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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
'Thousands more can apply to become judges under plans to expand diversity'
Experienced Chartered Institute of Legal Executive lawyers, after gaining seven years’ experience, will be able to apply to become Recorders and Judges of the Upper Tribunal, hearing complex civil, family, crime and tribunal cases. Those appointed as Recorders would be able to preside over cases in the Crown Court, sentencing some of the most serious offenders, while those appointed as Judges of the Upper Tribunal would deal with a range of appeals on issues such as immigration and tax.
Chartered Institute of Legal Executive lawyers are not required to hold a university degree and gain their legal qualifications while working. They are more diverse in terms of gender and social background than other legal professionals and many join the profession mid-career or following a break. Previously, they could only apply for judicial roles overseeing less complex cases in the civil, family and magistrates’ courts and the first-tier tribunal. The move will increase the number of judicial roles that legal professionals from under-represented groups can apply for – better reflecting modern, multi-cultural, twenty-first century Britain...
'Updated sentencing guidelines for animal cruelty offences published'
The Council has today published updated sentencing guidelines for animal cruelty offences, following consultation. The revised guidelines reflect the change in maximum penalty for the most serious cases of animal cruelty brought in by the Animal Welfare (Sentencing) Act 2021.
The changes introduce:
- a new ‘Animal cruelty’ guideline for the most serious offences, including causing unnecessary suffering, tail docking and animal fighting. This guideline applies in both magistrates’ courts and Crown Court, and
- an updated guideline, ‘Failure to ensure animal welfare’, which revises elements of the Council’s existing animal cruelty sentencing guideline. This guideline will continue to apply to magistrates’ courts only because the maximum penalty for this offence has not changed and remains within magistrates’ sentencing powers
Both guidelines, which apply to adults only, will come into effect on 1 July 2023.
'Government seeks advice on monkey dust'
An independent review into the harms that monkey dust and other synthetic cathinones pose has been commissioned as the government continues its work to combat drug addiction and violent crime. Currently a Class B substance, the drug is reported to be responsible for acts of violence and arson – particularly in Stoke-on-Trent. There have also been concerns about the impact of synthetic cathinones on people’s heath, with reported effects including hallucinations, psychosis and involuntary body movements.
The Policing Minister has asked the Advisory Council on the Misuse of Drugs (ACMD) to consider whether these substances, including ‘monkey dust’, should be made Class A drugs to keep communities safe. By making this a Class A substance, criminals caught suppling this drug will face a life sentence.
Cases
SF and Ors v NCA IPT 21 05 CH
EncroChat was an encrypted communications platform. A joint investigative team (“JIT”) of French and Dutch law enforcement agencies intercepted communications sent using EncroChat. It is common ground that this was “interception”, as defined in UK law in section 4 of the Investigatory Powers Act 2016 (“IPA”). There is a dispute as to whether the communications intercepted were stored in or by a telecommunications system, or whether they were intercepted in the course of transmission. The distinction is important because of the different warrantry required for the interception of stored communications, and the different consequences for the admissibility of the product of that kind of interception in legal proceedings in the UK. The interception took place between 1 April and 11 June 2020...
... For the reasons given below, we have reached the following conclusions:
(a) The NCA did not fail in any material respect in fulfilling the duty of candour on them when seeking approval of the TEI warrant from the Judicial Commissioner.
(b) The Tribunal does not have jurisdiction in relation to the question of whether the EIO was made lawfully.
(c) The NCA did not require to obtain a targeted interference warrant.
(d) The NCA did not require to obtain a bulk equipment interference warrant.
R v Cook [2023] EWCA Crim 452
... We shall set out the proper approach to sentencing any offence of intentional strangulation....
In view of the inherent conduct required to establish this offence a custodial sentence will be appropriate, save in exceptional circumstances. We consider that ordinarily that sentence will be one of immediate custody. The starting point will be 18 months' custody. In this instance the offender was a man, and the victim was a woman. As we have noted, the offence is much more often committed by a man against a woman, however the starting point will be the same irrespective of the gender of the perpetrator. The starting point may be increased by reference to the following factors, this list not being exhaustive:
(i) History of previous violence. The significance of the history will be greater when the previous violence has involved strangulation.
