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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
'MoJ could be sued over refusal to backdate legal aid fee increase'
The government could face legal action over its decision to not backdate its criminal legal aid fee increase for current cases. A controversial 15% fee uplift coming into force in September will apply only to new cases. According to the Criminal Bar Association (CBA), the Ministry of Justice has stated that it cannot apply any fee increase to work done in the future under existing legal aid representation orders because it would require a retrospective change to a contractual relationship.
Today, Mishcon de Reya, acting for the CBA, sent the Ministry of Justice a letter before action which asserts the government’s position is wrong in law. Mishcon's letter states that the lord chancellor holds the power to both increase and decrease fees payable to criminal advocates under the legal aid regime. There is no restriction preventing fees being altered in respect of work yet to be undertaken, the letter says. The government’s decision is also not supported by the facts, Mishcon adds. The ministry previously made changes to fees payable under existing legal aid representation orders in respect of future work. In 2013, a 30% reduction of fees was applied to existing representation orders in relation to the most serious, complex and long-running criminal matters.
'Barristers are threatening to delay justice, says minister'
The government has accused the criminal bar of ‘threatening’ to delay justice as it doubled down on its controversial legal aid offer. Criminal Bar Association chair Jo Sidhu QC told striking barristers outside the Royal Courts of Justice on Monday that justice secretary Dominic Raab could end the strikes immediately with one phone call signalling that he is willing to talk.
The CBA insists a 25% fee uplift is necessary to prevent a further attrition of criminal barristers from the profession. However, justice minister James Cartlidge told the House of Commons yesterday that the government’s 15% offer was 'generous'. ‘I urge those engaged in disruption to reconsider so that we can get back to reducing the backlog, instead of threatening to increase waiting times,’ he said.
'Magistrates court staff to vote on strike over Common Platform'
Legal advisers and court associates working in the magistrates court will vote next week on possible industrial action. Members of the Public and Commercial Services Union will hold a strike ballot over the use of the HM Courts & Tribunals Service Common Platform. The union said the decision of the HMCTS Crime Programme Board and senior judiciary to continue the national roll-out came despite months of inaction to resolve concerns about the system and its effect on court staff.
In a statement, the PCS said: ‘Common Platform remains fundamentally unfit for purpose and PCS members are no longer willing to have to grapple with a system that is negatively and significantly impacting on their health, safety and well-being.’ The ballot for potential walkouts will begin next Thursday and run until 11 August.
'Reforms to protect victims of intimate image abuse, criminalising “downblousing” and sharing pornographic deepfakes without consent'
The Law Commission of England and Wales has today proposed new recommendations to strengthen the law to protect victims of intimate image abuse. The law reforms, published following a detailed review, would make it easier to prosecute those who take or share sexual, nude or other intimate images of people without their consent.
The Government asked the Commission to undertake a thorough review of the laws around intimate image abuse, following calls for them to go further to capture a wider range of harmful behaviours. The proposed reforms would put in place a clearer legal framework, which would broaden the scope of intimate image offences, so that all instances of intentionally taking or sharing intimate images without consent are criminalised, regardless of motivation. The Commission’s recommendations would also update the law to cover more modern forms of abuse that are currently not offences.
'Ministerial appointments: July 2022'
The Queen has been pleased to approve the following ministerial appointments.
- Tom Pursglove MP as a Minister of State jointly at the Home Office and the Ministry of Justice
- Edward Timpson CBE MP as Solicitor General
- Rt Hon Stuart Andrew MP to be a Minister of State at the Ministry of Justice
- Sarah Dines MP to be a Parliamentary Under Secretary of State jointly at the Ministry of Justice and the Home Office
- Simon Baynes MP to be a Parliamentary Under Secretary of State jointly at the Ministry of Justice and the Home Office
Cases
R v APJ [2022] EWCA Crim 942
... For the reasons we have given we conclude that the verdict returned by the jury is not safe. The issue of the appellant's abuse of steroids and his alleged willingness to lie about that was of critical importance. The jury were provided with the vials without any assistance from the judge as to their possible relevance to that issue given the state of the evidence in the case. We cannot be satisfied that the absence of such assistance made no difference to the outcome. It follows that we quash the appellant's conviction on the count of murder...
... This case serves to emphasise the particular status of the jury in retirement. This is reflected in the oaths taken by the jury bailiffs. Once a jury are sent into retirement, they are kept in seclusion and permitted to separate only after being brought back into court and given the relevant directions by the trial judge. Any note concerning the case sent by a jury in retirement must be taken to the trial judge who, subject to the exceptions identified in Gorman, must then ensure that counsel in the case are aware of the note. If a note simply asks for an exhibit produced in the course of the trial, it will be a matter for counsel whether they wish to raise any issue with the judge. Even if they do not, it will be for counsel to ensure that the correct items are sent in to the jury. Where the note (as in this case) asks specific questions, it must be discussed in the jury's absence, but in open court, with counsel for all parties. The judge will consider any submissions from counsel before answering the questions. When the questions are answered, this will be in the presence of the jury in open court. This process is required in order to preserve the integrity of the trial process.