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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
'Sentencing review: 'Tough on crime' narrative failing victims'
The time has come for an 'honest conversation' about who is sent to prison and for how long, former lord chancellor David Gauke declared today, publishing a study that shows a 'tough on crime' narrative adopted by successive governments has pushed the justice system to the brink of collapse. Gauke, tasked by lord chancellor Shabana Mahmood to reevaluate the sentencing framework to end the prison population crisis once and for all, is not due to deliver his recommendations for another few weeks. Today, he published a report signalling that the prisons crisis is down to successive governments focusing on a ‘tough on crime’ agenda when they should have been focusing on effective non-custodial ways to cut reoffending...
According to the study, the Criminal Justice Act 1991 marked the beginning of a shift in the media and political narrative, which has led to each government of the day facing pressure to be ‘tougher on crime’. Legislative changes such as mandatory minimum sentences, made in response to tragic events, have driven sentence inflation and led to inconsistencies in the sentencing framework. Analysis shows the reoffending rate for offenders leaving custody is 37.2% overall, rising to 56.9% for those on short sentences. Gauke, who is currently sifting through responses to his call for evidence, said it was time for an ‘honest conversation about who we send to prison, and for how long’...
'Child exploitation and cuckooing to be made criminal offences'
Child criminal exploitation and "cuckooing" are set to become specific criminal offences as part of new legislation being introduced to Parliament next week. The Crime and Policing Bill will also include measures that could see restriction orders put on people thought to be at risk of exploiting children for criminal means. Cuckooing is when the home of a vulnerable person is taken over by criminals who use it as a base for illegal activities, such as drug dealing...
The cuckooing offence will carry a maximum penalty of five years in prison, while the standalone child criminal exploitation offence will carry a maximum sentence of 10 years. The legislation will also see the introduction of CCE prevention orders, which will mean that courts can put restrictions on people who they believe pose a risk of exploiting a child for criminal purposes. Breaking these orders will also be a criminal offence, carrying a maximum sentence of five years in prison...
'Ronan’s Law to see toughest crackdown yet on knife sales online'
Stricter rules for online retailers selling knives will be introduced by the government, along with tougher penalties for failing to enforce them, as we pursue every avenue to protect young people from knife crime. Following tragedies where the unlicensed sale of these weapons online has led to young people being killed, retailers will be required to report any bulk or suspicious-looking purchases of knives on their platforms to police to prevent illegal resales happening across social media accounts.
Underlining our commitment to stop these weapons from reaching young people, we will increase the sentence for selling weapons to under 18s from 6 months to up to 2 years prison time, which could apply to an individual who has processed the sale or a CEO of the company. This increased penalty will also apply to the sale or supply of prohibited offensive weapons such as recently banned zombie-style knives, following police evidence outlined by Commander Stephen Clayman, the National Police Chiefs’ Council lead for knife crime, where he identified a discrepancy in current legislation which means there is more leniency for illegally selling weapons than possessing one.
And in recognition of the broad array of knives - legal or banned - that are involved in knife attacks, a new offence of possessing an offensive weapon with intent for violence will be introduced in the Crime and Policing Bill which will come with a prison sentence of up to 4 years in prison. This means that no matter if the weapon in possession is legal or not, if there is intent to cause violence, it is a crime...
'Aggravated vehicle taking and other motoring offences – new sentencing guidelines'
The Council has published sentencing guidelines for offenders convicted of motoring offences committed while driving vehicles without the owner’s consent.
The guidelines will come into effect on 1 April and cover four aggravated vehicle taking offences:
- Aggravated vehicle taking – death caused
- Aggravated vehicle taking – injury caused
- Aggravated vehicle taking – dangerous driving
- Aggravated vehicle taking – vehicle/property damage caused
Also released today and coming into effect on 1 April are:
- a new, overarching guideline consolidating all existing guidance on driver disqualification
- a new guideline for vehicle registration fraud offences, including forging, altering or fraudulently using vehicle number plates, and
- an increased in the starting-point fine for people using mobile phones while driving from Band A (50% of relevant weekly income) to Band B (100% of relevant weekly income).
