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
'Cyberflashing, epilepsy-trolling and fake news to put online abusers behind bars from today'
New offences have been introduced to criminalise cyberflashing, fake news intended to cause non-trivial harm and other online abuse. Abusers, trolls, and predators online now face a fleet of tough new jailable offences from today (Wednesday 31 January), as offences for ‘cyberflashing’, sending death threats, and ‘epilepsy-trolling’ are written into the statute book after the Online Safety Act gained Royal Assent...
Those found guilty of the base offence of sharing an intimate image could be in prison for up to 6 months, or 2 years if it is proven the perpetrator also intended to cause distress, alarm or humiliation, or shared the image to obtain sexual gratification.
Cyberflashing on dating apps, AirDrop and other platforms will also result in perpetrators facing up to two years behind bars where it is done to gain sexual gratification, or to cause alarm, distress or humiliation.
Sending death threats or threatening serious harm online will also carry a jail sentence of up to five years under a new ‘threatening communications’ offence that will completely outlaw appalling threats made online that would be illegal if said in person.
A new false communications offence will bring internet trolls to justice by outlawing the intentional sending of false information that could cause ‘non-trivial psychological’ or physical harm to users online. This new offence will bolster the government’s strong commitment to clamping down on dangerous disinformation and election interference online.
In the wake of sickening content, often targeted at children, that encourages users to self-harm, a new offence will mean the individuals that post content encouraging or assisting serious self-harm could face up to 5 years behind bars...
'Raab pay deal for solicitors unlawful, court finds'
Judges say the former Justice Secretary Dominic Raab broke the law in the way he increased defence solicitors' pay by less than he had been advised to. In a partial victory for the profession, the High Court said the former deputy prime minister had acted irrationally. The Law Society had argued that Mr Raab had unlawfully ignored an expert recommendation. The Ministry of Justice said it would "consider the judgement carefully"...
The judgment does not formally reverse the government's pay settlement of 11% - but it places huge pressure on Mr Raab's successor Alex Chalk to rethink how much solicitors are paid in the legal aid system. Legal Aid pays for lawyers in England and Wales to represent suspects and defendants who cannot afford to pay for the advice themselves. It is a key part of the criminal justice system because it saves court time and generally makes sure that most suspects who should plead guilty to a crime do so. According to the Law Society, which is the professional body for solicitors in England and Wales, 1,400 duty solicitors have quit since 2017 over long-frozen legal aid rates. That in turn, it says, is leading to "deserts" in some parts of the country...
'Criminal legal aid solicitors to get £16m 'pay boost' for police station work'
Criminal legal aid solicitors will get a ‘pay boost’ for police station work, the government declared today – however, practitioners will not see the extra £16m until summer at the earliest. Just over a year after deciding to use money set aside for training grants, expanding the Public Defender Service and long-term LGFS reform for police station fees instead, the Ministry of Justice is today opening an eight-week consultation on how to allocate the money. The funding increase will apply to 'new work from summer 2024’. The consultation is due to be published this afternoon...
The ministry said: ‘Currently, fees do not appropriately differentiate between case complexity meaning a lawyer spending 30 minutes on a shoplifting case and five hours on a murder trial would likely receive the same fixed fee for both jobs. ‘The fee system is also outdated as it involves solicitors navigating over two hundred different fees across England and Wales, each representing a different police station location with the pay-out for neighbouring stations varying widely. This means solicitors can receive vastly different amounts in similar areas for working on similar cases.’
The ministry is also allocating an extra £5.1m for youth court work and said fees for the most serious offences will rise by £548 per case.
'Valdo Calocane: Review into decision to accept triple killer's pleas'
A review of the decision by prosecutors to accept manslaughter pleas in the Nottingham attacks case has been ordered by the attorney general. Barnaby Webber and Grace O'Malley-Kumar, both 19, were fatally stabbed on 13 June along with Ian Coates, 65. Their killer, Valdo Calocane, was given a hospital order after admitting manslaughter on the grounds of diminished responsibility. The review will also look into how the victims' families were consulted...
Calocane had originally been charged with three counts of murder and three of attempted murder, having driven a stolen van at three pedestrians in Milton Street and Upper Parliament Street, in the city centre. However, while in custody, it emerged he had been transferred to a "secure hospital setting" and assessed by three forensic psychiatrists. Last week, the CPS set out why it decided to accept a diminished responsibility plea. It said medical experts provided "overwhelming" evidence the killer was suffering from paranoid schizophrenia, which resulted in him hearing voices in his head telling him his family would be harmed unless he did what they told him to do. Three psychiatrists were asked to analyse Calocane's condition and all agreed it "impaired his ability to exercise self-control". The CPS "took the unusual step" of asking a fourth expert to review those reports, and after they agreed with the findings, prosecutors concluded there was "no realistic prospect of conviction for murder"...
