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.
News
'Crimes with no charges: have police given up on low-level offences?'
Some forces have received hundreds of reports of theft — but no-one will appear in court. Other crimes, including harassment and assault have also seen prosecutions plummet... In the three months to September last year, 751 bicycle thefts were reported to Hampshire police, according to the Home Office — yet the force charged nobody during that period. Up and down the country, many so-called “low-level crimes” have — for all intents and purposes — been legalised, data suggests. Thames Valley recorded 340 cases of blackmail in the three months to September, but charged no one. There were 391 non-life-threatening arson reports in Gwent, but nobody was brought to justice. There were 66 attempted burglaries recorded in Warwickshire, but no charges. And back in Hampshire, 288 people reported being pickpocketed, but no charge. Have police given up on low-level crime? Although these offences are low down the illegality pecking order, they can have a big impact...
Police have always been bad at catching cycle thieves. But the data suggests that charge rates have fallen most dramatically among many of the crimes that the public are most likely to witness. Back in 2015, a quarter of public fear, alarm or distress reports — which includes threats, abuse or harassment, either verbal or physical — led to someone being charged; now it is a mere 3 per cent. The vast majority of public order offences are closed without a suspect or run into evidential difficulties. Charge rates for assault without injury — the most common type of crime — have collapsed from 16 per cent to 3 per cent...
'Police should be given power to charge suspects, say senior officers in England'
The police, rather than independent prosecution lawyers, should have the power to charge suspects in most cases, three senior police chiefs have said, as they warned of a deepening crisis in the justice system. The controversial change is being called for by the chief constables of the West Midlands, Greater Manchester and West Yorkshire forces, respectively the second, third and fourth biggest in England after the Met, the Guardian has learned. They say the Crown Prosecution Service should be stripped of having the sole power to authorise charges in most cases, helping to drag the justice system out of a worsening crisis. This would include for crimes such as domestic abuse, harassment, burglary, robbery, theft, knife crime, and violent crime.
The chiefs say delays in charging suspects are leading to the guilty walking free and delayed justice, as victims and witnesses tire of long waits. They say the CPS – which faced government cuts under austerity – should concentrate on the most serious cases, but is “far too thinly spread” to manage its current workload and increasingly complex cases. The police chiefs say sticking “plasters” no longer work and radical change – in effect a return to the way things were before the CPS was created in 1986 – is necessary and could be enacted quickly.
'Legal aid: Society seeks permission to challenge Raab in court'
The Law Society has asked the High Court for permission to challenge the government’s actions over criminal legal aid reform – declaring that it will do everything in its power to secure a fair deal for solicitors. Society president Lubna Shuja said Chancery Lane was left with no choice but to seek permission to bring a claim for judicial review after the government rejected a proposal of independent mediation. The solicitors' representative body is seeking a judicial review over the government’s response to the independent criminal legal aid review, which was led by Lord Bellamy, who is now a justice minister...
The review, published towards the end of 2021, recommended an immediate 15% uplift for solicitors and barristers. The government published its final response to the review a year later and said solicitor firms would see a total fee increase of around 11%. By contrast, last July, the government laid a statutory instrument implementing a 15% uplift in legal aid fees for criminal barristers, which would apply to new cases from 30 September. A few weeks later, to halt the criminal bar’s industrial action, the government agreed to apply the 15% uplift to the vast majority of cases in the Crown court backlog...
'Criminal legal aid decline resumes'
New government contracts reversed a downward trend in the number of providers doing criminal legal aid work, government figures reveal – however, numbers have started to fall again...
In April 2021, there were 1,090 providers – a figure that gradually drops to 1,039 in September 2022. In October 2022, when the new contracts came into force, the number rose to 1,141. However, it fell the following month and stood at 1,127 In January 2023. The new contracts reversed a downward trend in office numbers. There were 1,589 offices in April 2021, gradually falling to 1,499 in September 2022. The following month, when the new contracts began, the number of offices rose to 1,774. However, it fell the following month and stood at 1,700 in January 2023...
'First Rapid Deployment Cells unveiled to boost prison places'
New modern prison cells that can be built and rolled-out at speed in order to boost jail capacity and keep the public safe were unveiled at HMP Norwich yesterday (2 March 2023).
The new units are the first of 1,000 Rapid Deployment Cells being rolled out at 18 prison sites across the country to meet the rising demand for prison places. The first batch of 48 rapid cells at Norwich are already taking their first prisoners, having been constructed and lifted into place just 7 months after the signing of contracts. It comes as work started yesterday on a £38 million renovation of HMP Norwich’s Elizabeth Fry wing which will create over 170 new jail cells by 2025, delivering the long-term places needed to lock up dangerous offenders and keep the public safe.
