Search warrants; reform to prevent unlawful searches
The Law Commission has recommended reforms that it says will reduce the number of unlawful search warrants being issued, and to assist in the collection of evidence and investigation of crime.
Currently, a police officer or other investigator applies to a magistrate or a judge for a search warrant. If granted, a warrant grants legal authority to enter premises and search for specified material.
The Law Commission says that the laws governing search warrants are unnecessarily complicated, inconsistent, outdated and inefficient.
What recommendations are being made?
- Strengthening powers; extending the availability of warrants that allow multiple entries to a property, and allowing all properties controlled by an individual to be searched. A police constable will be permitted to search a person found on the premises under the search warrant. The NHS Counter Fraud Authorities will also be given the ability to apply for search warrants.
- Improving procedure; the aim is to reduce the number of mistakes and unlawful warrants. There would be a standard entry warrant application form and a template for entry warrants. There is also a recommendation for an online search warrants application portal.
- Electronic evidence; ensuring officers can access electronic evidence and copy required data whilst on site, possibly to include data stored remotely. Safeguards should be included to ensure that any unneeded date is quickly deleted, and devices returned as soon as is practical.
- Improving safeguards; for example, those being investigated would be given a notice of their powers and rights whilst their property is searched. Non-police investigators would be subject to similar safeguards as the police. There would be clarification of when, and in what form, a search warrant should be given to an occupier, who should also be informed they have the right to ask a legal representative to observe the execution of the warrant.
Errors
Around 40,000 search warrants are issued every year. In 2016 review by the National Crime Agency found that 78.73% of investigations had defective warrants. Of that number, 8.2% had significant deficiencies.
Journalistic material
The Society of Editors has criticised the recommendation that the government review rules on search warrants for obtaining journalistic material.
Although the Law Commission concluded that confidential journalistic material should only be obtained in very limited circumstances, it added that the government should consider whether the law struck the right balance between the competing interests at play and whether the law ought to be reformed.
The Police and Criminal Evidence Act 1984 provides special protection for journalistic material, and the Society of Editors argues that the law around police seizure of journalistic material needs strengthening rather than watering down. This is argued on the basis that journalists need to have confidence that their material remains protected so that they can guarantee source protection in fulfilling a public interest role.
How can we help?
If a search warrant is unlawfully executed, it does not automatically mean that any evidence obtained cannot be used. We can advise you as to the options and make the necessary applications to the court on your behalf.
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: “Day 255 – West Midlands Police – Searching using torch (Part of an officers Personal Protective Equipment Kit.” by West Midlands Police is licensed under CC BY-SA 2.0] Read More
A Smarter Approach to Sentencing?
This is the name of the paper presented to Parliament that proposes changes to the sentencing and release frameworks in the criminal justice system.
The paper sets out the “problems” they have identified in the system. They are automatic release, improving confidence and addressing the causes of offending.
Automatic release – the blanket use of automatic release was said to undermine confidence in the system as it results on too many serious and dangerous offenders are being released early. Following terrorist attacks in London, emergency legislation was introduced to address the issue in respect of terrorist offenders. The proposal is to now address it in terms of other types of “serious and dangerous offenders”.
Improving confidence – the paper states that confidence in non-custodial sentencing options is low and that the confidence of the judiciary and the public has to be won back. A wider range of non-custodial options are suggested for low-level offences.
Addressing the causes of offending – it is conceded that not enough has been done to tackle the causes of offending, particularly where it is driven by drug and alcohol abuse.
What are the proposals?
The government Impact Assessment lists the following to be implemented from the proposals:
Release from prison
Legislation has already been introduced so that those charged with serious and violent sexual offences who received a standard term of imprisonment of 7 years or more must serve two-thirds of their sentence. This means they will be kept in custody for longer and will be supervised on licence for the remaining one third, and subject to recall if they breach the terms of the licence or commit a further offence.
The proposal is also to make this apply to those convicted of serious and violent offences who received sentences over four years.
The offences affected will be rape, attempted murder, sexual assault by penetration, sexual activity with a child, manslaughter, wounding with intent, conspiracy to murder, sexual activity with a person with a mental disorder and abuse of children through prostitution or pornography.
Suppose a person serving a sentence for a non-terrorist offence is identified as a terrorist threat. In that case, there will be a new power to prevent their automatic release from a standard sentence. Instead, they will be referred to the Parole Board for a decision whether they can be released before serving their full sentence.
Whole life orders
For those convicted of the premeditated murder of a child, the expectation will be for a whole life order to be imposed. That is, that the person will not be eligible for release at any stage. Judges will also be given the discretion to impose such an order on offenders aged 18-20 in exceptional circumstances.
