October 2019

Unduly Lenient Sentences – Scheme to Be Extended

The government has announced changes to the Unduly Lenient Sentence (‘ULS’) Scheme.

There are certain offences where the prosecution (via the Attorney General) can ask the Court of Appeal to review a sentence if it is thought to be unduly lenient.

Who can apply?

Any person who thinks a sentence was unduly lenient can ask the Attorney General to consider a sentence. The Attorney General must then decide whether or not to refer the case to the Court of Appeal.

The referral must be made within 28 days. However, this period often creates a period of uncertainty and stress for an offender who has been sentenced. In some instances, a successful referral can result in a person who has been given a non-custodial sentence, being sent to prison.

Why is it being extended?

The cross-Government Victims’ Strategy published on 10 September 2018 contained a commitment to keep under review and consider extending the scheme to additional offences related to stalking and harassment; indecent images of children and sexual offences.

The proposed change will fulfil this commitment by amending the Reviews of Sentencing Order. As a result, a further fourteen serious sexual and violent offences will be included.

The inclusion of these offences relating to sexual offending, intimidation and abuse within the ULS scheme is intended to reflect the serious and long-lasting damage they have on victims and survivors. This also rectifies a discrepancy whereby a large number of sexual offences committed against children were included in the scheme, but offences committed by people in positions of authority, and offences committed against people with a mental disorder impeding choice, were not.

New offences

The new offences that are eligible for review are:

• section 1 of the Protection of Children Act 1978 (indecent photographs of children)
• section 160 of the Criminal Justice Act 1988 (possession of indecent photograph of child)
• section 4 (putting people in fear of violence) or section 4A (stalking involving fear of violence or serious alarm or distress) of the Protection from Harassment Act 1997
• section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship)
• section 16 (abuse of position of trust: sexual activity with a child);
• section 17 (abuse of position of trust: causing or inciting a child to engage in sexual activity)
• section 18 (abuse of position of trust: sexual activity in the presence of a child)
• section 19 (abuse of position of trust: causing a child to watch a sexual act)
• section 26 (inciting a child family member to engage in sexual activity);
• section 30 (sexual activity with a person with a mental disorder impeding choice)
• section 31 (causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity)
• section 32 (engaging in sexual activity in the presence of a person with a mental disorder impeding choice)
• section 33 (causing a person, with a mental disorder impeding choice, to watch a sexual act).

The Criminal Justice Act 1988 (Reviews of Sentencing) (Amendment) Order 2019 also rectifies two previous oversights. It adds in the attempt to commit, and the incitement, encouragement or assistance in the commission of, the two modern slavery offences to paragraph 2 of Schedule 1 via the Modern Slavery Act 2015 (Consequential Amendments) Regulations 2015. This Order also clarifies that the offence of causing racially or religiously aggravated harassment, alarm or distress under section 31(1)(c) of the Crime and Disorder Act 1998 is not in scope of the scheme, as it is a summary-only offence.

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

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Terrorism Offences – Tougher Sentences on the Way

The Sentencing Council is consulting on revised sentencing guidelines for several terrorism offences. This is on the face of it a surprising move given that a definitive guideline was only recently implemented.

The main legislative changes impacting the guidelines include increases to the statutory maximum sentences for some offences, and an expansion of some offences.

As a result of the increases to statutory maximum sentences, the Council is proposing consequential increases for the most serious examples of offending.

The main changes

The main changes include:

• Amendment to the culpability factors in the Proscribed Organisations – Support (section 12 Terrorism Act 2000) guideline to provide for offenders convicted of the new section 12(1A) offence of expressing supportive views for a proscribed organisation, reckless as to whether others will be encouraged to support it;
• Amendment to the culpability factors in the Collection of Terrorist Information (section 58 Terrorism Act 2000) guideline to provide for offenders convicted of the new offence of viewing/streaming terrorist information over the internet;
• Changes to the sentencing tables in the Encouragement of Terrorism (ss1 and 2 Terrorism Act 2006); Failure to Disclose Information About Acts of Terrorism (s38B Terrorism Act 2000), and Collection of Terrorist Information (s58 Terrorism Act 2000) guidelines to reflect the changes to the statutory maximum sentences;
• Additional guidance added to the Encouragement of Terrorism (sections 1 and 2 Terrorism Act 2006); Proscribed Organisations – Membership (section 11 Terrorism Act 2000); Proscribed Organisations – Support (section 12 Terrorism Act 2000); and Collection of Terrorist Information (section 58 Terrorism Act 2000) guidelines as Terrorism offences guideline, consultation 2 these offences now fall within scope for sentences for offenders of particular concern;
• Additional guidance added to the Preparation of Terrorist Act (s5 Terrorism Act 2006); Encouragement of Terrorism (sections 1 and 2 Terrorism Act 2006); Proscribed Organisations – Support (section 12 Terrorism Act 2000); and Collection of Terrorist Information (section 58 Terrorism Act 2000) guidelines as the new legislation made these ‘specified terrorism offences’ for which extended determinate sentences would apply.

