A recent case brought by the environment agency has resulted in Southern Water being fined £90 million after pleading guilty to 6.971 unpermitted sewage discharges which polluted rivers and coastal waters in Kent, Hampshire and Sussex.
The offences were held to be caused by deliberate failings; they were widespread and long term breaches causing major harm to protected areas, conservation sites and oyster beds.
The case was described as the largest criminal investigation in the 25 year history of the Environment Agency. The 51 offences comprised pollution offences from 16 waste waterworks and one storm overflow and were dealt with together at Canterbury Crown Court.
Southern Water is required by permit to treat wastewater properly but admitted causing 6,971 illegal discharges lasting 61,704 hours, the equivalent of 2,571 days. The court was informed that the company presented a misleading picture of compliance to the Environment Agency, which hindered proper regulation.
The discharges were made into highly sensitive protected areas and had an impact on businesses and community groups. The discharges into shellfish waters caused a long term deterioration in the flesh quality. Shellfish producers lost business as some areas were left unsuitable for harvesting shellfish for human consumption.
Southern Water is to pay the fine from its operating profits so that customers do not have to pay for it. Ofwat, the Water Services Regulation Authority also imposed a £126 million penalty on Southern Water in 2019 due to regulatory failings over the same period. Ofwat also found that the company had deliberately misreported performance information. The regulator found that the company failed to operate a number of wastewater treatments works properly and did not make the necessary investment in a timely manner. The failures led to equipment breakdowns and unpermitted spills, leading to the involvement of the Environment Agency.
Ofwat’s penalty meant that the company had to return £123 million to former and existing customers comprising:
- £91.2 million for underperformance penalties;
- £31.7 million additional compensation for failing in its legal obligations; and
- a further £3 million on top to recognise the serious and significant breaches of licence conditions and statutory duties.
When sentencing the company, the judge noted a “shocking and wholesale disregard for the environment, for the precious and delicate ecosystems along the North Kent and Solent coastlines, for human health, and for the fisheries and legitimate businesses that depend on the vitality of the coastal waters”.
The company was sentenced for the totality of the offending rather than looking at each offence individually. The offences were aggravated by the “previous persistent pollution of the environment over very many years”.
Earlier this year, the Chief Executive of the Environment Agency called for a modern approach to regulation. He called for simple impactful and money-saving regulation to stop environmental damage at the source, rather than the costly impact of responding to damage after the event. His comments came with the Agency’s Regulating for People, Environment and Growth Report. The report detailed the improving trends in environmental compliance, pollution incidents, crime and emissions.
The Chief Executive, Sir James Bevan, said the report shows that regulation works and how it should now be used to tackle the climate emergency. The Agency’s vision of promoting green growth and a sustainable future is a key strand of its five-year action plan.
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The Royal College of Psychiatrists has published a report on mentally disordered offenders in the criminal justice system. They provided a position statement on customising community sentencing for offenders with mental disorder/s.
The report states that there are thousands of people in prison because there were no safer alternatives available, such as a mental health treatment requirement (MHTR), when they were sentenced.
The Royal College is seeking £12 million in funding from the government so that such requirements are available for those who need them.
The lead author of the report, Professor Pamela Taylor, said
“Too many people with mental disorders who get involved with criminal justice are being failed by a system that overlooks the use of Mental Health Treatment Requirements. Sending them to prison for quite minor offences may be dangerous for the offender-patients and may harm the wider community too. Re-offending rates are high when people are locked away for a short period while their problems remain unsolved or increase.”
Relationship between mental disorders and offending behaviour
There is evidence of a relationship between some mental disorders and offending behaviour and a disproportionate number of people in prison with mental disorders relative to the rest of the population.
It was estimated in the report that 1,600 people serving a prison sentence of less than 12 months would have been eligible for an MHTR. If a requirement had been imposed, there would likely have been a better outcome for the offender. A further 6,400 prisoners serving longer than 12 months may also have been eligible.
