JFH Updates Archives

by John HoweyAugust 26, 2021 JFH Updates0 comments

Sentencing Academy report on ‘Sentencing and ethnicity’

The Sentencing Academy has produced a report reviewing ethnicity and custodial sentencing trends from 2009 to 2019. Over the years, several official reports have addressed the role of race and ethnicity in sentencing decisions. The current report looked at sentencing patterns for different offender profiles with two key issues that emerged. The first was ethnic disproportionality, and the second, differential sentencing outcomes.

Disproportionality was expressed by comparing the percentage of BAME individuals appearing in the criminal justice system compared to their proportion in the general population. The data on custody rates and average custodial sentence lengths were combined to form the “expected custodial sentence” (ECS), a new measure of punitiveness. In 2019 the ECS for an indictable offence was 6.6 months for a white offender and 10.2 months for an Asian offender. The overall ECS figure does mask the fact there is variation across offence categories, the greatest divergent is with offences of violence.

Despite the Sentencing Academy research, the authors said that the knowledge of differential sentencing across ethnic groups remained imperfect, although it had improved. The preliminary conclusions were:

BAME groups are associated with greater use of imprisonment;
Visible minority offenders attract higher custody rates than white offenders, but the ordering of different groups varies from study to study;
group-based differences in custody rates and custodial sentence lengths are consistently statistically significant;
there is long-standing evidence of ethnicity-based differences using custody rates and average custodial sentence lengths;
between 2009-2019 black offenders attracted the most punitive punishment levels;
ethnicity-based differences emerge most consistently and strongly for drug offences;
little is known about ethnicity-based sentencing differentials in the magistrates’ courts;
the research studied custody rates and average custodial sentences so that no conclusions could be drawn regarding other sentencing options.

It was noted that data collection ceased in 2015 and further research priorities were set out:

Publication of sentencing trends in the magistrates’ court was discontinued some time ago, as the majority of offenders are dealt with in that court, data needs to be obtained.
The sentencing differentials appear higher for drug offences, but BAME defendants are over-represented for other offences too, where more research is required.
Very little is known about variations at a local level.
Sanctions other than custody have rarely been studied, for example, the level of fines, length and duration of suspended sentences, use and length of community orders and the use of out of court disposals.

The most important question is why certain ethnicities are linked to higher custody rates. A range of hypotheses would need to be explored, such as consideration of pre-sentence reports. There are ethnic differences in relation to the relationship between a PSR recommendation and the sentence imposed. A white offender is more likely to have the recommended sentence imposed than a BAME defendant.

The report concludes that the rates of immediate imprisonment for BAME defendants have been higher than for white offenders for many years. Both the level and the cause of the differential need to be understood before the sentencing process can be addressed so that it treats all equally. The difference in custody rates has declined more recently, but there is still a differential. The challenge is finding the cause; only then can the government, courts, and the Sentencing Council devise proper remedies to address the disparities.

How can we help?

If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.

[Image credit: “Power & Equality” by Steve Snodgrass is licensed under CC BY 2.0 ]

by John HoweyMarch 12, 2021 Criminal Law, JFH Updates0 comments

BBC in the Dock for Contempt of Court

The British Broadcasting Corporation (‘BBC’) found itself in the embarrassing position of being fined £28,000 recently after admitting being in contempt of Court.

Why was the BBC in trouble?

On the morning of 17 November 2020, the BBC made a video and audio recording of half a day’s hearing in the Planning Court before Holgate J. The Judge was hearing argument on the first day of a 2-day judicial review of a controversial decision by Surrey County Council to grant planning permission to UK Oil and Gas to carry out “fracking” operations at a site at Horse Hill, near Horley.

BBC South East Today is the BBC’s regional television news programme for the South East of England, covering Kent, East Sussex, part of West Sussex and part of Surrey. On the evening of 17 November 2020, South East Today broadcast in its 18.30 and 22.30 news bulletins a special report on the Horse Hill case, which included a short clip from the video. All of this was done without the knowledge or consent of the Court.

This behaviour, as the BBC admitted, was a breach of the statutory prohibitions on making and transmitting unauthorised recordings of court proceedings, and therefore involved at least two criminal offences. In the Court’s judgment (and as the BBC also admitted) the number and seriousness of the breaches makes this a case of contempt of Court.

