CPS News Brief

North Yorkshire postmaster found guilty of murdering his wife

Robin Garbutt, of Melsonby, North Yorkshire, has been found guilty of murdering his wife, Diana Garbutt, and then lying about an attempted robbery to cover his tracks, CPS North Yorkshire said today.

Andrew Moore, District Crown Prosecutor from CPS North Yorkshire, said:

“Diana Garbutt’s life was cut brutally and tragically short. Her family is left to forever mourn her loss. She was violently bludgeoned to death by her husband as she lay sleeping. It was a callous crime motivated by the basest of human characteristics.

“Robin Garbutt went to great lengths in creating a cover story involving a robber with a gun, bludgeoning his wife to death: a story which he maintained throughout the trial - lying about his finances, lying about his relationship with his wife and lying about the robbery - to conceal his appalling crimes.

“We have worked closely with North Yorkshire Police to build a robust prosecution case and secure justice for Diana. Our thoughts are with her family and we hope that today’s conviction will bring them some measure of comfort and peace.”

DPP invites defence to appeal convictions of Ratcliffe-on-Soar protestors

The Director of Public Prosecutions, Keir Starmer QC, has written to the legal representatives of 20 protestors convicted of conspiracy to commit aggravated trespass after a protest at Ratcliffe-on-Soar power station, inviting them to appeal the convictions.

On 28 January 2011, Mr Starmer asked Clare Montgomery QC to review the case of those protestors convicted in December last year. Ms Montgomery has now completed her review and given her conclusions to the DPP. Mr Starmer said:

“I instructed Ms Montgomery to review the safety of the convictions of the individuals convicted at Nottingham Crown Court on 14 December 2010 in light of non-disclosure of material relating to the activities of an undercover police officer.

“Ms Montgomery has now completed her review and, having carefully considered her conclusions, I believe that the safety of the convictions should be considered by the Court of Appeal as soon as possible.

“The prosecution cannot lodge an appeal to the Court of Appeal save in very limited circumstances, which are not met here, and in my letter I have invited the defence to lodge an appeal and to include the issue of non-disclosure of material relating to the activities of an undercover police officer in any grounds of appeal.

“I have also indicated that the CPS will assist in any steps necessary to expedite the appeal.

“The safety of the convictions is a matter that can only be dealt with by the Court of Appeal.

“I am satisfied that, despite the ongoing reviews into what happened in this case, this is the only proper course of action. It would be wrong if, having reached this conclusion, I waited until the reviews were completed before contacting the defence about a possible appeal.

“As reviews into the handling of this case have yet to report, it would not be appropriate for me to comment further on any issues involving the undercover officer.”

• The 20 protestors were found guilty of conspiracy to commit aggravated trespass at Nottingham Crown Court on 14 December 2010.

• We offered no evidence at Nottingham Crown Court on 10 January 2011 against six people charged with conspiracy to commit aggravated trespass.

CPS Diary - Week of 18 April

Monday 18 April

• The two-day trial of Susanne Ibru, charged with harassing footballer Rio Ferdinand, will begin at Macclesfield Magistrates’ Court.

• Former Brookside actor Brian Regan will appear for a preliminary hearing at Liverpool Crown Court. He is charged, with two others, for the murder of Bahman Faraji in Liverpool on 24 February.

• The trial of police constable Anna Glynn and her partner, Lee Wilton, will begin at Southwark Crown Court. Both are charged with conspiracy to pervert the course of justice.

Tuesday 19 April

• Andrew Laycock will be sentenced at St Albans Crown Court after pleading guilty to 17 counts of making indecent images of children and one count of possession of more than 5,700 indecent images.

CPS strongly supporting FA's new Kick It Out film tackling anti-Semitism in football

Nick Hawkins, lead on football matters for the Crown Prosecution Service, attended the launch today of the Football Association’s new Kick it Out film tackling anti-Semitism and anti-Jewish abuse in football, featuring Frank Lampard, Ledley King and Kieran Gibbs.

The film, entitled The Y-Word, has been written and produced by David and Ivor Baddiel, in conjunction with Kick It Out, football’s equality and inclusion campaign, Maccabi GB, Community Security Trust, The Shoresh Foundation and Fahrenheit Films.