In addition, the Council has chosen to make some minor changes to the Funding guideline to assist Judges to sentence cases where either the offender had knowledge that the money or property would or may be used for terrorism, or where the offender did not know or suspect that the money would or may be used for terrorism. This is an issue that has been raised in case law recently and so the Council has chosen to take this opportunity to assist sentencers by providing greater guidance.

What will be the impact on sentence length?

Overall, under the draft guideline, sentences are anticipated to increase in some cases, however any increase in sentence lengths will be a result of the recent legislative changes, rather than the guideline. The revised sentencing guideline therefore aims to ensure that future sentencing for terrorism offences is in line with the intention of Parliament when it increased the maximum penalties for some of these offences, while at the same time ensuring consistency of sentencing for these offences.

As ever, we will remain vigilant and ensure that all guidance is properly adhered to. As the sentencing process becomes ever more complex our advocates are careful to guard against inadvertent error.

The new guidelines are expected to come in to force around April 2020.

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

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Stop and Search, and a Section 60 order

The police, with the support of the Home Office, are making more extensive use of stop and search powers. This new approach is partly due to rising public and political concern about knife crime.

A hitherto little-used power to extend the use of stop and search is now being widely used by police forces.

Section 60 of the Criminal Justice and Public Order Act 1994 allows for stop and search powers to be exercised across a particular area, for a period of 24 hours (but see below). This power removes the usual restrictions on stop and search.

Section 60 order

A section 60 order can be triggered if:

…a police officer of or above the rank of inspector reasonably believes—

(a) that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence, that—

(i) an incident involving serious violence has taken place in England and Wales in his police area;

(ii) a dangerous instrument or offensive weapon used in the incident is being carried in any locality in his police area by a person; and

(iii) it is expedient to give an authorisation under this section to find the instrument or weapon; or

(b) that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason.

In August 2019 the government announced that a previously restricted use of section 60 was to be extended to all 43 police forces in England and Wales.

Best practice

The statutory basis of section 60 searches is modified in several ways by ‘best practice’ guidance:

• Raising the level of authorisation for the initiation and extension of s60 powers to senior officer;
• Raising the level of suspicion from believing that, in the anticipation of serious violence, incidents involving serious violence will take place rather than may;
• ensuring that section 60 stop and search is only used where it is deemed necessary – and making this clear to the public;
• limiting the duration of initial authorisations to no more than 15 hours (down from 24); and limiting the duration of subsequent extensions to, first, 9 hours and, second, 15 hours to a total of 39 hours (down from 48); and
• communicating to local communities when there is a s60 authorisation in advance (where practicable) and afterwards, so that the public is kept informed of the purpose and success of the operation.

Despite the noble aims of a policy designed to reduce possession of weapons, there has been a concern that some communities will be disproportionately targeted as a result.

Is it done fairly?

BAME and Black individuals in 2017/18 were 4 and 9 1/2 times more likely to be searched than white individuals. BAME individuals have also been found to be more likely to be dissatisfied than white individuals with the conduct of searches, according to analysis of CSEW data 2009-11. The number of BAME individuals searched has fallen dramatically between 2010 to 2018 (Searches of BME from 431k to 98k.). However, disparities have risen as the number of white people searched has fallen more dramatically.

National data on s60 searches consistently shows that BAME individuals, and black individuals especially, are more likely to be the subject of s60 searches than white individuals. The likelihood statistics are calculated by comparing the ethnicity of those searched, based on their self-defined ethnicity, with the characteristics of the population as a whole, based on data taken from 2011 Census. In 2017/18, BAME individuals were just under 14 times more likely to be stopped and searched under s60 than white individuals.

Impact assessment

In an equality impact assessment published this week, the government acknowledged this risk:

“In our assessment of the current use of s60, it was concluded that there was not sufficient grounds to discount the possibility of some level of discrimination – either towards individuals, or systematically in the policing of certain communities – as an explanatory factor for existing rates of disparity. As such, any increases in the use of s60 pose the risk of magnifying any residual levels of discrimination in the use of this power. We would also expect, given that individuals from BAME backgrounds are more likely to be searched, that any increases in s60 would continue to disproportionately affect them. We have no evidence to indicate whether disparity rates would increase or decrease following a relaxation of current arrangements.”