'Apple pulls data protection tool after UK government security row'
Apple is taking the unprecedented step of removing its highest level data security tool from customers in the UK, after the government demanded access to user data. Advanced Data Protection, external (ADP) means only account holders can view items such as photos or documents they have stored online through a process known as end-to-end encryption. But earlier this month the UK government asked for the right to see the data, which currently not even Apple can access.
Apple did not comment at the time but has consistently opposed creating a "backdoor" in its encryption service, arguing that if it did so, it would only be a matter of time before bad actors also found a way in. Now the tech giant has decided it will no longer be possible to activate ADP in the UK. It means eventually not all UK customer data stored on iCloud - Apple's cloud storage service - will be fully encrypted, external. Data with standard encryption is accessible by Apple and shareable with law enforcement, if they have a warrant...
'Concerns about judicial security at 'all-time high' - LCJ'
Concerns about judicial security are at an 'all-time high', the lady chief justice told journalists today... Asked about security, she added: ‘Judicial security has been an issue ever since I took up office. It really came to a very dramatic and concerning head with the very serious physical attack on [His Honour Judge] Patrick Perusko at Milton Keynes where the assailant was convicted in due course, but it was a very serious attack. The silver lining of a very dark cloud was it made everybody really sit up and make sure we were doing everything with HMCTS to ensure that their responsibility to preserve the safety of judges in courts and tribunals was being met. Since the assault on Patrick, we have seen a rolling national programme of improvements to courts. It is sometimes as simple as moving a witness box from left to right so the witness isn’t blocking the judge’s exit, making sure the wooden barrier is working. We have much more regular tests of panic alarms, we have blind tests, we have a new potentially violent person protocol, we have better engagement with local police stations. All of that I am really engaging with and trying to get judges to realise many of them do have a police station next door, make contact with the chief constable, make contact with your local police officer so it all comes to life a bit’...
Cases
R v Barone [2025] EWCA Crim 125
... The first requirement of an offence under section 67A(2) is that A records an image "beneath the clothing" of B, the image being of that person's private parts. That is generally understood to be the essence of "upskirting": looking up someone's skirt towards their private parts. In that context, the meaning of the word "beneath" is clear. The section is concerned with people who look up a person's legs to their private parts despite the fact that the person has clothed that part of their body. It does not matter whether the skirt is short or long: the concept is the same. That this is the meaning to be attributed to "beneath" is supported by the fact that section 67A(1) uses the same approach in relation to operating equipment "beneath" the person's clothing. Here, as we have described in [11] above, what the applicant did was squarely within the meaning and purpose of section 67A(2): he looked up and through C's legs to her private parts, when she was wearing a skirt that covered that area of her body. It is not reasonably arguable that "beneath" applies only to images which are recorded from "closer to the floor". That would exclude a case where a person was, for whatever reason, horizontal (e.g. resting or otherwise lying down), which makes no sense at all.
The second requirement of an offence under section 67A(2) (as also under section 67A(1) is that the image is taken beneath the clothing "in circumstances where the [private parts] would not otherwise be visible". This means that the upskirting gives A a view (or image) of the victim's private parts that would not be available otherwise than by upskirting. We reject the submission that this requirement is not met in the present case. As the photographs and CCTV clearly show (and we have attempted to explain above) the applicant obtained his view and images of C's private parts by placing himself and his camera in specific positions that would enable him to see through to her private parts. His use of the phrase "on display" is as inaccurate as it is outrageous. As we have said, her lower legs and feet provided a significant barrier to intrusive and prying eyes. The most that could be said was that, if other people had shared the applicant's inclination, they too could have manoeuvred themselves to a position where they could see aspects of C's private parts. It is simply wrong to suggest that persons in other parts of the carriage, or who did not pass directly by C and adopt the same position as the applicant, could see C's private parts, let alone to assert that they were "on display"...
Other
'Independent Sentencing Review: History and trends in sentencing'
The Independent Sentencing Review has published Part 1 of its final report. This report:
- Provides a comprehensive explanation of why and how prison population has sharply increased in recent decades and is expected to continue to grow, including research spotlights and case studies, and outlines the prison population challenge in figures
- Advocates for an approach to sentencing that is rooted in the principles of sentencing and public service reform, where resources could be more effectively deployed to reduce crime and the number of victims