An unusual case was dealt with at the Court of Appeal recently concerning offences of rape, and in particular the question of consent.
The victim, referred to as X, was the partner of Smith, who was the leader of a large-scale drugs conspiracy. Smith enjoyed watching X have sex with his friends; he was much older than X. She apparently consented to the sex with Ivor, George, Thomas and Mike, but the issue for the jury was whether that consent was genuine, if it was not genuine, whether the appellants reasonably believed that it was.
Sexual Offences Act 2003
The Sexual Offences Act 2003 sets out the issue of consent and says that the offence is committed if the complainant does not consent or if the perpetrator does not reasonably believe that the complainant consents. A person consents if he or she agrees by choice and has the freedom and capacity to make that choice.
The appellants were found guilty of rape, so the jury must have been sure that the apparent consent was not genuine and also satisfied that the appellants did not have a reasonable belief that X was consenting. They were sentenced on the basis that they believed that she was consenting but that the belief was not reasonable. This led to sentences outside of the guidelines that, without further explanation, could look lenient for rape.
They appealed on the ground the judge should have found that there was no case to answer as there was no evidence that each did not have a reasonable belief that she was consenting.
The Prosecution case
The prosecution case was that each appellant knew Smith, and each was aware of his methods of getting his way in the drugs world. They knew there was a disparity of power in Smith’s relationship with X, and they were aware she consumed alcohol and drugs before having sex with each of them. None of them made any inquiry with X; one admitted overhearing a conversation between Smith and X where she said she wasn’t really consenting.
The appellants argued at trial and on appeal that taking the evidence at its highest, there was nothing capable of proving the absence of a reasonable belief in consent. The law does not require a defendant to inquire about consent even when the broad circumstances might be thought to put him on inquiry. The Court of Appeal held that the judge was right to leave the issue to the jury. The evidence that went to reasonable belief was made up of a mosaic of individual pieces from a wide range of witnesses. It required the jury to evaluate those pieces in the context of a broad picture to determine whether the prosecution had proved the absence of reasonable belief. The evidence was there for the jury to come to the conclusion that it did.
Consent is not simply Yes or No
This case amply demonstrates that consent is not a simple issue of yes or no. Back in 2018, a survey found that many people were still unclear as to what rape was. A third of people thought it wasn’t usually rape if a woman was pressured into having sex, but there was no physical violence. A third of men thought that if a woman flirted on a date, it wouldn’t generally count as rape even if she didn’t explicitly consent to sex. 21% of women thought the same.
This is a complicated area of law; if you find yourself accused of a sexual offence, you need expert advice at an early stage. Please do not fall into the trap of thinking that you do not need a solicitor if you have done nothing wrong, or that if you do have one it will make you look guilty. Everyone has the right to free and independent advice at the police station; it is a right that you should use.
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 email@example.com. Let us help.[Image credit: Informed Consent” by Kevin Krejci is licensed with CC BY 2.0 ] Read More
The current law relating to communications offences is proving to be out of date already given the surge in digital communication and social media in recent years. In an attempt to address this, The Law Commission has published a set of recommendations aiming to address the harms that arise from online abuse. As a counterbalance, protections for freedom of expression are recommended to increase.
The Law Commission is independent and was set up by parliament to keep the law in England and Wales under review and to recommend reforms. The organisation is headed by a Chairman with four Law Commissioners.
The project was funded by the government as part of its Online Harms strategy and is the third and final report to be published. Two related projects by the Law Commission were on hate crime and the taking, making and sharing of intimate images without consent.
The reforms would be of certain offences in the Malicious Communications Act 1988 and the Communications Act 2003. The Commission concluded that the current offences do not provide consistent protection from harm and may, in some circumstances, interfere with freedom of expression.
The review is of the criminal law covering threatening and false communications, as well as encourage and assisting self-harm and cyber-flashing. The aim is to make sure that the law works with new technology and is future-proofed, that it protects people from genuine harm and abuse and ensures there is space for discussion in that it does not disproportionately affect legitimate freedom of expression.
What is the problem?
Online communications have undergone a revolution which offers many opportunities for people to communicate with each other. The scale of which presents an increased scope for harm: thousands of people from all over the world can target a single person or a domestic abuser can exert control over a victim, for example.
The current offences do not allow use over such a wide range of conduct and some forms of harmful conduct, such as cyber-flashing, remain without criminal sanction. The communications offences in the Acts mentioned above are referred to in the report as “overlapping, ambiguous” and can be unclear for online users, technology companies and law enforcement agencies. “Pile ons” are referenced, where a group of people cause harassment to an individual online as such behaviour is not specifically addressed in the existing offences.