There were two potential criminal offences, one under s 41 of the Criminal Justice Act 1925 (taking of photographs in Court), the second under section 85B of the Courts Act 2003 which was enacted due to the Coronavirus Act 2020.

A schoolboy error?

Given the BBC’s expertise in broadcast journalism, it is difficult to comprehend how such a basic mistake was made.

The Court observed:

‘This was not a minor oversight by an inexperienced individual within a large organisation, but a catalogue of serious errors by a number of people that should have been, but were not picked up by any of the internal systems and safeguards that were put in place to regulate what is broadcast. It beggars belief that a team of very experienced BBC journalists, all but one of whom did not need to hear the Judge’s warning at the start of the proceedings because they were well aware of the prohibition on recording court hearings, should have given no thought to the propriety of getting the Hub to record the morning’s proceedings that were being conducted in the Royal Courts of Justice and viewed through live links by those who were unable to be physically present.’

How was the penalty of £28,000 arrived at?

In re Yaxley-Lennon (Practice Note) [2018] EWCA Crim 1856 [2018] 1 WLR 5400 at [80], the Court of Appeal set out the factors which would be likely to be relevant to cases involving breach of reporting restrictions, namely:

i) the effect or potential consequences of the breach upon the trial or trials and those participating in them;

ii) the scale of the breach, with particular reference to the numbers of people to whom the report was made, over what period and the medium or media through which it was made;

iii) the gravity of the offences being tried in the trial or trials to which the reporting restrictions applied;

iv) the contemnor’s level of culpability and his or her reasons for acting in breach of the reporting restrictions;

v) whether or not the contempt was aggravated by subsequent defiance or lack of remorse;

vi) the scale of sentences in similar cases, albeit each case must turn on its own facts;

vii) the antecedents, personal circumstances and characteristics of the contemnor, and

viii) whether a special deterrent was needed in the particular circumstances of the case.

The BBC accepted that it was an aggravating factor that the BBC is the principal news provider in this country and that this unfortunate sequence of acts in contempt of Court was a departure from the high standards that are rightly expected of it and which it sets for itself.

The broadcast was repeated. The clip was seen by around half a million viewers, though none of them complained about it. The problem could and probably would have been avoided had the BBC taken more proactive steps to ensure that their journalists were properly advised of the restrictions that were introduced in the Coronavirus Act and reminded of the existing restrictions on recording and broadcasting court proceedings, at a time when more and more hearings had to be conducted remotely.

On the other hand, steps were taken to address the problem as soon as the BBC was made aware of it; it is obvious that senior personnel have taken the case extremely seriously. The offending material was swiftly removed from the iPlayer and the memo was circulated to journalists to remind them of the legal position. Counsel for the BBC also relied on the general reputation of the BBC and its staff for acting responsibly and to the isolated nature of the incident. He submitted that the BBC had taken the matter to heart and responded appropriately. It was highly unlikely that this would ever be repeated; all the journalists concerned have learned a salutary lesson. The BBC is a public service provider, funded by the licence fee, and any fine will detract from the services it can provide.

The Court thought that ‘there is an obvious danger that if the BBC is seen to be treated too leniently, it will send out the wrong message to those with a more cavalier attitude towards restrictions on reporting, recording and broadcasting court proceedings; on the other hand, the sentence must be fair and proportionate.’

In assessing the final penalty, the Court held:

‘Standing back, and making an overall assessment, we consider that but for the early acceptance of liability and the apology a fine in the order of £40,000 – £45,000 would have been merited. Discounting by approximately 1/3 for those matters, we will order that the BBC should pay a fine of £28,000.’

This case should stand as a warning to all that court proceedings must never be broadcast without permission, failing to heed this warning could be a costly reputational and financial mistake.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.

[Image credit: “BBC Television Centre” by Mike_fleming is licensed under CC BY 2.0)

by John HoweyMarch 10, 2021 JFH Updates0 comments

Parole Board Hearings – Public Scrutiny

Currently, all parole hearings are held in private – this is set out in legislation in the Parole Board Rules. Following a consultation exercise, the government has now committed to opening up the hearings and allowing public access. Legislative change is expected in the next few months.

The government has stated that:

‘…we are persuaded that the current blanket ban in legislation on public hearings is unnecessary, and that victims, offenders, the media or the wider public should have the right to make a request for a public hearing, and to have that request considered.’

