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
'Criminal Bar Association survey: mass exodus of specialist rape lawyers looms'
A critical shortage of criminal barristers doing rape and serious sexual offence (RASSO) cases looks set to get worse, a landmark survey has revealed - with poor remuneration and wellbeing driving the looming exodus. The Criminal Bar Association conducted a survey this year to understand why there are not enough barristers to do RASSO work. The survey received 780 responses. Six in 10 prosecutors and five in 10 defence barristers blamed insufficient pay for refusing to do RASSO work. Half refused due to poor wellbeing. Nearly two-thirds of prosecutors will not be reapplying to remain on Crown Prosecution Service panels. Two-thirds of defence counsel want to quit. Barristers typically spend between 100-200 hours on a case, in addition to the days covering the trial...
CBA chair Tana Adkin KC said: ‘Doing nothing to increase RASSO fees is not an option unless we want to accept that rape and serious sexual offence trials will continue to be delayed for years, repeatedly postponed on the day because there is no barrister to prosecute or defend. The human cost for victims of these crimes as well as innocent defendants is beyond financial measure’... The criminal bar will hold a national meeting with members on 5 March to discuss 'next steps'.
'Criminals gaming the justice system as cases jammed for years in court backlog'
Criminals are gaming the system by pleading not guilty and relying on crippling trial delays to evade justice, The Independent has been told. Laying bare the extent of the crisis in the courts, figures obtained by this publication suggest the number of cases waiting more than three years for a verdict has skyrocketed at least sevenfold since 2019 to exceed 1,280 last June. As delays have soared, the proportion of early guilty pleas has plummeted – falling by nearly half in four years – as suspects try to manipulate the system...
Bar Council chair Sam Townend KC said the fall in guilty pleas suggests an increasing trend of criminals trying to manipulate the justice system to avoid conviction and imprisonment.“Young criminal men, who should be pleading guilty at an early stage, become more aware that their day of reckoning is getting pushed back further and further and, because of the high rate of ineffective trials, perhaps may never come at all,” he told The Independent. “Victims and witnesses are becoming ever more disillusioned or simply give up. My concern is of a complete collapse in public confidence in the system.”
The president of the courts system has also cited fewer people pleading guilty as a key driver of the backlogs. “That may be a vicious circle,” the lady chief justice Baroness Carr told MPs. “It might be because of delays, so people decide they are going to plead not guilty and see what happens down the line”...
'20 Nightingale courtrooms remain open to boost capacity'
A total of 20 Nightingale courtrooms will remain open in 2024 to allow more cases to be heard across the country, the government has announced today (16 February 2024). These temporary courtrooms, across nine venues, will continue to be used by judges to hear cases ranging from shoplifting to family proceedings and small claims hearings. The majority of the courtrooms will be open until March 2025.
The temporary courts opening for another year are (criminal only):
- Barbican, London
- Chichester
- Cirencester
- Croydon
- Grand Connaught Rooms, London
- Maple House, Birmingham
- Swansea
'Criminal courts: New rules signed off for live links and disclosure'
New changes to the Criminal Procedure Rules include amendments relating to the correction of court records, disclosure and live links. The changes made by the new rules will come into force on 1 April.
Rule amendments to live links include clarifying that the applicant for a live link, when the person will be attending from abroad, must show that they have obtained, or will obtain, any permission needed from the authorities for the country from which the live link will be used.
Amendments to deal with the powers to correct inaccurate court records and, if necessary, substitute a valid decision for one which a court, as it later appears, had no power to make, are as a result of ‘several decisions of the High Court and the Court of Appeal, most recently in the judgment of the Court of Appeal in R v Butt, R v Jenkins’.
Rules covering prosecutions disclosure and the statutory obligations on the defence have also been revised and clarified. The Rule Committee agreed to refer explicitly to the prosecution practice of sharing its approach to disclosure and the reasons for that approach.
References to time limits in Part 33 of the CPR will now see days replaced with references to business days, and reference to independent domestic violence advisors and independent sexual violence advisors will be referred to explicitly when referring to the court's power to allow someone to keep a witness company.
'Tougher sentences for ‘rough sex’ killers'
Cowards who kill their partners with sexual violence will face longer behind bars as the government continues to clamp down on domestic abuse against women. A new statutory aggravating factor will be brought in for offenders who cause death through abusive, degrading or dangerous sexual behaviour – or so-called ‘rough sex’ – meaning killers are handed down tougher sentences than ever before.
The measure, announced today (14 February 2024), builds upon action taken in the Domestic Abuse Act 2021 to clarify in law that there is no such thing as the ‘rough sex defence’, and comes as the government publishes its latest Rape Review progress report... To ensure all victims know the support available to them, the government has also launched a Victims’ Code campaign, to raise awareness of the rights everyone can expect to receive as a victim of crime. Through the Victims and Prisoners Bill, police, prosecutors and prison and probation workers will also have a new Code Awareness Duty to make sure victims know their rights - including the right to be referred to a support service, receive updates on their case and the right to make a victim personal statement...
'WhatsApp image sender becomes first convicted cyber-flasher'
A registered sex offender has become the first person in England and Wales to be convicted of cyber-flashing. Nicholas Hawkes, 39, of Basildon, Essex, sent unsolicited photos of his erect penis to a 15-year-old girl and a woman on Friday. The woman took screenshots of the image on WhatsApp and reported Hawkes to Essex Police the same day. Hawkes admitted two charges when he appeared before magistrates in Southend earlier.
