Issue 140

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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

Cloud Video Platform (CVP)

HMCTS is bringing in a new video platform to enable all parties in a criminal hearing to take part remotely – allowing all magistrate and crown courts in England and Wales to hold secure hearings, making it easier to make sure justice continues to be served.

Most criminal cases are heard in magistrate courts and this technology – available for cases such as remand, custody time limit, and sentencing hearings – will help move people through the criminal justice system in these unprecedented times. This technology will not be used for jury trials, and a judge will decide whether it is appropriate to use in any other hearing on a case-by-case basis.

The Kinly Cloud Video Platform (CVP) is initially being rolled out to 60 magistrates’ courts and 48 crown courts currently open to the public, with others to follow as soon as possible. It is also being introduced to the Civil and Family courts. CVP connects securely to the existing justice video network which links police stations and prisons to courts, and can be accessed by any internet-enabled device with a camera and a microphone. Magistrates’ courts in London, the South-East, the South-West and the Midlands have already begun using CVP, with the first going live earlier this month. It has also been introduced in Crown Courts in Leeds, Sheffield, Newcastle and Hull, with more courts in the South-East set to go live. The aim is for 16 magistrates’ courts and nine crown courts to have access to CVP by the end of next week.

A further update on CVP can be found here.

Coronavirus: Legal Aid Hardship Changes

From 1 May 2020 all representatives at the Crown Court are entitled to submit a claim for hardship under the amended arrangements. This applies when you: have spent at least 1 month on the case, are unlikely to receive final payment for the case in the 3 months following the submission of your claim, can claim for more than £450 on the case (excluding VAT), and are likely to suffer financial hardship.

We will accept that trial delays, and subsequent delays to billing, during the COVID-19 transmission control period will likely result in financial hardship. When this happens for cases you are working on you do not need to submit evidence of the likelihood of financial hardship. For example, bank statements or letters from the bank in support of your claim. Hardship claims can be made through CCD and will be identifiable as a separate bill type.

There is a table to help work out when cases can be billed.

Coronavirus: 'Jury trials face biggest change since WW2'

Coronavirus could prompt the biggest changes to jury trials since World War Two, the head of judiciary in England and Wales has told the BBC. Social distancing could mean fewer jurors at trials and sittings moved to bigger buildings such as university lecture theatres, said Lord Chief Justice, Lord Burnett.

Jury trials across the UK were halted in March due to the virus. "Blue-sky thinking" on restarting them safely is ongoing, said Lord Burnett. If social distancing lasts for months, Lord Burnett warned: "It is going to be necessary to look at more radical measures to enable jury trials to continue. I would support a move to reduce the number of jurors. That was done during the Second World War. Plainly, it would be easier to ensure a safe trial for everybody, with social distancing and other precautions."

Coronavirus: Jury Trials Update

The Jury Trial Working Group, chaired by Mr Justice Edis, and including representatives from across the Criminal Justice System and legal professions, met yesterday to progress plans to restart jury trials as soon as appropriate arrangements are in place to ensure it is safe to do so. A small number of Crown Courts which may be suitable because of their size or design have been identified for further assessment as potential venues in which to conduct the first jury trials, whilst adhering to social distancing and ensuring the health and safety of all court users.

It was recognised that this is the first step in assessing the viability of such a hearing during the COVID-19 pandemic. These courts will be assessed over the course of the next week with support from colleagues from Public Health England and Public Health Wales, with a view to determining whether jury trials will be possible, and the result of these assessments will be reported back to the group at its next meeting next week.

Coronavirus: Another Wrongful Conviction

A teenager in Oxford was wrongly convicted and sentenced under Welsh coronavirus legislation as concerns mount over the “casual criminalisation” of people under lockdown. Lewis Brown, 18, said he was visiting his vulnerable mother to give her money when he was arrested by Thames Valley Police.

He was charged under Schedule 21 of the Coronavirus Act, designed to direct potentially infected people to be screened, despite no indication that police believed him to be ill with Covid-19. The officers charged him with offences under paragraph 67 of the act, which relates to potentially infectious people in Wales.

Cases

R v Booth [2020] EWCA Crim 575

For 35 years the approach to dishonesty in the criminal courts was governed by the decision of the Court of Appeal Criminal Division in R v Ghosh [1982] QB 1053. In Ivey v Genting Casinos (UK) (trading as Cockfords Club) [2017] UKSC 67; [2018] AC 391 the Supreme Court, in a carefully considered lengthy obiter dictum delivered by Lord Hughes of Ombersley, explained why the law had taken a wrong turn in Ghosh and indicated, for the future, that the approach articulated in Ivey should be followed. These appeals provide the opportunity for the uncertainty which has followed the decision in Ivey to come to an end. We are satisfied that the decision in Ivey is correct, is to be preferred, and that there is no obstacle in the doctrine of stare decisis to its being applied as the law of England and Wales.

R v Gordon Park (Deceased) [2020] EWCA Crim 589

On 28 January 2005, at the conclusion of a two-month trial in the Manchester Crown Court before McCombe J (as he then was) and a jury, the appellant (then aged 61) was unanimously convicted of the murder of his (then) wife Carol Park (“CP”) some 28 1⁄2 years previously, in the summer of 1976. He was sentenced to life imprisonment with a minimum term of 15 years. His renewed application for permission to appeal against conviction was refused by the full Court in November 2008. On 25 January 2010, which was his 66th birthday, the appellant committed suicide in HMP Garth. The case has since been examined by the Criminal Cases Review Commission (“CCRC”) following an application made by the appellant’s widow, Jennifer Park, in written Representations dated 17 August 2010. On 26 October 2018 the CCRC referred the conviction to this Court under section 9 of the Criminal Appeal Act 1995...

For the reasons set out above, we have no doubt as to the safety of the conviction. Therefore, the appeal is dismissed.

Other

'Non-jury trials could help clear coronavirus backlog, says QC'

Defendants should be allowed to opt for trial by judge rather than in front of a jury, a prominent human rights lawyer has proposed, as a means of partially restarting the criminal justice system. Geoffrey Robertson QC, a barrister who has served as an international tribunal judge, believes British courts could follow many Australian states that permit the accused to choose a hearing without the traditional jury of 12 men and women.

'At what price justice? When less is not more'

The empirical research showed that larger juries were able to more accurately recall the evidence between them, meaning there was less chance of a mistake of fact. These juries also were more contentious, which led to proper debate of the evidence. Moreover they seemed to reach the correct ruling more often compared to smaller juries. Additional research conducted by Jeff Suzuki showed that in cases where there was some doubt as to the accused’s guilt, a 12 person jury would convict less than 10% of the time whereas a six person jury would convict 25% of the time. The latter two findings therefore suggesting that as juries numbers reduce, they are more likely to make more errors in acquitting the guilty or convicting the innocent.

Whilst it is impossible to have any direct insight into the actual decision making processes which take place behind the closed doors of the jury deliberation room, what seems clear from the studies conducted is that six and 12 person juries are not functionally equivalent. Smaller juries have a significant adverse effect on the outcome of trials and it is much fairer to have a jury of 12 rather than six. But will the Government’s need to progress trials, particularly for those with effective custody time limits, result in a decision which is not in the best interests of justice?

Issue 140 2nd May 2020