The minute-long film explores the use of the word ‘Yid’ by football supporters. Nick, Chief Crown Prosecutor for CPS Wessex, said:

“The CPS condemns any form of racism and anti-Semitism and we are strongly supporting Kick it Out in its action to eradicate anti-Semitism in football.

“Our football prosecutors, working with the police, will prosecute robustly anyone committing this type of criminal activities where we have sufficient evidence to do so. Families watching a football game should enjoy singing chants during a match but should not be offended insulted or feel threatened by these chants.”

CPS Update - Thursday 14 April

• It has been reported this morning by the Guardian and the Times (paywall) that some concerns have been expressed about the CPS using a single advocate (instead of leading counsel supported by a junior) in murder trials.

The CPS has not changed its approach to instructing counsel - we always instruct according to the needs of each case. It is not correct that government spending cuts have forced the CPS to ask counsel to prosecute alone, without a junior, in murder trials involving several defendants.

In June 2009, well in advance of the announcement of the 2010 Spending Review, the CPS produced guidance on selecting prosecuting advocates which included criteria for deciding the number of advocates in a case. This diagram explains the issues that are taken into consideration.

It has never been automatic for the prosecution to instruct more than one advocate in any case, even when the charge is a serious one such as murder. The complexities of the case and the issues which may arise have always been among the deciding factors on whether more than one counsel should be instructed.

Cases are kept under review and where the case dealt with by single counsel becomes more complex – for example if further evidence comes to light or more defendants are arrested and charged – then the CPS will review whether another barrister needs to be instructed. If this is necessary with the case highlighted in today’s Guardian and Times, then it will be reviewed.

The Spending Review presents the CPS with challenges which the DPP, Keir Starmer QC, has said it can meet through its Core Quality Standards, which remain unaffected by the Spending Review. He has said: “Core Quality Standards are a means of making the organisation more efficient, and able to consistently deliver quality in the new financial environment. This is an opportunity to look at how the CPS does things and ask if it could do things differently and better.” You can see the DPP talking about the impact of the Spending Review in a video on our website.

• We have asked the Times to correct its story in today's paper and online (paywall) that says: "Each local director [of the CPS] has agreed to reduce staff numbers by 50 per cent from the December 2009 baseline by the end of March 2014, and a voluntary early release scheme has been offered.”

This is not correct. The 50 per cent figure applied only to HQ, not the local Areas, and it did not apply to the casework divisions such as Counter Terrorism, Special Crime or Organised Crime. It was not a 50per cent cut for each HQ Directorate but an overall figure for head quarters. The local Areas have not been given a target of 50 per cent reduction in staff.

The voluntary early release scheme has ended in HQ and in fact closed in mid-March. It has led to a 38 per cent reduction in HQ staff and the CPS is well placed to meet the headquarters target over the Spending Review period. Area voluntary release schemes are underway with a view to releasing 250 to 300 staff from across the Service in the next year

Domestic Violence: the facts, the issues, the future

Keir Starmer QC gave a speech this afternoon at our headquarters entitled Domestic Violence: the facts, the issues, the future. The DPP said domestic violence is a "serious and pernicious" form of crime and that while much progress has been made in prosecuting offenders in recent years, police and prosecutors must do more to tackle it. Recent statistics show that nearly one million women are abused every year, two are killed every week by partners or ex-partners and more than half of all victims of serious sexual assaults have been attacked by partners or ex-partners.

Figures also show that young women between the ages of 16 and 19 are the most at risk of domestic abuse (12.7% according to the British Crime Survey). Mr Starmer said: "What that tends to show is that there may be a next generation of domestic violence waiting in the wings.”

The criminal justice system has made real progress in prosecuting domestic violence offences in the past decade, raising the conviction rate from 49% to 72%, but the DPP said there is no room for complacency – a change in attitude is needed and this issue must be tackled head-on.

You can read more in our press release and read the speech here.