A “virtual” attendance, primarily through video link, is likely to be the preferred option in most cases where an open hearing is agreed. This has the advantage of minimising the risk of disruption, increasing capacity and allowing victims to easily step away if they become distressed or would rather not hear certain details of the case discussed.

New legislation will allow the Parole Board to consider an application for access mirroring the approach taken at the First-tier Tribunal (Mental Health), so that the Parole Board consider the “interests of justice” when making such a decision.

As the independent decision-making body, it will be for the Parole Board to decide the criteria for the interests of justice test it will use to determine applications for public hearings.

These will in due course be reflected in guidance the Board will produce on how it intends to approach applications. The types of factors the Board may wish to consider may include but not be limited to:

If it would assist public understanding of how the decision is reached in a case of particular public interest;
The participants in the hearings – in particular the prisoner and the victim (where there is one) – do not object to the hearing being heard in public;
To hold a public hearing would not create an unacceptable risk (of mental or physical harm) to any of the participants;
Whether the Board consider that the integrity of the evidence may be compromised and prevent a true and accurate assessment of the prisoner’s risk being provided by the witnesses;
The presence of strong and valid objections from participants which could jeopardise their co-operation if the hearing were to be in public.

The Board will be able to consider an application for a public hearing submitted by anyone, but it would most frequently be victims, offenders, or the media.

The Parole Board will also be able to initiate the consideration process of its own volition if they see a need – for example, if there is significant public interest in a particular case.

Regardless of who has made the application, both the victim and the offender will be invited to submit their views before a decision is reached and the Board would take the final decision having taken account of the representations received. But ultimately the decision will depend on whether the Board is satisfied that it would be in the interests of justice to open up the hearing, having taken everything relating to the particular case into consideration.

Anyone who attends a hearing under these new provisions will be an observer to the proceedings in a similar way to attendance at court. They will not be entitled to intervene, ask questions of the witnesses or address the panel in any way – other than where a victim is presenting their Victim Personal Statement to the Board.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.

[Image credit: “Into the Prison” by Bill Nicholls is licensed under CC BY-SA 2.0)

by John HoweyFebruary 28, 2021 Criminal Law, JFH Updates0 comments

Encrochat; is it admissible?

A vast number of cases are awaiting a criminal trial that will rely, to a greater or lesser extent, on the admissibility of communications made via the supposedly highly encrypted Encrochat service.

The Court of Appeal has now issued a ruling following preliminary rulings at Liverpool Crown Court. Whilst this ruling does not mean that guilty pleas are inevitable, for some defendants it will nonetheless present a significant hurdle for them to surmount.

The main question was whether the communications were intercepted at the time they were being transmitted or, as the judge found, were recovered (intercepted) from storage. If the judge was right, subject to a number of subsidiary arguments, the evidence would be admissible.

The EncroChat material was obtained by a Joint Investigation Team (JIT) of French and Dutch investigators and prosecutors by interfering in the EncroChat communications system. It was then supplied to the United Kingdom authorities where it was used in a large number of investigations, including the one which led to the present case. The judge was required to hear evidence about how this occurred, and then to make findings of fact. He then had to apply the United Kingdom domestic law governing the admissibility of such material, which is found in the Investigatory Powers Act 2016 (“the 2016 Act”).

The 2016 Act adopted a domestic law framework which is unique in Europe and which resembles previous regimes. Historically, intercept material (classically phone tapping, but not limited to that) could be lawfully obtained by the authorities. Subject to a number of immaterial exceptions, it could not be used in evidence in proceedings but was reserved for intelligence use. The policy justification for that approach has been debated on many occasions and centres around protecting sensitive capabilities and wider operational and practical concerns. All were discussed in Intercept as Evidence, December 2014 Cmnd 8989 which was the report of a review of Privy Councillors provided to Ministers. In many other jurisdictions, including France and the Netherlands, there is no blanket prohibition on the admission into evidence of intercept material. The 2016 Act superseded the law found in the Regulation of Investigatory Powers Act 2000, which itself replaced the Interception of Communications Act 1985. Major changes between the current regime and the one established in the 2000 Act concern the new regulatory and supervisory system established by the 2016 Act. The law relating to admissibility of intercept material, and the definition of what is and is not intercept material also changed in important ways.

