June 2021 - JFH Crime

by John HoweyJune 30, 2021 Criminal Law0 comments

Seized Cash – Detention under the Proceeds of Crime Act

Using the Proceeds of Crime Act, HMRC seized £35,000 cash in plastic carrier bags from a Mr Mann as it was suspected he was fraudulently evading excise duty. Boxes of vodka worth around £220,000 had also been found on the premises.

Seized cash, it can be held for up to 48 hours, after which time an application must be made to court for its detention. Under criminal law, the court can allow such applications if the detention is justified whilst the circumstances are investigated, or the person from whom the cash was seized is prosecuted for an offence relating to the cash. The cash may also be detained if there are reasonable grounds to suspect the cash is intended for use in lawful conduct.

In Mr Mann’s case, officers of HMRC made an application for the detention of the seized cash. On 3rd October 2019, the order was granted for a period of six months.

On 24th March 2020, just under six months later, Mr Mann’s representatives consented to the continued detention of the cash for a further six months. Two days later, HMRC filed the information and applications for an order for further detention.

Continued detention of seized cash

An application for an order of continued detention under the Proceeds of Crime Act must be made before the original order has expired. In this case, the application was made in time as the order expired on 3rd April 2020. HMRC contacted the court on several occasions to arrange for their application to be heard, but the court failed to deal with the matter. Part of the problem may have been the national lockdown which began on 26th March 2020.

The order expired on 3rd April as no hearing had taken place for an application for the continued detention of the cash. A telephone hearing was finally arranged for 28th April 2020, and the case was listed for legal argument to be heard on the issue of jurisdiction. The District Judge subsequently ruled that there was no jurisdiction for the court to order continued cash detention when the original order had expired, even though the application had been lodged in time.

High Court proceedings

HMRC asked the High Court whether the District Judge’s decision was correct. HMRC put forward two cases that dealt with the application for initial detention after the 48 hours of the seizure. They argued that if the application was received in time, Parliamentary intention should not be thwarted if the practicalities meant that the court did not make its order strictly in the time period.

The High Court disagreed with HMRC’s argument, saying the scheme of the Act allowed cash to be seized without any court process initially. Within 48 hours, authority had to be obtained; after that, a court hearing had to be held with at least seven days notice to the respondent for any further extension. There was no power or jurisdiction to extend the time period once the order had expired.

Although there was no power to order the continued detention of the cash, the HMRC may have been permitted to re-seize the cash. It would also have been open to Mr Mann to argue that doing so would be an abuse of process. The High Court did refer to this possibility but said that would be a decision for another court to make, and they did not express an opinion.

Our team are fully conversant with the Proceeds of Crime framework and can assist you with any case in which cash has been seized by the police.

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: “Banknotes, money, cash” by HowardLake is licensed under CC BY-SA 2.0 ]

by John HoweyJune 29, 2021 Criminal Law0 comments

Burglary offences; New proposed sentencing guidelines

The Sentencing Council has announced a consultation on the revision of sentencing guidelines for domestic, non-domestic and aggravated burglary offences.

The existing burglary definitive guideline was the second to be developed by the Sentencing Council and came into force under criminal law in 2012. The proposed guidelines have been developed following an evaluation of the existing ones.

The evaluation suggested that the severity of sentencing had increased for domestic burglary and aggravated burglary since introducing the guideline. There was also an increase in sentencing severity for non-domestic burglary, but it was not clear whether this was a result of the guideline or not. As a result of further evaluation, it was found the guideline had contributed to unanticipated increases in sentencing. The Sentencing Council intended to review the existing guidelines due to the evaluations but has been unable to do so until now.

Why is it being reviewed?

The Sentencing Council says that their methods for estimating the resource impact of a guideline are now more well developed. It was previously limited in its ability to assess how the offences would be categorised and sentenced under the guideline.

In developing the guideline, the Council considered data from the Crown Court Sentencing Survey, transcripts of judges’ sentencing remarks, and evidence of the reasons for the increases in sentencing severity.

The Council concluded that although the aggregate impact of the impact on sentencing outcomes had not been predicted, the sentencing practice was proportionate to the seriousness of the offence. The higher sentences are therefore expected to be maintained for the more serious offences under the proposed guidelines.

In particular, the changes proposed are to introduce middle categories for both culpability and harm. The Council says that the introduction of middle categories will provide greater flexibility for judges and magistrates in deciding the appropriate sentence.