A community order with a requirement is more likely to be considered an alternative to a short prison sentence. Research has shown that two-thirds of those subject to short sentences re-offend within 12 months. This is compared to a third of men and 15% of women given a community order with an MHTR.
There is a cost-saving to consider as keeping a person in prison is more expensive than releasing that person on a community sentence.
Less research is available on mentally disordered offenders under supervision, but the figure is thought to be high with needs not being met.
MHTRs as a sentencing option
MHTRs have been available as a sentencing option for quite some time in England and Wales. Such requirements can only be imposed on a person who has the capacity to understand the court proceedings, the sentence proposed and agrees to the requirements before they are imposed. The requirement should not be confused with a community treatment order under mental health legislation which is compulsory inpatient care.
An MTHR can provide a framework for access to therapy, probation and social services support and can be imposed as part of a community order for a maximum of three years. Any community sentence is to be customised to meet the offender’s needs and the community and minimise the risk of re-offending.
An MHTR usually requires attendance, and it would be unusual for particular treatments to be specified. The clinician would meet with the offender and complete a full assessment of mental health and associated social needs and treat the disorder.
Back in 2009, the case of Khan recognised that there was a low recognition of the availability and value of MHTRs, and efforts have been made to improve uptake. Part of this drive included the CSTR programme in pilot areas, now to be expanded in a second wave. The programme allows for primary care practitioners and clinical psychologists to provide individualised psychological interventions within a treatment plan. The programme aims to improve underlying health and social problems by developing paths to improve screening, assessment and treatment delivery and to enhance local partnerships and communication between health and criminal justice services.
The CTSR programme aims to reduce re-offending by providing alternatives to short custodial sentences. The suggestion from the preliminary evaluation of the programme is that there has been a rise in MHTRs. The protocol provided a clearer pathway for their use and introduced dedicated staff to court to help to identify and assess those eligible. The conclusion was that the pathway had filled a gap in service provision for those offenders with mental health issues and identified a gap in services for those with more serious mental health issues.
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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 firstname.lastname@example.org. Let us help.[Image credit: “Self portrait trauma scars, Emotional abuse, Mental, sexual, Physical, verbal Domestic Violence Spousal marital rape Trauma PTSD, Self Portrait, Runjanefox, #janefox this is me. #domesticviolence #stopdv #spousalrape #dv #hearmystory” by Run Jane Fox is licensed under CC BY-ND 2.0] Read More
The Police, Crime, Sentencing and Courts Bill was introduced in the House of Lords in early July and awaits a second reading. The Bill is formed of thirteen parts, including provisions to:
- introduce measures for the protection of the police;
- introduce legislation for the prevention, investigation and prosecution of crime;
- make changes to the policing of protests;
- create new offences for unauthorised encampments as well as amending existing legislation;
- introduce road traffic measures;
- replace the existing out of court disposal framework;
- amend custodial and community sentences;
- amend the youth justice system;
- legislate for secure schools and children’s homes;
- update court and tribunal procedures; and
- introduce measures for managing and rehabilitating offenders.
Protection of the police
The Bill proposes-
-a new duty for a Police Covenant report to be put before Parliament each year;
-amending the offence of assaulting an emergency worker to increase the maximum penalty to 2 years (from 12 months);
-allowing Specials to join the Police Federation; and
-amending road traffic legislation so that trained police drivers are treated differently from regular drivers for the offences of dangerous driving and driving without due care and attention.
Prevention, investigation and prosecution of crime
A new legal duty would be introduced requiring certain agencies to work together to reduce serious violence and require community safety partnerships to consider this issue when formulating and implementing strategies to combat local crime and disorder.
Offensive weapon homicide reviews would be carried out by relevant agencies when the death of an adult involves the use of an offensive weapon.
The Bill would introduce a new statutory framework for the extraction of electronic information from electronic devices. This would relate to the extraction of information for certain purposes in an investigation.
