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Morris-Cotterill: Intent and Motive - The Judge's dilemma

Nigel Morris-Cotterill

Two recent cases in English Criminal Courts demonstrate the difficulty that judges face when sentencing. Neither is a financial crime case but both turn on those most difficult of factors, intent and motive.

Many, I would argue most, people don't understand the difference between "intent" and "motive."

Part of this is because many, potentially most, get their idea of law from what they see on television and in films.

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And that, almost universally, means they think that the American model is the norm when in fact the American model is out of sync with the rest of the Common Law world.

In American criminal courts, a jury can determine, or at least recommend, the sentence. In English courts and those that follow the English model, the Jury determines guilt or innocence and the Judge determines sentence. Or at least, that's the theory - in practice the judge has an extraordinarily complex set of "guidelines" to follow and is discretion is subject to a range of fetters that almost extinguish his power to sentence according to individual facts.

That is why the two cases I am going to examine matter so much. In each case, the judge's powers were severely curtailed and in each case he felt that the "guidelines" - which are in truth instructions - were compelling him to make an Order that he did not consider appropriate.

Denning (see 20210813 Uncommon law, equity and justice; or Denning’s Revenge - here https://financialcrimeriskandcompliance.com/elan/web/20210813_dennings_… ) would be having a fit - and he would without any doubt try to get appeals into his court.

Except that, in the second case, the judge stretched the guidelines to ensure a fair result, despite the risk that his decision would be criticised. In this, Denning would have been proud.

R v Robinson

In R v Robinson (2024 https://www.judiciary.uk/wp-content/uploads/2024/05/R-v-Robinson-Remark…) the Judge said "you were convicted, on the unanimous verdict of the jury, of the murder of your three year old son, Dwelaniyah, and on four counts of child cruelty...’ or, if not, what the ‘minimum term’ should be before the early release provisions can apply to you. I make it clear now that I do notconsider that this is a case where a whole life term is appropriate, but I emphasise that
the minimum term means what it says; you will serve that period before you are eligible even to apply for parole."

A young child was the victim of sustained and serious abuse including beatings, a scalding in dangerously hot bathwater causing serious injury to 20% of his body and a shaking that resulted in his death.

So, there is absolutely no doubt that the child's mother intended harm.

"It is argued by the Crown that the seriousness of the murder in this case is particularly high and that the appropriate starting point is one of 30 years. The basis of that submission is that it is said that I can be sure that you engaged in sadistic conduct towards [the child]. I reject that contention. I have seen no evidence that you gained pleasure, sexual or otherwise, from hurting [the child]...I note that it was accepted by the prosecution that when you shook him you did not intend to kill him."

The events took place over a period of 17 days when Mrs Robinson's husband. and Gabriel Adu-Appau, was away from their home undergoing training with the Royal Air Force in Buckinghamshire. He had no knowledge of what was happening at home during his month away. As the Judge said, Mrs Robinson had full control over the care and disciplining of their two children.

Mrs Robinson had a boyfriend named Innocent and some nine days after the burning incident there was an exchange of mobile phone texts in which Innocent tried to discourage Mrs Robinson from serious punishment but she rejected his attempts. This, the judge did not expressly find but it is here argued amounted to premeditation.

The judge said "Since I am not satisfied that this murder itself was one of particularly high seriousness, the appropriate starting point is 15 years. However, I increase that to reflect the vulnerability of your victim, because of both his age and his previous injuries, the fact that this was a gross abuse of a position of trust by you as his mother, and the fact that it was committed in the presence of another child, your younger son. That would lead me to increase the sentence for the murder alone from 15 to 22 years." The child was the elder of two, and was only three years old at the time of his death.

Mrs Robinson was a follower of a religious group called The Black Hebrew-Isrealites which, amongst other things, encouraged beating children with a stick. She had told friends that she wanted ten children and unbeknown to her husband she was pregnant, claiming that it was the result of a sperm donor.

The judge's sentencing calculation is complex, because each of the offences required different consideration. He bundled them all into a murder conviction and sentenced Robinson to life with a minimum of 25 years before she could apply for parole.

Robinson dismissed her legal team just two days before the end of her trial which, by an awful coincidence, lasted 17 days. Her replacement team withdrew from the sentencing hearing at short notice having not received sufficient instructions for them to prepare. The Court appointed an advocate to review the files and to help the judge but not to represent Robinson. According to the judgment, the only mitigation put forward was that she intended serious harm but not death when she shook the child.

What was not considered was the overall mental health of the defendant. I was shocked that in a case such as this there were no psychiatric or phycological assessments.

The Judge was clearly torn: the child suffered appalling injuries, exacerbated by a lack of care (Robinson said she didn't seek medical help for the scalding injuries because she feared the consequences to herself) and by further abuse. It is not clear whether there was any attempt to make out a defence of diminished responsibility but the question of intent was raised in relation to the death of the child. There appears to be an implied reference to motive: that the child should be punished for what Robinson considered transgressions.

So, motive "why did you do it?" and intent "did you do it knowing what you were doing?" are very different things and were treated differently by the Judge. We might interpret his comments are "I don't care why you did it, I only care that you did it and that you knew what you were doing." That is reinforced by the finding that she intended to shake the child and to cause him harm but not to actually kill him. It's still murder but there is leeway on sentencing. One thing is clear: there was very little sympathy for Robinson.

