The Government has published new plans to increase road safety. The idea is to make the roads safer for everyone; drivers, passengers and pedestrians . The plans include several changes for people of all ages, and for more specialised drivers like HGV drivers and motorcycle riders.
The Department for Transport has granted funding of £225,000 to Good Egg Safety to develop a training course for fitting child seats. This is because information suggests that most parents don’t know how to install a child seat correctly.
Additional funding will go towards developing educational resources for schools and researching road safety for children with special education needs.
The largest at-risk age group on the road is young adults. Therefore, the Department for Transport is considering ways to make young drivers safer. This includes consulting on several new learning and licence schemes; the potential use of Graduated Learner Schemes pre-test, and Graduated Driving Licences post-test.
The USA, Canada and Australia already uses these schemes and licences. The pre-test scheme imposes requirements for a learner before they can take their test. This is usually a certain number of hours of instruction. The post-test scheme involves restrictions on a new licence for several years or until a certain age.
In California, for example, new drivers under eighteen cannot drive unsupervised at night, carry passengers under 20 unless supervised, or use mobile phones including hands-free devices.
One change along these lines recently in the UK was for the revocation of a new driver’s licence. The licence will be revoked if six penalty points are acquired within two years of their test. A new driver getting six points will have to re-sit their test.
Driving tests will also continue to be updated to take into account technological changes. This is similar to the recent move to include satnav driving in the test.
The Government will consult on the use of penalty points for people who don’t use their seatbelt, as well as the current fine. 27% of fatalities on the road in 2017 involving people not wearing a seatbelt.
Portable breathalysers are being developed, meaning police officers will be able to take a sample that is good enough for court proceedings at the side of the road. At the moment, a driver takes a preliminary test at the roadside, followed by an official test at the police station. The proposal would free up officers for other duties quicker.
The Government is also researching the feasibility of ‘alcolocks’. This is a device which immobilises a car until someone under the limit blows into a tube. These would be introduced for those convicted of drink-driving to try and prevent re-offending.
New cycling offences are also being considered so that those who cause serious harm can be dealt with in a similar way to those who cause serious harm by driving.
The second-largest at-risk age group on our roads are the elderly; the Government will continue to fund Mobility Centres for those who are unable to drive, most of whom are sixty-five or over.
Safety tests will also be updated, using old-age crash test dummies, as well as female dummies. This is in a bid to reduce injuries in those groups by allowing cars to be designed differently.
A consultation will also be launched into whether to require drivers to undertake mandatory eye tests at seventy, and upon licence renewal every three years thereafter.
Drivers who drive for a living are already tightly regulated by the use of tachographs and more stringent testing. The Government will consult on banning tyres older than ten years, as well as on changes to side guards, which protect pedestrians and cyclists if the HGV changes direction while alongside someone.
The Government will develop a new training regime for bikers. This will include a compulsory theory test before they can ride on the road, and changes to the current CBT (Compulsory Basic Training). They also plan to develop post-test training further and increase the uptake of this Enhanced Rider Scheme.
Better protective equipment is also under development, and the SHARP system of rating helmets is being continued and improved. The Government are also working with the UK protective clothing industry to understand how to encourage riders to wear the best equipment.
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We have all read newspaper articles reporting that a drug dealer or fraudster made hundreds of thousands from their offending but was ordered to pay back a much smaller amount. However, that is not always the end of the matter. The prosecution can ask for a change to the order under the Proceeds of Crime Act.
What are the proceeds of crime?
If a defendant is determined to have had a ‘criminal lifestyle’ and benefitted from it, or if he benefitted from his particular criminal conduct then the court must decide on a ‘recoverable amount’ and make a confiscation order requiring the offender to pay it.
This is the amount they have gained from their criminal activities.
If a defendant can establish that he does not have the recoverable amount, he can be ordered to pay a lesser amount that he does have. That sum is the ‘available amount’, and that order is also known as a confiscation order.
It is quite possible to ‘benefit’ from crime financially but to have spent all of that money by the time you are arrested. It is in these circumstances, because you spent all the money on drugs, for example, that the benefit figure far exceeds any available amount.
What if I later win the lottery?
If a confiscation order is made, and the amount to be repaid is less than the recoverable amount, then the prosecutor or receiver (someone who is appointed to help enforce a confiscation order) can apply to the court under section 22 of the Proceeds of Crime Act 2002 for reconsideration of the available amount.
If this new calculation of the amount now available is higher than the original amount, the order may be varied, and you will have to pay more money back.
How much more could I be ordered to pay?
The court can order any amount it believes to be ‘just’, as long as it does not exceed the benefit amount (as found at the original hearing) although there is also a power for the court to reconsider the benefit amount. The court also has to take inflation into account and any change in the value of money.