Other provisions proposed under this heading relate to pre-charge bail, sexual offences, criminal damage to memorials, overseas production orders, search warrants, functions of prisoner custody officers, and account freezing in proceeds of crime cases.
One of the most controversial chapters in the Bill is in relation to proposed changes in the way that protests are policed. This includes amending:
- the Public Order Act 1986 to increase the number of circumstances in which the police can impose conditions on protests
- the Police Reform and Social Responsibility Act 2011 to expand the controlled area around Parliament where protests are banned
- getting rid of the offence of public nuisance and replacing it with one of “intentionally or recklessly causing public nuisance”.
A new offence is suggested of “residing or intending to reside on land without consent in or with a vehicle”. Existing police powers would also be amended to lower the threshold at which the powers in the 1994 Act could be used and allow the police to remove unauthorised encampments.
Road Traffic measures
The Bill sets out several measures, including:
- increase the maximum penalty to life for causing death by dangerous driving, careless driving or while under the influence of drink or drugs;
- introducing a new offence of causing serious injury by careless or inconsiderate driving;
- creating a statutory basis for a charging regime for courses that are offered as an alternative to prosecution for certain road traffic offences;
- providing a statutory basis to charge for vehicle removal, storage and disposal fees where the police have removed it;
- remove the need for a physical licence to be produced when a fixed penalty notice is issued, or at court;
- strengthening the rules about surrendering a licence when disqualified.
Out of court disposals
All out of court disposals would be replaced with a choice of two, diversionary cautions or community cautions (with a provision that conditions could be attached to the cautions).
The provisions of this chapter would:
- introduce a statutory minimum to be introduced for certain specified offences;
- introduce a starting point of a whole life order for premeditated offences of child murder;
- allow judges to impose whole life orders on 18 to 20-year-olds in exceptionally serious circumstances;
- make changes to the minimum review process;
- change how minimum terms are calculated;
- require certain prisoners to serve two thirds o their sentence rather than half (specified violence and sexual offence);
- refer certain prisoners to the Parole Board for release rather than release automatically (if the prisoner is deemed a terrorist threat or a significant threat to the public);
- give the secretary of state a power to change the release test where prisoners are recalled for a fixed term; and
- change the law so that the length of driving disqualifications are extended in line with the new release points for custodial sentences.
The Bill would:
- create a power to allow for attendance at appointments to be required at any stage of a community sentence;
- increase the allowable number of daily curfew hours, and the total length of a curfew;
- allow probation to amend the start or end time of a curfew, or the residence of the offender without prior approval from court;
- provide for pilots of problem-solving courts to take place; and
- create a new duty for probation to consult local and regional stakeholders on the design and delivery of unpaid work.
- amending the test for a custodial remand so that it is more difficult to remand a child;
- introducing a statutory duty for courts to consider the welfare and best interests of a child when making a decision on a remand;
- changing detention and training orders to remove fixed lengths, provide that time on remand or subject to certain bail conditions is time served, ensure an offender benefits from the same amount of early release for all sentences served consecutively;
- changing youth rehabilitation orders to include a standalone tracking requirement, increasing curfew hours and raising the age limit for the education requirement;
- allowing pilots of a tracking requirement as a standalone order and to monitor offenders on high intensity orders; and
- abolish reparation orders.
Other changes put forward in the Bill include the introduction of serious violence reduction orders, changes to the management of sex offenders and terrorist offenders, and permitting the presence of a BSL interpreter in the jury room.
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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 email@example.com. 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
The current law relating to communications offences is proving to be out of date already given the surge in digital communication and social media in recent years. In an attempt to address this, The Law Commission has published a set of recommendations aiming to address the harms that arise from online abuse. As a counterbalance, protections for freedom of expression are recommended to increase.
The Law Commission is independent and was set up by parliament to keep the law in England and Wales under review and to recommend reforms. The organisation is headed by a Chairman with four Law Commissioners.