Life sentence tariffs
How a tariff is calculated will be amended so that the calculation is based on what two-thirds of the notional sentence would be, rather than half as it is now.
Minimum terms
For those sentenced for murder, committed under the age of 18, the starting point is currently fixed at 12 years. This will be changed to between 8 and 20 years, depending on the age of the person.
Sentence for Offenders of Particular Concern (SOPC)
For certain sexual offences that lead to a SPOC, release by the Parole Board will only take place after two-thirds of the term has been served.
Repeat offenders
There are minimum sentences in place for certain offences such as third strike burglary and second-strike possession of a knife or offensive weapon. Judges have the discretion to impose a sentence less than the minimum and are now seemingly being criticised for doing so. The proposal is to change the criteria in which this can be done to reduce the prospect of a term less than the minimum being imposed.
Detention and training orders
The system will be reformed to remove fixed periods so that an order can be imposed from any length between 4 months and 24 months. The method for considering time spent on remand or bail will also be simplified.
Out of court disposals
A two-tier model is to be used by all forces to ensure consistency. The two options available will be Community Resolutions and Conditional Cautions. This means an end to simple cautions, and cannabis and khat warnings. The proposals do not affect fixed penalties.
Home Detention Orders
A new order will be introduced utilising electronic monitoring technology for a lengthy and restrictive curfew. Other elements can also be added, including treatment orders and alcohol monitoring.
Electronically monitored curfew
The maximum period of curfew will be increased from 12 months to 2 years and will be able to be used more flexibly.
High-end youth community sentences
There will be a pilot of these sentences which will increase the maximum length of ISS (intensive supervision and surveillance) from 6 months to 12 months. It will also add a location monitoring requirement as a mandatory element of ISS.
Location monitoring requirements
This will add the option of a standalone location monitoring requirement to a YRO.
Reform criminal records disclosure rules
Interestingly this proposal will reduce the rehabilitation periods that govern the length of time before a conviction becomes spent.
Problem-solving courts
These courts are to be established incorporating a core set of “internationally recognised problem-solving components” through a centrally coordinated approach. This will include regular drug and alcohol testing, use of incentives, links to core services and regular court reviews of a community order.
Probation officer powers
Officers will be given greater flexibility to supervise offenders at any point within an order.
What will the impact be?
It is estimated, in the government’s Impact Assessment, that implementing the above proposals will result in a total increase in the adult prison population of around 600 offenders by 2028/29. The initial impact in 2021/22 will only be an additional 10 prisoners.
The paper and the government press release refer to GPS monitoring of certain offenders released on licence. Those offenders are said to be those convicted of theft and robbery who have the highest rates of re-offending. The Impact Assessment details the provisions to be implemented, and GPS monitoring of this type is not listed.
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.
[Image credit: “Day 165 – West Midlands Police – Arresting suspected offenders” by West Midlands Police is licensed under CC BY-SA 2.0] Read More
Disclosure of your criminal record
The government has recently approved a proposal to reform the rules surrounding the disclosure of an individual’s criminal record.
A review of the sentencing system found that a critical element in reducing offending was having access to employment. Having unspent convictions can be a barrier to gaining employment, so the proposal is to change the law to reduce the number of people required to disclose convictions.
Once an individual’s conviction is spent, they are considered, save for the exceptions below, as fully rehabilitated and treated as if they never had the conviction.
The current system
All cautions and convictions eventually become spent, except for prison sentences over 30 months.
- A simple caution is spent immediately;
- community sentences after the order plus one year;
- imprisonment of less than 6 months is spent after 2 years;
- imprisonment between 6 months and 30 months is spent after 4 years;
- imprisonment between 30 months and 4 years is spent after 7 years; and
- imprisonment over 4 years, the conviction is never spent.
In general terms, all the rehabilitation periods are halved for those aged under 18 at the time of conviction. This recognises that children who offend are often vulnerable and still maturing.
There are still occasions when spent convictions have to be declared. These primarily relate to sensitive areas such as work with children or vulnerable adults, the law and high-level financial positions.
The proposal
The most significant proposal is to remove the rule that convictions involving a sentence over 4 years can never become spent. This will not apply, however, to convictions for serious sexual, violent and terrorist offences.
- A community order will be spent on the last day of the order;
- imprisonment of 1 year or less will be spent after 1 year;
- imprisonment between 1 year and 4 years will be spent after 4 years; and
- imprisonment of more than 4 years will be spent after 7 years.
The rehabilitation period in respect of those convicted under the age of 18 will be half of those for adults.
The same principles will apply that even spent convictions will need to be declared in certain situations.
What difference will this make?
More than half of employers have said that they would not employ someone with a criminal record. Currently, someone who committed a serious offence of theft 20 years ago, and who has not re-offended since, would have to declare that conviction. Under the new proposals, they may not have to.