The government proposes to keep the policy under review and assess the impact in 12 months.

It remains the simple fact that police powers must comply with all laws, as defence solicitors we will not hesitate to challenge the unlawful use of police powers, and seek evidential remedies in appropriate cases, this may include applications to exclude any evidence obtained as a result of illegal searches.

How can we help?

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

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Firearms Sentencing – Consultation on Reform

The Sentencing Council is consulting on a new guideline for some of the most commonly prosecuted firearms offences. At the moment, guidance is to be found only in case law. This can lead to a challenging sentencing exercise.

The purpose of the guideline is to provide consistency in sentencing. The impact assessment does not suggest that any general increase in sentences is to be expected. However, in many instances the Sentencing Council was met with a weak evidence base to evaluate this..

If consistency is achieved, you would expect some sentences to increase, and some decrease, but overall average sentence lengths to be broadly level. However, experience with some other guidelines does suggest that sentence length may creep upwards.

Overall, we would expect it to be easier to predict the likely sentence that a person might receive on a plea or after trial.

Statutory minimum sentences

One interesting observation is concerning statutory minimum sentences for some offences:

“The Council was surprised to note that exceptional circumstances were being found in around two thirds of disguised weapons cases (section 5(1A)(a)) which appeared to run counter to the principle that in order to justify the disapplication of the five year minimum, the circumstances of the case must be truly exceptional.”

The Council, therefore, felt that:

“Setting out the principles in a guideline is likely to lead to them being more consistently applied, which in turn could lead to exceptional circumstances being found in fewer cases.”

It was also noted that recent changes to Crown Prosecution Service charging guidance for some firearms offences would in itself lead to fewer mandatory sentence cases being prosecuted.

Which offences will the new guideline cover?

Eight guidelines will cover the following offences in the Firearms Act 1968:

• Possession, purchase or acquisition of a prohibited weapon or ammunition
• Possession, purchase or acquisition of a firearm/ammunition/shotgun without a certificate
• Possession of a firearm or ammunition by person with previous convictions prohibited from possessing a firearm or ammunition
• Carrying a firearm in a public place
• Possession of firearm with intent to endanger life
• Possession of firearm or imitation firearm with intent to cause fear of violence
• Use of firearm or imitation firearm to resist arrest/possession of firearm or imitation firearm while committing a Schedule 1 offence/carrying firearm or imitation firearm with criminal
• Manufacture/sell or transfer/possess for sale or transfer/purchase or acquire for sale or transfer prohibited weapon or ammunition.

The consultation runs until mid-January, so it is likely to be Summer 2020 before any new guidelines take effect. However, that is not to say that some judges will not have them in mind before then.

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

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Drink Driving and Drug Driving – The Second Sample

In some cases, the police need to take either a blood or urine sample from a driver suspected of drink driving, or driving under the influence of drugs. In almost all instances, the police opt for a blood sample.

Part of the procedure is informing the suspect that they can if they wish request part of the sample for independent testing.

Despite this vital protection being available, a large number of people fail to take advantage of this procedure.

Why do people not use this procedure?

Part of the problem is the procedure adopted by the police. The police do not offer a sample to the suspect (save where the suspect is incapable of consenting). They merely state, at the commencement of the procedure, that a suspect can request a sample.

From a practical perspective, this is a deficiency in the procedure. The suspect must first pick up on the option being available, which is not always easy during what can be a confusing and pressured situation. Then they must later make a specific request.

The legislation

Before the 1988 road traffic legislation, there was a specific requirement for the police to offer a specimen. Consequently, the new law was very much a significant dilution of rights.

In Campbell v Director of Public Prosecutions [2003] EWHC 559 (Admin) the court held:

“It is, therefore, no longer a statutory requirement for the officer to inform the suspect of his right to request his own specimen. [Counsel] submits that I should regard it as by now a settled principle of common law that such information should be provided to those against whom police officers are proceeding under section 7 of the 1988 Act. In my judgment, that is a hopeless proposition.”

This is not, however, the end of the matter as the court went on to state:

“There may well be circumstances, however, when, for reasons similar to those considered by the Court of Appeal in Mitten, a defendant will wish to challenge the admissibility of the analysis because he claims to have been unaware of his right to request the sample and as a result has suffered prejudice. It may be that such an application could be made under section 78 of the Police and Criminal Evidence Act 1984. I do not intend further to anticipate circumstances in which prejudice might be established.”