What does ‘just’ mean?
The court must first consider whether it is just to make the order. The word ‘just’ means just in all the circumstances, bearing in mind that the purpose of such orders is the advancement of the public interest in confiscating the proceeds of crime.
The court must take certain factors into account when considering what amount should be ordered. These include any fine imposed for the original offences, any forfeiture order already made, compensation or the victim surcharge.
Is there a time limit?
The prosecutor or receiver can make any number of applications for a new calculation of the available amount. There are no time limits for the making of an application.
There is a time limit of 6 years from the date of conviction to seek a revaluation of the benefit amount.
In what circumstances have applications been made?
- The canoeist, John Darwin, faked his own death to receive life insurance payouts. The benefit amount in his case was found to be £679,073.02. In 2014 it was reported that he had only repaid £121 although most property had been in his wife’s name. She had paid over £500,000 under a separate confiscation order. Before committing these offences, he was a teacher and prison officer and had pensions as a result. On the maturing of two pensions, the prosecutor made an application for reconsideration of the available amount. The application was made five years after the confiscation order was imposed. He was ordered to pay £40,000 by the court.
This case clearly demonstrates that even legitimately obtained monies will be taken into account.
- Gurdeep Padda was a drug dealer. In 2006 a confiscation order was made in the sum of £9,520, and the benefit amount was set at £156,226.74. In 2012 an application was made for reconsideration after Mr Padda gained employment and subsequently set up a limited company. The case proceeded on the basis that the assets were legitimate and were acquired after the conclusion of his sentence. He attempted to argue that as the funds were derived legitimately, they should not be confiscated to satisfy the original order. He was not successful, and a new calculation was made of £103,162.41. In upholding the order on appeal the court referred to the “legislative policy in favour of maximising the recovery of the proceeds of crime, even from legitimately acquired assets”.
- Adrian Cole was sentenced for offences of concealing criminal property and false accounting in 2008. A confiscation order was made in 2009 with an agreed benefit figure of £575,000 and an available amount of £55,000. It was envisioned that he would sell property to realise the equity to pay the sum due. It transpired that others actually paid the money on his behalf and he did not sell the property. In 2014 he pleaded guilty to conspiracy to supply Class A drugs. In the resulting confiscation proceedings, an application was also made to recalculate the available amount from the 2009 order.
- Ian Mundy pleaded guilty to various offences involving the supply of drugs. A benefit figure was assessed at £172,365, and a confiscation order of £9,275 was made in 2008. In 2017 an application was made to the court because a property owned by Mr Mundy that had a negative value in 2008 was now worth £17,000. In addition, he had several vehicles and positive bank balances. The increase in the value of the house was contested and confined to £10,000, referred to as a modest amount. The vehicles were not worth as much as the prosecution had initially thought and one of the respondent’s savings accounts was for his daughter’s education. The application was refused, and the prosecution appealed. The issue was what was ‘just’. The Court of Appeal agreed that it was open for the judge to decline to vary the order.
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You have been convicted of a crime you didn’t commit, your appeals are exhausted, and you serve time in prison. Part way through, you’re eligible for parole. So you hope finally to get out and put this behind you.
The parole board give you their decision, but parole is refused, seemingly because you refuse to accept your guilt. What can you do?
The Parole Board
The role of the Parole Board is to decide if it is safe to release a person. They mainly make decisions in relation to life prisoners, extended sentences, or offenders of particular concern such as terrorists or child sex offenders; they do not make a release decision about all prisoners. The decision to re-release someone who has previously breached their licence conditions is also down to the Parole Board.
They will consider one question: whether the prisoner is a serious risk to the public.
Those who are a serious risk will remain in prison. However, those who are not will be released on licence, serving the remainder of their sentence in the community under the watch of the Probation Service.
How does the Parole Board decide who to release?
To assess any risk to the public, the Board will consider many factors.
They may look at the circumstances that led to the offence being committed — such things as lifestyle, including any drug or alcohol use or abuse, relationships and acquaintances, living conditions and other factors. The Board will consider if those factors have changed.
They may also look at the circumstances the prisoner will be released into. For example, will they have a family network, a place to live, or a job? These things are likely to help the Board feel that any risks can be effectively managed outside of prison.
They will also look at a person’s record in prison. This includes their behaviour, their engagement with the opportunities in prison, and their relationship with their Offender Manager.
It is at this stage that problems can arise for people who deny they committed any offence.
Various programmes available to help offenders confront and manage their behaviour require them to accept guilt, because the programmes are built around gaining insight into the offence.
This can be an effective bar to those who deny their guilt from taking part in these schemes and disadvantage them in front of the Parole Board.
How do the Parole Board make their decisions?
