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
'Evidence in Sexual Offence Prosecutions' - Law Commission
The Government has asked the Law Commission to examine the trial process and to consider the law, guidance and practice relating to the use of evidence in prosecutions of sexual offences. We commenced work on the project on 17 December 2021 and published a background paper in February 2022. We then conducted research and met with stakeholders to develop provisional proposals for reform. On 23 May 2023 we published a consultation paper containing these provisional proposals...
- ...We consider reform strategies to minimise the risk that trials will be affected by myths and misconceptions...
- ...we provisionally propose the introduction of a bespoke regime for access, disclosure and use of complainants’ personal records involving greater judicial oversight. This includes a judge applying a heightened thresholds to determine applications using tests adapted from Canada...
- ...We provisionally propose replacing the current regime for restricting the use of evidence of and questions about the complainant’s sexual behaviour, which has been criticised as being too complex and both too broad and too restrictive. We instead suggest the use of an enhanced relevance threshold to admit this evidence...
- ...we provisionally propose that the use of evidence and questioning of complainants regarding claims for compensation from the Criminal Injuries Compensation Authority (“CICA”) should require permission from a judge and should be restricted using a heightened threshold, similar to the one we suggest for SBE...
- ...We provisionally propose that sexual offence complainants should be automatically entitled to a range of measures to assist them to give evidence, including giving their evidence without the public present...
- ...we provisionally propose that complainants should have access to independent legal advice, assistance, and representation in respect of requests and applications for personal records and in relation to SBE...
- ...We invite feedback on how better to control barristers’ questioning of complainants which relates to myths and misconceptions, such as requiring advance approval of lines of questioning by a judge; or setting out factors for judges to consider when deciding if a line of questioning is relevant; or judges using a higher threshold than relevance for potentially highly prejudicial evidence...
- ...We ask for views on how existing judicial directions to address rape myths could be improved by amending them or expanding them. We invite views on whether expert evidence, which is not currently admissible, should be used to explain to jurors in general terms the complex physical and psychological responses to sexual violence that can lead to seemingly counterintuitive behaviours by victims, for example, freezing during the assault, or delayed reporting to the police. We also invite views on whether the law should change so researchers can find out more about how juries deliberate...
- ...We ask whether sexual offences trials should take place in a specialised court or courtroom: where everyone working on the trial has received specialist training in trauma-informed practices; with appropriate technology for effective use of measures to assist with giving evidence; with separate entrances and waiting areas; and with prioritised listing of cases...
The consultation is open until 23 September 2023.
'Access to vital legal support extended to millions of vulnerable people'
Over 6 million more people now eligible for legal aid advice and representation... Other measures which will come into force over the next 2 years include:...
- Making everyone eligible for legal aid to defend themselves in the Crown Court, ensuring fair trials and ending the so called ‘innocence tax’ where people were forced to pay for a legal defence even if they were then found not guilty
- Increasing the amount of income someone can receive before having to contribute to legal aid fees by over £3,000 for civil cases and over £12,000 for criminal cases in the magistrates’ court...
We will increase the upper gross income threshold for magistrates’ court representation from £22,325 to £34,950...
'Met police board introduced after force's culture investigated'
A new London Policing Board (LPB) will be introduced to oversee and scrutinise the reform of the Metropolitan Police. The LPB comes following a recommendation from Baroness Louise Casey's review into the culture and standards of the force. It will be chaired by Mayor of London, Sadiq Khan. He said the aim of the board was to increase transparency and accountability of the force to all the diverse communities it serves...
In line with the report, the new board will drive forward changes based on a transparent approach to accountability also used by Transport for London (TfL). Meetings will be held in public and members of the board will provide advice to the mayor in holding the Met to account in delivering reforms.
'Blank pages in evidence caused £40,000 legal aid overpayment'
A firm’s legal aid payment has been halved after a judge found that blank pages within documentation resulted in ‘significant overpayment for work obviously not undertaken’... The firm claimed a graduated fee of £87,905.14 in legal aid on the basis of 9,756 pages of prosecution evidence. The formal page count was taken from the Crown Court Digital Case System, which costs judge Master Whalan initially said should be used. The lord chancellor appealed the decision, arguing that the costs judge had erred in law and as a result the firm ‘will be paid a substantial sum for reviewing thousands of blank pages’...
