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
'Courts operate at full throttle to cut delays'
The Crown Court will work at maximum capacity for the third year running to reduce waiting times to deliver access to justice, Justice Secretary Alex Chalk has today (11 August 2023) announced. The decision to continue not to cap judicial ‘sitting days’ will mean the Crown Court can hear the highest possible number of criminal cases this year.
Court buildings across the country will also benefit from £220 million for essential modernisation and repair work across the next 2 years, meaning annual investment will increase to £120 million by March 2025 - to minimise disruptions caused by old buildings. These improvements will maintain the heritage of the estate while ensuring it is equipped with the latest technology to deliver modern justice, as well as improving accessibility for all court users...
'Wrongly-convicted no longer face being ‘charged’ for saved living expenses'
Wrongly convicted people will no longer face having “saved living costs” deducted from compensation payments following an update to guidance made today (Sunday 6 August). Lord Chancellor Alex Chalk has taken decisive action to inject greater fairness into how payout decisions for miscarriages of justice are made, ending the possibility that people can be ‘charged’ for saved living costs. This element of the guidance was added in 2006 and will be removed with immediate effect, applying to all future payments made under the miscarriage of justice compensation scheme...
'Andrew Malkinson will need to 'prove innocence in wrongful conviction' once more to get compensation'
A man who was wrongfully convicted of rape and jailed for 17 years will have to prove his innocence once more in order to get compensation - his lawyer has said. Andrew Malkinson, 57, was wrongly found guilty of raping a woman in Salford, Greater Manchester in 2003, and was jailed for life with a minimum term of seven years. But, because he maintained his innocence, an extra 10 years were added onto his sentence.
His conviction was finally quashed by senior judges at the Court of Appeal on 26 July after DNA evidence that linked another man to the crime was brought to light. It later emerged Mr Malkinson, from Grimsby, would be made to pay for his board and lodging for the 17 years he spent in jail, deducted from any compensation he may get. It sparked outrage across the country, and ministers were quick to issue fresh guidance making it clear that those who are wrongly convicted will no longer have living costs covering their time in prison docked from compensation payments. But, despite welcoming the move, Mr Malkinson's lawyer says he now faces another battle to claim the compensation he is owed. Emily Bolton, from legal charity Appeal, said: "At the moment he is still required, even with this reform, to go through a process that requires him to prove his innocence beyond reasonable doubt - why? He has already proved his conviction is unsafe at the Court of Appeal, we consider this to be a totally unreasonable burden to place on wrongfully convicted people. It's incredibly difficult to prove that your conviction is unsafe to the Court of Appeal, it's a really, really high standard, this is not a technicality and he shouldn't have to do more. He's been through so much, how many more battles should this man have to fight?"
'Prison lawyers warn more will quit if legal aid fees not raised in England and Wales'
Lawyers who do vital prison work, often helping vulnerable inmates, will continue to desert the speciality if legal aid fees in England and Wales are not increased, their professional association has warned. A survey by the Association of Prison Lawyers (APL) found that 74% of respondents did not anticipate being prison law legal aid lawyers in three years’ time, coming on the back of an 85% fall in providers since 2008...
A survey by the Association of Prison Lawyers (APL) found that 74% of respondents did not anticipate being prison law legal aid lawyers in three years’ time, coming on the back of an 85% fall in providers since 2008. The APL blamed a “toxic combination of emotionally exhausting, complex and poorly paid work”, with prison lawyers regularly going beyond the call of duty to help clients suffering serious mental health problems. Prison lawyers provide representation and advice to people in prison, for example with transfers to other prisons, parole hearings and re-categorisation. Prison law was excluded from the general 15% increase in criminal law legal aid rates in 2022, contrary to the advice of the independent legal aid review conducted by Lord Bellamy...