The project was funded by the government as part of its Online Harms strategy and is the third and final report to be published. Two related projects by the Law Commission were on hate crime and the taking, making and sharing of intimate images without consent.
The reforms would be of certain offences in the Malicious Communications Act 1988 and the Communications Act 2003. The Commission concluded that the current offences do not provide consistent protection from harm and may, in some circumstances, interfere with freedom of expression.
The review is of the criminal law covering threatening and false communications, as well as encourage and assisting self-harm and cyber-flashing. The aim is to make sure that the law works with new technology and is future-proofed, that it protects people from genuine harm and abuse and ensures there is space for discussion in that it does not disproportionately affect legitimate freedom of expression.
What is the problem?
Online communications have undergone a revolution which offers many opportunities for people to communicate with each other. The scale of which presents an increased scope for harm: thousands of people from all over the world can target a single person or a domestic abuser can exert control over a victim, for example.
The current offences do not allow use over such a wide range of conduct and some forms of harmful conduct, such as cyber-flashing, remain without criminal sanction. The communications offences in the Acts mentioned above are referred to in the report as “overlapping, ambiguous” and can be unclear for online users, technology companies and law enforcement agencies. “Pile ons” are referenced, where a group of people cause harassment to an individual online as such behaviour is not specifically addressed in the existing offences.
The Commission is also concerned that the current offences are so broad that they may interfere with the right to freedom of expression.
- Harm Based offence
The first recommendation is for a new “harm-based” communications offence to replace the two existing offences under section 127(1) of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988.
The new offence would be based on a more context specific analysis rather than focusing on broad categories of wrongful content. The questions would be given those likely to see a communication, was harm likely? The Commission aims for the offence not to criminalise communications that are grossly offensive but lack the potential for harm whilst ensuring that communications that are genuinely harmful do not escape criminal sanction.
The issue of deliberately sending flashing images to epilepsy sufferer is also discussed with a recommendation that the government considers introducing a specific offence to cover the behaviour.
The recommended offence is:
- the defendant posts a communication that is likely to cause harm to a likely audience;
- in sending the communication the defendant intends to cause harm to a likely audience;
- the defendant poses the communication without reasonable excuse.
- Encouraging or assisting serious self-harm
The Commission received evidence of “deeply troubling behaviour” where vulnerable people were targeted and encouraged to self-harm. An offence is recommended that has a high threshold of harm intended to be inflicted or encouraged, and that the defendant intended to encourage or assist that same level of harm. The high threshold suggested is one of grievous bodily harm.
Cyberflashing is the unsolicited sending of sexual images using digital technology, often experiences as a form of sexual harassment. The recommendation, therefore, is for the Sexual Offences Act 2003 to be amended to include a specific offence targeting the sending of images or video recording of genitals. This would mean that the additional protections provided in the Act, such as Sexual Harm Prevention Orders, could be available.
- Sending knowingly false communications, threatening communications, and making hoax calls to the emergency services
The current offence of knowingly sending a false communication has a low threshold of “causing annoyance, inconvenience or needless anxiety”. The recommendation is to raise the threshold so that the defendant would be liable if:
- he sends or posts a communication that he knows to be false;
- in doing so he intends to cause non-trivial psychological or physical harm to a likely audience; and
- in sending or posting he does so without reasonable excuse.
The provisional proposal in respect of hoax calls is to make it a specific offence. At the moment it is addressed under the Communications Act 2003.
The report is now with the government for review and to consider the recommendations.
How can we help?
Possession of knives or an offensive weapon is an offence if it is in public and without lawful authority or reasonable excuse. A weapon can be offensive as a matter of course (it is made for use of causing injury), adapted for such a purpose, or not adapted but carried with the intention of causing injury.
One of the key elements of the offence is that the weapon is carried in public, rather than being possessed in private, indoors. That is now not the case in respect of certain weapons.