'Bespoke remote hearings platform to go national in autumn'
HM Courts & Tribunals Service is set to roll out a new bespoke platform for remote hearings in the autumn, replacing the Cloud Video Platform (CVP), it has revealed. The Video Hearings Service is already being used in a small number of civil and family courts and by tribunals, including the property, tax, employment and immigration chambers. The service is also being tested at Chester Crown Court to explore how it will support the specific processes and requirements of criminal hearings...
Cases
Sentencing Remarks in R v Scarlett Jenkinson and Eddie Ratcliffe
Scarlett and Eddie, for Brianna’s murder you are to be detained at His Majesty’s Pleasure. As you know, that is a life sentence. I must also set the minimum time before you can be considered for release...
Scarlett Jenkinson, for the murder of Brianna Ghey, you will be detained at His Majesty’s Pleasure. I set the minimum term at 22 years less the 352 days that you have spent on remand. Eddie Ratcliffe, for the murder of Brianna Ghey, you will be detained at His Majesty’s Pleasure. I set the minimum term at 20 years less the 352 days that you have spent on remand...
R v Mohammad and Others [2024] EWCA Crim 34
On Monday 13 November 2023, which was day 39 in week 10 of a trial, the jury retired to consider their verdicts on nine counts of fraud. On the morning of the fourth day of their deliberations (16 November), the jury informed the court of two incidents of jury tampering which had taken place about a fortnight before...
This interlocutory appeal concerns the decision of HHJ Andrew Smith KC (“the Judge”) (on 30 November) to continue the trial without a jury. That decision is supported by the Crown and by the respondent PI. It is challenged by the appellants, ASJ, BOZ, ANG and BSZ...
The Judge granted leave to appeal, not because he considered the ruling that he had made to be wrong in principle or unjustified in any way, but because he understood from the authorities that trial judges in similar situations to the instant case have invariably granted leave. Parliament chose to grant a right of appeal from orders under section 46(3) or (5), but not an automatic right. That should be respected. By section 47(2), such appeals may be brought only with the leave of the judge or the Court of Appeal. Leave to appeal should only be given on a principled basis, namely where it is considered that there is a real prospect of success. There is no need for every case to come to this court simply because the event is rare or the consequence serious. There is now a body of caselaw and we have set out the principles. The judge need be no more willing to grant leave to appeal in these than in any other cases. If leave is refused by the judge, it can be sought from the Court of Appeal in the usual way...
... For these reasons, we dismiss the appeals. We confirm the Order. The trial will continue before the Judge and without a jury...
Other
'Calocane: horrific though his crimes were, the CPS and the judge made the right decisions'
... The prosecution would never have proceeded on the murder allegations, because by the time the fourth psychiatric report was produced there was simply no way that doing so could have been justified by the evidential test that the CPS is meant to apply when starting or continuing any prosecution. The test is satisfied only if: “… an objective, impartial and reasonable jury, … properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.”
To have continued with an evidentially weak case in the hope that an unreasonable jury would have been willing to convict because of their revulsion at the crime would have been quite wrong. The CPS were right to drop the murder charges...
'Bar Council issues guidance to barristers on generative AI based on large language models'
There is nothing inherently improper about augmenting legal services with AI tools - but they must be properly understood by individual practitioners and used responsibly. That is the gist of the latest guidance to the legal profession on the use of so-called large language model (LLM) software, from the bar's representative body. It follows the previous publication of advice by the Law Society and HM Judiciary...
Like its predecessors, the Bar Council's guidance 'Considerations when using ChatGPT and generative artificial intelligence software based on large language models' warns against taking the output of generative AI systems at face value. It stresses that such systems do not analyse the content of data but rather act as 'a very sophisticated version of the sort of predictive text systems that people are familiar with from email and chat apps on smart phones, in which the algorithm predicts what the next word is likely to be'. The guidance identifies three key risks with the technology:
- Anthropomorphism: systems are designed and marketed to give the impression that the user is interacting with a human, when this is not the case.
- Hallucinations: outputs which may sound plausible but are either factually incorrect or unrelated to the given context.
- Information disorder: The ability for ChatGPT to generate misinformation 'is a serious issue of which to be aware'...