Non-domestic burglary

The new medium culpability category is “some degree of planning or organisation”. It will also include other cases that fall within categories A and C because factors of A and C are present but balance each other out, or the offender’s culpability falls between the factors described in A and C.

In the categories of harm, the new version in category two is “theft of/damage to property causing some degree of loss to the victim (economic, commercial or personal value), and “greater emotional impact on the victim than would normally be expected”.

Domestic burglary

The Council decided that targeting is a very common feature of these offences, so including this factor in the high category could capture too many cases in the highest level of culpability. The factor is proposed to be changed to “targeting a vulnerable victim”.

The rest of the proposed changes to both culpability and harm factors are as per the non-domestic guideline.

Aggravated burglary

Considerable thought was given to the “weapon present on entry” factor in the existing guideline, noting the recent case of Sage. The point from Sage was that the presence of a weapon on entry was an essential element of the section 9(1)(a) offence, and there could be a risk of double counting. It is proposed to remove the factor from high culpability and for it to become an aggravating factor. In doing so, it would avoid the problem of double-counting and enable the court to deal more severely with an offender who used or threatened with a weapon brought to the premises and captures offences, where a burglar finds premises empty and so cannot use or threaten violence. A drop-down box will provide additional guidance on the use of the “weapon carried on premises” factor.

The harm factors are worded differently from the other two offences as the factors need to be more specific about actual physical and psychological injury.

In considering the sentence ranges, the Council was said to be mindful of the potential for an increase in sentencing severity. The concern needed to be balanced against the fact this was a serious offence carrying life imprisonment. As such, there was no mention of community orders with treatment requirements as an alternative to custody. Instead, it was decided that a link to the imposition guideline should be included.

Additionally, it is proposed to add wording around consideration of a community order with an alcohol treatment requirement for the domestic and non-domestic guidelines.

The sentencing ranges for all the burglary offences have been formulated using statistical data from the Ministry of Justice’s Court Proceedings database.

The consultation opens on 9th June and runs until 1st September 2021.

How can we help?

If you need specialist advice in relation to burglary offences or 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: “CCTV appeal: Burglary” by West Midlands Police is licensed under CC BY-SA 2.0 ]

by John HoweyJune 10, 2021 Criminal Law0 comments

Malicious Communications offences and Holocaust Denial

In Israel and some 16 European countries, there is a specific offence of Holocaust denial.

Holocaust denial is denying that the genocide of Jews took place by the Nazis in the Holocaust. Deniers will, for example, say that significantly less than the accepted number of Jews died, that the camps were not used for murder or that the Nazis simply wanted to deport Jews rather than exterminate them.

There is no such offence in the UK, but that is not to say that Holocaust denial is accepted.

In England and Wales, any similar behaviour is likely to be treated as an offence or offences under the Malicious Communications Act 1988 or the Communications Act 2003.

Alison Chabloz is a blogger who believes that “Hitler was right”. In 2018 she was convicted of two offences under section 127 of the Communications Act 2003. This followed the performance of anti-Semitic songs upload to YouTube; she then posted links to them on her blog. The judgment from her appeal against her conviction described the songs as weaving together Holocaust denial and hateful attacks on Jewish people generally and that they were grossly offensive. She was given a suspended sentence of 20 weeks imprisonment suspended for two years.

In May and July 2019, Chabloz made remarks on a radio show and shared the broadcasts on her blog. The Campaign Against Antisemitism said Chabloz argued that Jews who didn’t conform to her idea of western society should be deported, and that Jewish people used the Holocaust as an “eternal cash cow”. She further commented that the judge who convicted her previously had succumbed to the “Jewish lobby” and that there was nothing wrong with saying that Hitler was right.

At the end of March, she was convicted of further offences under the Communications Act 2003 due to the comments made on the show. The convictions placed her in breach of the suspended sentence, and she received an 18-week term of imprisonment.

What about freedom of speech?

Chabloz asserted in her appeal against her first convictions that the proceedings were an “affront to her freedom of speech”. She said that she was being harassed and targeted by those who did not like her views.

The Court addressed the issue and agreed the right to freedom of speech and expression is a crucial one in a democratic society. However, the rights are not unqualified. As there is no specific offence of Holocaust denial, material that consists of this can only be an offence under section 127 if grossly offensive. In respect of Holocaust denial, the Court did go on to say:

“That said, no tribunal of fact is required to proceed on the basis of absurdity or fiction. The Holocaust – by which we mean the systematic extermination of millions of people, predominantly although not exclusively Jews, by the forces of Nazi Germany and their collaborators, between 1941 and 1945 happened. World War II is surely the best documented and most extensively studied period of modern history, and the Holocaust is one of the best documented aspects of that conflict, if not the best. A mass of evidence, of various kinds attests to it. Moreover, the Holocaust has been the subject of extensive judicial enquiry, from the Nuremberg trials onwards, in a number of jurisdictions.”