(ii) Presence of a child or children.
(iii) Attack carried out in the victim's home.
(iv) Sustained or repeated strangulation.
(v) Use of a ligature or equivalent.
(vi) Abuse of power.
(vii) Offender under influence of drink or drugs.
(viii) Offence on licence.
(ix) Vulnerable victim.
(x) Steps taken to prevent the victim reporting an incident.
(xi) Steps taken to prevent the victim obtaining assistance.Statutory aggravating factors will apply:
(a) Previous convictions, having regard to (a) the nature of the offence to which the conviction relates, and its relevance to the current offence; and (b) the time that has elapsed since the conviction.
(b) Offence committed whilst on bail.
(c) Offence motivated by or demonstrating hostility based on any of the following characteristics, or presumed characteristics of the victim, disability, sexual orientation, or trans-gender identity.The Sentencing Council overarching principles in relation to domestic abuse are likely to be relevant when sentencing for the offence of intentional strangulation. As the guideline makes clear, domestic abuse offences are to be regarded as particularly serious. The aggravating factors at paragraph 11 of the overarching principles will apply in every case of domestic abuse. As set out at paragraph 13 of that guideline: "Provocation is no mitigation to an offence within a domestic context, except in rare circumstances." Mitigating factors will include:
(i) Good character.
(ii) Age and immaturity.
(iii) Remorse.
(iv) Mental disorder.
(v) Genuine recognition of the need for change and evidence of the offender having sought appropriate help and assistance.
(vi) Very short-lived strangulation from which the offender voluntarily desisted.
Again, this list is not exhaustive.
Other
Sir John Major: "We over-use prison and under value alternative sentences"
The former Prime Minister, Sir John Major delivered a speech at the Old Bailey on 9 May 2023, in which he set out his case for penal reform. Sir John acknowledged that the problems now being faced within the penal system have intensified over many governments, and that he, his predecessors and his successors should all share responsibility for this...
'Open Justice: the way forward'
Open justice is a fundamental principle at the very heart of our justice system and vital to the rule of law – justice must not only be done but must be seen to be done. Its history and importance in law can be traced back to before the Magna Carta. It is a principle which allows the public to scrutinise and understand the workings of the law, building trust and confidence in our justice system... We are therefore launching this call for evidence to gain your views on how we can support and strengthen the openness of our court and tribunal services. Recognising the challenging fiscal environment, this exercise will help us target our limited resources where they can have the biggest impact. If you are interested, then we would be delighted to hear from you, and I encourage you to respond. It is important that we hear from a wide range of views to inform the government’s future strategy on this important area...
This consultation closes at 11:59pm on 7 September 2023.
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A Practical Guide to Digital Communications Evidence in Criminal Law
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Technology has changed the way we communicate with each other, for better or for worse. The result is that most criminal investigations now involve some aspect of digital communications evidence - be it mobile telephones seized from suspects, call data obtained from mobile network operators, or records taken from social media platforms.
This book is for practitioners looking to understand the most common types of digital communications evidence used in criminal prosecutions. From cell site mapping through to mobile telephone extraction, each category of evidence is explained and the relevant law set out. The uses and limitations are explored, as well as a focus on how best the evidence can be presented or challenged before judge and jury. Although primarily aimed at junior advocates and litigators, it is also intended to be a quick reference guide for those more senior.
Part One contains a chapter on each category of evidence, covering: Mobile Telephone Extraction, SIM Card Extraction, Call Data Records, Subscriber Checks, Cell Site Evidence, IP Address Resolution, and Intercept Material. Part Two deals with the relevant notices and warrants under RIPA 2000 and IPA 2016. Part Three is focused on disclosure: how it should be managed, what review tools are available, and how complainants should be treated.