The Commission is also concerned that the current offences are so broad that they may interfere with the right to freedom of expression.
- Harm Based offence
The first recommendation is for a new “harm-based” communications offence to replace the two existing offences under section 127(1) of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988.
The new offence would be based on a more context specific analysis rather than focusing on broad categories of wrongful content. The questions would be given those likely to see a communication, was harm likely? The Commission aims for the offence not to criminalise communications that are grossly offensive but lack the potential for harm whilst ensuring that communications that are genuinely harmful do not escape criminal sanction.
The issue of deliberately sending flashing images to epilepsy sufferer is also discussed with a recommendation that the government considers introducing a specific offence to cover the behaviour.
The recommended offence is:
- the defendant posts a communication that is likely to cause harm to a likely audience;
- in sending the communication the defendant intends to cause harm to a likely audience;
- the defendant poses the communication without reasonable excuse.
- Encouraging or assisting serious self-harm
The Commission received evidence of “deeply troubling behaviour” where vulnerable people were targeted and encouraged to self-harm. An offence is recommended that has a high threshold of harm intended to be inflicted or encouraged, and that the defendant intended to encourage or assist that same level of harm. The high threshold suggested is one of grievous bodily harm.
Cyberflashing is the unsolicited sending of sexual images using digital technology, often experiences as a form of sexual harassment. The recommendation, therefore, is for the Sexual Offences Act 2003 to be amended to include a specific offence targeting the sending of images or video recording of genitals. This would mean that the additional protections provided in the Act, such as Sexual Harm Prevention Orders, could be available.
- Sending knowingly false communications, threatening communications, and making hoax calls to the emergency services
The current offence of knowingly sending a false communication has a low threshold of “causing annoyance, inconvenience or needless anxiety”. The recommendation is to raise the threshold so that the defendant would be liable if:
- he sends or posts a communication that he knows to be false;
- in doing so he intends to cause non-trivial psychological or physical harm to a likely audience; and
- in sending or posting he does so without reasonable excuse.
The provisional proposal in respect of hoax calls is to make it a specific offence. At the moment it is addressed under the Communications Act 2003.
The report is now with the government for review and to consider the recommendations.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email firstname.lastname@example.org. Let us help.[Image credit: “Automotive Social Media Marketing” by socialautomotive is licensed under CC BY 2.0 ] Read More
The Government’s End to End Review of the Criminal Justice System Response began in 2019. The purpose was to look at evidence across the system, from reporting rape to the police through to court outcomes, to understand what was happening in cases of adult rape.
Although the number of reported cases has not really changed, the number of prosecuted cases sharply declined in 2016/2017. The research found that the reasons for the decline are complex and wide-ranging. They included the increase in personal data being requested, delays in investigations, difficult relationships between different parts of the system, a lack of specialist resources and inconsistent victim support.
Why is a review necessary?
The volume of cases that police refer to the Crown Prosecution Service (CPS), those charged and going to court have declined. To reverse the trend, the government says its initial ambition is to:
- Return volumes back to pre-2016 levels.
- Publish scorecards to show how the system is performing.
- Make sure victims have access to quality support appropriate to their needs.
- Ensure consistent access across the UK to the proper therapeutic and clinical support.
- Ensure access to legal advice and support to understand and challenge disclosure decisions.
- Hold criminal justice agencies to account if they fail to provide victims with these rights.
- Victims will not be left without a phone for more than 24 hours.
- Any digital material from victims is strictly limited to what is necessary and proportionate.
- Ensure effective communication with victims throughout.
- CPS to improve the way they deal with rape cases with a better process for early investigatory advice and updated legal guidance addressing rape myths and stereotypes.
- The police and CPS should establish a better way of joint working.
- Improve the experience at court for victims.
- Ensure a victim’s credibility is not undermined by pre-conceptions or rape myths.
A particular step the government say will be taken is to change the way the crime is investigated. The Review found that victims often felt under investigation themselves and that they did not feel believed. It was said that there are patterns of behaviour that are significant features of rape and that proper emphasis needs to be placed on a suspect’s offending history. Decisions cannot be made purely on a victim’s credibility; they require a well-rounded objective assessment of the evidence.
The police are to move to a default investigatory model, one that recognises the prevalence of serial offending in rape offences. This would involve an early robust assessment of suspect offending patterns and behaviour to ensure proper emphasis is placed on it in the investigation.