Nigel Morris-Cotterill is a financial crime risk and compliance strategist. He can be contacted at www.countermoneylaundering.com

R v Potter

Turning now to the case of R v Ivan Potter (https://www.judiciary.uk/wp-content/uploads/2024/05/R-v-Ivan-Potter-sen…). I'm not much given to adjectives in articles like this but this case is heartbreaking.

Ivan Potter stands convicted of the attempted murder of his son Gavin. Mr and Mrs Potter were married for fifty years. For many years, Mrs Potter suffered from chronic obstructive pulmonary disease which resulted in both a serious deterioration in her quality of life and a demand for a high level of care which Mr Potter willingly and dutifully provided. Then she developed cancer that became terminal and again, Mr Potter took care of his wife until she died an unpleasant death.

But Mrs Potter was not the only thing the 81 one year old Mr Potter was dealing with. According to the judge, Gavin "has a number of severe health conditions: most significantly, he has cerebral palsy, kidney disease and learning difficulties. He has profound communication difficulties. He almost certainly lacks capacity to take any significant decisions about his care or his future. He has limited mobility and requires assistance to move short distances across the room. He requires assistance day and night with things as basic as eating, dressing and using a commode."

"Until this happened, he had been cared for by you and your wife from birth. You took early retirement in your mid-fifties and since then have spent your whole life caring for him and, once she became ill, your wife as well. For much of that time you were coping with these pressures while enduring the restrictions imposed on all of us as a result of COVID19, and dealing with your own fears for the future as referred to in Dr Maganty’s report. You have not had a holiday from your caring duties in forty years and your attempts to obtain respite care have not proved successful. You told Dr Meganty, the psychiatrist, “for 45 years there has been no respite … when Maureen has been unwell there had been no respite, never had respite care”. Whatever the reality, you and your wife truly believed that, were your son to go into care, he would not be properly looked after and might even be abused. In the period leading up to the death of your wife, you had stopped sleeping in bed but rather spent your nights propped up in a chair next to her in case she or your son woke up and required assistance. You looked after both her and Gavin 24 hours a day. Months before this incident you were noted by others visiting the house as appearing exhausted. You told the psychiatrist why you did it: “I did everything for them because I loved them”. He properly described the care that you provided to your wife and son in the last two years of your wife’s life as “exceptional”. Mr and Mrs Potter had discussed a situation in which they would "all go together."

One day, Mrs Potter died. Five hours later, while Mrs Potter's body was still in the house, Mr Potter administered significant doses of paracetamol to himself and to Gavin and tried to use household gas to kill them both. But Gavin vomited and Mr Potter realised what he was doing and called 999 reporting exactly what he had done.

Gavin spent several months in hospital with a range of problems but none were, after consideration, attributed to Mr Potter's actions.

There was clearly intent. There was clearly motive. The questions came down to whether there was "malice aforethought" which is quite a technical concept and whether Mr Potter had the necessary capacity to form intent such as it reaches the standard required by law.

"This was an attempted murder committed because you genuinely believed that you were doing the right thing by your son. I have no doubt about your deep and enduring love for him. You honestly thought that you could not look after him properly on your own and that nobody else could or would do it adequately. You believed in acting as you did you were being true to the discussions you had with your wife prior to her death. This was a crime not motivated by malice but by misguided love."

The judge went on: "because it happened in the immediate aftermath of the death of your wife. It is clear from the psychiatric report of Dr Maganty and the Pre-Sentence Report that you were a totally devoted couple. Her death had been slow and agonising and must have been difficult for you to witness. You told Dr Maganty that before her final illnesses you had “the best life ever together” but that her last months were “hell for her”.

"As a result of the loss of your wife against the background of your caring duties for her and your son, you were mentally unwell at the time you committed this offence. Dr Maganty has diagnosed you as suffering from a moderate depressive episode and, more significantly, an adjustment disorder. This, he concluded, amounted to a mental disorder resulting in an abnormality of mental functioning. In particular he said that it would have affected your ability to form rational judgments. He is of the opinion that, had your son died as a result of your actions, this abnormality of functioning would likely have been sufficient to found diminished responsibility as a partial defence to murder, thereby reducing murder to manslaughter. This is clearly a case in which your culpability for what you did is significantly reduced by the mental conditions from which you were then suffering."

It is not possible to summarise the Judge's comments: they are brief, to the point and very carefully phrased. So instead of copying/pasting them here, I refer you to paragraphs 16c to 27 of the judgment (https://www.judiciary.uk/wp-content/uploads/2024/05/R-v-Ivan-Potter-sen…),

The single most important point for the purposes of this article is that the Judge found that there was intent and therefore guilt but that motive was a mitigating, not aggravating, factor.

Relevance in financial crime

The cases are important in their own right but why do I refer to them given my concentration on financial crime risk and compliance?

It's because people do not always do as we expect. Unintended consequences happen. People do the wrong thing for the right reason. Intent and motive are entirely separate although even in English courts, prosecutors introduce motive when it has nothing to do with guilt and is therefore not a question that should be before a jury (except in a very small number of specific offences).

We might think that a customer is behaving oddly and therefore we should look more closely or we might think that everything is normal when beneath the surface something hidden is creating a risk.

But most of all, what these cases tell us is that people might look the same from the outside but they are wildly different and those differences mean that we cannot create global profiles. We truly have to know our customers if we are to better manage risk.