Cases
R v Andrew Malkinson [2023] EWCA Crim 954
Twenty years ago, on 19th July 2003, a young woman was attacked and raped as she walked to her home in the early hours of the morning. We shall refer to her as “C”. On 10th February 2004 Andrew Malkinson (“the appellant”) was convicted of attempting to choke, suffocate or strangle C with intent to commit an indictable offence, namely rape, and of two offences of rape. He was subsequently sentenced to life imprisonment. He has always denied committing any of the offences. He now appeals against conviction, putting forward five grounds of appeal. At the conclusion of the hearing on 26 July 2023 we announced that his appeal would be allowed on the first of those grounds, and his convictions quashed. We indicated that we would give our decision on the other grounds of appeal, and our reasons, in a written judgment. This we now do...
The new scientific evidence is undoubtedly admissible as fresh evidence in accordance with section 23 of the Criminal Appeal Act 1968: it is clearly capable of belief; it affords a ground for allowing the appeal; it would have been admissible at trial; and there is a reasonable explanation for the failure to adduce it at trial, namely the advances in DNA analysis since that time. The evidence clearly shows the convictions to be unsafe. The judge properly directed the jury about the special need for caution when considering evidence of identification, and there is no reason to doubt that the jury loyally followed his directions. But what the jury did not know – and could not have known – was that more advanced scientific techniques would later result in DNA findings which both seriously undermine the case against the appellant and directly implicate another man. Given that neither C’s evidence, nor any other evidence in the case, suggests that more than one man was involved in the offences, the evidence now available gravely weakens the case against the appellant; and that is so, regardless of the outcome of any prosecution of Mr B. The stark reality is that the appellant has spent very many years in prison, having been convicted on identification evidence which he always disputed and which cannot now be regarded as providing a safe basis for the jury’s verdicts...
We are, however, persuaded that in the very particular circumstances of this case, the non-disclosure of the two relevant photographs prevented the appellant from putting his case forward in its best light, and strengthened the prosecution case against him in a manner which the photographs show to have been mistaken. We accept Mr Henry’s submission that, if the photographs had been disclosed, the jury’s verdicts may have been different...
Other
'Minister defends safety law on messaging apps'
The technology secretary has defended a controversial section of the Online Safety Bill which would force messaging apps to access the content of private messages if requested by the regulator Ofcom. She said it was a sensible approach in order to protect children from abuse. But some tech firms, including WhatsApp and Signal, have threatened to leave the UK if forced to weaken their messaging security. The Bill is due to be passed in autumn...
Both the tech sector and the cyber security community have criticised the government's proposal that the content of encrypted messages should be made accessible if there is deemed to be a risk to children within them. Currently messages sent in this way can only be read by the sender and the recipient, and not by the tech firms themselves. Several popular messaging services including Meta's Whatsapp and Apple's iMessage use this popular security feature by default. But once there's a way in, it's not only the good guys who will use it, is the argument, and some firms are saying they will pull their services from the UK altogether rather than compromise on security. Ms Donelan claimed the government was not anti-encryption and access would only be requested as a last resort...
'Judges can’t just make up the law: the Linford decree won’t last long'
... On Thursday the Resident Judge, HHJ Robert Linford, who is also the top judge at Plymouth Crown Court – where he sits in a strikingly horrible building, with no garden, just a view over a street recently uglified by the felling of 110 perfectly good trees – issued an angry decree from the Truro bench. It was picked up by the superb Crimeline.co.uk: “I am telling everyone that ANY defendant attending for trial in front of me at Truro or Plymouth who pleads guilty will (if there is an application for a report or other adjournment for sentence), save in utterly exceptional circumstances, be remanded in custody pending sentence. In my view they forfeit their right to bail as they are guilty of obstructing the course of justice. Pleading guilty late is delaying justice and thereby obstructing it"...
It’s obviously unlawful, it’s absurdly unfair, it will impose a pointless burden on the prison service and it will increase rather than decrease the backlog of cases waiting to be heard. The Linford decree will surely be rescinded within a week or two.