Criminal Law Archives

by John HoweyAugust 24, 2021 Criminal Law0 comments

Prosecution Guidance for Illegal entry to the UK

The Crown Prosecution Service and law enforcement agencies have agreed a consistent approach to the handling of illegal entry cases for those entering the UK via small boats and lorries.

Their guidance has been updated in the sections regarding small boats and larger vessels, passengers and prosecution strategy/international enquiries. It is primarily concerned with prosecuting those who bring migrants to the UK in circumstances which pose a risk to the migrants lives. It is not aimed at the migrants themselves.

The decision of whether to charge with an illegal entry offence is a two-stage test. Prosecutors must first be satisfied that there is sufficient evidence and then go on to consider whether prosecution is in the public interest.

Immigration Enforcement is likely to be involved, and consideration can also be given to a civil penalty if it is not possible to pursue a criminal investigation. A civil penalty would involve the Border Force and the Clandestine Entrants Civil Penalty Team.

An example charge would be under section 25 of the Immigration Act 1971, as follows:

Person A on (date) did an act, namely transported/concealed a (nationality) national into the UK, which facilitated the commission of a breach of immigration law by an individual who was not a national of the UK, knowing or having reasonable cause for believing that the act facilitated the commission of a breach of immigration law, namely (details), by that individual, who was not a citizen of the UK.

Immigration Enforcement work with other agencies and will assess whether there is a facilitation case. The assessment is based on first responder accounts, aerial footage, and migrants’ details, such as repeat offenders.

The approach recognises that migrants and asylum seekers often do not have a choice in the manner of travel, facing exploitation by organised groups. Prosecutors are reminded to consider the published public interest factors in charging those entering the country this way.

The guidance says that passengers should not be prosecuted unless they are repeat offenders or if they have been deported previously. Rather than facing prosecution, they should be dealt with by administrative removal channels. The focus for the prosecution should be on those with more significant roles who facilitated the illegal entry. The guidance also clarifies that where passengers are intercepted or rescued at sea, it is unlikely any offence of illegal entry has been committed.

The section on small boats and larger vessels sets out the charges to be considered when dealing with drivers and/or pilots. This can include those who did not play a part in arranging the journeys but played a less significant role in controlling the vessel during the crossing. Therefore, a person could be charged where they did not act for financial gain but helped to purchase, inflate or steer the boat, especially if other persons’ lives were put at risk.

International enquiries are to be made at an early stage, whether or not the suspect is a UK national. The reasoning behind the enquiries is the existence of relevant material abroad relating to how the migrants were facilitated in. The importance of submitting a timely request for mutual legal assistance is stressed and for the police to find out what evidence may exist and how it could be obtained within a relevant timescale.

Such lines of enquiry may be phone links, overseas organisers and material showing locations where facilitated persons stayed. Member States have 45 days to decide these requests, and it can then take a further 90 days to deal with, so early requests are important.

Early engagement between agencies and the prosecution is encouraged so that a strategy can be developed. This would mean the prosecution could advise who to treat as a suspect, victim or witness and whether the public interest was in prosecuting or if administrative removal was appropriate.

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[Image credit: “RNLI Inshore lifeboat training off Weston Super Mare” by forkcandles is licensed with CC BY-ND 2.0 ]

by John HoweyAugust 13, 2021 Criminal Law0 comments

A policeman, a taser and manslaughter

Benjamin Monk, a police officer, has been sentenced for the manslaughter of Dalian Atkinson, who died in 2016.

Dalian Atkinson was an ex-footballer who had played for several clubs, including Manchester City and Aston Villa, before retiring from the game in 2001. In August 2016, Mr Atkinson was suffering from kidney failure, and it appeared he was suffering from mental health issues and paranoia linked to that kidney failure.

The police were called to Mr Atkinson’s father’s house due to his threats to kill his father. His mental health had dramatically deteriorated; he falsely claimed to have killed other family members and was shouting that he was the Messiah. He was unrecognisable to family members and had lapsed into a form of psychotic state.