The lord chancellor conceded that duplicated pages could be included making the total 5,014 pages and a fee of £47,550.10 but argued that the fee ‘has been increased by a sum of £40,355.04 by the inclusion of blank pages’. Mr Justice Cotter said there ‘was and is no obligation to slavishly use a page count on DCS if it is clear that it arises from…an artificial document produced by conversion…solely to produce a number of pages’. He added: ‘By virtue of the conversion process, [the document] would result in a number which does not reflect the work which was undertaken and significant overpayment.’
'Common Platform: delaying the introduction of digitised PET and BCM forms'
As you know, we will be enhancing Common Platform by launching new digital versions of the Preparation for Effective Trial (PET) and Better Case Management (BCM) forms, and we had hoped to do so this week. During final testing over the weekend, we identified issues with the release that meant the functionality was not working completely as it should. To make sure that these digital forms are performing as they need to, we’ve taken the decision to delay their introduction to get this right...
Cases
R v ZA [2023] EWCA Crim 596
This appeal has generated a number of lessons to be learned when sentencing children and young people, especially when they have been tried together with older co-accused, as the appellant was here. An entirely different approach to sentence is required than that which courts routinely apply to adult offenders. We suggest the following as a checklist for counsel and courts undertaking what are invariably complex and difficult sentencing exercises:
(1) Court listing should ensure that there is sufficient time for the judge, even if that judge heard the trial and knows the case well, to read and consider all reports and to prepare sentencing remarks in age-appropriate language.
(2) Consideration should be given to listing separately, and as a priority, the sentence of any child(ren) or young person(s) jointly convicted with adult co-defendants.
(3) The courtroom should be set up and arranged to ensure that the child or young person to be sentenced is treated appropriately, namely as a vulnerable defendant entitled to proper support. So far as possible the judge should be seated on a level with the child or young person, and the latter should be able to sit near to counsel, with parental or other support seated next to them (see further below).
(4) Counsel must expect to submit full sentencing notes identifying all relevant Sentencing Council Guidelines, in particular any youth-specific guideline(s), addressing material considerations in an individualistic way for each defendant separately (if more than one young defendant is to be sentenced). Where an individualistic approach is mandated, as it is for a child or young person, a note which addresses all defendants compendiously risks missing important distinctions. These notes should be uploaded well in advance of the sentencing hearing.
(5) The contents of the Youth Justice Service pre-sentence report and any medical/psychiatric/psychological reports will be key. Courts should consider these reports bearing in mind the general principles at section 1 of the overarching youth guideline, together with any youth-specific offence guideline, carefully working through each.
(6) In general it will not be helpful to go straight to paragraph 6.46 of the overarching youth guideline without having first directed the court to general principles canvassed earlier in that guideline, as well as to any youth-specific guideline. The stepped approach in the overarching youth guideline and any youth-specific offence guideline should be followed. Working through the guideline(s) in this way will enable the court to arrive at the most appropriate sentence for the particular child or young person, bearing in mind their individual circumstances together with the dual aims of youth sentencing.
(7) If the court considers that the offence(s) is(are) so serious as to pass the custody threshold, the court must consider whether a YRO with ISS can be imposed instead. If it cannot, then the court must explain why.
Other
'Lord Chancellor Swearing-in Speech: Rt Hon Alex Chalk MP'
... One of my predecessors, Francis Bacon, observed that, “if we do not maintain justice, justice will not maintain us.” Let us turn to the task ahead. I as Lord Chancellor will do my duty. And I know that all of us, whatever part we play, will join today in committing to maintaining that justice, endeavouring to leave the rule of law in our country stronger for our having been here...
'WhatsApp to allow users to edit messages within 15 minutes'
WhatsApp says it will allow users to edit messages, in a move that will see it match a feature offered by competitors like Telegram and Signal. The firm says messages can be edited for up to 15 minutes after being sent... Edited messages will be tagged as "edited", so recipients are aware that the content has been changed. However, they will not be shown how the message has been tweaked over time.
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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.