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
'Barrister fee increase to help vulnerable victims bring attackers to justice'
Fees for barristers who help vulnerable witnesses and victims to pre-record a cross examination will rise to £1,000, the government announced today (25 October 2023)... Fees were originally set at £670 in January when the government announced barristers would receive advance payments for work on pre-recorded evidence and for any wasted preparation for the first time. This increase comes after an agreed review and as part of the ongoing work with the professional bodies under the new Criminal Legal Aid Advisory Board, chaired by Her Honour Deborah Taylor...
'Judge appointed to chair independent Malkinson Inquiry'
Leading criminal judge, Sarah Munro KC, has been appointed by the Lord Chancellor to chair the public inquiry into the wrongful conviction of Andrew Malkinson today (26 October 2023).
Mr Malkinson spent 17 years in prison for a rape he did not commit plus a further three under probation supervision before his conviction was overturned by the Court of Appeal in July. The Inquiry will investigate the handling and role of Greater Manchester Police (GMP), the Crown Prosecution Service (CPS), and the Criminal Cases Review Commission (CCRC) in Mr Malkinson’s conviction and subsequent appeal to ensure lessons are learned from the significant miscarriage of justice he suffered. All agencies have pledged their full co-operation to the inquiry. Mr Malkinson met with the newly appointed Chair and the Lord Chancellor to discuss the terms of reference and running of the inquiry...
After careful consideration, the government believes it is not necessary to put the inquiry on a statutory footing at this time. Non-statutory inquiries give greater flexibility to the chair and are generally concluded faster than statutory inquiries, providing Mr Malkinson and the original victim the answers they deserve as quickly as possible. The Lord Chancellor expects all agencies involved to be fully co-operative and transparent as they have pledged, and will closely monitor the progress of the inquiry to ensure this happens. The Terms of Reference require the Chair to report directly to the Lord Chancellor should she have any concerns about co-operation with the inquiry...
'Action plan to tackle shoplifting launched'
Policing Minister Chris Philp chaired a meeting with senior police leaders and 13 of the UK’s biggest retailers today to launch the Retail Crime Action Plan. Commissioned by the minister and published today, the plan includes a police commitment to prioritise urgently attending the scene of shoplifting instances involving violence against a shop worker, where security guards have detained an offender or where attendance is needed to secure evidence. Police attendance will be assessed based on risk, and prolific or juvenile offenders will be treated with elevated priority. Police have also reaffirmed their pledge to follow up on any evidence that could reasonably lead to catching a perpetrator. Forces will step up targeted hotspot patrols in badly affected areas...
A specialist new police team is also being created to build a comprehensive intelligence picture of the organised crime gangs that fuel many shoplifting incidents across the country, to help target and dismantle them. The initiative, called Pegasus, is a business and policing partnership that will radically improve the way retailers are able to share intelligence with policing, to better understand the tactics used by organised retail crime gangs and identify more offenders. This will include development of a new information sharing platform and training for retailers.
Spearheaded by Katy Bourne, the Business Crime lead for the Association of Police and Crime Commissioners (APCC), Pegasus is the first national partnership of its kind. It is backed by the Home Office, John Lewis, the Co-op, M&S, Boots, Primark and several more, who have collectively pledged to provide over £840,000 to get the initiative off the ground... The majority of funding for Pegasus will go towards the creation of a dedicated team of specialist analysts and intelligence officers to work within OPAL, the national policing team that oversees intelligence on serious organised acquisitive crime...
'New prison ‘no-fly zones’ for drug-delivering drones'
Vast new ’no-fly zones’ will be enforced over all prisons in England and Wales to crack down on gangs using drones to smuggle drugs, phones and weapons that drive criminality behind bars. New legislation made this week will make it an automatic offence to fly drones within 400 metres of any closed prison or young offender institution in England and Wales. Drone operators that break the rules could face fines of up to £2,500 while those found smuggling illicit items will face up to 10 years in prison.
Drone sightings at prisons have increased sharply in recent years and current air space restrictions mean police can only act on drone sightings where there is evidence of contraband being illegally smuggled. By creating a virtual ‘no-fly zone’ around prison airspace, the new restrictions mean police and prison staff will be able to act quickly to identify suspicious drones and take swift action against suspected criminal activity, as well as enhancing security by preventing illegal filming...
'Not all criminals will be forced to attend sentencing to avoid propaganda in court'
Criminals will not always be forced to attend sentencing, the Justice Secretary has said, because of fears it could be used as propaganda. Alex Chalk said that judges will have discretion to decide whether to force convicted criminals to come to court for sentencing under legislation expected to be announced in the King’s Speech next month.
Mr Chalk said that he had decided against a blanket rule requiring all defendants to attend, which had previously been suggested, because of the risk that some convicted criminals could choose to exploit it as a “propaganda exercise” or seriously disrupt the court, potentially inflicting more emotional distress on victims’ families and friends. The new legislation will give judges powers to order an offender to attend a sentencing hearing and make it “clear in law” that reasonable force can be used by custody officers to ensure this happens. If a criminal refuses to attend despite this order, they could face an extra two years in prison...
'Top prosecutor warns of enduring justice delays'
An unprecedented backlog of cases awaiting trial is not going to be resolved any time soon, the outgoing director of public prosecutions warns. Max Hill KC told the BBC the Crown Prosecution Service (CPS) staff were "hugely overburdened". The service was struggling to find enough barristers to run cases in court, he said. However, he urged victims of rape to have confidence in prosecutors because their cases were being prioritised.