He is the first person to be convicted of the new offence of cyber-flashing, which was brought in under the Online Safety Act and came into effect on 31 January. After pleading guilty to two counts of sending a photograph or film of genitals to cause alarm, distress, or humiliation, he was remanded in custody until 11 March, when he will be sentenced at Basildon Crown Court...
Cases
R v Ahmed [2023] EWCA Crim 1521
On the morning of 15 August 2023 Abdul Basset Ahmed, an 18 year old male born in May 2005, was one of 59 migrants who entered UK territorial waters on board an overcrowded rigid inflatable boat. The boat had travelled from France. None of those on board was a UK national. When the boat was first seen by a Border Force vessel, Ahmed was at the tiller of the boat. He was controlling the speed and direction of the boat...
... Where a small boat is used to commit the offence contrary to section 25 and the level of culpability is low, we consider that a custodial sentence of 3 years should be the starting point i.e. the sentence without any reduction for plea and before consideration of aggravating and mitigating factors. This is the level of sentence for an offender who simply pilots the boat where the boat is reasonably seaworthy. In the event of an organiser falling to be sentenced, the level of sentence will be much higher. Were a court to be faced with an organiser who had subjected significant numbers of people to a high risk of death when the organiser's motivation was substantial financial gain, a starting point in double figures would be appropriate. An organiser who also had subjected others to exploitation or coercion might expect a sentence of 14 years or more. The usual statutory aggravating factors will apply to this offence. In addition, previous attempts to enter the UK (where the offender himself is attempting to enter using the small boat) and involvement of others (particularly children) in the offending will aggravate the offence. Mitigating factors will include the offender's age and/or lack of maturity, co-operation with the authorities once apprehended and the lack of any previous convictions. It is not necessary for us to set out all factors which may arise. In almost all Sentencing Council guidelines, the aggravating and mitigating factors are expressed to be non-exhaustive. Therefore, it would be inappropriate for us to set out an exhaustive list. In an appropriate case it may be relevant to take into account the circumstances which might be relied on as arguable grounds for claiming asylum i.e. where the offender's principal concern was to gain entry to the UK as an individual with the assistance given to others being a collateral purpose. The overarching guidelines issued by the Sentencing Council will apply to any offence contrary to section 25. Of particular relevance in the context of this offence may be the Children guideline and the guideline for sentencing offenders with mental disorders...
Jesse Quaye, R (on the application of) v Secretary of State for Justice [2024] EWHC 211 (Admin)
On 10 May 2014 the claimant was at a party in Hemsby, Norfolk. Whilst at the party he participated in the stabbing of a 21 year old man named Connor Barrett. The claimant was born on 15 August 1996 so he was aged 17 at the time of the stabbing. Connor Barrett died from the stab wounds. The claimant and another young person (Ayomindy Bile aged 15) were charged with the murder of Connor Barrett. They were tried in the Crown Court in Norwich. On 20 November 2014 both were convicted. On 16 January 2015 they were sentenced to detention at Her Majesty’s Pleasure (“DHMP”) pursuant to section 90 of the Powers of Criminal Courts (Sentencing) Act 2000. That form of detention was and is obligatory for any offender aged under 18 at the time the murder was committed. The judge specified a minimum term of 15 years in respect of each offender...
Section 27A makes provision for a minimum term review whereby an offender could apply for a reduction in the minimum term imposed at the date of sentence. The statutory right to apply for a review is restricted to those who were under the age of 18 when sentenced. Section 27A came into force on 28 June 2022. Prior to the introduction of section 27A reviews of minimum terms imposed in relation to sentences of DHMP were conducted on a non-statutory basis by reference to departmental policy. Prior to February 2021 this policy permitted a review in relation to any person serving a sentence of DHMP. Thus, when he was sentenced, the Claimant had a right to apply in due course for a review of his minimum term. That right was removed statutorily by section 27A...
For the reasons we have set out above there will be a declaration under section 4 of the Human Rights Act 1998 that sections 27A(1) and 27A(11) of the Crime (Sentences) Act 1997 as inserted by 128 of the Police, Crime, Sentencing and Courts Act 2022 are incompatible with articles 5 and 14 of the European Convention...
Other
'Should courts sit 24/7 for protest hearings - and will it tackle the backlog?'
Policing across the country is facing "chronic challenges" due to protests, according to a senior officer from the Metropolitan Police. Assistant commissioner Matt Twist told a Policy Exchange event the force was dealing with "protests, activism and demonstrations every single day" - with climate campaigners like Extinction Rebellion and large-scale marches over the Israel-Hamas war taking up a huge amount of police resources...
After the 2011 riots, the head of public prosecutions, the now Labour leader Sir Keir Starmer, ordered courts to sit 24/7 to tackle the huge number of cases amounting from the disturbance, saying it played a part in "bringing the situation back under control". A total of 2,138 people - or 69% of the 3,103 who appeared in court related to the disorder - were found guilty within five days of the riots breaking out. Now a former commissioner of the Met, Lord Hogan-Howe, has suggested the measure could be reintroduced to clear the likes of XR and pro-Palestinian protesters from the courts, allowing the system to get back on its feet, but also sending a "signal" to protesters about the consequences of their actions...
'Director Ephgrave' speech at RUSI 13 February 2024 - Serious Fraud Office'
On Tuesday 13 February 2024, Nick Ephgrave QPM gave his first public speech as Director of the Serious Fraud Office (SFO) to an audience which included representatives from the media, the UK criminal justice sector and law enforcement partners, at the Royal United Services Institute (RUSI) in London...