Judicial notice was taken, therefore, that the Holocaust occurred, and the songs were judged in that context.

How can we help?

Image credit: “Holocaust Day 19147” by tedeytan is licensed under CC BY-SA 2.0

by John HoweyJune 7, 2021 Criminal Law0 comments

Stalking and Stalking Protection Orders

A former premier league footballer, Shayne Bradley, recently pleaded guilty to stalking a former girlfriend.

It was said he followed her, watched her house, sent mails and made abusive phone calls. He hid in hedges near her home and set up a fake dating profile to make contact. The conduct was over a four-month period, but he also breached bail conditions that were imposed. He was sentenced to 2 years and 6 months imprisonment and was also made subject to a five-year restraining order preventing contact with the victim.

Stalking Protection Orders

Stalking protection orders were introduced in 2020 to provide support for victims. An application is made to court for an order, usually in place for two years. An interim order can also be obtained whilst a full order is considered. Breach of the order is punishable with up to five years imprisonment.

The order can be made if it appears a person has carried out acts associated with stalking where that person poses a risk to another, and the order is necessary to protect that third party from that risk. Such orders would usually prevent contact with the named party with a potential exclusion zone. In that regard, they are similar to bail conditions that the police and the courts can impose.

The difference between the order and bail conditions is that a breach of the order is a criminal offence. A breach of bail conditions leads to a reconsideration of the grant of bail and isn’t a criminal offence.

However, a BBC investigation found that only two orders have been granted in Wales compared to 3,000 stalking offences being reported to the police. In Sussex, the Police and Crime Commissioner said thirty orders had been imposed with more in the pipeline. The PCC is said to be a victim of stalking and is the lead for stalking in England and Wales, which may explain the disparity. She is urging other forces to make use of the power.

In Bradley’s case, more stringent bail conditions were imposed following breaches of bail. If bail was breached while he was still under investigation, the only option available to the police was to charge him with the original offences or to re-bail him. If a stalking protection order had been in place, a breach could have resulted in further criminal charges.

Where now?

It may be that the use of these orders will increase due to calls being made for training for police officers on the orders. As the orders last for a minimum of two years, it is a severe restriction for an individual.

It is for this reason that expert advice is vital.

How can we help?

Image credit: “Lonely walk at night” by visually_conscious is licensed under CC BY 2.0

by John HoweyJune 3, 2021 Uncategorized0 comments

Life sentences with further orders

A recent Court of Appeal case has ruled on the appropriateness of protective orders when a life sentence is in place.

In GD’s case, the Court imposed a Sexual Harm Prevention Order (SHPO) alongside an indeterminate life sentence.

On appeal, the question was whether making the SHPO was wrong in principle.

GD had committed several serious sexual offences against children, hence the life sentence.

The minimum term to be served is 12 years and 6 months. At the end of that period, he will be assessed by the Parole Board for release.

When can the Court make a SHPO?

The Court can make an SHPO if necessary, to protect the public from sexual harm from the defendant following a conviction for certain offences.

Conditions are attached to the order to prevent or limit contact with certain people or children, prevent the use of the internet or overseas travel.

Any conditions can be imposed that are necessary to protect the public or particular members of the public. Orders last for a minimum of five years.

The defendant in this case clearly fit the criteria, so why was the order being questioned?

Earlier cases have said that the order would not be appropriate where an indefinite sentence had been imposed.

Why? The reason is that release under a life sentence is not automatic. When GD has served the minimum term, he will be assessed by the Parole Board. If the risk level is such that he can be released, it will be subject to carefully considered licence terms.

Licence Terms

The licence terms are considered when release is being contemplated, rather than at the time of sentence many years earlier. If a licence condition is breached, a breach which would amount to a breach of SHPO, it would undoubtedly result in recall to prison.

The difference between a sentence for breach of an SHPO and a recall to prison for breach of licence conditions in these circumstances is unlikely to be significant.

There is an argument that a breach of the SHPO would feature on a list of previous convictions, providing greater transparency. The Court rejected that argument where an indeterminate sentence is imposed.

