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
'Resurrect royal commission on criminal justice system, lady chief justice Baroness Carr suggests'
The justice system should be opened up to greater scrutiny by researchers, the lady chief justice has said in a speech that suggested a Royal commission promised in the 2019 Conservative election manifesto should be resurrected. Delivering the Kalisher Lecture at the Old Bailey yesterday, Baroness Carr of Walton-on-the-Hill said more studies and testing by a wider range of researchers were needed to nurture the justice systems, especially the criminal one... However, Carr went on to suggest that a Royal commission on criminal justice should be set up, recalling that it was part of the Conservative party’s 2019 election manifesto. Work on the commission was paused during Covid and subsequently kicked into the long grass.
'Message to Presiding Judges, Resident Judges, Crown Court Judges, Heads of Crime and members of the Criminal Bar and their clerks '
You will all by now be aware of the initiative to list, wherever possible before July 2024, cases involving allegations of rape that are more than two years old as at 31 December 2023. The backlog of cases has been examined and there are about 180 cases nationwide that have been identified. Of these, 140 already have dates in before the end of July 2024, whether fixed or floating. Others are listed shortly thereafter in September or October 2024. A small number are not listed or listed after 1 January 2025. Accordingly it is hoped that the initiative will affect only a small number of cases nationally. However it is unclear whether those cases with dates already before July were fixed with Counsel’s availability in mind. For those cases the exercise will be to do everything which can be done to make that date effective, or to move the case to a date when it will be...
The proposal is that Circuit-wide listing meetings are held, with representatives from Chambers, Resident Judges and Listing Officers so that these cases can be discussed with a view to finding dates that are convenient to all parties. It is envisaged that prior to these meetings Listing Officers will identify for Chambers those cases which are to be considered and the available dates for the cases to be listed early so that early consideration can be given by all concerned in relation to the management of the cases. This will allow the Bar to consider the extent to which they can be flexible prior to the meeting in the spirit ofmaking the meetings as efficient as possible. It is recognised that there is a limited pool of qualified advocates able to do this work, and there are no guarantees sufficient Counsel will be available...
'More synthetic opioids banned to protect communities'
Fifteen additional synthetic opioids are now under the strictest controls, in line with fentanyl, to prevent drug related deaths in the UK and ensure anyone caught supplying these substances faces tough penalties. From today, 15 additional synthetic opioids, including 14 nitazenes, are now controlled as Class A drugs under the Misuse of Drugs Act 1971, following advice from the Advisory Council on the Misuse of Drugs (ACMD).
Many of these substances are highly addictive and incredibly dangerous and pose a higher risk of accidental overdose – a widespread problem in other countries. Placing them under the strictest controls is a clear message to anyone involved in production or supply of these drugs that they will face the full force of the law – including up to life in prison, an unlimited fine, or both...
'Cyber-flashing convict is first to be jailed under new law'
A convicted paedophile who sent a picture of his erect penis to a 15-year-old girl has become the first person to be jailed for cyber-flashing in England and Wales. Registered sex offender Nicholas Hawkes, 39, of Basildon, Essex, also sent unsolicited photos to a woman. The woman took screenshots of the WhatsApp image sent on 9 February and reported it to police the same day. Hawkes, who admitted two charges, has been jailed for just over 15 months. The offence was brought in under the Online Safety Act and came into effect on 31 January. It has been an offence in Scotland, which has a separate legal system, for more than a decade...
'Met Police officer sanctioned for contact with a juror midway through trial at Harrow'
former Met Police officer who made contact with a juror mid-trial would have been sacked if he had not already resigned, a misconduct hearing has concluded. It found that the unnamed officer, who was attached to the specialist crime command, had breached the standards of professional behaviour in terms of honesty and integrity. The officer attended a trial in November 2022 at Harrow Crown Court and struck up contact with a juror. The juror was also seen in the officer’s car. He was interviewed under caution and denied having any contact with the juror, but phone data later showed he had messaged and called them...
The officer retired from the Met in December 2023 before his disciplinary hearing this week. Had the officer still been serving, it was found by a disciplinary panel that he would have been dismissed. He has been placed on the barred list which prevents him from re-joining the police...
'Labour matches Tory pledge to spend £4bn on new prisons'
Labour has matched the Tory pledge to spend £4 billion on building new jails to tackle the prison overcrowding crisis. Emily Thornberry, the shadow attorney general, made the commitment as she insisted that decisions about where offenders were sent should not be made on the basis of “whether or not there is enough space”.
The prison population is projected to rise from the current 89,000 to about 106,000 within the next three years because of longer jail sentences and an expected increase in prosecutions from the 20,000 uplift in police officer numbers. However, watchdogs have warned that even with the current prison building programme, the system could still run short of spaces as the Ministry of Justice (MoJ) struggles to meet current demand. Earlier this month, the number of spare places dropped below 250 in men’s jails...
