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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
'Two or three Met officers to face court a week, commissioner says'
Two or three Met Police officers per week are expected to appear in court on criminal charges in the coming weeks and months, the force's chief has said. Commissioner Sir Mark Rowley says the public should "prepare for more painful stories" as the force confronts the issues it faces. He said cases included "violence against women and girls offences", such as domestic abuse and sex offences. "There's a trickle of them and more are going to be surfacing," he added.
Sir Mark was speaking to the Greater London Authority's Police and Crime Committee in the wake of the case of PC David Carrick, who admitted dozens of rape and sexual offences against 12 women on 16 January. The Met chief also mentioned the case of PC Hussain Chehab, who pleaded guilty to child sex offences on Tuesday. The Met is currently in a form of special measures, following a series of damning reviews and scandals. Sir Mark urged the public not to lose heart as the Met rooted out hundreds of corrupt officers thought to be serving...
'Record number of cases waiting 2+ years in criminal court queue'
Crown court cases outstanding for more than two years have spiked to 4,893 – a 69% increase. The highest recorded number waiting this long since reporting started in 2014, we have warned. Criminal court statistics for July to September 2022 released 19 January show a significant increase in wait times for cases going to trial. Outstanding caseloads in both the magistrates’ and Crown courts have risen from the previous quarter. The Crown courts saw the backlog grow by 6%, with a further 3,293 cases added to the queue...
“Although the statistics paint a long-term picture of decline in criminal justice, the system can still be restored with proper investment,” said our president Lubna Shuja. “The fact that there has been a 69% increase, from September 2021 to September 2022, in Crown court cases that have been waiting for more than two years, is unacceptable. An inefficient system is ultimately a drain on public money.” Lubna Shuja added: “Investment is needed across all areas of the criminal justice system to ensure progress is made on reducing the backlogs, so victims and defendants no longer face such long waits for justice...
'Legal aid chiefs have 'very productive talks' with unions'
The prospect of criminal legal aid lawyers unionising - a move that would enable them to undertake full-blown strike action - remains on the cards after it emerged that two practitioner groups met union leaders last week. Appetite to unionise has been growing among solicitors since they saw long-running strike action by their self-employed criminal bar colleagues see the Ministry of Justice, under then justice secretary Brandon Lewis, offer a better remuneration package.
Unable to ‘strike’ due to obligations under their government contracts, solicitors have instead been boycotting poorly paid work such as burglary cases. However, following its annual meeting last October, the Criminal Law Solicitors Association decided to commission advice from counsel on forming a union for legal aid lawyers. Today, the CLSA and the London Criminal Courts Solicitors Association announced that their leadership teams jointly met with unions last Friday for ‘very productive talks’. ‘That dialogue will continue in the coming weeks and further updates to the membership will follow at an appropriate time,’ the associations added...
'UK to make ‘failure to prevent fraud’ a criminal offence'
Law firms, accountants and even casinos that do not do enough to prevent fraud, false accounting and money laundering will be targeted in the government’s upcoming Economic Crime and Corporate Transparency bill. UK government security minister Tom Tugendhat said new provisions, which are likely to be based on similar “failure to prevent” offences for bribery and tax evasion, would form part of the bill, which is going through parliament. Such laws have made it easier to prosecute organisations for crimes because prosecutors only need to prove that the organisation lacked “reasonable” or “adequate” controls to prevent the wrongdoing. But for white collar crimes such as fraud by companies, prosecutors currently need to prove that a “directing mind” at the organisation intended to commit the offence.
Former justice secretary Robert Buckland, who has long pushed for such legislation, said he was “very encouraged by developments” after the minister’s announcement. Before the government announcement, there had been cross-party support in the UK parliament for Buckland to bring an amendment to the bill creating the offence. It was also recommended by a House of Lords committee in November...
'UK ban on laughing gas sale or possession poised to go ahead'
The Home Office is preparing to introduce a long-expected ban on the sale or possession of nitrous oxide, one of the most popular recreational drugs among young people, as part of a wider crackdown on antisocial behaviour. The plan is being pushed by the home secretary, Suella Braverman, according to officials, and would lead to people found with laughing gas, which is usually inhaled from balloons filled through small metal cylinders, facing prosecution...
While supplying nitrous oxide for its psychoactive effects is already illegal under 2016 legislation, the gas has legitimate uses, primarily for the production of whipped cream or for freezing food, and it is widely available online. The planned change to the law, first reported by the Times, would permit the gas to be possessed for legitimate reasons – it is also used as pain relief, for example in childbirth – but would ban recreational use and supply, most likely bracketing it under the same classification as cannabis...
'New DNA breakthrough leads to rape and assault conviction being sent back to the Court of Appeal'
The Criminal Cases Review Commission (“CCRC”) has referred a man’s rape and assault convictions to the Court of Appeal after new DNA testing has revealed a potential alternative suspect. Andrew Malkinson was sentenced to life imprisonment after being convicted of rape in 2004. After spending 17 years in custody, he was released from prison in December 2020, on licence.
As a result of scientific developments, experts instructed by the CCRC have now obtained a DNA profile on the victim’s clothing which matched another man on the National DNA Database. In light of this, the CCRC has decided that there is a real possibility that the Court of Appeal will quash Mr Malkinson’s convictions...
Cases
R v AFU [2023] EWCA Crim 23
The applicant, who is Vietnamese, is now 28 years old. During the course of his trial in October 2016 before HHJ Burgess ("the Judge") sitting in the Crown Court at Nottingham, he pleaded guilty on re-arraignment to a single count of conspiracy to produce a controlled Class B drug (cannabis) contrary to s. 1(1) of the Criminal Law Act 1977. It is said that the applicant committed the offence against a background of being trafficked (or smuggled) into the UK. Once in the UK, he was further trafficked, and subjected to exploitation involving forced labour. This trafficking and exploitation compelled him to commit the offence, having left him with no realistic alternative but to act as he did...