The general rule, therefore, is that an indeterminate sentence does not need an SHPO. As always, there are exceptions to every rule; if an order should be imposed, if there is some “very unusual feature”, that means an SHPO could add something useful, where it did not run the risk of later tying the offender manager’s hands.

The SHPO for GD was quashed as there was no unusual feature requiring departure from the general rule.

How can we help?

by John HoweyJune 1, 2021 Criminal Law0 comments

Assault sentencing guidelines to be updated

The existing assault sentencing guidelines came into effect in January 2012; at the same time, the attempt murder guideline was revised.

Following an “extensive and complex project”, new sentencing guidelines have been announced for certain violent offences, including new guidance for assaults on emergency workers.

Sentencing guidelines are referred to by any sentencing tribunal to assist in setting the correct level of sentence.

Each guideline starts with a consideration of culpability or blameworthiness. Specific factors such as a leading or lesser role place the offence in the category of high or low culpability. The level of harm is then assessed and also placed into a category. The combination of culpability and harm sets the sentencing range into which the offence falls; the placement within the sentencing range depends on the aggravating and mitigating factors.

The consultation

The consultation from the Sentencing Council sought views on seven draft guidelines for common assault, common assault of an emergency worker, assault with intent to resist arrest, assault occasioning actual bodily harm, inflicting grievous bodily harm with and without intent and attempted murder.

In particular, views were sought on the following:

the principal factors that make any of the offences included within the guidelines more or less serious;
the additional factors that should influence the sentence;
the approach taken to structuring the draft guidelines;
the types and lengths of sentence that should be passed;
differences between the current guidelines and the new, revised guidelines.

What has changed?

New guidelines take effect from 1 July 2021.

Common assault

New factors have been added, including;

A high culpability factor of “intention to cause fear of serious harm, including disease transmission”.

An aggravating factor of “deliberate spitting or coughing.”

Offences of common assault are the highest volume offences covered in the violence guidelines.

Assault occasioning actual bodily harm

An aggravating factor of “deliberate spitting or coughing.”

Attempted murder

The guideline does not include a life sentence at any starting point, as it would be for murder. The determinate sentences are high though, to reflect that culpability in attempted murder is of the highest level, even higher than required for offences of murder.

The Council decided that the guidelines should be revised to reflect the gravity of the offences properly. There had apparently been concerns that some sentences in the existing guideline were too low. In some cases, much lower than for a murder on the same facts would have been, even though the intent was to cause death (for murder, the intent is to cause grievous bodily harm or death).

Extensive testing of sentences against cases was undertaken in developing the guideline, and the Council says it is satisfied that the descriptions and placement of factors relevant to the seriousness assessment will ensure appropriate sentences.

Emergency workers

This is an entirely new guideline coming into effect following consultation. Emergency worker includes police officers, NHS workers, those working for the fire service, prison officers and custody officers.

The elements of this offence are the same as for common assault, but there is a higher maximum sentence of 12 months. A more serious injury should be charged as a more serious assault offence.

In developing the guideline, the Sentencing Council considered whether an uplift to the common assault guideline should just be applied for assaults on emergency workers. This was dismissed due to demands from sentencers for a full guideline for the offence. However, the guideline contains an uplift approach for both aggravated offences of assaults on emergency workers and for racially and religiously aggravated offences.

Other changes

All guidelines except attempt murder have a new high culpability factor of strangulation, including asphyxiation and suffocation. All guidelines will have a high culpability factor of “victim obviously vulnerable due to age, personal characteristics or circumstances.

The new guidelines contain more offence categories and starting points than previously. The reasoning behind this is to ensure appropriate assessments of culpability and harm so that proportionate sentences are imposed to reflect the seriousness of the offending.

Another substantial change is the addition of a further aggravating factor relating to those providing a public service. It is phrased as an “offence committed against those working in the public sector or providing a service to the public, or against a person coming to the assistance of an emergency worker”.

The Prison Reform Trust commented on the longer periods that individuals would be spending in custody. Their concern was that the government had not committed to further resources, which would lead to a decline in prison standards. The Council quite simply said that the provision of prion places was not a matter which should influence its determination of appropriate sentences.

Some guidelines indicate that higher sentences will be imposed, but this may or may not be the case. When the earlier guidelines were introduced, their impact was evaluated. For GBH, the guideline resulted in sentences increasing in excess of that estimated. For ABH, it was estimated that the guideline would result in less severe sentences, but they did not decrease as expected.