Statement from DPP Keir Starmer QC and ADC John Yates on phone hacking

Joint statement from Metropolitan Police Service Acting Deputy Commissioner John Yates and Director of Public Prosecutions Keir Starmer QC:

"There has been a significant amount of interest in recent weeks among the media over understanding of the complex law in respect of phone hacking, particularly in relation to the prosecutions of Goodman and Mulcaire. We have both written to, and appeared before, the relevant Parliamentary Select Committees providing detailed evidence on this matter to give an account of our best understanding of what took place five years ago.

"Neither of us had responsibility for this case at the time it was originally prosecuted. We have, therefore, both sought to interpret, as best we can, the original documentation and the recollections of those involved. The relevant information is now in the public domain.

"We, and others in our organisations, would now like to focus together on the current investigation, in the same way that we work closely and constructively on a daily basis on numerous other cases and complex issues."

CPS Update - Sunday 10 April

We have authorised charges against Able Seaman Ryan Samuel Donovan in relation to the shootings on HMS Astute in Southampton on Friday.

Nick Hawkins, Chief Crown Prosecutor of CPS Wessex, said:

“I have been working closely with Hampshire Constabulary and now have authorised them to charge Able Seaman Ryan Samuel Donovan with the murder of Lieutenant Commander Ian Thomas Molyneux and the attempted murder of Petty Officer Christopher Brown, Chief Petty Officer David McCoy, and Lieutenant Commander Christopher Hodge.

“Having reviewed the evidence, I am satisfied that there is sufficient to charge him, and that it is in the public interest to do so.

"I must remind the media to take care in reporting events surrounding this case. Mr Donovan has been charged with serious offences and is entitled to a fair trial. It is extremely important that nothing should be reported which could prejudice any trial.”

Mr Dovonan will remain in police custody until he is due to appear before Southampton Magistrates’ Court tomorrow morning, Monday 11 April 2011.

BT and Phorm Q&A

We’ve seen a few questions come up regularly on social media since we announced our decision in the BT/Phorm case this afternoon. We hope these answers are helpful:

Is ignorance of the law a defence?

It is important to draw a distinction between a legal defence, which may be used in court and would affect whether there was sufficient evidence for a realistic prospect of conviction, and the public interest factors against prosecution.

It is a well-established principle (set out in the Code for Crown Prosecutors) that prosecutors must consider all the circumstances of a case and decide whether a prosecution is required in the public interest before a prosecution can be undertaken.

In this case, BT had been advised that the use of Phorm would not be an offence and it could be reasonably argued that any offending was the result of an honest mistake or genuine misunderstanding of the law. This was only one of several factors – it cannot be separated from the other circumstances and public interest factors in this case and identified as the sole reason why a prosecution was not in the public interest.

Does this set a precedent?

Our charging decisions do not set precedents – each case is assessed on its own facts and merits, not broad similarities, and what public interest factors might or might not apply would depend on the particular circumstances of the case.

What about the right to privacy?

We did consider whether the alleged offending could have constituted a serious breach of the ECHR, which could have been a public interest factor in favour of prosecution if proven. However, we concluded the possible infringement was minor – the data was anonymised, little or no personal data was collected, the data was processed without human intervention and the behaviour in question has not been repeated.

Did BT break the law?

We do decide if there is sufficient evidence for a realistic prospect of conviction (effectively, whether a jury, properly directed, would be more likely than not to convict), but whether or not the law has been broken is a matter for courts and juries to decide – not the CPS. In this case, there is currently insufficient evidence for a realistic prospect of conviction.

CPS Diary - Week of 11 April

Tuesday 12 April

 • The DPP is going to give a speech on Domestic Violence: the facts, the issue, the future at the CPS headquarters in front of an internal audience. We will put the speech on our website at lunchtime.

Friday 15 April

• Bilal Rahman will appear at the Old Bailey for a plea and case management hearing. The defendant is charged with soliciting to murder, inciting religious hatred and collecting information helpful to terrorists.

• Paul Wilson is appearing at Birmingham Crown Court for a preliminary hearing charged with 43 sexual offences.

CPS Update - Friday 8 April

There has been some media coverage of offensive football chants about Emmanuel Adebayor that says we did not consider the chants to be racist. This is not the correct position. Nick Hawkins, Crown Prosecution Service lead on football matters, said:

“The CPS has never been asked by the police to make a decision on whether to charge anyone for these chants, which are clearly offensive and have no place in football. The CPS can only make a charging decision if a complaint is made to the police, and if they then decide to investigate.