The essential point before the Court of Appeal was the submission, rejected by the judge, that the EncroChat material is intercept material and inadmissible in criminal proceedings because of section 56 of the 2016 Act, and further that it was unlawfully obtained under a Targeted Equipment Interference warrant, when its obtaining should have been identified as a kind of interception which would require a Targeted Interception warrant. Targeted Equipment Interference warrants are governed by Part 5 of the 2016 Act and may produce material which can be used in evidence. Targeted Interception warrants are governed by Part 2 of the Act and the product is inadmissible in evidence in almost all criminal proceedings, including these. The judge found that the EncroChat material in this case was obtained under Part 5 warrants. These were approved by Sir Kenneth Parker, a Judicial Commissioner, on 5 March 2020, and Sir Brian Leveson, the Investigatory Powers Commissioner, on 26 March 2020, prior to the obtaining of the EncroChat material. The second warrant was needed in order to widen the scope of the first for reasons which are not material to the issues before us. The issue is whether that approach was correct, or whether on a true understanding of the way the data were obtained, and of the 2016 Act, they comprised material obtained unlawfully under the wrong warrant and, in any event, were inadmissible.

The prosecution submitted that:

i) the EncroChat messages were admissible and fell within the exception provided by section 56(1) and schedule 3 paragraph 2 of the Act because the messages were “stored in or by the system” at the time when they were intercepted; and, in any event,
ii) that the material was not obtained as a result of “interception related conduct” because none of the five classes of such conduct (as contained within section 56(2) of the Act) applied to the present case, alternatively it was not conduct carried out in the United Kingdom within the scope of section 4(8) of the Act.

The key question was whether at the relevant time the communications were “being transmitted” or were “stored in or by the telecommunication system.” The judge found the latter to be the case. The EncroChat messages were properly regarded as falling within section 4(4)(b) of the 2016 Act and they had been obtained in accordance with a Targeted Equipment Interference warrant. He decided that for the following reasons:

i) At the relevant time when the messages were made available they were not “being transmitted;” it was clear from the evidence in relation to the data exfiltrated from the receiving device that the data was not made available whilst being transmitted. The incorporation of the nickname for the sender from the data held in the receiver’s device demonstrated that the transmission process of the data had finished. The judge indicated that he had no trouble in concluding that the EncroChat data was not being transmitted at the time that it was taken and was properly to be regarded as “stored in or by the system (whether before or after transmission)” and subject to section 4(4)(b) of the 2016 Act. The judge ruled that he did not consider that the distinction between RAM and Realm as described by the defence experts equated to the distinction between “being transmitted” and being “stored” as set out in the statutory provisions. The defence approach sought to extend the notion of transmission well beyond anything which was contemplated by the 2016 Act.
ii) The Equipment Interference Code of Practice was published pursuant to Schedule 7 of the 2016 Act and was admissible as evidence in criminal proceedings. It addressed the exercise of functions under Part 5 of the 2016 Act and the authorisation of Targeted Equipment Interference warrants and their operation. The judge considered that these provisions from this Code of Practice were consistent with the conclusions that he had already made in relation to this issue.
iii) Having considered the provisions of section 99 of the 2016 Act, which contained the power to make a Targeted Equipment Interference warrant and the scope of such a warrant, the judge decided that the interceptions were carried out in accordance with the warrant that had been obtained. The warrant application accurately described the way in which the implant was to operate and the warrant authorised what was then done. This was a finding of fact set out in paragraphs 161 and 162 of the judge’s ruling. It was a finding of fact to which he was entitled to come, and there is no challenge to it in this appeal.

What did the Court of Appeal rule?

The Court held:

“We agree with the judge. The communication is that which is transmitted. What remains on the device is not what has been transmitted, but a copy of it or what, in older forms of messaging, might be described as a “draft”. That is so however quickly after transmission the obtaining of the copy takes place, or even if the copy is extracted while the original encrypted communication is being transmitted. The fact that what was obtained was an unencrypted message, means that what was on the phone, and what was intercepted, was not the same as what had been transmitted because what had been transmitted was encrypted. It cannot therefore have been “being transmitted” when it was intercepted: it can only have been “being stored”.

