Issue 191  

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.

5kbw.co.uk

News

'Longer jail terms and stricter monitoring as new terror laws gain Royal Assent'

Key measures include:

  • a new ‘Serious Terrorism Sentence’ for dangerous offenders with a 14-year minimum jail term and up to 25 years spent on licence
  • ending early release for the most serious offenders who receive Extended Determinate Sentences – instead the whole time will be served in custody
  • increasing the maximum penalty from 10 to 14 years for a number of terror offences, including membership of a proscribed organisation
  • ensuring a minimum period of 12 months on licence for all terror offenders as well as requiring adult offenders to take polygraph tests
  • widening the offences that can be classed as terror-connected to ensure they carry tougher sentences and offenders are subject to the Registered Terrorist Offender notification requirements post-release.
  • boosting the disruption and risk management tools available to Counter-Terrorism Policing and the Security Service, by strengthening Terrorism Prevention and Investigation Measures and supporting the use of Serious Crime Prevention Orders in terrorism cases.

Further sections in the Act include:

  • The maximum penalty for the following offences will increase from 10 to 14 years: Membership of a proscribed organisation, Supporting a proscribed organisation, Attending a place used for terrorist training
  • Amend the Serious Crime Act 2007 to allow CT Policing to make a direct application to the High Court for a Serious Crime Prevention Order (SCPO) in relation to individuals over the age of 18 involved in terrorism, supporting their use in terrorism-related cases.
  • Amend the Counter-Terrorism Act 2008 to require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than 2 years was committed in the course of an act of terrorism, or for the purpose of terrorism, to consider whether the offence was committed with a terrorist connection and should be aggravated as such.
www.gov.uk

'Landmark Domestic Abuse Bill receives Royal Assent'

...Police will also be given new powers including Domestic Abuse Protection Notices providing victims with immediate protection from abusers, while courts will be able to hand out new Domestic Abuse Protection Orders to help prevent offending by forcing perpetrators to take steps to change their behaviour, including seeking mental health support or drug and alcohol rehabilitation.

In recent weeks, the government has added new measures to the bill to further strengthen the law, including creating a new offence of non-fatal strangulation, extending an offence to cover the threat to disclose intimate images, and clarifying the law to further clamp down on claims of “rough sex gone wrong” in cases involving death or serious injury... Other measures included in the act include:   extending the controlling or coercive behaviour offence to cover post-separation abuse...

Other measures included in the act include... extending the controlling or coercive behaviour offence to cover post-separation abuse

www.gov.uk

'Twelve Nightingale courts could close in June'

A question mark hangs over the future of 12 Nightingale courts, which are operating under licences that expire in two months’ time. The Ministry of Justice has revealed that 12 of the 30 Nightingale courts in operation have hire agreements which are due to expire in June. Responding to a freedom of information request, the government would not identify which venues are at risk of closure on the basis that the information is likely to prejudice commercial interests. Decisions about Nightingale courts are ongoing. However, the Ministry of Justice said it will continue to consider where Nightingale courts are needed for local operational reasons, and that it remains in close contact with the landlords of all existing venues.

lawgazette.co.uk

'DPP: CPS briefing principles to aid under-represented advocates'

New ‘briefing principles’ will ensure that the Crown Prosecution Service (CPS) delivers equality of opportunity among the advocates it instructs, the Director of Public Prosecutors has pledged. Max Hill QC said chambers would also have to meet diversity and equality standards expectations if they wanted to receive prosecution work. Last month, Mr Hill launched the CPS’s 2025 advocacy strategy, which committed to maintaining “a mixed economy” of employed and private practice advocates. It also promised to give issues such as diversity greater prominence and to publish a new CPS diversity and inclusion statement for the Bar.

legalfutures.co.uk

'Lockdown fines: Fixed penalty notices should all be reviewed'

All fixed penalty notices for Covid lockdown breaches, which can be as high as £10,000, should be reviewed - according to a parliamentary committee. The system is "muddled, discriminatory and unfair", MPs on the Joint Committee on Human Rights argued. More than 85,000 fixed penalty notices have been issued in England since the pandemic began, and 8,000 in Wales. A government spokesperson said it was right there were consequences for those who most flagrantly breached the rules. The JCHR, which is made up of MPs and peers, said it had "significant concerns" about the validity of fines, the inadequacy of the review and appeal process, the size of the penalties and the criminalisation of those who could not afford to pay.

bbc.co.uk

Cases

R v Plaku & Ors [2021] EWCA Crim 568

... The Sentencing Council's definitive guideline on "Reduction in sentence for a guilty plea" ("the guideline") sets out the principles a court should follow in reducing the punitive aspects of a sentence by reason of a guilty plea. These cases have been listed for hearing together because they all raise issues as to the correct approach to determining the appropriate reduction...