The weapons that are banned in public by the Criminal Justice Act 1988 are now banned in private. This means that weapons such as zombie knives, shuriken, death stars and knuckle dusters can no longer be kept in your home. The ban also covers cyclone knives, spiral knives and rapid-fire rifles.
A new legal definition now covers flick knives, they have been unlawful since 1959, but now more knives will be covered. The definition is now:
“any knife which has a blade which opens automatically –
(i) from the closed position to the fully opened position, or
(ii) from a partially opened position to the fully opened position,
by manual pressure applied to a button, spring or other device in or attached to the knife, and which is sometimes known as a “flick knife” or “flick gun”; or
any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force and which, when released, is locked in place by means of a button, spring, lever, or other device, sometimes known as a gravity knife.”
The offence of unlawfully possessing a firearm is covered by section 54 of the Offensive Weapons Act 2019. It includes any rifle with a chamber from which empty cartridge cases are extracted using energy from propellant gas. The offence carries up to ten years imprisonment. The offence of possessing other weapons covered by the new ban carries up to six months imprisonment.
From December 2020 to March 2021, the government ran a scheme to allow the surrender of any of these weapons and claim compensation for them. During that time, 14,965 knives, 1,133 rapid-fire firearms and 32,000 ancillary items were surrendered, with 829 claims for compensation processed.
With this ban coming into force, the government has also issued a reminder about upcoming changes to the legal definition of “antique firearm”. In March, the Antique Firearms Regulations 2021 provided a legal definition for the first time. According to the government, the aim was to prevent the exploitation of a lack of clarity in law to gain possession of such weapons for use in crime. The definition is a firearm manufactured before 1st September 1939.
As a result of these regulations, owners have until 22nd September 2021 to apply to the police for a firearms certificate to allow legal possession. If you do not want to apply for a firearms certificate, the same date applies for the surrender, sale or other disposal of the firearm.
How can we help?
Technology has been developed by the DVLA and the Home Office for police officers to use at the roadside to confirm the identity of a driver.
The technology allows instant access to a photograph of the driver. The picture is held on the DVLA driver’s database, and immediate access is provided to officers dealing with motoring offences.
The technology is currently being used by 18 police forces, with a plan to roll it out to a further ten forces over the next few weeks.
The real reason for the development of the technology is to speed up processes. At the moment, it can take up to sixteen minutes for an officer to confirm a person’s identity. An officer may have to conduct further checks on the information given by a driver, and in some cases, it can lead to a person’s arrest for their identity to be verified.
The use of the technology is currently limited to motoring offences and was first piloted in the summer of 2019. In the time to June 2021, the following benefits are said to have occurred:
- 14,000 hours saved by Road Police Unit Officers and local Policing Officers
- roadside checks are 66% faster, meaning less time wasted by drivers
- the police accessed 86,513 images to identify drivers at the roadside.
The system works by the officer searching the police national computer (also known as PNC) for the driving licence number, which is unique to the individual. That is used to obtain the correct image from the DVLA, which can be checked with the driver. The image is only accessible during the check and is not retained. The access to DVLA records is confined to use for the purpose of enforcing road traffic offences.
The 18 forces currently using the technology are:
- The City of London Police
- Police Scotland
- South Yorkshire
- West Yorkshire
- Devon and Cornwall
More technological advances are planned, including the digitalisation of provisional driving licences to be assessed before looking at a digital licence for full licence holders.
During lockdown, the DVLA also introduced new digital services for transactions. These include an online application for a tachograph card, a digitalisation of paper-based prosecutions, and an online service to change an address on a vehicle log book (V5C).
How can we help?
If you need specialist advice in relation to any driving offences, 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 firstname.lastname@example.org. Let us help.[Image credit: Crown Copyright ] Read More
In 2015 reforms were passed to allow some of the National Probation Service responsibilities to be dealt with by private companies. Known as Community Rehabilitation Companies, or CRCs, the companies were responsible for low to medium risk offenders while probation continued to deal with high-risk offenders. Companies were invited to submit tenders in what was described as a “chaotic and confused” process, and contracts were given to the successful bidders.
