It means judges will use a 30 year starting point – rather than 15 – for deciding the minimum term to be served before parole.
This brings it in line with murders motivated by hostility towards race, religion and sexual orientation, as well as murder for gain, double murders, gun murders, murders of police or prison officers and murder with a sexual or sadistic motivation. By contrast, murders involving the use of knives brought to the scene attract 25 year starting points and the less serious cases remain at 15 years.
Of course this doesn’t mean that murderers of disabled and transgender victims have been getting away with half the sentences of other hate crime killers. Judges have the power to increase or decrease the minimum term based on the circumstances of the case, including the vulnerability of the victim. There also remains the fact that evidence is required to prove that the killing was aggravated by hostility based on the victim’s disability or gender. In some cases the reason for the murder remains unclear.
Some cases from the archives:
In September this year Leon Fyle, 23, was jailed for a minimum of 21 years for the the murder of transsexual Destiny Lauren. Fyle strangled her and took her mobile phone and jewellery after visiting her flat in Kentish Town in 2009.
The same month two men and a woman were given minimum terms of between 21, 20 and 18 years for the murder of Gemma Hayter in Warwickshire. She was abused for years before being tortured to death and dumped by the side of a railway line.
In 2007 James Hopkins, 42, was jailed for a minimum of 17 years for the murder of transsexual Robyn Browne. The judge found that he went there to steal her property, stabbed her nine times at her flat in Marylebone in 1997. The guidelines for minimum terms did not apply because the killing took place before 2003.
The murder of Kellie Telesford in Thornton Heath in 2007 remains unsolved. An 18 year-old man was charged with murder but was acquitted after a trial in 2008.
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For a run-down on how sentencing is decided in murder cases see our blog on Murder Law.
The murder of Danny O’Shea in east London last week highlighted one particularly divisive issue – when can you classify a murder as racially aggravated?
There have been questions – particularly from what you might call ‘right wing organisations’ such as the BNP – as to what exactly distinguishes the murder of a black victim by a gang of white attackers from the murder of a white victim by a gang of black attackers.
While the mother of Danny O’Shea has explicitly stated that her son’s killing was not a racist murder, it is suggested that the mainstream media are all too happy to leap in with the term when whites are responsible. Similarly, it is claimed, they are often happy to use the term ‘honour killing’ when its application to a particular case is debatable.
a) at the time of the offence (or shortly before or after), the offender demonstrates to the victim hostility based on the victim’s membership (or presumed membership) of a racial or religious group, or
b) the offence is motivated wholly or partly by hostility towards members of a racial or religious group based on their membership (or presumed membership) of that group.
Demonstrating hostility is not defined by the Act. The ordinary dictionary definition of hostile includes simply being “unfriendly”. Proving this limb of the offence requires evidence of words or actions which show hostility toward the victim. However, this hostility may be totally unconnected with the “basic” offence which may have been committed for other, non-racially or religiously motivated reasons. For example, an assault which takes place because of an argument over a parking place, but where the offender then utters racial abuse to the victim of the assault would come within the scope of this part of section 28.
In practice, it usually requires strong racist language to be used in the course of the attack. The police have not revealed any detailed information about what was said or done during the attack on Danny O’Shea, and (more to the point) have in fact stated that ‘there is nothing to suggest Danny’s murder is racially aggravated’.
This could change. Or it could not. Speculation on the limited facts available, in a bid to put forward a particular political point of view, is not particularly helpful given that the investigation is ongoing. An 18 year-old man is dead and the priority is to ensure his killer or killers are brought to justice.
UPDATE: This is the murdermap case summary after the case came to trial. There was no mention of racism at all – the victim was ‘in the wrong place at the wrong time’.
On June 20, 2012, detectives charged nine men with murder and conspiracy to commit grievous bodily harm: Paul Johnson, 33 (3.03.79) of Harrow, Kevin Richards, 32 (31.12.79) of Willesden, O’Neil Wareham, 29 (16.09.82) of Harrow, Andrew Johnson, 35 (1.04.77) of Harrow; Ferron Perue, 24 (29.09.88) of Birmingham, Nugent Rowe, 29 (1.04.83) of Pinner, Christopher Nathaniel, 40 (9.03.72) of Poplar, Paul Boadi, 34 (24.08.78) of Poplar, and David Hylton, 47 (20.04.65) of central London. A tenth man, Scott Marius, 44, of Maida Vale, was charged with murder in August.