... By way of example, a defendant who knows that he is in fact and law guilty of the offence charged, or can be advised to that effect on the basis of the prosecution case against him, is of course entitled to plead not guilty and to challenge the admissibility of the evidence by which the prosecution seek to prove his guilt. He is entitled to plead not guilty and hope that his representatives will be able to persuade the prosecution to accept a guilty plea to a different, less serious offence. But if the admissibility issue is resolved against him, or the prosecution decline to accept any lesser plea, and the defendant then changes his plea, he cannot expect to be given credit for his guilty plea as if it had been entered at a much earlier stage of the proceedings. In such circumstances, the benefits of a guilty plea, identified in section B of the guideline, have not accrued, or have accrued to only a limited extent...

...we summarise the position as follows: i) A defendant charged with an either-way offence will be asked, pursuant to section 17A(5) of the 1980 Act, whether, if the offence were to proceed to trial, he would plead guilty or not guilty. If he unequivocally indicates that he would plead guilty, he is treated as having pleaded guilty, and a reduction of one-third should be made. That is so even if an indication that he would plead guilty is given, not at the outset, but following a reconsideration at a slightly later stage of the procedure in accordance with section 20(7) of the Act. ii) A defendant charged with an indictable-only offence cannot enter any plea before the magistrates' court but will be asked to indicate whether he intends to plead guilty in the Crown Court. If he unequivocally indicates that he does, and enters his guilty plea when he first appears before the Crown Court, a reduction of one-third should be made...

... We consider finally the situation in which a defendant who has not indicated a guilty plea at the first stage of the proceedings, and who does not come within any of the exceptions in section F of the guideline, appears before the Crown Court and asks to postpone arraignment to a later hearing. It follows from what we have said that, even if such a request is granted, there can be no question of the defendant "preserving full credit" until the next hearing. He is already too late to receive full credit, even if he pleads guilty at his first appearance before the Crown Court. If there is good reason for arraignment to be postponed, the judge might be persuaded, as an exercise of discretion in the application of the sliding scale, to preserve credit of one-quarter until the next hearing.

bailii.org

R v Aidid [2021] EWCA Crim 581

A single point is taken on this appeal. It is suggested the judge erred in law in that he failed to direct the jury, alternatively he failed to give them a proper or adequate direction, on the potential consequences of a large intake of alcohol over a period of days on the appellant and its effect vis-à-vis a crime of specific intent...

The judge must avoid conjuring fanciful factual scenarios, but if there is sufficient evidence as to the consumption of alcohol or drugs such as to make it, viewed realistically, a potential issue as regards intent, then regardless of the nature of the accused's defence, in our judgment the correct position was described by Waller LJ in Groark: "if there is evidence of drunkenness which might give rise to an issue as to whether specific intention could be formed by the accused, a direction should normally be given to the jury that a drunken intent was nevertheless an intent, but that they had to feel sure, having regard to all the evidence, that the defendant had had the intent." Or as the court observed in Bennett, "voluntary intoxication had to be treated like any other evidence which tended to show the defendant may have lacked the state of mind necessary to support the offence"...

bailii.org

Other

'Number of pupillage applicants up by 50%'

The number of graduates competing for pupillages rose by over 1,000 this year as the impact of Covid-19 on an already over-subscribed system begins to show. According to Bar Council figures, 3,301 candidates applied for just 246 positions via the pupillage gateway in 2021. On average, applicants submitted around six application each. In 2020, 2,142 applicants competed for 237 pupillages. The figures do not include applications submitted outside the pupillage gateway.

lawgazette.co.uk

'Unreliable witness testimony biggest cause of miscarriages of justice over the past 50 years'

Unreliable witness testimony has been the biggest cause of miscarriages of justice over the past half century, a major new study suggests. The research also suggests that regulations governing the powers of police have been effective in reducing wrongful convictions caused by unreliable confessions. Dr. Rebecca Helm, from the University of Exeter Law School, led the analysis of more than 250 miscarriages of justice that have occurred in England & Wales over the last fifty years. This research has led to a new publicly available database of over 350 convictions overturned due to factual error in England and Wales and elsewhere in the UK, from 1970 to 2016.

The study identified four key contributors to factual error miscarriages of justice in England and Wales—unreliable witness testimony, false or unreliable confessions, inadequate disclosure, and false or misleading forensic science. One hundred and seven (41%) of the cases identified involved unreliable witness testimony. A total 69 (26%) of the cases involved a false or unreliable confession, 55 (21%) of the cases involved false or misleading forensic science and 47 (18%) of the cases involved inadequate disclosure.

phys.org

Obscurity

'Owner of horse called Isis flagged as potential terrorist over payment'

The owner of an unfortunately named horse had her online payments frozen and found herself flagged as a potential terrorist after sending a trainer “funds for Isis”. Susan Govindasamy was hoping to arrange for her nine-year-old Arab horse, called Isis, to attend a training “bootcamp” and agreed to send £500 to cover the costs over PayPal. The 57-year-old had, however, failed to grasp that the wording of her transfer could have grave security implications. Her payment was quickly frozen after the reference - “funds for Isis” - was flagged at PayPal, which feared she may have been trying to fund terrorism.

telegraph.co.uk

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