Taser discharged

Benjamin Monk was one of the police officers who attended the scene following a call from a neighbour. Mr Atkinson was behaving out of character and was being aggressive. Monk attempted to calm him down and retreated; he discharged his taser, which did not affect Mr Atkinson, who continued to advance. The taser was discharged for a second time, again with no effect. As Mr Atkinson advanced on the police officer again, the taser was deployed for the third time, and Mr Atkinson fell to the ground.

Monk was charged with murder and pleaded not guilty. At his trial, the jury accepted that using the taser on the three occasions was reasonable and lawful to try and restrain and control Mr Atkinson. Evidence was given that reasonable use of the taser would include deliberately maintaining an electrical circuit for between five and ten seconds. The taser causes neuro muscular incapacitation and collapse.

Once Mr Atkinson had collapsed, he still had to be restrained and controlled, and reasonable force could be used to do so. Monk, however, kept the taser depressed for 33 seconds and then kicked Mr Atkinson in the head while he was still on the floor. The prosecution case was that either or both of those two actions amounted to the use of unreasonable force.

Guilty of manslaughter

The jury found Monk guilty of manslaughter rather than murder; in deciding the appropriate sentence, the judge had to determine what force he was sure the jury decided was unlawful. He found that he could not be sure, based on a large quantity of evidence, that Mr Atkinson had been subjected to an electric current for any period materially beyond that accepted as being lawful. Although the taser was depressed for 33 seconds, it was likely the taser barb had become detached.

The kicks to the head while on the ground did exceed reasonable force. The evidence as to the number of kicks varied, but there was clear forensic evidence from footwear impressions that there were at least two. The prosecution and defence experts jointly agreed that the kicks were delivered with moderate force; they did not cause any serious injury and would not have caused death in a healthy person. The kicks had been a contributory factor to his death, the effect of them being to increase his degree of unconsciousness, which had an adverse effect on his ability to maintain his airway and breathe properly.

Convictions of police officers

According to the Independent Office for Police Misconduct, Monk’s conviction was the first in thirty years of a serving police officer convicted of manslaughter in the course of their duties. There have been ten other murder of manslaughter charges brought against officers since 1990, but all have been acquitted or the cases not proceeded with. Another officer was charged with assault in this case, as she struck Mr Atkinson with her baton, but the jury failed to reach a verdict. Monk has been suspended from the force since 2019, and misconduct proceedings will now be fast-tracked. He was sentenced to 8 years imprisonment, of which he will serve two thirds before being released on licence.

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by John HoweyAugust 12, 2021 Criminal Law0 comments

Modern slavery – new sentencing guidelines

The Sentencing Council has the responsibility of developing and monitoring sentencing guidelines. The aim is to promote consistency in sentencing while maintaining the independence of the judiciary.

Following a consultation period, the Council has published sentencing guidelines for offences under the Modern Slavery Act 2015. The guidelines apply to adult offenders and cover the following four offences:

holding someone in slavery (section 1);
human trafficking (Section 2);
committing an offence with the intention of committing a human trafficking offence (section 4);
breach of a slavery and trafficking prevention order, or a slavery and trafficking risk order (section 30).

Why are there new guidelines?

The guidelines are to be introduced following an increasing number of cases coming before the court and are the first for these offences. The two principal offences in the Act are under sections 1 and 2; trafficking and slavery/forced labour are frequently sentenced together with the same factors taken into consideration. For this reason, one guideline has been produced to cover both offences, with the same culpability and harm factors and the same aggravating and mitigating factors.

The guidelines for these more serious offences provide for a sentence of up to 18 years imprisonment for offenders who played a leading role, with substantial financial advantage and who exposed victims to a high risk of death.

How is the sentence for a Modern Slavery offence arrived at?

