this could certainly arise in prosecutions for war crimes.

    Arguably the appalling crimes committed in Germany and other Nazi-held territories between 1933 and 1945 should have been pursued far more vigorously and ruthlessly in the years immediately following the war, so that all or as many as possible of the perpetrators (at all levels) were brought to justice. But there must surely have come a time when the interests of justice, in the widest sense, would no longer be served by pursuing very elderly men (and possibly also women) in that way. The war crimes of that era were so abhorrent that there would have been understandable reluctance to set a limitation period for those crimes, but even in these cases 50 years (i.e. 1995) might well have been a reasonable cut-off point, especially if the defendant is/was at the time of arrest over, say, 80 years of age. Is there really any sense in arresting and prosecuting a 97-year old?

    As for crimes within the domestic jurisdiction, 30 years (or even a shorter period?) might be considered. There must be a question-mark over the safety of convictions obtained many years after the alleged offences took place.

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  13. I feel uneasy at placing time limits on meting out justice. One might indeed legitimately question the purpose of sentencing but I feel that at least 2 of the purposes of sentencing are applicable. Just because something happened a long time ago should never be a cloak to be worn by the guilty nor a defence to be offered in mitigation.
    I will not join the feeding frenzy - on balance I feel that the sentence was about right, having regard to all of the factors and elements that existed.

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  14. Anon @14.46 Yes, memory and ID eveidence can become less reliable over time, but that is reflected in the decisions made at each stage - a person is only charged where the CPS feel that there is a reasonable prospect of securing a conviction, and that it is in the public interest to prosecute.

    A Judge will direct the jury (or theBench will direct itself, in the Mags) as to the meaning of 'beyond reasonable doubt. There are cases of historic offences where people are not convicted (and indeed where charges are not brought in the first place) precisely for those reasons.

    But equally, there are advances in forensic science which allow evidence to be obtained even decades after the event, changes in political climates which make records available etc, so that prosecutions become possible which were not feasible previously.

    how would your limitation period work where the reason for the delay was that the perpetrator had sucessfully hidden, for instance? Would it be right to allow people to escape justice because they had managed to leave the country for a set period? I believe that some of the Nazi war criminals were identified after the iron curtain came down and more records became available - would it have been just for some to face justice, and others to escape it, due to an accident of which country held the relevant records in 1945?

    I recently came across a situation where a historic allegation was (sucessfully) prosecuted. It turned out that there was contemporaneous evidence in the form of statements given at the time, and some photographs. At the time the offences took place a decision was made not to prosecute (the reason wasn't stated, but reading between the lines,it probably had more to do with the identity and status of the perpetrator and of the victim than the strength of the evidence.) In that case, the allegations were 30 years old. After the conviction, it came to light that the perpetrator had continued to commit further, similar offences, up until very shortly before the trial.

    an an 83 year old man may look frail, but is still capable of attacking a 9 year old. (another local case - man was convicted for sexually assaulting his 2 year old great-grand-daugter. He was 89 at the time of the offence. It was reported by the child's mother.After he was convicted, his daughters and grand-daughters disclosed that he had abused them, too. Stopping an abuser is a good reason to prosecute.

    I agree that prosecuting someone who is very old and frail can feel odd - but I do think, on balance, that the existing rules allow for decisions to be made case-by-case about whether it is appropriate to prosecute.

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  15. "But there must surely have come a time when the interests of justice, in the widest sense, would no longer be served by pursuing very elderly men (and possibly also women) in that way".

    I guess that depends on how you define the phrase (and from whose perspective you are defining) the 'interests of justice'. From the view of the victims I suspect a time limit would seem to be most unjust.

    And I rather think that applies to the Hall case as much as to the War.

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  16. But do some crimes become more criminal as time goes by. What was a bit of a lark might now be a terrible racist insult in the eyes of the current people.
    Supposing that a woman was found to have procured an abortion. Shoud she now -years later- end up in the dock?.

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  17. Could the experts kindly explain. Did Mr.Huhne get a larger sentencing discount than Mr.Hall, although Mr.Huhne's guilty plea was the later of the two in the prosecution process ? Or is that mistaken / irrelevant ?

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    1. Mistaken! Huhne got a 10% discount (for pleading immediately before trial) and Hall got 25% for pleading at an Intermediate diet. Those are the normal standards.

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    2. But two months served for an eight month sentence in the Huhne case ? = 8 x 50% discount x 50% served ?

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    3. incorrect. He recieved an 8 month sentence, the 10% already given.

      As with all sentences that are 12 months and below they are normally released at the half way point, the remainder on licence. If they are eligible for HDC then they will be let out around half the time from their EDR.

      So....

      8 months
      EDR = 4 months
      HDC = 2 months
      Standard

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  18. If Hall's sentence is about right, and my feeling is that it's lighter than it should have been, how does it equate with the teacher who has just ended up with five and half years for going to France with one of his pupils, who is still saying she chose to be with him. I accept they were not charged with the same offences but.....................

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  19. There have been calls for the persecution of Stuart Hall. IF the Attorney General takes the sentence to the Court of Appeal then the question is whether the sentence was UNDULY lenient. I do not think it was when all things are considered.

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  20. Jailhouse bird: EDR = Early day release ? And what is HDC ? Thank-you.

    ObiterJ: Persecution and justice ?? Humourous typog. error !

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  21. EDR:- Earliest Day of Release
    HDC:- Home Detention Curfew (I.e. kept indoors on a tag for up to 12 hrs. a day)

    I am not sure that ObJ was joking, as the sentence makes sense as written.

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  22. One Spin off of this case which is very distasteful if the attacks on the Judge- see the Daily Mirror today 24/6.
    I had hoped that muck raking of this sort would be over post Leveson, but it seems it's not.
    Whatever the Judge might have done in his private life, which is not a crime, should not be traweled front page news

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