Vulnerable groups

A vulnerable or distressed suspect may well be able to argue that they were unaware of their rights. The same would apply to a person for whom English is not their first language. That would be the case even though the police communicated the right.

It is the effectiveness of that communication that will be critical in such cases.

The above is just one small aspect of the law concerning the taking of samples. The law relating to drink driving and drug driving is detailed and complex. You should always seek advice before entering a plea at court. A failure to follow the proper procedure may provide a valid defence in this type of case.

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

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Public Order – New Sentencing Guidelines

New sentencing guidelines for public order offences come in to force for adults sentenced on or after 1 January 2020.

In August 2008, the Sentencing Guidelines Council published Magistrates’ Court Sentencing Guidelines (MCSG). The guidelines covered a number of public order offences; the offence of affray and summary offences relating to threatening and disorderly behaviour provided for by section 4, section 4A and section 5 of the Public Order Act 1986. There was also a brief reference to violent disorder offences which may be sentenced in magistrates’ courts. This guidance did not include guidelines for sentencing these offences in the Crown Court. Nor did it include guidance on sentencing the public order offences of riot, or offences relating to stirring up racial or religious hatred and hatred based on sexual orientation.

The offences covered by the public order guideline are relatively high in volume. There were 18,600 offenders sentenced for the public order offences covered by the guideline in 2018. The volume of some offences is however relatively low. In relation to the offence of riot only 30 offenders have been sentenced between 2008 and 2018. Around 300 each year are sentenced for violent disorder, and 2400 for affray. The rest being sentenced for the lesser offences.

Will the new guideline affect sentence length?

For the offences of riot, violent disorder and affray, it is suggested that sentence length will not be affected.

For threatening behaviour and disorderly behaviour with intent, there have been some reductions to sentencing ranges and starting points for the different levels of offence seriousness, compared to the MCSG. It is possible that the decrease to sentence levels in the guideline could lead to a decrease in sentencing severity for these offences, whereby some individuals who currently receive a custodial sentence may now receive a community order. However, it is also possible that much of the decrease in sentencing severity could come from offenders currently receiving suspended sentence orders now receiving community orders. Therefore there is an upper estimate that the guideline will not have an impact on the requirement for prison places or probation resources, and a lower estimate that the guideline could lead to a reduction in the requirement for up to 30 prison places per year and a small increase in the use of community orders.

Racially aggravated offences

For racially or religiously aggravated threatening behaviour and racially or religiously aggravated disorderly behaviour with intent, sentencers are first asked to sentence the basic offence. Once that is done, they should increase the sentence considering the level of racial or religious aggravation involved. This ‘uplift’ approach reflects Court of Appeal guidance on how aggravated offences should be sentenced. It also aligns with current practice in relation to assessing the level of aggravation present in offences. This is the same process as used in the Council’s Arson and Criminal Damage guideline. That consultation stage research found that there was a risk that the guideline could result in slightly higher sentences. It is therefore possible that the guideline could cause an increase to sentencing severity.

However, some of the starting points and sentence ranges for the basic offence are lower than under the current guideline. This could offset these potential increases. Therefore there is a lower estimate that the guideline will not have an impact on the requirement for prison places or probation resources, and an upper estimate that the guideline could lead to a requirement for up to 40 additional prison places per year and a small decrease in the use of community orders.

Non-imprisonable offences

For the offences of disorderly behaviour and racially or religiously aggravated disorderly behaviour, the maximum sentence is a fine. Therefore the guideline will not have an impact on prison and probation resources. For the offence of disorderly behaviour, the guideline introduces a new higher category of offending. This has a higher level of fine than in the existing MCSG guidance (a Band C fine). The guideline may therefore increase fine values for this offence. Also, because a fine is included for all levels of offending for racially or religiously aggravated disorderly behaviour – whereas data suggests that around 12 per cent of offenders sentenced for this offence received an absolute or conditional discharge in 2018 (after any reduction for guilty plea) – it is also possible that the guideline could increase the number of offenders sentenced to a fine for this offence.

As ever, our advocates will be vigilant to ensure full adherence to the guideline and act to prevent any ‘sentence creep’ which is something that we have observed with other guidelines.

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

(Image credit: Tomasz Iwaniec; https://creativecommons.org/licenses/by/2.0/ )

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What is Diplomatic Immunity?