“Approximately a year ago the CPS was informally asked by the police on a theoretical basis whether it might be possible to prosecute the people who made these chants if a formal complaint was made. In the absence of a file of evidence, we said, hypothetically, that it might be difficult to prove the racist element of the offence to the necessary standard for a realistic prospect of a conviction in a criminal court.

“If a police force investigates these chants and passes the evidence to us, then we will of course make a considered charging decision based on the evidence uncovered by the investigation.”

CPS decides no prosecution of BT and Phorm for alleged interception of browsing data

We have decided not to consent to a request from an individual to begin a prosecution of BT Group Plc and Phorm Inc in relation to alleged unlawful interception of internet browsing data.

Prosecutions for unlawful interception require the CPS’s consent. After a thorough review of the available evidence, the CPS has decided there is currently insufficient evidence to begin a prosecution under section 1 of the Regulation of Investigatory Powers Act (RIPA) 2000 and it would not be in the public interest to proceed any further.

The PageSense software (later known as Web Wise), created by Phorm and used by BT, stored a cookie on a user’s computer and covertly gathered selected information on their internet browsing habits. The software used this data to automatically target web-based advertisements at the user.

An unannounced trial of this technology, involving about 18,000 BT customers, took place during 2006.

Andrew Hadik, reviewing lawyer for CPS London’s Complex Casework Unit, said:

“We have thoroughly reviewed all of the material supplied by the individual who wished for us to consent to a prosecution, as well as the evidence provided by City of London Police, BT and Phorm. On the basis of the evidence gathered and with advice from legal and technical experts, we have determined the extent and seriousness of the alleged criminality.

“At present, the available evidence is insufficient to provide a realistic prospect of conviction. In the vast majority of cases, we would only decide whether to prosecute after the investigation had been completed and after all the likely evidence had been reviewed. In rare cases, however, it may become clear prior to the collection and consideration of all the likely evidence that a prosecution would not be in the public interest.

“We would only take such a decision if we were satisfied that the broad extent of the criminality had been determined and that we could make a fully informed assessment of the public interest. This is such a case.

“We obtained expert evidence to enable us to understand how the technology worked, how many people were affected and how they were affected. Those are the key elements of the alleged offending. Even if further evidence were available and collected, we are satisfied that it could not change our assessment.

“We have concluded a prosecution would not be in the public interest. As such, consent to a prosecution cannot be given.”

The review identified several public interest factors against prosecution:

• BT and Phorm received considerable legal advice concerning the use of this software and were advised its use was unlikely to be contrary to section 1 of RIPA. The Home Office also provided informal advice that stated the same. Following the second trial, BT received further and conflicting legal advice that led to it halting the covert trials. As there was no evidence to suggest either company acted in bad faith, it could be reasonably argued that any offending was the result of an honest mistake or genuine misunderstanding of the law;
• Both companies cooperated with the police investigation;
• The behaviour in question is unlikely to be repeated. After the first two trials, BT conducted a further single, public trial of the technology (in late 2008). Phorm now requests the user’s consent;
• The trial was of limited duration and limited application. The data gathered was anonymised and processed without human intervention and later destroyed;
• There has already been an investigation by a regulator, the Information Commissioner's Office, which concluded there was “no evidence to suggest significant detriment to the individuals involved” and took no action;
• There is no evidence to suggest that anyone affected by the trial suffered any loss or harm as a result;
• Taking into account all of the above, a court would be likely to impose only a nominal penalty.

Mr Hadik continued:

“The CPS was also asked to consider if an offence had been committed under the Computer Misuse Act 1990 or the Copyright Designs and Patents Act 1988.

“The core alleged criminality in this case was the possibly unlawful interception of data, not computer modification or copyright. Additionally, the same factors that would weigh against a prosecution in relation to the alleged interception would also apply to a prosecution for another offence.”

All of the concerned parties have been notified of our decision.