Cases
R v Ali [2023] EWCA Crim 232
The registrar has referred to the full court this application for permission to appeal against the sentence of 6 months' imprisonment imposed on 6 February 2023 in the Crown Court at Maidstone for one count of assaulting an emergency worker, to which the appellant pleaded guilty on the same day...
...A further exceptional factor arises from the fact that the appellant was sentenced at a time of very high prison population. On 30 November 2022 the Minister of State made a statement in Parliament announcing Operation Safeguard. The Government thereby requested the use of 400 police cells to hold people who were remanded in custody or serving prison sentences in the adult male prisons. He explained that this was because "a surge in offenders is coming through the criminal justice system, placing capacity pressure on adult male prisons in particular." On 5 December 2022 Parliament was informed that it was not possible to estimate the duration of the protocol. On 6 February 2023, the day when the sentence in this case was passed, a further announcement was made when the Ministry of Justice gave the National Police Chiefs' Council 14 days' notice to make cells in the North of England and the West Midlands available, following a rise in the number of inmates since the start of the year...
... We have concluded that there were strong arguments for suspending the sentence in this exceptional case, for the reasons we have given. Any doubt we may have had on that issue is resolved by this additional factor which we do take into account in dealing with this appeal. This factor will principally apply to shorter sentences because a significant proportion of such sentences is likely to be served during the time when the prison population is very high. It will only apply to sentences passed during this time. We have identified above the starting point for the relevance of this consideration for sentencing, which we take to be the implementation of Operation Safeguard 14 days after 6 February 2023. Sentencing courts will now have an awareness of the impact of the current prison population levels from the material quoted in this judgment and can properly rely on that. It will be a matter for government to communicate to the courts when prison conditions have returned to a more normal state...
R v Mohamed & Ors [2023] EWCA Crim 211
These are appeals against rulings made by Cavanagh J sitting in the Crown Court at Canterbury in prosecutions of four men (three of whom are appellants) who are alleged to have steered small boats, or rigid hull inflatable boats ("RHIBs") from France, full of irregular migrants, to or towards the United Kingdom. The preparatory hearing dealt with five points of law which commonly arise where persons who cross the English Channel in small boats, often with a view to claiming asylum, are charged with offences under sections 24(D1) or 25(1) of the Immigration Act 1971 ("the 1971 Act"). The judge decided each of the points in favour of the prosecution. He granted the defendants leave to appeal under section 35 of the Criminal Procedure and Investigations Act 1996 ("the 1996 Act")...
...Prior to amendment by the Nationality and Borders Act 2022 ("the 2022 Act"), section 24(1)(a) of the 1971 Act provided for an offence of knowingly entering the UK without leave. The effect of section 11(1) of the 1971 Act is that a person arriving in the UK by ship or aircraft does not enter this country unless and until he disembarks, and on disembarkation he still does not enter the UK so long as he remains in an "approved area", that is an area approved for immigration control, or if he leaves that area under immigration detention or bail. Consequently, a migrant who is intercepted or rescued at sea and taken to an approved area at a port does not enter the UK. He does enter if he arrives at a port without an approved area or lands on a beach (R v. Javaherifard [2006] Imm. App. R 185 at [14]-[16]; R v. Kakaei [2021] EWCA Crim 503, [2021] 4 WLUK 491; R v. Bani [2021] EWCA Crim 1958, [2021] 12 WLUK 457). Likewise, a person steering a RHIB across the Channel does not facilitate entry without leave by migrants into the UK, contrary to section 25(1) of the 1971 Act, if he intends to steer the RHIB to a port with an approved area or towards an area where he expects the authorities to intercept the boat and take the migrants to an approved area within a port. The prosecution would have to show that the person steering the RHIB intended to deliver the migrants to a landfall other than a port with an approved area or had reasonable cause to believe that that was a possible outcome (Bani at [105]). Section 40 of the 2022 Act sought to address these issues in two ways. First, section 24 of the 1971 Act was amended to add a new offence of arriving in the UK without entry clearance (section 24(D1)). Secondly, the definition of "immigration law" in section 25(2) was amended to refer to controls on "arriving" as well as "entering" the UK. The stated intention of Government in introducing the amendment was that the offence of facilitating a breach of immigration law would apply to assisting in the arrival or attempted arrival of persons without entry clearance (see para. 406 of the Explanatory Notes to the 2022 Act)...
... In the result, none of the grounds of appeal has any merit. We dismiss the appeals and uphold the judge's rulings...
Other
'The law in action: how prosecutors apply centuries of legislation to contemporary crime'
... As I hope I have explained, we don’t make new law – that is for Parliament. But we do put the law into effect. We translate legal rules and principles into everyday life – working out what they mean in practice for those people brought into the criminal justice system for diverse and complex reasons. That is a vital role, and one which we are proud to have on behalf of the public we serve...