The Parole system is complicated and it can take six months or more. The process begins with a ‘dossier’ of information being considered by a member. This stage is called the Member Case Assessment.
The case can then have one of four outcomes: the prisoner is released, transferred to an open prison, an oral hearing is directed, or the prisoner is refused parole.
An oral hearing is precisely that: a hearing that happens face to face. The Parole Board wants to hear evidence from the prisoner and other witnesses to find out more about the factors above.
An oral hearing can end in any of the other outcomes that the Member Case Assessment can.
What happens if I deny that I am guilty?
This can be tricky for a Parole Board because one of the ways in which they assess risk is looking at the insight a prisoner can demonstrate into their offending. When a person says they have done nothing wrong, it’s difficult to show any insight.
However, a denial of guilt is not, and should not be treated as an automatic bar to parole. This was made clear in the leading case of R (Owen Oyston) v The Parole Board  EWCA Crim 3552.
A denial of guilt can be taken into account when assessing risk. The court made it clear in Oyston that it was only one factor to take into account. The Parole Board should consider it in the context of all the evidence.
Do people who deny guilt face a disadvantage at parole hearings?
The court in the Oyston case set out the ways in which a person who maintains their innocence may be at an evidential deficit compared to those who accept they committed an offence.
Those who maintain they are innocent are unlikely to express any, or any real, remorse or contrition. They are unlikely to express sympathy for any victims, except that they may express general sympathy for them having been the victim of a crime.
Places on prison programmes designed to address the cause of the offending often require acceptance of guilt. Not going on those courses can harm your chance of release.
They may, in every other way, be a model prisoner, and they may show a willingness to engage in those programmes but be unable to by virtue of their denial of guilt.
As a result, the Parole Board may, in these cases, have a fear that they will have no motivation to obey the law in future. Prisoners who deny guilt can only undertake not to do what they maintain they have not already done.
What happens if I have been denied parole?
You can challenge decisions of the Parole Board by way of judicial review. This means asking a judge to review the decision. This is not a re-hearing and can only be used where the law has been wrongly applied, something has gone wrong in the procedure, or discretion has been exercised unreasonably.
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The Sentencing Council has published a new set of guidelines. They cover arson and criminal damage of all kinds, as well as threats to destroy property. There were existing guidelines, but they were thought to be very limited and only covered the Magistrates Court. There were no guidelines for the Crown Court, which deals with the more serious offences.
What are sentencing guidelines for?
Sentencing guidelines are designed to ensure that the court passes an appropriate sentence and does so consistently across all of these extremely varied cases.
A judge must follow sentencing guidelines unless it is not in the interests of justice to do so.
The new guidelines will replace those that existed in the Magistrates Court and extend to the Crown Court. They cover all offenders aged over eighteen.
What factors will the Court consider?
The Sentencing Council has said that the guidelines will make sure courts consider:
- The full impact of arson or criminal damage such as vandalism on national heritage assets. This also includes listed buildings, historic objects or unique parts of national heritage and history.
- The economic or social impact of damaging public amenities and services. For example, a fire at a school or community centre, or criminal damage at a train station. This can adversely affect local communities or cause economic hardship to neighbouring houses or businesses.
- The effect on communities when an area’s emergency services or resources are diverted to deal with criminal activity.
The guidelines provide starting points, and category ranges for offences of arson, arson and criminal damage (intending that, or being reckless as to whether life is endangered), criminal damage over £5,000, criminal damage under £5,000, racially or religiously aggravated criminal damage of both values, and threats to destroy or damage property.
The guidelines require the sentencing judge or magistrates to determine the ‘culpability’. This takes into account things like planning, intended amount of damage, and motive, and ‘harm’. It also takes into account physical or psychological harm caused, the value of the damage, and any subsequent loss caused.
Racially and religiously aggravated offences are given an ‘uplift’ for the level of aggravation. This makes for more severe punishment and possibly lifts an offence above the custody threshold.
To take an example, criminal damage under £5,000 with elements of significant planning and causing a high amount of damage and distress would lead to a starting point of a high-level community order with a range from a medium-level community order to three months custody. If that were a racially aggravated offence, where the racial motive was a significant part of the offence, that would likely increase the starting point to a custodial sentence.
Comments by the Magistrates Association
Commenting on the new guidelines, John Bache JP, National Chair of the Magistrates Association, said:
‘We are very pleased that the new guidelines for Arson and Criminal Damage have been published, and will be available for magistrates from 1st October. These new guidelines will be very helpful to magistrates dealing with these important cases and clearly set out the relevant factors in determining harm, beyond a focus on physical damage. It is, however, right that if an offender has mental health conditions or learning disabilities then courts must obtain assessments to fully understand whether this impacts on their culpability, and this guideline will help to ensure that this happens.’