Nathaniel and Boadi were business partners in the NVA Entertainment group which manages the careers of footballers, musicians and other celebrities. He was most well known for negotiating a deal involving footballer Ashley Cole and the rapper Jay-Z.
They went on trial at the Old Bailey on February 6, 2013. The prosecution case was that Nathaniel and Boadi organised a revenge attack after Boadi was robbed of his Blackberry mobile phone by a group of black youths in the same area of Canning Town on November 27, 2011.
Witnesses claimed Boadi shouted ‘this won’t be the end of it’ after the incident.
On 2 December 2011 the group travelled to the scene in a hired minibus driven by Scott Marius, while Nathaniel and Boadi travelled separately by Mercedes.
Nobody witnessed the stabbing but jurors heard that Danny had no involvement in the robbery and was ‘in the wrong place at the wrong time.’
Nathaniel posted a Twitter message hours later saying: ‘The element of surprise is such a beautiful thing.’ He denied this had anything to do the killing and claimed it was a reference to a potentially lucrative deal with four Premiership clubs.
The sports agent claimed that he asked Richards to get a group together to find a ‘peaceful solution’ and retrieve the phone. He denied any intention to get revenge.
His barrister James Wood QC said: ‘Richards indicated he knew how to deal with this kind of situation and he knew how to do this in a peaceable way.
‘What Mr Nathaniel wanted to happen was to be an effective intervention by adult black males. The kids were to be located and Richards as a skilled intermediary would speak to them and attempt to bring some calm and reconciliation to the area.
‘Violence, knives and certainly murder played no part at all in his mind. It was to be a disaster.
‘Those involved in the robbery were never located and some brutal idiot for reasons of his own took out a knife which nobody knew he had and perpetrated a brutal unprovoked killing of a young white man uninvolved in any robbery in a chase which was unplanned and unintended with a tragic outcome.’
Several of the defendants blamed Rowe for the fatal stabbing and told the court that he boasted about ‘shanking’ someone when they returned to the van.
On 13 June 2013 Rowe was convicted of murder. Nathaniel and the seven others were acquitted of all charges. The following day Rowe was jailed for life with a minimum of 24 years before parole.
The idea behind the 1981 Contempt of Court Act was pretty honourable. Everybody deserves a fair trial and to have their guilt decided by a jury rather than be convicted by the ‘Press’.
Since then it has come under increasing pressure from the right to freedom of expression, first in the printed media and more recently the internet, which allows anyone to bellow an opinion in complete ignorance of the Act.
At a time dominated by press misbehaviour and the Leveson Inquiry, perhaps this determination is to be admired, even if it isn’t possibly to prosecute every prejudicial tweet or blog. The hope is that the message goes out that a fair trial is paramount. Fair enough. Perhaps it would be a good thing if the Act was better known by the public.
But at its heart the Contempt of Court is based on a delusion that jurors begin a case equipped with entirely open minds. As if they were twelve virgins who must be carefully protected from the evil, perverted world outside.
Every fact they are given is carefully controlled. They are given access to some some pieces of information, but kept in ignorance of others. They are sent out of the room while the judge decides what they should or shouldn’t hear. They are told not to investigate the case themselves, or carry out research on the internet. They are told to decide a case based on the evidence presented, no matter how poorly or partially presented.
These instructions now take up ten minutes at the start of the case, and are usually rammed home again in summary at the end of each day.
The problem is that everybody in the court knows that it is a complete farce (or as one journalist put it, ‘a comfortable fiction’). The jury almost certainly do go home and look the case up on the internet, or chat to their partners about it, or do a bit of research into a subject they felt wasn’t properly explained. They certainly talk about the case in small groups when not all twelve of them are present.
Where is the research showing this is disastrous for justice? The great miscarriages of justice have tended to be based on flawed police investigations and prosecutions rather than prejudicial reporting.