That being so, the harvesting was interception but was rendered lawful by the Targeted Equipment Interference warrants issued under section 99 of the Act.”

and that:

“We have concluded that the only substantial question which the judge was required to answer was whether the EncroChat material was stored by or in the telecommunications system when it was intercepted. Like him, we consider that these communications were not being transmitted but stored at that time. That being so, the appeal is dismissed.”

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.

[Image credit: “mobile phone mast” by osde8info is licensed under CC BY-SA 2.0)

by John HoweyJune 17, 2020 JFH Updates0 comments

A Summer of Protests?

As we slowly exit the Covid19 ‘lockdown’ we have seen several protests in major cities. As life moves toward a more ‘normal’ footing and we enter the Summer months, protests may continue.

In this article, we explore some of the legal powers that regulate processions and assemblies. These can be found in the Public Order Act 1986.

Notifying the police in advance

Written notice shall be given in accordance with this section of any proposal to hold a public procession intended:

(a) to demonstrate support for or opposition to the views or actions of any person or body of persons,

(b) to publicise a cause or campaign, or

unless it is not reasonably practicable to give any advance notice of the procession. Notice is not required where the procession is one commonly or customarily held in the police area (or areas) in which it is proposed to be held. Similarly, a funeral procession organised by a funeral director does not require notice.

The notice must specify:

(a) the date when it is intended to hold the procession,

(b) the time when it is intended to start it,

(d) the name and address of the person (or of one of the persons) proposing to organise it.

Time limits apply to the service of notices.

Where a public procession is held, each of the persons organising it is guilty of an offence if:

(a) the requirements as to notice have not been satisfied, or

(b) the date when it is held, the time when it starts, or its route, differs from the date, time or route specified in the notice.

Police Conditions

The police can impose conditions. If the senior police officer, having regard to the time, place, the circumstances in which it is being held, its route or proposed route, reasonably believes that:

(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,

he may give directions imposing on the persons organising or taking part in the procession. These conditions should be necessary to prevent disorder, damage, disruption or intimidation. This can include conditions on the route or prohibiting entry to any public place specified in the directions.

A person who organises or takes part in a public procession, and knowingly fails to comply with a condition imposed, is guilty of an offence. However, it is a defence for him to prove that the failure arose from circumstances beyond his control.

There are similar powers for assemblies of persons.

Prohibiting Processions

If at any time the chief officer of police reasonably believes that, because of particular circumstances existing in any district or part of a district, the powers to impose conditions will not be sufficient to prevent the holding of public processions in that district or part from resulting in serious public disorder, he shall apply to the council of the district for an order prohibiting for such period not exceeding 3 months as may be specified in the application the holding of all public processions (or of any class of public procession so specified) in the district or part concerned.

A person who organises a public procession, the holding of which he knows is prohibited by virtue of an order under this section is guilty of an offence. The same applies to a person taking part in such a procession.

If you need any advice on the holding of mass gatherings, including how best to work with police and local authorities to ensure a successful and safe protest, please get in touch with us.

We can advise on all manner of alleged offences under the Public Order Act and other relevant legislation.

How can we help?

(Image: “protest” by jpbourque is licensed under CC BY-SA 2.0)

by John HoweyMarch 30, 2020 JFH Updates0 comments

Covid 19 Lockdown – the law; What can and can’t you do?

This article was posted in March 2020, shortly after the initial restrictions were imposed.

There has been much confusion about what you can and cannot do during the current lockdown. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 imposes several restrictions.

Since the lockdown began last week, the police have been keen to enforce compliance, even calling out the MP Stephen Kinnock over social media for visiting his father on his birthday.

Given the importance of protecting the NHS, it is likely that the police may take a harder line as the crisis worsens.

Restrictions on movement during the lockdown

During the emergency period, no person may leave the place where they are living without reasonable excuse.

A reasonable excuse includes the need—

(a) to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed in Part 3 of Schedule 2.

(b) to take exercise either alone or with other members of their household;

(d) to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006(1), to a vulnerable person, or to provide emergency assistance;

(e) to donate blood;

(f) to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living;

(g) to attend a funeral of—

a member of the person’s household,
a close family member, or
if no-one within sub-paragraphs (i) or (ii) are attending, a friend;

(h) to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;

(i) to access critical public services, including—

childcare or educational facilities (where these are still available to a child in relation to whom that person is the parent, or has parental responsibility for, or care of the child);
social services;
services provided by the Department of Work and Pensions;
services provided to victims (such as victims of crime);

(j) in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child;

(k) in the case of a minister of religion or worship leader, to go to their place of worship;

(l) to move house where reasonably necessary;

(m) to avoid injury or illness or to escape a risk of harm.