There was widespread criticism of the privatisation, yet Boris Johnson said he wanted to further the reforms.
Various assessments took place in 2016 by the National Audit Office, Probation Inspectorate and the Public Accounts Committee. The results highlighted a gap between the estimated caseload volumes that CRCs used to cost their bids and the actual volumes they were working with. Delivery of services was “mixed and patchy” or “chaotic and inadequate”. There had been a dramatic decline in the quality and provision of services for the women being dealt with. In the final report of 2016, the Inspectorates of Probation and Prison looked at resettlement services for prisoners on short sentences and found them to be poor with little to commend about them.
In 2018 a report found that the CRCs were failing to tackle domestic abuse or keep victims safe. Those convicted of domestic abuse were found in more than half of the cases looked at, were not making enough progress on their court orders. Practitioners had failed to act on new information that victims and children could be in danger, and staff were found not to have the skills, experience or time to supervise offenders properly.
In 2019 the then justice secretary announced the government would be renationalising the probation service. The CRC contracts were to be brought to an early end with no new companies to be introduced.
The government decided that the “Transforming Rehabilitation” reforms, including the establishment of CRCs, had created many serious problems. They were unconvinced that the model could deliver an effective service, so changes are to be introduced.
A solution to the problem
A new unified probation service has been launched, with extra funding provided. The intention is to double the number of probation officers and the service to work more closely with the police, NHS, and local authorities. The public sector probation service will now supervise low and medium risk offenders and deliver unpaid work and programmes that were previously dealt with by the CRCs.
There will be twelve regional areas with a new specialist National Security Division tasked explicitly with monitoring terrorists, serious organised criminals and very high-risk offenders.
The national standards for the service are to be refreshed. There must be at least one face to face meeting with all supervised offenders once per month. A higher number of meetings will be required for higher-risk offenders. In conjunction with the police and social services where appropriate, for the first time, probation staff will visit offenders’ homes to “protect children, partners and other family members from domestic and sexual abuse.”
An increase in monitoring is to take place with electronic monitoring, GPS and sobriety tags. Probation will still be involved with victims and seek appropriate licence conditions at parole hearings. Eligible victims will now be referred to the Victim Contact Scheme under the Victims’ Code, with plans to extend the scheme to victims of stalking and harassment where the offenders are serving less than 12 months.
The main aim of the probation service is rehabilitation, more than 80% of crime is re-offending, so it is vitally important. Extra investment in tackling the drivers of crime has been announced with charities and companies involved to provide and signpost support in employment, housing advice and mental healthcare. This will include homeless prison leavers being given temporary accommodation to help prevent re-offending.
A package to provide support for prison leavers was announced earlier this year, with an emphasis on housing, closer supervision, and drug treatment programmes.
How can we help?
On the 5th July 2021, the Knife Crime Prevention Order provisions of the Offensive Weapons Act 2019 came into force in specific areas for a period of 14 months. The area in question is the “metropolitan police district”, which consists of Greater London, excluding the City of London, the Inner Temple and the Middle Temple.
The sections allow the making of a knife crime prevention order other than on conviction. Three conditions must be met:
- an application has been made in accordance with section 15;
- the court is satisfied that on at least two occasions, the defendant had a bladed article with them without good reason or lawful authority in a public place or school or further education premises;
- the court must think it is necessary to make the order to protect the public from the risk of harm involving a bladed article, to protect any particular members of the public or to prevent the defendant from committing an offence involving a bladed article.
Section 15 sets out the requirements for the order. The application can be made by the police for the area where the defendant lives or is intending to go. When the application is made for a person under the age of 18, the youth offending team must be consulted.