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The press has recently reported that children who were victims of serious sexual abuse have received paltry sums, £20 for example, as compensation from the courts.
So, what exactly is a criminal compensation order?
The court has a duty to consider making a compensation order in any case where personal injury, loss, or damage has resulted from the offence. If it does not make a compensation order, it must give its reasons.
The order requires that the offender pay a certain amount to the victim, usually within a year or two if paid in instalments.
The low figure of £20 was made public by Andrew Griffiths MP. He received the data in answer to a written question to the Ministry of Justice. His questions uncovered that of 6,861 people convicted of child sex offences only 26 were ordered to pay compensation.
It’s difficult to comment on these cases because we simply don’t have most of the facts, but we will try to answer general questions about criminal compensation orders.
Why was the compensation so low?
The court must take into account the means of the offender when making a compensation order.
This means that a compensation order will not ordinarily go hand in hand with a custodial sentence, especially a longer sentence, because the offender will not be able to earn and make payments.
That is one of the reasons that an order of £20 may have been made, and that so few orders were made in the first place, as serious sex offences are more likely to lead to a custodial sentence.
The fact that there is no monetary loss to a victim in cases like this is also relevant. Child sexual abuse is a serious and severe crime, but not always one where compensation from the offender is appropriate.
Can I get compensation from the Government?
Yes, in many cases you can get compensation from the Government. The Criminal Injuries Compensation Authority is a publicly funded body that awards compensation to victims of violent, including sexual, crime. Parliament sets the awards.
In 2017-2018, the Authority paid out £150 million to victims of violent crime. There is a two-year time limit for making a claim, in most circumstances. That time limit does not begin until age eighteen.
To be eligible for a payment from the CICA, a person need only show that it is more likely than not that they were the victim of crime.
This is a lower standard than is applied at a criminal trial, so it is available in some cases where there is not enough evidence to proceed in a criminal court.
The CICA operates under complicated rules, and people are not always able to navigate them well. Solicitors can help with making a claim, but their fees will eat into the amount of compensation.
CICA payments can also be reduced or refused if you don’t co-operate with the CICA, or the police, or have a previous conviction, even where you are totally blameless for your injury.
Can I sue my abuser?
Yes, a claim for trespass to the person is also available in a civil court. This requires the same standard of proof as a claim to the CICA. If there has already been a criminal conviction, that will usually satisfy the requirement of proof.
In a civil court, however, the time limit for making a claim is longer. In most cases of personal injury, it is three years, but when that limit starts running can be different. It will not start in any event until a person turns eighteen.
Civil claims are brought by a person individually. If you chose to sue someone for a sexual assault, you would have to pay.
Costs are usually recoverable from the loser. That is not so in small claims court where the claim is for personal injury of £1,000 or less.
If you are able to recover costs when you win, it also means that if you lose you may have to pay to other person’s costs. Claims of this sort are rarely made unless likely to involve a substantial sum of money, and the other party definitely has the means to pay.
What if the offender is a child?
Child offenders are not exempt from the compensation order. Some of those payments uncovered by Griffiths were offences by a person under 18 and ranged from £50 to £150.
The court still has a duty to consider making one. One crucial consideration will be the means – how much can a child be expected to pay? It’s unlikely they will have a significant income to put towards any order.
Can a child’s parent be made to pay compensation?
In some cases, yes. If the offender is sixteen or over, the court may order the parents to pay any financial penalty, such as compensation or a fine.
Where the offender is under sixteen, the court must order the parents to pay the financial penalty. If the parents cannot be found, or it would be unreasonable, the court doesn’t have to order them to pay.
Why order compensation of £20?
Without the full facts, it’s difficult to say. There are many variables, but it does, on the face of it, seem an odd decision.
People could think that it’s more insulting to order £20 compensation than to make no order at all. It could easily leave the victim with a feeling that £20 is all their abuse is worth.
Equally, given the offender clearly had minimal means to pay, was an order worth making in the first place?
How much should someone be paid for being the victim of a sexual offence?
Amounts vary across offences, but there are some guideline figures to look at. The CICA official table gives £11,000 as the amount for a child victim of rape, the same circumstances as the case where a compensation order of only £20 was made.
The Sentencing Council gives starting points for criminal compensation orders. For the same offence, the suggested starting point is only £3,300.
Without all the facts, it’s difficult to say why the compensation, in this case, wasn’t closer to these figures. It may be that the offender was sent to prison and only had £20 in his property, it may be that it was a child or person for whom £20 was a lot of money, the compensation may have been for money taken or lost during the assault or it may even be a reporting error, we simply do not know.
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If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help. We can advise on all aspects of your case.Read More