What are they hoping to achieve?
This action plan is designed to increase the volume of cases progressing through the system. In addition, the government wishes to achieve the following outcomes:
- An increase in victim engagement at every stage of the process.
- Complex cases should not be deprioritised to get more cases through the system.
- For high quality cases to be referred by the police to the CPS.
- An increase in public confidence in the decisions made by the CPS.
- An increase in early guilty pleas – by improving the quality of investigations and increase in guilty pleas is anticipated.
- Improved timeliness of cases at each stage.
- Limiting the requests for digital information from victims only to what is necessary and proportionate.
- The defendant’s right to a fair trial is maintained through robust and appropriate disclosure.
A timeframe has also been published setting out the progress expected at 6, 12 and 24-month intervals. To ensure accountability, the government says that it will publish an update detailing the progress made every six months. A “performance scorecard” will monitor progress against key metrics including timeliness, quality and victim engagement in each part of the system and the plan implementation.
Whilst the government aims appear focused on the victim’s rights, all agencies have to ensure that there is a fair trial for the defendant. This is where we come in; we will protect and advance your rights at every stage of the investigation and proceedings, ensuring that you have the proper advice and information throughout.
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 email@example.com. Let us help.[Image credit: “Rape” by Valeri Pizhanski is licensed under CC BY-SA 2.0] Read More
A new draft sentencing guideline for the offence of importing prohibited or restricted firearms has been published for consultation. There are no current guidelines in respect of these offences, although there are eight current guidelines for offences under the Firearms Act 1968.
Sentencing guidelines set the range for sentences and are intended to reflect current sentencing practices for the offences. They must be followed unless a judge or magistrate is satisfied that it would not be in the interest of justice to do so. They aim to provide a consistent approach to sentencing with proportionate sentences being imposed.
The guideline covers two offences under the Customs and Excise Management Act 1979 – under section 50, the importation of goods and under section 170, the fraudulent evasion of prohibition/restriction. The types of weapons referred to are those under sections 1 and 5(1) and 5(1A) of the Firearms Act 1968.
The new guideline will be for adult offenders and proposes a sentence of up to 28 years imprisonment for the most serious cases. Such cases would be the large-scale importation of rapid-firing weapons for use in crime. Up to seven years imprisonment is suggested for offences involving less dangerous firearms. Offences under the Customs and Excise Management Act 1979 are not subject to the minimum term provisions which relate to certain Firearms Act offences. The firearms and ammunition that would be subject to the minimum five-year term if prosecuted as possession, have a statutory minimum sentence of life instead of seven years for all other firearms and ammunition.
Levels of culpability
The guideline for the offences initially sets out three levels of culpability based on the type of weapon involved. The highest culpability is Type 1, a weapon capable of killing two or more people simultaneously or in rapid succession. The lowest is type 3, which relates to weapons not designed to be lethal or a small quantity of ammunition. There are then three categories of other culpability factors detailed as high, medium and low. Once the type of weapon and level of culpability is decided, the sentencer moves to the issue of harm within three categories.
There are then two tables, one for use with the statutory maximum life sentence offence, the other for the maximum seven years offence. Using the type of weapon and levels of culpability and harm, a starting point and sentencing range is produced. As usual with guidelines, the aggravating and mitigating factors are then used to produce the appropriate sentence within the range set out in the tables.
This guideline is unusual due to the two-stage model for assessing culpability. The Council states this has been put forward as the type of weapon is a crucial factor in determining the seriousness of the offence and should be considered separately from the other culpability factors. The CPS will need to update their charging policy to ensure that the charge or indictment specifies the type of weapon or ammunition concerned to assist the court.
The draft guidelines are a result of the National Crime Agency and the CPS urging the Council to develop them, following their initial decision not to.
What do they want to know?
Views are sought on:
- the principal factors that make the offences included within the draft guideline more or less serious;
- the additional factors that should influence sentence;
- the approach taken to structuring the draft guideline;
- the sentences that should be passed for firearms importation offences.
As part of the process, the Council intends to hold discussions with interested parties and sentencers to gauge whether the proposed guidelines would work as anticipated. A statistical bulletin and resource assessment has also been published. Following the consultation, the final guidelines will be published.
The guidelines are open for consultation until 8th September 2021.
How can we help?
A recent Court of Appeal case has ruled on the appropriateness of protective orders when a life sentence is in place.
In GD’s case, the Court imposed a Sexual Harm Prevention Order (SHPO) alongside an indeterminate life sentence.