All this isn’t a necessarily a problem with the Contempt of Court Act. Rather it is a lurking flaw in the justice system itself. Jurors are not virgins, and neither should they be. It is accepted that they can bring their past experience to bear on a case, even if they are a lawyer or a doctor or a police officer (providing they haven’t been excluded from serving on the case for this reason). To this extent they are trusted to approach the case fairly.
So why can’t a jury be trusted to hear the arguments for and against the relevance of a piece of evidence, such as previous convictions? Why can’t the whole process be held in the open?
The argument is that without the Contempt of Court Act the powerful media would run rampant over the course of justice. But it seems a little absurd to trust juries only part of the way. We don’t try to balance juries with regard to gender, sexual persuasion, past experience or political orientation, so why do we pretend that we can protect them from the information and opinion bombarding them every second of every day?
There must be a better way. After all, the Contempt of Court Act came about as a result of the Sunday Times’ reporting of the thalidomide scandal when it was under injunction. Given that the trend is now towards more information, not less, perhaps it is time for the system to change with the times, rather than the other way round.
Quiz question: In what year were jurors first allowed to go home while deliberating their verdicts instead of being shut up in a hotel?
It’s not as long ago as you might think. Or perhaps you believe the quarantining of jurors should never have been abandoned, given the supposed new dangers of prejudice via Twitter and the internet?
But first imagine being a juror in the 19th century. When it came to deciding the case, the twelve men (it could only be men, between the ages of 21 and 60 and with the required property qualification) could be kept without ‘fire, food or water’ until they reached a verdict. This famously happened in 1670 when a jury refused to find William Penn and Willaim Meade guilty of unlawful assembly.
The Jury, John Morgan (1861). Credit: The Proceedings of the Old Bailey
Deadlocked or ‘hung’ juries were apparently not allowed until after 1865, and their decision had to be unanimous rather than the 10 to 2 majority accepted today. Some juries made their choice between guilty and not guilty without even leaving the court.
The Juries Act 1870 gave the judge discretion on how the jury were ‘kept’, and if the trial did not finish within a day they were normally taken to a hotel. At that time a room at the Manchester hotel in the City was reserved for Old Bailey cases.
Jurors were allowed to ‘separate’ during the trial itself from 1948 (Criminal Justice Act, section 35), but for the crucial deliberations they would be shut away from the outside world.
In the year 2011, once the judge has summed up the case, the court usher swears to keep the jury in some “private and convenient place” to prevent them from speaking to anyone until they have reached a verdict.
If by the end of the day they have not agreed a decision they are allowed to go home on condition they do not research or discuss the case until all 12 are present the next morning.
When was the first jury allowed to go home? 1995. The law was changed in 1994 (Section 43 of the Criminal Justice and Public Order Act, effective on February 3, 1995). And on February 16 the Central News Agency reported that legal history had been made during the trial of Melanie Myers, 20, and Clifton Quartey, 18.
Myers and Quartey were accused of stabbing minicab driver and father-of-three Mazhar Hussain, 39, to death during a botched robbery in Wembley, northwest London.
After spending the night at home, the jury returned to continue their deliberations and a few hours later convicted Myers of murder and Quartey of manslaughter. Myers was jailed for life and Quartey was sentenced to four years in a young offenders institution.
The changes in the way the justice system has treated juries over the years suggests that ordinary members of the public are being trusted more and more to do their duty despite the potential risk of interference and prejudicial information.
Could this trend go further? Perhaps in the future juries will be allowed to hear the legal arguments of prosecution and defence counsel about the admissibility of evidence, and be able to ignore irrelevant background information. Perhaps the online newspapers and Twitterers/Tweeters will one day be able to comment on trials in progress without fear of prejudice (like in the United States, although the defence can apply to have the jury ‘sequestred’).
Perhaps one day juries will not be treated so much like naughty children and the media not viewed as a scandal-mongering beast capable of perverting the brains of anyone it touches. It seems unlikely, given recent events.