Mr Hill's term, which ends this month but began in 2018, coincided with unprecedented challenges in criminal justice caused by a combination of pre-existing cuts, courts closed by the pandemic and criminal defence barristers later striking over government legal aid pay rates. There is now a backlog of 65,000 trials in the crown courts - up from around 40,000 before the pandemic hit in 2020. The CPS's preferred measure put the number higher at around 75,000 individual defendants. The government wants to cut the backlog to 53,000 cases by March 2025 - but the picture has been worsening...
'Hate crime laws may need redrawing, says Met chief Mark Rowley'
Metropolitan Police chief Sir Mark Rowley has said hate crime laws "probably need redrawing" as he faced questions about the policing of a pro-Palestinian rally in London. A video posted online appeared to show a man shouting "jihad" at a separate event from the main march. Having reviewed the clip, the Met said they had not identified any offences.
Sir Mark said police were "ruthless in in tackling anybody who puts their foot over the legal line". But he added: "Our job is to enforce to that line, Parliament's job is to draw that line - maybe some of the lines aren't in the right place." Downing Street said there were "no plans" to give police more powers to deal with chants deemed to be extremist. But Sir Mark said he had raised the issue in a meeting with Home Secretary Suella Braverman, who sources say was keen to quiz him about the Met's response. The two had had "a conversation around the line of the law", he said after the meeting...
Cases
R v Layden [2023] EWCA Crim 1207
On 17 May 2016 the appellant was convicted of the murder of Ian Church in Great Yarmouth in the early hours of 4 May 2012. The conviction followed a (second) retrial following the earlier quashing by the Court of Appeal of the appellant's conviction for the same offence...
The central issue is whether, in respect of a retrial ordered pursuant to s. 7 of the Criminal Appeal Act 1968 ("s. 7"; "the CAA"), the Crown Court's jurisdiction is contingent on fulfilment of the requirements in s. 8 of the CAA ("s. 8"), such that a defendant cannot lawfully be tried on a fresh indictment after the expiry of two months of the date of order for retrial, save where the Court of Appeal has given leave. In R v Llewellyn [2022] EWCA Crim 154; [2023] 2 WLR 121 ("Llewellyn") the Court of Appeal concluded that the jurisdiction was so contingent. If that is right, and/or we are bound by the decision in Llewellyn, then the appellant's conviction for murder falls to be quashed on the basis that it is unsafe...
In summary, for the reasons set out above, we conclude that Parliament can fairly be taken to have intended "total invalidity" in the event of a failure to arraign a defendant within the two-month period stipulated in s. 8 (or such longer period as the Court of Appeal may have allowed). We turn then to the facts of this case. It is common ground that:
i) The appellant was not arraigned on a fresh indictment within two months of the order for a retrial following the quashing of the appellant's conviction;
ii) At no time did the prosecution obtain an extension of time for such arraignment under s. 8 (and arraign within any extended period).
In these circumstances, the Crown Court did not have jurisdiction to try the appellant...
For the reasons set out above, the Crown Court did not have jurisdiction to retry the appellant. His conviction for murder is unsafe and must be quashed. The appeal will be allowed. We recognise that this is to permit the appellant's conviction for a most serious offence to be set aside for procedural error in circumstances where the conviction was otherwise sound, and in circumstances where no prejudice arose out of the failure in question. However, the legislation is unambiguous. The situation was entirely avoidable. There was ample opportunity for the appellant to be rearraigned at or before the PCMH and in any event within the relevant two-month period. Judges and practitioners involved in retrials following orders of the Court of Appeal under ss. 7 and 8 should be in no doubt as to the importance of strict compliance with what are clear procedural requirements.
Other
'Government response to the Law Commission’s review of confiscation'
In 2018, the Home Office commissioned the Law Commission of England and Wales with a project to review Part 2 of the Proceeds of Crime Act 2002 (POCA) to make recommendations for reform of the confiscation regime in England and Wales. The law on confiscation enables the state to deprive offenders of the proceeds of their criminal conduct...
This document outlines the government’s response to the 119 recommendations. It mirrors the structure of the Law Commission’s final report, responding to the recommendations chronologically. To inform the response, the Home Office has consulted widely across government, law enforcement, civil society, legal practitioners, and academia. The government will seek to legislate on this topic when parliamentary time allows...
'Court transcript costs are exploitative - victims'
Victims of violent and sexual crimes are calling for court transcript costs to be cut after they were quoted "unaffordable" sums for them. They told BBC Newsnight that charging thousands of pounds for copies of court hearings was "exploitative". One rape survivor said she was quoted £7,500 for the transcript of her trial. The Ministry of Justice (MoJ) said victims could ask a judge to order a transcript at public expense, but cases were not routinely transcribed...
'The Secret Defendant: I've been through seven years of hell'
A grandmother cleared of fraud charges after spending seven years with the allegations hanging over her, says every part of her life has been "destroyed". Krista Brown, who was arrested in 2017 and charged three years later, says the stress of not knowing when her trial might be scheduled has affected her "financially, mentally, physically". The 51-year-old, who denied the charges, says she closed her business and had to rely on benefits. The case against Ms Brown was eventually dropped by the Crown Prosecution Service last week...