About
A free weekly collection of criminal law links - for practitioners, law students, and anyone with an interest in the criminal justice system of England and Wales.
Curated by Sam Willis, a barrister at 5 King's Bench Walk.
News
Bar Council: Coronavirus
The Bar Council has been making every effort in the last week to ensure the Bar’s voice is heard and that your concerns are being acknowledged as the Covid-19 virus impacts our justice system. There is still a lot for us to do for members of the Bar, but we are making headway, together with SBAs and the Circuits.
So, it is absolutely right that today it was confirmed to me by the Lord Chancellor that barristers involved in court proceedings (including tribunal hearings) are considered key workers, thereby allowing their children to attend nursery, school or college, while they carry on working for the public... I am pleased to say that BMIF has announced that, in these exceptional circumstances, it has decided to adopt measures intended to help members of the Bar who simply cannot pay their full insurance premium, prior to renewal of their 2020/2021 BMIF insurance policy... The QCA Directors have decided to extend the concessionary fee arrangements, by which those with earnings of less than £60,000 are entitled to pay half the usual fees...
Lord Chief Justice: Coronavirus
Trials in the Crown Court present particular problems in a fast-developing situation because they require the presence in court of many different participants including the judge, the jury, a defendant, lawyers and witnesses as well as staff. Given the risks of a trial not being able to complete, I have decided that no new trial should start in the Crown Court unless it is expected to last for three days or less. All cases estimated to last longer than three days listed to start before the end of April 2020 will be adjourned. These cases will be kept under review and the position regarding short trials will be revisited as circumstances develop and in any event next week. As events unfold decisions will be taken in respect of all cases awaiting trial in the Crown Court.
Trials currently underway will generally proceed in the hope that they can be completed. All those attending court should follow Public Heath England guidance suitably adjusted to reflect the distinct features of a court as a working environment for all concerned, including jurors.
HMCTS: Coronavirus
As long as you, or the people who are coming to court with you, do not have confirmed or possible coronavirus (COVID-19) infection or do not need to self-isolate in line with NHS advice, you should continue to use courts and tribunals as usual. This includes those attending for jury service...
However, if you, or the people who are coming to court with you, do have confirmed or possible coronavirus (COVID-19) infection or need to self-isolate in line with NHS advice, you should contact the court or tribunal in which the hearing is due to take place.
Victim Surcharge 5% Increase
Ministers will increase the Victim Surcharge by 5 per cent. The surcharge is imposed by courts on all offenders to ensure they hold some responsibility towards the cost of supporting victims. It will see up to £2 million extra per year go to vital services for victims, such as rape support centres and the National Homicide Service. Today’s announcement follows a pledge to raise the surcharge by 25 per cent, which will be considered as part of an upcoming consultation on a Victims’ Law.
'National bench proposed in magistracy structure shakeup'
The structure of the magistracy is to be overhauled to bring it into line with the rest of the judiciary, the Gazette has learned. Work to develop a framework for a single bench for the magistracy is one of several aims contained in the ‘A Strategy for the Magistracy 2019-2022’ document. The strategy, drawn up by the Magistrates Leadership Executive, was endorsed by the lord chief justice in December but has not been made publicly available.
Duncan Webster, national leadership magistrate, told the Gazette that the government has made clear its intention to abolish local justice areas and create a single bench. The 2017 Prisons and Courts Bill would have resulted in the organisation and leadership of the magistracy being dealt with through a system of circuits – as with the rest of the judiciary. However, the bill was lost when the 2017 general election was called.
'High Court refuses permission for legal challenge over falling rape prosecutions'
Judges have refused permission for a legal challenge over plummeting rape prosecutions to go ahead. The End Violence Against Women (EVAW) coalition accused the Crown Prosecution Service (CPS) of encouraging prosecutors to remove “weak” cases from the system.
Campaigners say rape has now been “decriminalised”, with only 1.4 per cent of reported offences now prosecuted in England and Wales. At a High Court hearing on Tuesday, lawyers representing EVAW asked senior judges to allow a judicial review against the CPS for allegedly moving away from a “merits-based” approach to determining which cases should be prosecuted. But Dame Victoria Sharp and Lord Justice Singh refused permission for a full hearing of the case.
Cases
Ward, R (On the Application Of) v CPS [2020] EWHC 680 (Admin)
As the thrust of his substantive claim, the Claimant alleges that he was convicted of an offence with which he was not charged: he was charged with "common assault", but convicted of "assault by beating". He relies on cases such as Fagan v Metropolitan Police Commissioner [1969] 1 QB 439; (1968) 52 Cr App R 700, R v Lynsey [1995] 3 All ER 654 and R (Kracher) v Leicester Magistrates' Court [2013] EWHC 4627 (Admin), which, he submits, make clear that section 39 of the 1988 Act provides for two discrete, mutually exclusive offences, namely (i) common assault by fear of immediate violence and (ii) battery; and, he says, those cases emphasise the importance of making clear the basis of the prosecution case which the defendant has to meet. He denies that the charge was amended in his presence on 13 February 2018, as the court record indicates.
However, even if the charge had not been amended thus and it had remained as a charge of just "common assault", as I have explained, that general description would have incorporated the more specific "battery" or "assault by beating". We have not seen the evidence; but there is nothing to suppose that, as is usual, the initial charge of assault involved an allegation, supported by the evidence, that the Claimant had used unlawful force on the complainant. The conviction of "assault by beating" would therefore have been open to the magistrates, in any event; and the Claimant did not suffer any possible prejudice or unfairness. He says that he did not know the particulars of the offence against him, but it could be safely assumed from the charge that he was being charged with actually using unlawful force. In any event, there is no evidence that the preparation of his defence would have materially altered if he had known that the allegation against him had been confirmed as actual violence or merely the threat of imminent violence; for example, because there was some point of law or issue of fact that he would have investigated or pursued that he did not in fact investigate or pursue, or he would have attended or been represented at his trial.
Education
'Sex offenders reveal more risk-relevant disclosures through polygraph testing'
Kent research has found that police can better protect the public by using polygraph testing with individuals convicted or suspected of committing a sexual offence. The National Police Chiefs’ Council (NPCC) commissioned report, published on Wednesday 18 March 2020, concludes that voluntary and mandatory polygraph testing increases the likelihood that individuals convicted or suspected of committing a sexual offence will reveal risk-relevant information.