Cases
Attorney General’s Reference on a Point of Law No 1 of 2023 [2024] EWCA Crim 243
This reference by His Majesty’s Attorney General (AG) raises an important question as to the scope and effect of section 5(2)(a) of the Criminal Damage Act 1971 (section 5(2)(a)) (the 1971 Act). Section 5(2)(a) defines when a person is to be treated as a “having lawful excuse” for the purpose of the offence of criminal damage provided for in section 1 of the 1971 Act...
Pursuant to section 36 of the Criminal Justice Act 1972, the AG has referred to this Court two points of law said to have arisen in C’s trial and upon which she desires the opinion of the Court. The points of law are as follows: “1. What matters are capable, in law, of being the “circumstances” of destruction or damage under section 5(2)(a) of the Criminal Damage Act 1971? In particular, a. if the destruction or damage is an act of protest, are “circumstances” in the phrase “the destruction or damage and its circumstances” capable as a matter of law of including the merits, urgency or importance of any matter about which the defendant may be protesting by causing the destruction or damage, or the perceived need to draw attention to a cause or situation? b. if there is no direct nexus between the destruction or damage and the matters on which the defence rely as “circumstances”, can those matters still be “circumstances” within the meaning of the phrase “the destruction or damage and its circumstances”?...
In those circumstances, we provide the following answers to the first questions of law posed by the AG: i) “Circumstances” in the phrase “the destruction or damage and its circumstances” do not include the merits, urgency or importance of the matter about which the defendant is protesting, nor the perceived need to draw attention to a cause or situation. ii) “Damage and its circumstances” means the damage and the circumstances of the damage which, in protest cases, means the fact that the damage was caused as part of a protest (against a particular cause).
Kim, R (On the Application Of) v Governor of His Majesty's Prison Wandsworth [2024] EWHC 645 (Admin)
.. On 16 January 2024, Bumju Kim pleaded guilty at the Westminster Magistrates' Court to an offence of battery contrary to s.39 of the Criminal Justice Act 1988. He was sentenced at 11.41 a.m. that day to ten weeks' imprisonment. Taking into account the time that Mr Kim had spent on remand, it is common ground that he should then have been released. Instead, Mr Kim was put on a prison bus and taken back to Wandsworth Prison... I was the duty judge that evening. At 2.23 a.m. on 17 January 2024, I gave leave for the issue of a writ of habeas corpus and ordered the Governor of Wandsworth Prison to produce Mr Kim before me at the Royal Courts of Justice at 11 a.m. unless he had been released from custody before that time. Mr Dalton called the prison again at 9.14 a.m. but the member of staff answering his call refused to put him through to either the duty governor or the OMU. Mr Kim was released on 17 January but not until after the 11 a.m. deadline. In breach of my order, the Governor failed to produce Mr Kim before the court. Indeed, the Governor neither appeared nor was represented before me. Instead, lawyers from the Government Legal Department attended court and took a noting brief having first communicated their instructions to Kate O'Raghallaigh, who appeared for Mr Kim and was able to relay the Governor's position to the court. I then ordered the Governor to file and serve evidence by affidavit by 4 p.m. on 25 January 2024 explaining, first, the grounds, if any, for Mr Kim's detention between the sentencing hearing on 16 January and his release; and, secondly, the reasons why the Governor had failed either to release Mr Kim or produce him before the court by 11 a.m. as ordered and as commanded by the writ of habeas corpus...
Other
'Just Stop Oil should be judged in public, not by a jury'
... Section 5(2)(a) of the Criminal Damage Act 1971 provides a defence JSO protesters sometimes use. It allows for defendants who believe that the person they thought was entitled to give consent would have consented, had they known of “the damage and its circumstances”... The Court of Appeal has now clarified two things: “circumstances” includes the fact the protest was about climate change but no more detail than that, and a judge may withdraw a defence if no reasonable and properly directed jury could acquit on the basis of it.
So there will be less of this, but not none. For one thing, judges can still choose to leave the decision to the jury, when a defendant claims the relevant belief. But, more significantly, juries can still acquit in the face of the evidence. It’s a grey area — particularly on what a defendant is permitted to say to a jury about the supposed “right” to acquit — but a judge cannot order a conviction, and a defendant or his barrister will always be allowed to invite a jury to acquit...
Obscurity
'80-year-old man pleads guilty to genetically engineering giant hybrid sheep in audacious scheme'
A Montana man pleaded guilty before a federal judge to two felony wildlife crimes for an almost decade-long effort to create giant sheep hybrids to sell the species to hunting facilities, the U.S. Department of Justice announced this week. Eighty-year-old Arthur "Jack" Schubarth of Vaughn, Montana, is the owner and operator of Sun River Enterprises LLC – also known as Schubarth Ranch – a 215-acre "alternative livestock" ranch, according to a March 12 press release from the DOJ. Schubarth conspired with at least five other individuals between 2013 and 2021 to genetically engineer a larger hybrid sheep species that would garner higher prices from shooting preserves, according to the release, which cites court documents in his case...