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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
'Top judge considers scrapping trial by jury to tackle court backlog'
The country’s top judge will look at taking away trial by jury for some offences in an attempt to reduce case backlogs in the crown courts. Baroness Carr of Walton-on-the-Hill, the lady chief justice, said that “medium to long-term scrutiny of the criminal justice system” was required to deal with the 66,500 cases that were stacked up in the courts that heard the most serious offences in England and Wales.
However, her comments drew a strong reaction from criminal law barristers who said that Carr’s proposals were tantamount to “undermining the cornerstones of 800 years of a tried-and-tested justice system”...
'Nottingham attacks: Families call for law change after CPS review'
The families of three people killed in the Nottingham attacks have called for homicide laws to be changed following a review into the case. Barnaby Webber and Grace O'Malley-Kumar, both 19, and Ian Coates, 65, were stabbed to death on 13 June. Valdo Calocane was given a hospital order in January for manslaughter on the basis of diminished responsibility...
The HM Crown Prosecution Service Inspectorate (HMCPSI) looked into how the Crown Prosecution Service (CPS) handled the case following complaints by the victims' families... Inspectors concluded prosecutors were right to accept manslaughter pleas, but could have handled the case better. The report also called on the government to consider changing the categorisation of homicide into three tiers - first degree murder, second degree murder and manslaughter - as recommended by the Law Commission nearly 20 years ago... It recommended the CPS undertake a review of all guidance relating to victims' engagement to ensure its use of the terms "consult" or "consultation" are appropriate. "There is no obligation on the CPS to 'consult' victims when making a decision on the evidential test of the Code for Crown Prosecutors, but rather to 'inform' and 'explain' their decision," the report added.
The report can be found here.
'Clean-up scheme expanded nationwide to tackle anti-social behaviour'
Rapid Deployment teams - made up of offenders serving Community Payback sentences – will be on call to swiftly deal with notorious instances of anti-social behaviour across the country after a successful pilot. Members of the public are being invited to nominate projects in their local area which will see offenders carrying out hard graft such as picking litter from roadsides, scrubbing graffiti from underpasses or shopfronts, and maintaining neighbourhood beauty spots within 48 hours of cases being reported to the Probation Service.
Community Payback ensures offenders visibly atone for their crimes in a way that benefits the law-abiding majority and allows the public to see justice being done in their own communities. The scheme is now being expanded to all 12 Probation regions in England and Wales, meaning it will continue to directly benefit areas known to be among the worst affected by anti-social behaviour in the country including in London, the East Midlands, and the North West.
'Crackdown on ‘gagging orders’ to protect victims’ ability to access support'
Victims will no longer be prevented from accessing vital support or legal advice under plans to crack down on the misuse of non-disclosure agreements (NDAs) or so-called ‘gagging orders’. Confidentiality clauses, or NDAs, can protect sensitive employment information, yet too often they are misused to silence victims - denying them access to justice or support services to rebuild their lives. Changes to the law announced today (Thursday 28 March) will clarify that NDAs cannot be legally enforced if they prevent victims from reporting a crime and will ensure information related to criminal conduct can be discussed with the following groups without fear of legal action:
- police or other bodies which investigate or prosecute crime
- qualified and regulated lawyers. -other support services such as counsellors, advocacy services, or medical professionals, which operate under clear confidentiality principles.
'Bankers jailed for interest rate rigging lose appeal'
Two former bankers found guilty of rigging key interest rates have had their appeal against their convictions dismissed by the Court of Appeal. Tom Hayes and Carlo Palombo were among 37 City traders prosecuted for manipulating rate benchmarks, Libor and Euribor. Both men spent time in prison before being released in 2021. Their case went before the Appeal Court after a judge in the US overturned similar convictions there. The convictions hinged on whether the traders acted dishonestly by influencing the setting of key Libor and Euribor interest rates, or whether it was normal practice at the time...
In the US, rate rigging convictions, including for Mr Hayes, have been overturned after an appeal court said the US government had failed to provide evidence the traders had said anything false or broken any rules. The cases of Mr Hayes and Mr Palombo were referred back to the UK Court of Appeal last year by the Criminal Cases Review Commission on the basis that the courts might prefer the view of the US judges. But Lord Justice Bean, the lead judge on the appeal panel, said the US judgment "is not, and could not be, relevant" to the issues in English law. Lawyers for Mr Hayes and Mr Palombo had raised concerns that judges had decided whether their conduct was permitted, but this should have been for the jury to decide. This was also dismissed. The traders say they will now apply to take their cases to the Supreme Court.
Cases
Yusuff & Ors v Governor of His Majesty's Prison Belmarsh [2024] EWHC 692 (Admin)
... the clerk, after checking briefly with the judge, proceeded to ask the jury in respect of each count on the indictment, whether they found the particular defendant to whom that count related, Guilty or Not Guilty. In respect of each count her reply was "Not Guilty"; and then to the subsequent question (whether that was the verdict of them all) she said it was. The judge then discharged the applicants and the jury. Within a few minutes of the court rising however, the judge received a communication from the jury. We have not seen any record of that communication, but the judge asked them for a note (and having asked for the court to be reassembled) told counsel in the case in the absence of the jury, the substance of what was said. In short, their forewoman had made a mistake when answering the questions put to her; and the jury had not reached unanimous verdicts in respect of any of the counts they were required to consider...