The word ‘need’ prefaces the exceptions and this implies an added necessity test.

Requirement to close premises and businesses during the emergency

A person responsible for carrying on a business which is listed in Part 1 of Schedule 2 must—

during the emergency period—
close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and
cease selling food or drink for consumption on its premises; or
if the business sells food or drink for consumption off the premises, cease selling food or drink for consumption on its premises during the emergency period.

The provisions in relation to business closure are particularly complex and a number of police interventions have already been made since the lockdown began. Please contact us for accurate up to date advice if you are unsure as to your legal obligations.

Restrictions on gatherings during the lockdown

During the emergency period, no person may participate in a gathering in a public place of more than two people except—

where all the persons in the gathering are members of the same household,
where the gathering is essential for work purposes,
to attend a funeral,
where reasonably necessary—
to facilitate a house move,
to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006,
to provide emergency assistance, or
to participate in legal proceedings or fulfil a legal obligation.

Penalties

Breach of these emergency regulations can result in fixed penalties (of up to £960) and unlimited fines.

Adults must do all they can to ensure that children comply. Failure in that regard can itself result in prosecution.

Other enforcement measures can be taken concerning business premises and failing to comply with restrictions.

If you have received a fixed penalty that you wish to challenge or are being investigated or prosecuted for an alleged breach, our expert team are able to advise.

How can we help?

by John HoweyMarch 26, 2020 JFH Updates0 comments

Emergency Coronavirus Laws Now in Force

This article was posted in March 2020, shortly after the initial changes came into force.

On Wednesday 25th March 2020 the Coronavirus Bill completed all its parliamentary stages, and Royal Assent was signified. This brings in to force an unprecedented piece of emergency legislation.

The purpose of the Coronavirus Act is to enable the Government to respond to an emergency situation and manage the effects of a covid-19 pandemic.

A severe pandemic could infect up to 80% of the population leading to a reduced workforce, increased pressure on health services and death management processes.

The Act contains temporary measures designed to either amend existing legislative provisions or introduce new statutory powers which are designed to mitigate these impacts.

The Act aims to support Government in the following:

Increasing the available health and social care workforce
Easing the burden on frontline staff
Containing and slowing the virus
Managing the deceased with respect and dignity
Supporting people

What are the changes?

The efficiency and timeliness of court and tribunal hearings will suffer during the Coronavirus outbreak. Restrictions on travel will make it difficult for parties to attend court and without action a significant number of hearings and trials are likely to be adjourned. at the present time, no new jury trials are starting, and the Magistrates Courts are delaing only with urgent cases.

In criminal proceedings, the courts have a duty to deal with cases effectively and expeditiously and that includes making use of technology such as live video links, telephone or email where this is lawful and appropriate. Video link technology is increasingly being used across the court estate enabling greater participation in proceedings from remote locations. The courts currently have various statutory and inherent powers which enable them to make use of technology.

The Act amends existing legislation so as to enable the use of technology either in video/audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities.

Health Protection Regulations

The Act permits ministers to create new criminal offences by regulations issued under existing public health legislation. Such offences are to be triable summarily only and may not be punished with imprisonment.

Enforcement Powers

The Act provides for various enforcement orders to ensure public health and safety are maintained; violation of these orders, including obstruction etc. will be a criminal offence. Many of the emergency powers under the Act can result in criminal sanction if lawful directions are not obeyed.

Infected persons

Schedule 20 of the Act provides for screening and quarantining of infected persons (or persons suspected to be infected).

In enforcing schedule 20 powers (and similar provisions apply to other powers), a constable may:-

– use reasonable force;

– enter any place; and

– give reasonable instructions to the person (though he must inform the person that informing him of the reason for the instruction that it is an offence to fail to comply).

Events, gatherings and premises

Schedule 21 covers events, gatherings and premises.

The provisions give the Secretary of State the power to prohibit or restrict events and gatherings, and to close premises, if the public health situation deems it necessary.

