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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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.
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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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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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.
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.
The penalties in this guidance are financial and must be considered in the following order-
- Confiscation (Crown Court only)
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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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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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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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.
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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.
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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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