Orders upon conviction
A knife crime prevention order can also be made upon conviction under section 19. This section applies when a person over the age of 12 is convicted of an offence, and the court dealing with him is satisfied the offence is a relevant offence. The same three conditions apply when an application is made for an order without conviction, other than an application made by the prosecution rather than under section 15. Additionally, an order can only be made if it is on top of a sentence imposed for an offence or a conditional discharge. A relevant offence is one which involves violence, a bladed article was used by the defendant, or another, in the commission of the offence, or the defendant or another person who committed the offence was in possession of a bladed article at the time.
Section 20 requires the prosecution to consult the youth offending team before making an application under section 19, where the offender is under the age of 18.
An order may be reviewed periodically, the defendant having to attend court for it to take place. If the order is longer than a year, it has to be reviewed. Where the order is less than a year, it must be reviewed within the last four weeks. At the review, consideration will be given to whether the order should be varied or discharged.
An order can be varied by imposing additional prohibitions or requirements. A variation can only occur if it is necessary to protect the public (or any particular members of the public) from the risk of harm or prevent the defendant from committing an offence involving a bladed article.
Appeal against an order
It is possible to appeal against the making of an order to the Crown Court. A person who applies for an order under section 14 (otherwise than on conviction) may appeal to the Crown Court against a refusal to make the order. An appeal can also be made against a refusal to vary, renew or discharge the order.
Breach of an order can lead to imprisonment of up to two years. As well as prohibitions, the orders can impose positive requirements such as attendance on drug rehabilitation programmes, educational courses and relationship counselling. The intent is for the order to be preventative rather than a punishment, hence the positive requirements. Attention should be paid, therefore, to tailoring the requirements to the needs of the individual.
Terms of the order
Examples of prohibitions could be non-association with named individuals, exclusion zones, and non-participation in specified activities. Care must be taken to ensure that prohibitions or requirements do not conflict with a defendant’s religious beliefs or work/educational commitments.
Orders last for a minimum of six months to a maximum of two years.
This pilot of the orders runs across London for 14 months; the government has already stated its intention to roll out the orders across England and Wales once the pilot has ended.
How can we help?
We are specialists in knife crime law. 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 email@example.com. Let us help.
[Image credit: “Black Widow kit knife” by CapCase is licensed under CC BY 2.0 ] Read More
The Domestic Abuse Act 2021 introduced a new offence of threatening to share intimate images, which came into effect on 29th June 2021.
Section 69 of the Domestic Abuse Act 2021 creates a new offence of threatening to disclose a private sexual photograph or film in which another individual appears, and by doing so, the person intends to cause distress to that individual, and the disclosure would be without the consent of that individual.
Under section 33 of the Criminal Justice and Courts Act 2015, it is already an offence to disclose such images; section 69 amends that offence to include threatening to do so.
Criminal law dictates that when a person is charged with this offence, it is not necessary for the prosecution to prove that the photo or film referred to in the threat exists. They also do not need to prove, where it does exist, that it is a private sexual photo or film.
A person charged is not to be taken to have intended to cause distress by threatening to disclose the image merely because that was a natural and probable consequence of the threat.
Why has this change come about?
The change has come following challenges by campaign groups arguing that a threat to post an image can be just as distressing as if the image had been posted. The Revenge Porn Helpline estimated that over 20% of their calls involved a threat to share an intimate image and said the threat can be a tactic used in relationships to coerce and maintain control.
The Law Commission conducted a review of the taking, making and sharing of intimate images without consent, and their recommendations are being prepared. The new offence now introduced has pre-empted any recommendations that may be made.
The Commission is looking at the current range of offences in this area and identifying any gaps in the scope of protection currently offered. The increased use of smartphones and social media has made it much easier for images to be taken and shared without consent. The concern is that there is no single offence to govern the making, taking and sharing of intimate images without consent. Instead, there is a “patchwork of offences” which have developed over time. The gaps include:
- An offence of upskirting exists but not one of “downblousing.”
- Sharing an altered image (by adding someone’s face to a pornographic image, for example) is not included.
