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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
'CPS misunderstood law on illegal entry into UK, Court of Appeal rules'
Three asylum seekers who were jailed after they were intercepted crossing the English Channel had their convictions overturned this week by the Court of Appeal, which held that the Crown Prosecution Service misunderstood the law on facilitating illegal entry into the UK. All three were alleged to have steered a boat carrying migrants from France towards the UK and were convicted of an offence of assisting unlawful immigration under section 25 of the Immigration Act 1971. They were sentenced to between two and six years’ imprisonment.
The Court of Appeal said it is necessary under section 25 for the prosecution to prove that someone ‘facilitated the “entry” without leave into the United Kingdom of a non-EU citizen’. Where a person disembarks at a port and remains within its ‘approved area’, they do not ‘enter’ the UK. However, investigators adopted ‘a heresy about the law’, which was ‘passed on to those who prosecuted them, and then further passed on to those who were defending them and finally affected the way the judges … approached these prosecutions’, Lord Justice Edis said...
'Court of Appeal hate crime guidance ruling'
The Court of Appeal has ruled on a case involving the College of Policing’s hate crime operational guidance. A previous High Court ruling found the guidance to be lawful. This was challenged in the Court of Appeal, which ruled that the guidance disproportionately interfered with freedom of expression in its current format...
'New Queen’s Counsel welcomed by Lord Chancellor'
Her Majesty The Queen has approved the appointment of 101 barristers and solicitors as new Queen’s Counsel (QC) in England and Wales. The title of QC is awarded to those who have demonstrated particular skill and expertise in the conduct of advocacy.
'Attorney General refers the sentences of Arthur Labinjo-Hughes’ killers to the Court of Appeal'
The Attorney General, Rt Hon Suella Braverman QC MP, has referred the sentences of Emma Tustin and Thomas Hughes to the Court of Appeal under the Unduly Lenient Sentence (ULS) scheme. Emma Tustin, 32, was convicted of the murder of her 6-year-old stepson, Arthur Labinjo-Hughes. The victim’s father, Thomas Hughes, 29, was convicted of his manslaughter. Both offenders were also convicted of child cruelty... The offenders were sentenced at Birmingham Crown Court on 3 December 2021. Emma Tustin was sentenced to life imprisonment with a minimum term of 29 years, and Thomas Hughes was sentenced to 21 years’ imprisonment...
Cases
R v Bani [2021] EWCA Crim 1958
The cases have been grouped together because they all involve the same issue. Each of the four appellants is alleged to have steered a Rigid Hulled Inflatable Boat ('RHIB') from France towards the United Kingdom, which was carrying migrants...
We grant leave to appeal against conviction in each of the four cases and any necessary extensions of time. It is agreed that this is not a "change of law" case, and we accept that. As is clear from Kakaei the law had been established for a considerable period of time. We invited the Crown Prosecution Service to help us on how it came about that the law was misunderstood when investigating, charging and prosecuting these cases. It appears that when drone technology enabled interception of the small boats at sea more regularly, and the number of small boats also greatly increased, criminal investigations and subsequent prosecutions were launched for summary offences under section 24 of the 1971 Act and either way offences under section 25 without any careful analysis of the law and appropriate guidance to those conducting interviews, taking charging decisions, and presenting cases to courts. It appears also that the judges in the small number of courts where these cases are tried, and defence practitioners followed the flawed view of the law which developed without conducting analysis of their own resulting in an erroneous shared approach. Although this is obviously less than ideal, allocating blame is less important than sorting out the consequences...
In these small boat cases the facilitator at the time of the act must be proved to have known or had reasonable cause to believe that the migrant who s/he was facilitating would enter the United Kingdom without leave if no other means of entry became possible. If those on a vessel set off intending to be intercepted, but also intend that if they are not intercepted then they will land on a beach, then the journey prior to interception will be an attempted breach of immigration law by them. If they are intercepted then the entry which actually happens will be lawful, but by then the offence has already been completed. If landing on a beach if necessary was within the plan of (one or more of) the migrants, then it would be open to the jury to conclude that the helmsman assisted an unlawful entry even if the boat was ultimately intercepted. In this situation the facilitator would have assisted an attempted breach of immigration law. If, on the other hand, the facilitator knows that the only way in which the migrant intends to enter the United Kingdom is by being brought ashore by the UK Border Force, then he will not be committing the offence, unless he has reasonable cause to believe that this will not be possible. If he is the helmsman, he will be the one putting the migrants' plan into action and the jury may conclude that he must therefore know what it is...
Miller v The College of Policing [2021] EWCA Civ 1926
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this appeal, sets out the national policy in relation to the monitoring and recording of what are described in the Guidance as non-crime hate incidents. At the root of the challenge is what is called perception-based recording. Specifically, the policy that non-crime hate incidents must be recorded by the police as such (against the named person allegedly responsible) if the incident is subjectively perceived by the “victim or any other person to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender” and irrespective of any evidence of the “hate” element. The lawfulness of the relevant parts of the Guidance is challenged as contrary to the appellant’s right to freedom of expression, both at common law and as protected by Article 10 of the European Convention on Human Rights (the Convention)...