A sentence is reached following an assessment of culpability and harm; the level of culpability is given a category 1 to 4, and harm is listed as A, B or C. The two are then combined to provide a sentencing range and starting point. Aggravating and mitigating factors are relevant in placing the offence at the right level within that sentencing range.

The draft guidance was amended to include a reference in the levels of culpability to threats made to a victim’s family, as well as the victim. Whether the offender had been a victim of trafficking, whether previously or in the same offending as charged, is also relevant. The culpability factors reflect an expectation of substantial financial gain, and material advantage is now included.

The assessment of harm is decided upon using a table provided in the guidelines. The assessment can be assisted by expert evidence based on factual evidence from the victim, including a victim impact statement. A close examination of all particular circumstances is required, and sentencers are not to assume that the absence of evidence from those trafficked means a lack of harm or seriousness.

The Council stated that courts are used to assessing harm with differing degrees of evidence. The guidance is focussed on the central point that victims, even if not obviously traumatised, may not recognise their own victimhood or be able to offer positive evidence of it. A victim’s apparent consent to their treatment is to be treated with caution.

Section 4 of the Act is committing an offence with the intention of committing a human trafficking offence which is punishable with a maximum of ten years’ imprisonment. Those who replied to the consultation agreed with providing brief guidance on the approach to be taken on sentencing. This entails the sentence being commensurate with that of the primary offence, for example, kidnap or false imprisonment, with an enhancement of up to 2 years imprisonment, to reflect the intention to commit the human trafficking offence.

The offence under section 30, breach of an order, is also dealt with in the guideline by way of brief guidance. Sentencers are pointed to the guidelines for similar breaches, such as a breach of a criminal behaviour order or a sexual harm prevention order. The reasoning behind this is that breaches of the orders referred to carry the same maximum sentence and also refer to harm/risk of harm.

Responses to the consultation

The Independent Anti-Slavery Commissioner responded to the consultation, pointing to the wider harms caused by modern slavery offences, such as economic harm, public safety and wider criminality. The Council did not believe there was a specific way to draw the sentencer’s attention to the wider harms. Still, it did consider they were reflected in the higher starting points and sentencing levels set out in the guideline.

In addition to the offences covered in the guidelines, the Act provides for various orders to be made, such as reparation orders, slavery and trafficking risk and slavery and trafficking prevention orders. The guidelines have to be followed unless the judge or magistrate is satisfied that it is contrary to the interest of justice to do so.

The guidelines will come into effect on 1st October 2021.

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[Image credit: National Crime Agency © Crown Copyright ]

by John HoweyAugust 6, 2021 Criminal Law0 comments

Trade mark offences – new sentencing guidelines

Trade Mark offences are the latest set of offences to be given sentencing guidelines by The Sentencing Council.

The Sentencing Council produces guidelines on sentencing for the judiciary and criminal justice professionals. The aim is to promote greater consistency in sentencing whilst maintaining the independence of the judiciary. The guidelines set sentencing ranges within the maximum for the offence and must be followed unless the court is satisfied that it would not be in the interests of justice to do so.

A consultation was held on guidelines for trade mark offences, and two new guidelines have now been produced for sentencing individuals or companies that sell or possess counterfeit goods intended for sale. The new guidelines will replace the existing one, which applies to individuals only, and will be used in all courts from 1st October 2021.

The offences concerned are relatively low volume offences, with around 370 adults and 40 organisations being sentenced in 2019. As they are low volume, it is likely that sentencers will not have too much experience of them, and so the Council felt that comprehensive guidelines would be of assistance.

Of the adult offenders, 36% received a community order, 31% a fine, 17% a suspended sentence, 4% were sentenced to immediate custody, and 5% were given a discharge. The remaining 6% were dealt with by other means such as forfeiture of property, a day in the cells, confiscation order, compensation order or other miscellaneous disposals. The average custodial sentence was 12 months, and no sentences exceeded 36 months.