- Motivations such as sexual gratification and causing distress are often covered by current laws but not others such as coercion or sharing as a joke.
In particular, the Commission will be reporting on:
– the meaning of terms such as private and sexual in the context of the offences above and similar;
– the potential impact of emerging technology which allows realistic intimate or sexual images to be created or combined with existing images;
– ensuring any recommendations comply with the right to freedom of expression.
Scope of the commission’s review
The Commission was not considering the issue of indecent images of children as this is a quite separate area. The review has also not looked at the issue of cyberflashing, for example, sending an intimate photo via bluetooth to a stranger’s mobile phone. A second review is to take place in respect of communications offences parallel to the current review.
The consultation paper suggested four new offences, one of which is the offence under section 69 detailed above:
- A base offence prohibiting the taking or sharing of an intimate image of a depicted person where they do not consent, and there is no reasonable belief in consent.
- Taking or sharing without consent where the intention is to humiliate, alarm or distress the victim.
- A similar offence where the purpose is for their own or someone else’s sexual gratification.
The final report from the Law Commission is expected by Spring 2022, so further new offences may follow in due course.
How can we help?
You may have heard the name Daniel Morgan being mentioned in the media recently.
Daniel was a private investigator who would carry out extensive work for the News of the World. He was found murdered in 1987 in a car park with an axe embedded in his head, with no conviction regarding his death.
An independent panel has produced a report of their findings from an inquiry into the death. The panel’s remit was to shine a light on the circumstances of the murder, its background and its handling. In particular, the police involvement, the role played by police corruption in protecting those responsible, the failure to confront the corruption, the incidence of connections between private investigators, journalists at News of the World, and alleged corruption involved in the linkages between them.
The panel started work in 2013 and produced the report early this year. In explaining the length of time taken, the panel said they had not anticipated the significant difficulties and delays and did not receive final documentation from the Metropolitan Police until March 2021.
Several recommendations were made in the report in light of criminal law to address areas where there continue to be serious shortcomings in current policy and practice in policing. Included in them is to ensure necessary resources are allocated to the task of tackling corrupt police behaviour. A statutory duty of candour is suggested to be owed by all law enforcement agencies to those they serve.
The Metropolitan police were said to owe the family of Daniel Morgan and the public an apology for “not confronting its systematic failings, for the failings of individual officers and for its lack of candour to the members of the family”.
The police were described as being institutionally corrupt, and Cressida Dick, the police commissioner, was personally censured for obstructing the independent inquiry set up to review the murder.
Back in 2011, the police accepted that corrupt police officers had protected the killers and that the murder inquiry that had probably been “solvable” was undermined.
The delay in final documentation was the seven-year period that the police refused to provide access to the Holmes accounts to the panel. Holmes is an IT system used by the police for the investigation of major incidents, such as murder. Holmes stands for Home Office Large Major Enquiry System and helps an investigation to be organised and thorough. This was the obstruction caused by Dick, referred to above, as she was the assistant commissioner who initially refused access. It seems that the police were more interested in protecting themselves.
“The Metropolitan police’s culture of obfuscation and a lack of candour is unhealthy in any public service. Concealing or denying failings, for the sake of the organisation’s image, is dishonesty on the part of the organisation for reputational benefit. In the panel’s view this constitutes a form of institutional corruption”.
The report criticised the police for the links to the News of the World, which was relevant due to the newspaper’s link to the victim. “It is appropriate for the Panel to state that the demonstrated links between personnel at the highest levels of the Metropolitan police and people working for a news organisation linked to criminality associated with the murder of Daniel Morgan, are of serous and legitimate public concern.”
The Home Secretary and the London mayor have both said Cressida Dick retains their full confidence. Priti Patel has requested Dick’s response to the report and has asked Her Majesty’s Inspectorate of Constabulary to look at the findings. The Metropolitan police have offered a £50,000 reward for information and a fresh review of the forensic evidence.
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