Is any other action being taken?
A Prison Leaver Project was announced last year which aims to assist those leaving prison. The government says this will provide £20 million of funding to support local leadership and identify new ways of tackling re-offending.
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.
[Image credit: “Forgive.” by Tony Webster is licensed under CC BY 2.0] Read More
Hate crime – a change of emphasis
The Law Commission is considering proposals to reform hate crime laws. Hate crime is where a victim is targeted, perhaps for an assault, criminal damage or harassment, based on a protected characteristic.
What are protected characteristics?
Currently, the protected characteristics are race, religion, sexual orientation, disability and transgender identity.
Why are reforms needed?
The Commission says that there are issues with how the hate crimes laws work in practice. Several different pieces of legislation cover the laws and some overlap; it is also argued that not all of the protected characteristics are treated equally.
For some offences such as assault, criminal damage and harassment, there is an aggravated form of the offence for hate crimes. These require an increase in the sentence as a result of the hate crime element.
There are also separate offences for stirring up racial hatred or stirring up hatred based on sexual orientation or religion. The offence of stirring up racial hatred requires the behaviour to be ‘threatening, abusive or insulting’. For the other two offences, the behaviour must be threatening, and there is no mention of being merely abusive or insulting.
Some definitions of “transgender” in the current laws have also been criticised for using language that is outdated.
What reforms are being proposed?
Sex and gender – it is proposed to add sex and gender to the protected characteristics. This will enhance protections against crimes based on misogyny.
Additional characteristics – establishing criteria to decide if any other additional characteristics should be recognised. For example, age, sex workers, homelessness, philosophical beliefs and alternative subcultures. The aim is to identify and fill any potential gaps in the characteristics whilst referencing the underlying principle and the practical implications of changing the law.
Aggravated offences – the protections of the aggravated offences and the stirring up hatred offences to be extended. In that way all of the protected characteristics are treated the same. This would include any additional characteristics that may be added to the list.
Stirring up hatred – these offences would be reformed “so that they are less difficult to prosecute in cases where the defendant clearly intended to stir up hatred, but provide greater protection for freedom of expression where such intention cannot be proven”. The offences are proposed to be extended to cover incitement of hatred towards disabled and transgender people, and hatred on the grounds of sex or gender.
Racist chanting – the offence of racist chanting at a football match would be extended to cover chanting based on sexual orientation. There is also a consultation on extending the offence to cover other protected characteristics along with other forms of behaviour such as the use of racist gestures and throwing missiles.
What happens next?
The Commission will need to consider the impact of any changes on other aspects of the criminal justice system, including other offences and sentencing practice. They also need to ensure that any recommendations comply with human rights obligations such as freedom of expression and the prohibition of discrimination. Finally, there will be consideration of the implications of any recommendations for other areas of law, such as the Equality Act 2010.
The consultation is open until 24th December 2020. After that date the final recommendations will be made to the government next year.
It is worth noting that reform proposals such as this have the potential to highlight current problems. As a result, some judges may pay closer attention to them when sentencing; we might therefore reasonably expect some upward adjustment to sentence in a few cases.
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.
[Image credit: “Love and Hate” by Skley is licensed under CC BY-ND 2.0] Read More
Covid, Self-Isolating and Employer Duties
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 came into effect on 28 September 2020. The regulations set out the obligations on an employer and their employees when an employee is required to be self-isolating.
The regulations:
- prohibits an employer from allowing a worker to attend any place (except the place where they are required to self-isolate) for any purpose connected to the worker’s employment;
- sets out the prohibition on knowingly allowing a self-isolating worker or a self-isolating agency worker to be present anywhere for work purposes, other than the place where they are required to self-isolate;
- requires a self-isolating worker to inform their employer of the requirement on them to self-isolate; and
- requires a self-isolating agency worker to inform either their employer, the agency or the principal of the requirement on them to self-isolate. It requires whoever has received such a notification to pass the information on to the two other parties.
An important point to note is that the rules apply not only to conventional employees but also to other workers. This includes agency workers.
What are the consequences?
An employer or employee who breaches these rules can be prosecuted. Alternatively, they can be issued with fixed penalty notices ranging from £1,000 – £10,000 (for subsequent breaches). A corporate body may face prosecution in addition to any officer of the company who consented to the act, was in connivance, or was neglectful.
Companies also need to carefully consider what reputational damage might be caused to their brand in the event of negative publicity or conviction.
As always, the legislation is both detailed, ever-changing and complex. If you are in any doubt as to your obligations, please get in touch with us as soon as possible.
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.
[Image credit: “Coronavirus COVID 19” by https://www.vperemen.com is licensed under CC BY 2.0] Read More