Notes

• The request for consent was received in September 2008 and the CPS’s initial review of the evidence was completed in June 2009. Expert legal and technical advice was then required, which was received in April 2010. The City of London Police was asked to make further enquiries in May 2010 and the last substantial evidence was provided to the CPS for consideration in October 2010.

• This decision has been taken under section 4.2 of the Code for Crown Prosecutors, which states: “In the vast majority of cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed. However, there will be cases where it is clear, prior to the collection and consideration of all the likely evidence, that the public interest does not require a prosecution. In these rare instances, prosecutors may decide that the case should not proceed further.”

• Section 1 of RIPA states: “No proceedings for any offence which is an offence by virtue of this section shall be instituted in England and Wales, except by or with the consent of the Director of Public Prosecutions (DPP).” This consent is delegated to Crown Prosecutors, although the DPP has approved this decision.

Elliot Morley admits Parliamentary expenses fraud

Former MP Elliot Morley has pleaded guilty at Southwark Crown Court to two counts of false accounting. Simon Clements, reviewing lawyer for the Crown Prosecution Service, said:

“Elliot Morley has today admitted his dishonesty. In doing so, he has accepted that his repeated and fraudulent claims for one mortgage that had been paid off and his excessive claims for another were not legitimate in any way. Mr Morley had claimed he was unaware the mortgage had been paid off. For most of us, paying off the mortgage is a red letter day and members of the public have found it difficult to comprehend his explanation that he was not aware that had happened.

“The Parliamentary expenses system exists to assist the public’s representatives in carrying out their duties, but Mr Morley used it to line his own pockets with just over £30,000 – more than an average household’s annual income. Such behaviour is blatantly dishonest and cannot be excused.”

Background

• False accounting is an offence under Section 17 of the Theft Act 1968. The maximum sentence is seven years in the Crown Court.

• The total amount falsely claimed was £30,428.

• Count 1 - False accounting, contrary to section 17(1)(b) of the Theft Act 1968

ELLIOT MORLEY, between 2 May 2004 and 15 May 2006, dishonestly, with a view to gain for himself or with intent to cause loss to another, in furnishing information for the purpose of making allowance claims produced or made use of documents required for an accounting purpose, namely 19 Form ACA2 claim forms, which to his knowledge were or may have been misleading, false or deceptive in a material particular, in that they stated he was paying £800 per month in mortgage interest, when in fact he was paying a lesser amount.

• Count 2 - False accounting, contrary to section 17(1)(b) of the Theft Act 1968

ELLIOT MORLEY, between 13 May 2006 and 28 November 2007, dishonestly, with a view to gain for himself or with intent to cause loss to another, in furnishing information for the purpose of making allowance claims produced or made use of documents required for an accounting purpose, namely 21 Form ACA2 claim forms, which to his knowledge were or may have been misleading, false or deceptive in a material particular, in that they stated he was paying £800 per month in mortgage interest, when in fact the mortgage had been redeemed, and he was therefore paying no mortgage interest.

CPS Update - Tuesday 5 April

The Director of Public Prosecutions, Keir Starmer QC, has today given evidence to Home Affairs Select Committee on its inquiry into phone hacking.

Last week, the DPP provided further written evidence to the Culture Media and Sport Committee to give a fuller account of the advice on the law that was given to the Metropolitan Police by prosecution lawyers (whether CPS or counsel) in the investigation and prosecution of Clive Goodman and Glenn Mulcaire in 2006-7. Click here to read the letter that the DPP sent to the chair of the CMS Committee on 1 April.

Second man charged in relation to Stockwell shootings

We have authorised charges against a second man in relation to the shootings in Stockwell last Tuesday. Moya Reed, reviewing lawyer for CPS London, said:

“A second man, Kazeem Kolawole (born 23/07/1992), has been charged with two counts of attempted murder, following the shooting of five-year-old Thusha Kamaleswaran and 35-year-old Roshan Selvakumar in Stockwell, London, on 29 March.

“This decision was taken in accordance with the Code for Crown Prosecutors. There is sufficient evidence to prosecute the defendant and it is in the public interest to do so.

“Kolawole will appear at Camberbwell Green Magistrates' Court after 10am on 5 April 2011.”

Another man, Anthony McCalla, was charged on Friday evening.