This streamlines existing legislation in England and Wales, to ensure that powers to prevent events or gatherings can be deployed as quickly as possible in the event this is justified by the evidence.

This can be deployed if, having had regard to the relevant advice, such a prohibition or restriction would:

prevent, protect against or control the incidence or transmission of coronavirus, or
facilitate the most appropriate deployment of medical or emergency personnel and resources

Conclusion

This legislation has passed through parliament at remarkable speed and with little scrutiny. We are on hand to advise anyone who faces investigation or prosecution as a result of alleged non-compliance. At all times, we will remain vigilant to ensure that the State does not abuse emergency legislation.

How can we help?

by John HoweyMarch 24, 2020 JFH Updates, Uncategorized0 comments

Covid 19 and Business Closure – Legal Obligations

This article was posted in March 2020, shortly after the initial restrictions were imposed.

At 2 pm on Saturday 21 March 2020, the Government introduced further measures to help fight the Covid 19 pandemic. A law came into force which forced the closure of some businesses. On 23rd March, the Government announced further measures, closing a number of other businesses.

This law was enacted by virtue of The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (and mirror regulations that apply in Wales). The statutory instrument was made in exercise of the powers conferred by sections 45C(1), (3)(c), (4)(d), 45F(2) and 45P of the Public Health (Control of Disease) Act 1984.

Which businesses must close?

Schedule 1 of the regulations state that the following businesses must close:

- Restaurants, including restaurants and dining rooms in hotels or members clubs.
- Cafes, including workplace canteens, but not including
  - Cafes or canteens at a hospital, care home or school;
  - Canteens at a prison or an establishment intended for use for naval, military or air force purposes, or for the purposes of the Department of the Secretary of State responsible for defence;
  - Services providing food or drink to the homeless;
- Bars, including bars in hotels or members’ clubs.
- Public houses.
- Hair, beauty and nail salons, spas and massage parlours
- All retail premises, with a number of exceptions;
  - Supermarkets and other food shops;
  - health shops;
  - pharmacies including non-dispensing pharmacies;
  - petrol stations;
  - bicycle shops;
  - home and hardware shops;
  - laundrettes and dry cleaners;
  - bicycle shops;
  - garages;
  - car rentals;
  - pet shops;
  - corner shops;
  - newsagents;
  - post offices;
  - banks.
- Outdoor and indoor markets, except those offering essentials, such as groceries and food
- Auction houses
- Car showrooms
- Hotels, hostels, BnBs, campsites and boarding houses for commercial use, although keyworkers can stay there
- Caravan parks/sites for commercial use, unless used as a primary residence
- Libraries
- Community and youth centres
- Places of worship for services
- Cinemas, Theatres and Concert Halls.
- Nightclubs.
- Bingo halls, casinos and betting shops.
- Museums and galleries.
- Indoor skating rinks.
- Indoor fitness studios, gyms, swimming pools or other indoor leisure centres.
- Enclosed spaces in parks, including playgrounds, sports courts and pitches, and outdoor gyms or similar

What is the penalty if businesses defy the law?

An unlimited fine can be imposed on the business and any officer of the company who has consented or connived etc. so keeping the business open (regulation 3).

There are, however, other powers available to local authorities who are in charge of policing compliance with these regulations.

Businesses that breach them will be subject to prohibition notices, and potentially unlimited fines. As a further measure, and if needed, businesses that fail to comply could also face the loss of their alcohol license. More draconian powers are also available under the Public Health (Control of Disease) Act 1984, and further powers will soon be law when the Coronavirus Bill becomes law.

In some cases, injunctive relief may be granted, the breach of which could be punished by up to 2 years imprisonment.

There are also reputational issues that need to be considered.

We can advise on all aspects of criminal and regulatory law, if any business is uncertain as to its legal obligations during this worrying time, please do not hesitate to get in touch with us.

How can we help?

by John HoweyNovember 25, 2019 JFH Updates0 comments

Child murder and knife crime to the fore of the election battle

We are in the midst of a general election, so it is perhaps not surprising that hot ‘law and order’ topics, such as knife crime, are featuring in the news as the main political parties fight for the popular vote.

It is worthwhile taking a brief look at some of the recent announcements, and seeing what is not receiving attention.