The somewhat arcane topic of Diplomatic Immunity has hit the news headlines following the tragic death of 19-year-old Harry Dunn. Harry died as a result of a road traffic collision outside RAF Croughton in Northamptonshire. CCTV apparently showed the other vehicle involved driving on the wrong side of the road.

The wife of an American diplomat has returned to the United States and it appears that she will not face a further criminal investigation in the UK, after asserting a claim for diplomatic Immunity.

Despite a plea by the Foreign Secretary for Immunity to be waived, so far, the US Government has refused. However, her entitlement to Diplomatic Immunity has been questioned. It now appears that she may not have been entitled to immunity.

If that turns out to be the case, then the UK authorities may seek her extradition from the United States.

What is Diplomatic Immunity?

Diplomatic Immunity, and like procedures, is a protection afforded to foreign diplomats, consular officers, Heads of State (and other leaders) and often their families.

At any given time, over 20,000 people in the UK have a claim to Immunity.

Diplomatic Immunity can protect the individual from civil and in some cases, criminal liability. The rules are very complex, and protections may vary.

Article 29 of the 1961 Vienna Convention on Diplomatic Relations states:

“The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”

Why Is It Offered?

Diplomatic Immunity is designed to protect the sovereignty of foreign governments when conducting official business abroad. It acts to protect individuals against a legal process which may be malign or otherwise unfair.

Its origins are rooted in many international treaties and enshrined in UK law via Section 2 of the Diplomatic Privileges Act 1964.

Can Immunity be Waived?

Diplomatic Immunity can be waived by the State but not the person themselves. This means that unless the US Government has a change of heart, that is the end of the matter so far as UK criminal proceedings are concerned.

Where the matter involves an alleged commission of a serious criminal offence, the UK Government will in some instances expel that person from the UK and refuse them future entry.

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

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Rights in Extradition proceedings – A Mere Illusion?

The EU has published a report, ‘Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings’ This report details the extent to which fundamental human rights, in the context of criminal justice, are upheld across the EU. This includes the impact on those facing extradition proceedings.

Why is this important?

Protecting the rights of anyone suspected or accused of a crime is an essential element of the rule of law. Courts, prosecutors and police officers need to have the power and means to enforce the law. However, trust in the outcomes of their efforts will quickly erode without effective safeguards to control how their powers are actually used.

What rights should be protected?

Such safeguards take on various forms. Everyone is presumed to be innocent until found guilty by a court of law. People have the right to remain silent and not incriminate themselves. They should be told why they are being arrested or what they are being charged with. They should also be told what their rights are, including that they have the right to a lawyer. In certain situations, people also have a right to interpretation and translation.

What were the findings?

Some of the key findings include:

• The police inform defendants of their rights but practices vary. These range from written to oral information, including leaflets, which may be difficult to understand. Member States should ensure defendants properly understand what their rights are, and provide information in writing and orally as soon as they are a suspect. They should also pay attention to people who may have difficulties due to language or a disability, for example.
• Very often defendants receive minimal or unclear information about the charges against them. This makes it difficult for them to defend themselves. The police should properly, clearly, and fully inform suspects of their crimes and why they were arrested, as soon as possible.
• Receiving legal assistance promptly and directly does not also always occur. This is particularly true for people that have been locked up. Member States should ensure all defendants receive prompt, direct and confidential access to a lawyer before they question jailed defendants.
• Sometimes the police treat suspects as witnesses or informally question them. However, this deprives suspects of their right to remain silent and not to incriminate themselves. Member States should treat all suspects as suspects to respect their rights.

European Arrest Warrants

The report also looks at European Arrest Warrants that come from another EU Member State. As well as the issues above, defendants also face rights issues arising from having two countries involved.

• Linguistic differences often make it difficult for defendants to understand their rights when it comes to warrants and their right to consent to be transferred abroad for questioning. Member States should provide translation and interpretation services so that defendants can fully understand the charges against them and what the European Arrest Warrant entails.
• Defendants often have difficulties getting legal representation in both countries. This can be due to linguistic differences, as well as the police’s lack of knowledge about other countries’ legal systems and unwillingness to interfere in another country’s jurisdiction. Authorities in the country that process the warrant should help defendants get legal assistance in the country that issued the warrant. Member States could provide legal association lists when issuing the warrant.

The importance of lawyers

Our lawyers are trained to know your rights and perhaps more importantly, insist that they are upheld. We believe in proactive and robust defence, at every stage of the proceedings.

Whilst the UK fares well compared to some other EU countries, we can never be complacent. Time and time again we come across cases where fundamental rights have been ignored, often to the great detriment of the suspect or defendant.

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

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