An organisation that is a legal entity can be prosecuted with the only options being a fine or a discharge (an organisation cannot be sent to prison or be given a community order). The level of fine is unlimited.

Unauthorised use of a trade mark is an either offence that can be dealt with in the magistrates’ court or the crown court. The maximum sentence is ten years imprisonment and/or an unlimited fine.

Individuals

The level of culpability is to be assessed by determining the offender’s role, the extent to which the offence was planned, and the level of sophistication. There are three levels in the guideline, high, medium and lesser culpability.

The level of harm is recognised as being “somewhat complex and nuanced”. When the guideline was road-tested, the feedback was that the model was tailored to the offence, and it met with approval. The assessment involves putting a monetary figure on the offending by reference to the equivalent genuine goods’ retail value and any significant additional harm suffered by the trade mark owner or purchasers of the counterfeit goods.

The guideline says:

Where there is evidence of the volume of counterfeit goods sold or possessed:
the monetary value should be assessed by taking the equivalent retail value of legitimate versions of the counterfeit goods involved in the offending.
Where it would be impractical to assign an equivalent retail value of legitimate versions, an estimate should be used.
Where there is no evidence of the volume of counterfeit goods sold or possessed:
In the case of labels or packaging, harm should be assessed by taking the equivalent retail value of legitimate goods to which the labels or packaging could reasonably be applied, taking an average price of the relevant products.
In the case of equipment or articles for the making of copies of trade marks, the court will have to make an assessment of the scale of the operation and assign an equivalent value from the table below.

The equivalent retail value is likely to be considerably higher than the actual value of counterfeit items, and this is accounted for in the sentencing levels. There may be exceptional cases where the retail value is grossly disproportionate, and an adjustment may be made in these cases. An example of additional significant harm could be purchasers being put at risk of physical harm from the counterfeit goods.

The guideline also sets out the steps that can be taken with a view to making a confiscation order, compensation order and forfeiture of goods.

Organisations

The penalties in this guidance are financial and must be considered in the following order-

Compensation
Confiscation (Crown Court only)
Fine

Compensation must be considered to require the offender to pay compensation for any personal injury, loss or damage, having regard to the evidence and the offender’s means. Priority is to be given to the payment of compensation over any other financial penalty, and reasons must be given if a compensation order is not made.

Confiscation orders can only be made in the Crown Court, and a case dealt with in the magistrates’ court may be committed to the crown court for the order to be considered. If the lower court would otherwise have dealt with the case, the crown court would be limited to those powers. Confiscation is to be dealt with, and taken into account, when assessing any other fine or order.

Culpability factors for organisations are similar to those in the guideline for individuals; the harm factors are identical.

In considering the impact of the changes, the Council stated that they expected the guidelines to encourage consistency of approach and would not change average sentencing severity. However, an increase in custodial sentence lengths may result in the most serious cases, with some increase in the use of imprisonment for cases of low value but with a high risk of serious harm.

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by John HoweyJuly 30, 2021 Criminal Law0 comments

Record Environment Agency Prosecution

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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[Image credit: © Environment Agency ]

by John HoweyJuly 28, 2021 Criminal Law0 comments

A MHTR for mentally disordered offenders

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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by John HoweyJuly 28, 2021 Criminal Law0 comments

Police, Crime, Sentencing and Courts Bill

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.

Protests

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”.

Unauthorised encampments

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).

Custodial sentences

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.

Community 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.

Youth justice

Changes include:

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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by John HoweyJuly 22, 2021 Criminal Law0 comments

Knives and offensive weapons to be banned from homes

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.

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by John HoweyJuly 14, 2021 Criminal Law0 comments

Renationalised Probation Service

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.

Assessments

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.

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by John HoweyJuly 14, 2021 Criminal Law0 comments

Knife Crime Prevention Order; what is it?

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 jhowey@jfhlaw.co.uk. Let us help.

[Image credit: “Black Widow kit knife” by CapCase is licensed under CC BY 2.0 ]