Child murder

The Conservatives propose changes where a person aged at least 21 years murders a child under 16 years. In such circumstances, they say that the starting point should be a ‘whole life order’. This would mean that they would never be eligible for parole. The Criminal Justice Act 2003 already contains measures in this regard, but this is, on the face of it, a tightening up of those provisions. On our assessment, if enacted, this provision is unlikely to impact on more than one or two cases each year.

Knife Crime

Knife crime remains high on the political agenda, and we have written about this topic in the recent past. The Conservatives propose changes to stop and search powers, and swift processing of those arrested before the courts. Any changes to stop and search provisions are likely to prove controversial. There are also concerns about whether the current resourcing of the criminal justice system is sufficient to cope with any radical new initiatives.

Policing

The conservatives have already announced the recruitment of 20,000 extra police officers. It is a fair assumption that if this target is reached more people will be arrested and brought before the courts. Again, some resource implications remain unaddressed.

The Liberal Democrats have pledged a further £300m for local policing.

Parole Board

The Conservatives have announced further changes to practice and procedure, to make the process more ‘victim-centric’ and transparent.

The Conservatives propose raising the ‘victim surcharge’ by 25%.

Is this a ‘Law and Order’ election?

The Conservatives have returned to a traditional ‘law and order’ theme, tough on crime and tough on the causes of crime. As well as punishment, there are promises of better prison rehabilitation schemes and more robust non-custodial options.

Other parties do not lead on this issue in quite the same way, but all promise better resourced public services, which inevitably includes policing.

What is missing?

It will come as no surprise to anyone that legal aid has barely been mentioned in the manifestos of any of the parties. There seems to be no appetite to address the drastic cuts of the last decades.

Keeping a watching brief

Whatever laws the next government brings forward, we remain committed to ensuring that the proper rights and protections afforded to all those we represent are safeguarded. We continue to be vigilant and ensure that any legislative developments that are brought forward do not infringe your fundamental rights and freedoms.

How can we help?

by John HoweyNovember 13, 2019 JFH Updates0 comments

Contempt of Court; when lies can really make you sick

In a civil case this week involving Jet2 Holidays, Karl and Laura Hughes now face contempt of court proceedings after they claimed that they had suffered sickness while on a package holiday. They said they had food poisoning caused by eating contaminated food or drink or swimming in the hotel’s unsanitary pool. In witness statements, Mr & Mrs Hughes said that they became ill on the second day of their holiday and were acutely ill for the remainder of the holiday. The witness statements were sent to Jet2 with an initial letter of claim.

Jet2 looked at the social media accounts of Mr and Mrs Hughes. They saw photos and comments posted by them during the holiday. The posts indicated they were physically well while away and had enjoyed their holiday. As a result, Mr and Mrs Hughes did not start proceedings against the company.

Contempt of Court proceedings

Jet2 however, decided to ask the court to start contempt of court proceedings against Mr & Mrs Hughes. This was on the basis that the witness statements were false, relying on the social media posts.

Mr & Mrs Hughes denied that the information in their statements was false. They made further statements setting out that they had complained to the hotel manager, and despite their illnesses, they had “put up a front” that they were having a great holiday. The social media posts were not a true reflection of their mood at the time.

What did the Court say?

Initially, a court decided that proceedings for contempt of court could not be brought as the statements had not been served as part of court proceedings. A higher court did not agree saying that the test was whether the conduct in question involved an interference with the administration of justice either in a particular case or more generally as a continuing process.

The court went on to say that even though Mr & Mrs Hughes had not yet started proceedings when the statements were sent that they were still capable of interfering with the administration of justice.

The issue of whether Mr & Mrs Hughes were in contempt of court has not yet been decided, but Jet2 now have permission to bring those proceedings. The moral of the tale is just because something does not happen “in court” does not mean that you cannot be in “contempt of court”.

What could happen?

If Mr & Mrs Hughes are found guilty of contempt of court, they could be sent to prison for up to 2 years or receive a fine.

It can be very tempting to make a false claim against an insurer. However, faced with an increase in claims, they are now fighting back in the civil courts. In addition, you could face criminal prosecution for fraud, leading in some cases to a prison sentence and criminal conviction. In 2017, a couple were sent to prison after trying to claim £20,000 compensation for being ill while on holiday.