Forget the legal inaccuracies, the irrelevant sub-plots and the intrusive commercial breaks. What really killed off ITV’s The Jury was a lack of confidence in courtroom drama.
It looked promising enough. Written by the Oscar-nominated author of Frost/Nixon and The Queen, Peter Morgan, The Jury was screened over five consecutive days and starred Julie Walters as an admirably irritating defence QC with a touching addiction to nicotine.
According to Morgan, it sought to ‘unlock the personal stories’ of the jury ‘by having a crime whodunnit going right through it like a skewer.’
Julie Walters QC in The Jury
The whodunnit part was reasonable enough, and seemed to be partly based on the case of Barry George, the man convicted and then acquitted of the murder of Jill Dando following the exclusion of microscopic forensic evidence.
Its real stars were the jurors, a disparate bunch all with their own problems to sort out at the same time as deciding the fate of an alleged serial killer. The teacher having an affair with a student, the immigrant hoping to move to America, the firefighter obsessed with getting a tan. So far, so melodramatic. It was after all a fictional drama, and perhaps the disregard for reality wasn’t that important. As it happened, many of the complaints about inaccuracies (a lot of them from lawyers) were themselves inaccurate.*
But what really undermined it was the lack of screen time given to the court process itself. The fictional trial lasted only five days, featured only three or four witnesses, speeches from both counsel and the evidence of the man on trial. It was probably only about 30 minutes out of the total five hours. There was some nice banter between the barristers, a few feisty exchanges with witnesses and a shrewd juror realising they weren’t being told the full story (they hardly ever are). But given that cameras are excluded from criminal trials in the UK, it was a massive missed opportunity.
Instead of courtroom drama, we got a succession of sub-plots all tacked on to each other in the hope that the viewer wouldn’t get bored. ‘WTF? Why is the juror writing to the defendant?’ ‘Who is that crazy woman trying to pervert the trial?’ ‘OMG she’s impersonating a juror!’ ‘You can’t look up a case on the internet!’ ‘Witnesses aren’t allowed to talk to jurors!’ It resulted in frustration rather than anticipation.
Private Eye’s ‘Remote Controller’ probably put it best when he wrote: ‘The material frequently suffers from the apradox of many TV legal procedurals. Although the shows are presumably commissioned because of the belief that the process is interesting, panic rapidly sets in that it isn’t interesting enough. So every jury has a juicy personal dilemma nad events such as jury-nobbling and impersonation of a juror, which must in reality be very rare, hover over proceedings.’
The audience, like the jury, was asked to reach its own verdict based on a meagre explanation of the evidence and some table-thumping commentary from the barristers. The fingerprint on the glass in one victim’s bedroom, the mobile phone ‘pinpointed’ at another’s home, the internet dates with all three women. Oh, and the bit of blanket found in the suspect’s car, which the jury wasn’t meant to know about.
There was also a staggering disregard for the victims’ families. Where were they? Oh, that’s right, they were represented by a sister and a brother who wilfully sought to pervert the course of justice and imprison an innocent man. It’s no wonder that John Cooper QC called it ‘insulting to victims of crime.’**
So for the next series (and there definitely should be a second series, despite the failure of the first), let’s have a bit more ambition. Ten hour-long episodes. Hell, make it twenty. Keep the audience hooked by exploring character rather than a succession of unnecessary and over-cooked subplots. If The Killing and the Wire can do it, why can’t The Jury? Have confidence in the courtroom, and the people within it.
*The legal advisor for The Jury was Colin Aylott, a ‘specialist defence advocate’. I expect he is now getting a lot of stick.
** Public reactions on Twitter included: ‘omg this is so scary’, ‘judi dench u rock’ [sic], ‘I know i have the attention span of a 2 year old but this is SO slow’, ‘chill out legal tweeters, it’s a drama, it’s not trying to be a documentary’, ‘the jury ended well, could have been two nights though’, ‘I want to be a barrister so bad… and i want to be a juror one day’, ‘well that’s five hours wasted.. preposterous plot twists, three jury members compromised, overacted, overegged melodrama’, and ‘perfect ending for the jury would have been final shot of juror who went off with alan lane dead in her flat.’