... The short answer to these applications for habeas corpus is that relied on by the respondent and the CPS. The Governor had been and remained obliged to comply with the warrants of the Central Criminal Court remanding the applicants in custody. There was nothing on the face of the warrants to indicate that any of them was unlawful. The Governor was bound by those orders, which were valid unless varied or set aside by a superior court, or in the proper exercise of the court's own jurisdiction...
... Put simply, the jury identified the mistake that had been made by their forewoman promptly; the mistake they identified was consistent with their first note to the judge (that they had not reached unanimous verdicts on any count) and the matter was then sensibly and expeditiously sorted out by the judge (as a matter of logic, the jury's verdict on 11 January under count 3, which in any event did not depend upon whether they had reached any verdict on counts 1 or 2, cannot affect this analysis). It cannot be said in those circumstances, either that the judge made any jurisdictional error of such gravity as to deprive him of the jurisdiction to accept the jury's correction of the verdicts returned; or that he erred in the exercise of his discretion. We have already said that an error of law in the exercise of a judge's power in matters such as these, does not alter the obligation of a Governor to comply with any order remanding a defendant in custody or warrant reflecting the same, and that that remains the case unless and until the remand order in question is set aside. Even if we were to be wrong about this, an application for habeas corpus in this case, would fail on the facts...
R v Hayes & Anor [2024] EWCA Crim 304
The Appellants, both traders for major banks at all material times, were convicted in 2015 and 2019 respectively of the common law offence of conspiracy to defraud pursuant to allegations that they had dishonestly conspired with others to manipulate LIBOR and EURIBOR rates respectively. Their convictions are said by the Appellants to have depended on the construction of LIBOR and EURIBOR adopted at their trials, a construction which has been consistently adopted and confirmed in five decisions of this court, including two which dismissed appeals against conviction by each of them...
... At the heart of the challenge on this ground was the argument advanced by both Mr Darbishire and Mr Owen that there was a range of rates which could represent the submitter's honest and genuine assessment; and the submitter was free to take into account trading advantage in deciding where within the range of honest and genuine assessments to make the submission. There is, it is said, a false dichotomy between a genuine and honest assessment and one which takes into account trading advantage because if the submission is within the range of genuine and honest assessments available it can be placed anywhere within the range based on trading advantage and remain a genuine and honest assessment.
We reject this argument. It begs the question "genuine assessment of what?" That is a matter of construction of the LIBOR Definition or the EURIBOR Definition which defines the question which the submitter has to answer. That was the question of law addressed in the LIBOR cases, and as we explain when dealing with Mr Hayes' first ground and Mr Palombo's second ground, that was correctly treated as a question of law for the court. In the LIBOR Definition what is required is an assessment of the rate at which the panel bank "could borrow". That must mean the cheapest rate at which it could borrow. A borrower "can" always borrow at a higher rate than the lowest on offer. But the higher rate would not reflect what the LIBOR benchmark is seeking to achieve, namely identification of the bank's cost of borrowing in the wholesale cash market at the relevant moment of time. If in a stable and liquid market a submitting bank seeks and receives offers for a reasonable market size at the very time it is to make its submission, and receives offers ranging from 2.50% to 2.53%, it would accept the offer at 2.50%. It would be absurd to suggest that the LIBOR question could then properly be answered by a submission of 2.53%. The bank "could" borrow at that rate in the sense that it was a rate which was available, but that is obviously not what "could" means. When pressed in argument as to what "could" meant if it did not mean the lowest at which the bank could borrow, Mr Darbishire suggested that it meant the rate "at which it would have to borrow". This is a reformulation without a difference. The rate at which a bank would "have to" borrow is the lowest rate at which it could borrow. This remains the criteria which has to be applied in the more common scenario when there are a number of factors other than contemporaneous offers which have to be taken into account in answering the question. In an illiquid market, it may be very difficult to reach an answer to the question, and views between different banks might legitimately differ. But that does not change the nature of the question which the LIBOR Definition requires to be answered, which is the selection of the single figure which in the genuine estimation of the submitter represents the lowest cost at which the panel bank could borrow. There is no range of genuine and honest assessments in the sense that the submitter can treat each of them as a genuine assessment of the answer to the question, because the question demands a single rate by reference to an objective criterion which defines a single rate...
Other
'Carr considers jury reforms - by Joshua Rozenberg'
An inquiry into the criminal justice system could limit the right to jury trial, the lady chief justice of England and Wales has said. Calling for a formal public inquiry in a lecture last week, Baroness Carr of Walton-on-the-Hill said it could lead to real improvements. She told me afterwards that an inquiry might recommend “recalibrating” cases that can currently be tried either in the magistrates’ courts or by a judge and jury in the Crown Court. So-called either-way cases include most thefts, burglaries and some drug offences...