... Thus, the unjustifiable failure on the part of the prosecution to take into account the Guidance led to material factors being overlooked. Added to this is the Respondent's acknowledgement that a s. 45 defence would "quite probably" have succeeded. We are confident that the prosecution would have been discontinued at the second evidential stage. Alternatively, the trial court would have stayed the proceedings as an abuse of process, had an application been made. Armed with the fresh evidence it can be seen that the dominant force of compulsion was sufficient to reduce the applicant's criminality or culpability to or below a point where it was not in the public interest for him to be prosecuted and the applicant would or might well not have been prosecuted in the public interest. Further the applicant's involvement in the cannabis cultivation operation was limited in time and he was operating at the bottom of the chain. He was very young, damaged and vulnerable, with no previous record of offending. That there would have been no impropriety in leaving the facts to be evaluated by a jury, the submission relied upon by the Respondent, misses the point. The prosecution would not have been pursued with full knowledge of the relevant facts after proper enquiry. Taking all of the above into account and standing back, we conclude that, on the present combination of very unfortunate facts, this is one of those exceptional cases where there was a clear abuse of process such that the conviction is unsafe...
The principle of finality is undoubtedly important. However, we do not consider that the fact that the applicant pleaded guilty renders his conviction safe on the facts of this case. Amongst other things, as set out above, had the prosecution complied with its duties under the Guidance, the prosecution would not have proceeded in the first place and/or would not have been pursued and/or the applicant would have had a proper opportunity to apply for a stay. And, as set out above, a conviction on a guilty plea in a case involving an abuse of process is as unsafe as one following trial. It would in our judgment be inconsistent with the due administration of justice to allow the applicant's plea of guilty to stand...
Re Soto (Re Section 36 of the Criminal Justice Act 1988) [2023] EWCA Crim 55
On 25 January 2023 we heard two applications by HM Solicitor General to refer sentences imposed for causing death by dangerous driving as unduly lenient pursuant to Section 36 of the Criminal Justice Act 1988. The applications related to two different defendants sentenced in different courts on different days. The cases were unrelated save that both required consideration of the effect of Section 86(2) of the Police, Crime, Sentencing and Courts Act 2022 which increased the maximum penalty for causing death by dangerous driving from 14 years' imprisonment to life imprisonment. The increase in the maximum sentence applies to any offence committed after 28 June 2022. The current sentencing guidelines for the offence of causing death by dangerous driving were first issued with effect from 4 August 2008 by the Sentencing Guidelines Council. They were formulated on the basis that the maximum sentence was 14 years' custody. The sentencing range for Level 1 offences (described in the guideline as "the most serious offences") is 7 to 14 years' custody...
The position can be summarised in this way:
- Applying Richardson and others, sentences for the most serious cases of causing death by dangerous driving must be increased from the levels indicated in Level 1 of the current guideline because offences in Level 1 by definition are the most serious offences.
- Prior to proper consideration by the Sentencing Council of the effect of Section 86(2) of the 2022 Act, sentences for the lower levels of offending should not be increased. It may be that the Council will decide that some increase will be appropriate. That decision will only be taken after full consultation about the effect of any such increase. It is not a matter for this court to consider given the advanced stage of the Council's work on the new guideline. Further, the facts of these applications do not involve the lower level of offending.
- It also will be for the Sentencing Council to determine the appropriate starting point for the most serious cases. It is not for us to re-set the starting point in the current guideline. Judges who sentence cases of causing death by dangerous driving before the Sentencing Council issues a new guideline will use the starting point in the current guideline and adjust the sentence to take account of the increase in the maximum sentence. That is what was done by the judge who sentenced Malcolm Waite. Thereafter the sentence may be increased further to take full account of aggravating factors.
- Even where the case falls within Level 1 and the offence was committed after 28 June 2022, the sentencing judge must make their own assessment of the seriousness of the offence and the culpability of the offender. The increase in the maximum sentence requires the judge to determine whether the interests of justice require a sentence outside the category range for Level 1 offences. That cannot be a mathematical exercise.
- Whatever decision is made by the sentencing judge in an individual case, there must be consideration of the issue of proportionality as explained in Richardson and others and Williams.
Education
'Police investigating rape claims in England believe victim-blaming myths, study finds'
Government-funded researchers have uncovered “striking” evidence that rape myths – such as the belief that a woman’s behaviour plays a part in her rape – are believed by police officers investigating allegations of the crime. A study of specialist rape and sexual offences officers in one large police force gives a rare snapshot into attitudes which researchers warn could be contributing to the 1.6% charge rate in rape cases in England and Wales. One senior officer, who expressed concern at the existence of rape myths in their force, told academics: “We massively pre-judge the credibility of the victim. We investigate the victim more than the offence itself.”...
The study, published in the International Review of Victimology, was based on 17 in-depth interviews conducted in England at the end of 2021 as part of the work of Operation Soteria Bluestone but not included in its year one report. It gave “unique insight” into officers’ unvarnished opinions, the authors said. Researchers from the study said it was “of considerable concern” that some officers did not know what rape myths were. Of those who did, many said they did not affect investigations. But the report found almost all officers interviewed “later proceeded to display various such myths”. One senior officer was told detectives didn’t need to be educated on rape myths. They concluded: “And actually, you know, you can almost start going: ‘Oh my God, no wonder we got problems’.” It also found evidence of victim-blaming, particularly in relation to sex workers. One officer said: “I suppose that is always going to have an impact on the way you think … you know, they’re in these situations because of the job that they do.” The authors said that while the rape myths demonstrated in the study “are not unique […] what is striking is that they were held by officers specifically working on [rape]”...