On Monday, I attended Hereford Crown Court with my supervisor. We had four cases to deal with as PTPHs. Of particular interest to me was a case involving a convicted sex offender, who had been made the subject of a Sexual Harm Prevention Order. One of the terms of this order is that he is prohibited from accessing the internet, except on devices approved by police and fitted with internet monitoring software.
Another term of the order is that he is prohibited from deleting “any computer history.” Thus, the defendant stands accused of breaching the order by having deleted his computer history after communicating with a girl on his Apple iPhone.
At the start of the hearing, the defence barrister rose to make an application to dismiss. Apparently, the defendant had only communicated with the girl by text messages and phone calls, and had only deleted the record of these — as police fully accept. Counsel submitted that since the order refers to computer history, not text and phone call history, no breach has in fact occurred.
The judge declined to rule immediately. Instead, he invited oral arguments from counsel to be heard on a date in January, with skeletons to be submitted in advance.
As a former student of “cyber-law” (having studied this as part of my masters), I felt my spirits rise at once. What a case! A convicted sexual predator in the dock, an experienced defence barrister on his side, and an argument which may turn on two novel points:
- Can the term “any computer history” encompass the sending and receiving of text messages on an Apple iPhone, and the record of such activity stored on said device?
- Can the term “any computer history” encompass the making and receiving of phone calls on an Apple iPhone, and the record of such activity stored on said device?
Naturally, I volunteered to research and write an opinion. I was even given permission to contact my former cyber-law lecturer to discuss the matter in broad terms and discover what (if any) cutting-edge cases might assist the prosecution. My written opinion is due in a week.
Tuesday began brilliantly. On arriving at the office, I went straight to my line manager to discuss the Pre-Charge Advice entrusted to me last week. Having heard nothing since submitting it, I was fully expecting some criticism. Instead, I was chuffed to hear that for a first advice, it’s outstanding — and will be forwarded to police as is!
The complainant is a person in the public eye; so, I’d felt some added pressure to get this charging decision right. Basically, the case is one of alleged online harassment, involving a tirade of abusive e-mails sent by someone known to the complainant. The sender had used an online alias to mask their identity, although the complainant deduced who it was from certain things they had said.
My advice was not to charge until further evidence is obtained. In particular, I advised seeking an ISP report to link the alias e-mail account to its real-world user, plus a further statement from the complainant to capture the emotional impact of reading the e-mails. I resolved to “stick my neck out” and give definite advice, rather than hedging my bets as I tended to do at Bar School. Also, I approached the case strategically, identifying weaknesses which the defence might later exploit. So, I’m quite proud of my contribution.
… which is just as well, as I was immediately handed another to do!
My fellow pupil and I attended a one-hour conference with the Chief Crown Prosecutor, which had been re-scheduled from our first week. It’s clear that an interest is being taken in our progress from above. We also took part in a telephone conference with the Bar Standards Board regarding the new Barristers’ Professional Statement, which sets out minimum standards of competence that we will be expected to “evidence” by the end of pupillage. Keeping a diary is one possible means of achieving that.
On Wednesday, I worked on my second Pre-Charge Advice: a prison “potting” case, in which an inmate had dumped a bucket full of excrement over two prison officers. After viewing CCTV footage of the incident from multiple angles, I concluded that the evidence is overwhelming and a guilty plea is likely.
At the outset, it was suggested to me that this case might be charged as Common Assault — as often occurs in (e.g.) spitting cases. However, I did some further reading and discovered another charge that I deemed more appropriate: Unlawfully and Maliciously Administering a Noxious Thing with Intent to Injure, Aggrieve or Annoy Another Person (s.24, OAPA 1861).
I found that the word “administer” has been interpreted to cover any act which brings a noxious thing into contact with a victim’s body (R v Simon Paul Gillard  87 Cr App R 189 at 193-4). Direct physical force does not have to be applied; nor does the noxious thing have to be shown to have entered the victim’s body. Therefore, emptying a bucket of excrement over a person can indeed constitute “administering” it to them.
What is “noxious” is a question of fact for the jury. However, the word should be given its dictionary meaning, which includes (e.g.) harmful, poisonous or very unpleasant; injurious to health or physical well-being. Clearly, excrement is capable of such definition.
So, I submitted my advice, justifying a more serious (indictable) charge on the basis that in their witness statements, the complainants said this incident had left them feeling “embarrassed and humiliated” — and had almost stopped them from returning to work. One complainant surmised that the suspect must have collected a mixture of other prisoners’ excrement, not just his own, in order to commit this crime.
On Thursday, I sat down with my supervisor to discuss the “potting” advice. It was suggested that I might have considered charging the offence of Assaulting a Constable in the Execution of Duty (s.89, PA 1996), which can apply to prison officers as well as police. This offence is more serious than Common Assault, though less serious than the one I recommended. However, as it turns out, my supervisor “totally agrees” with my decision in this case and would have taken the same view.
Hence, I’ve submitted two Pre-Charge Advices so far, and both have been approved for sending to police. Not bad for only my fourth week!
Friday was spent at a local law library (with supervisor’s permission), researching ideas for my “cyber-opinion.” I pulled out every title pertaining to the internet. I’m excited to have found a 2011 American case (U.S. v Neil Scott Kramer) which looks to be on point with our own — involving texts and calls made by a sexual predator. I’ve asked my lecturer to obtain the full judgment for me, which she’s kindly agreed to do. However, it remains to be seen whether my pragmatic supervisor would actually cite the Eighth Circuit Court of Appeals to a humble judge in Hereford.
I’ll find out next week.
As a postscript, I’m realising that Pre-Charge Advice is a great opportunity to prepare oneself for advocacy. For example, in summarising what the case is about, I’m drafting in outline the prosecution’s opening speech. In identifying the issues, I’m revealing what needs to be argued in court. And in justifying the charge (or level of charge), I’m crafting a response to any plea in mitigation.
So, I’m very much like the Karate Kid… realising that “Wax On, Wax Off” has a deeper meaning which transcends scrubbing the car!
[Published with the permission of my line manager]