On appeal, the question was whether making the SHPO was wrong in principle.
GD had committed several serious sexual offences against children, hence the life sentence.
The minimum term to be served is 12 years and 6 months. At the end of that period, he will be assessed by the Parole Board for release.
When can the Court make a SHPO?
The Court can make an SHPO if necessary, to protect the public from sexual harm from the defendant following a conviction for certain offences.
Conditions are attached to the order to prevent or limit contact with certain people or children, prevent the use of the internet or overseas travel.
Any conditions can be imposed that are necessary to protect the public or particular members of the public. Orders last for a minimum of five years.
The defendant in this case clearly fit the criteria, so why was the order being questioned?
Earlier cases have said that the order would not be appropriate where an indefinite sentence had been imposed.
Why? The reason is that release under a life sentence is not automatic. When GD has served the minimum term, he will be assessed by the Parole Board. If the risk level is such that he can be released, it will be subject to carefully considered licence terms.
The licence terms are considered when release is being contemplated, rather than at the time of sentence many years earlier. If a licence condition is breached, a breach which would amount to a breach of SHPO, it would undoubtedly result in recall to prison.
The difference between a sentence for breach of an SHPO and a recall to prison for breach of licence conditions in these circumstances is unlikely to be significant.
There is an argument that a breach of the SHPO would feature on a list of previous convictions, providing greater transparency. The Court rejected that argument where an indeterminate sentence is imposed.
The general rule, therefore, is that an indeterminate sentence does not need an SHPO. As always, there are exceptions to every rule; if an order should be imposed, if there is some “very unusual feature”, that means an SHPO could add something useful, where it did not run the risk of later tying the offender manager’s hands.
The SHPO for GD was quashed as there was no unusual feature requiring departure from the general rule.
How can we help?
The Law Commission has recommended reforms that it says will reduce the number of unlawful search warrants being issued, and to assist in the collection of evidence and investigation of crime.
Currently, a police officer or other investigator applies to a magistrate or a judge for a search warrant. If granted, a warrant grants legal authority to enter premises and search for specified material.
The Law Commission says that the laws governing search warrants are unnecessarily complicated, inconsistent, outdated and inefficient.
What recommendations are being made?
- Strengthening powers; extending the availability of warrants that allow multiple entries to a property, and allowing all properties controlled by an individual to be searched. A police constable will be permitted to search a person found on the premises under the search warrant. The NHS Counter Fraud Authorities will also be given the ability to apply for search warrants.
- Improving procedure; the aim is to reduce the number of mistakes and unlawful warrants. There would be a standard entry warrant application form and a template for entry warrants. There is also a recommendation for an online search warrants application portal.
- Electronic evidence; ensuring officers can access electronic evidence and copy required data whilst on site, possibly to include data stored remotely. Safeguards should be included to ensure that any unneeded date is quickly deleted, and devices returned as soon as is practical.
- Improving safeguards; for example, those being investigated would be given a notice of their powers and rights whilst their property is searched. Non-police investigators would be subject to similar safeguards as the police. There would be clarification of when, and in what form, a search warrant should be given to an occupier, who should also be informed they have the right to ask a legal representative to observe the execution of the warrant.
Around 40,000 search warrants are issued every year. In 2016 review by the National Crime Agency found that 78.73% of investigations had defective warrants. Of that number, 8.2% had significant deficiencies.
The Society of Editors has criticised the recommendation that the government review rules on search warrants for obtaining journalistic material.
Although the Law Commission concluded that confidential journalistic material should only be obtained in very limited circumstances, it added that the government should consider whether the law struck the right balance between the competing interests at play and whether the law ought to be reformed.
The Police and Criminal Evidence Act 1984 provides special protection for journalistic material, and the Society of Editors argues that the law around police seizure of journalistic material needs strengthening rather than watering down. This is argued on the basis that journalists need to have confidence that their material remains protected so that they can guarantee source protection in fulfilling a public interest role.
How can we help?
If a search warrant is unlawfully executed, it does not automatically mean that any evidence obtained cannot be used. We can advise you as to the options and make the necessary applications to the court on your behalf.
‘No’ is the simple answer. However, it is more complicated than that.
Before a prosecution is commenced, the Crown Prosecution Service must apply two distinct tests.
The first is whether there is sufficient evidence to provide a realistic prospect of conviction; If not, the case does not proceed further.
If there is sufficient evidence, the second question must be answered, namely whether a prosecution is in the public interest.
To assess the public interest, prosecutors must consider seven different factors:
How serious is the offence committed?
The more serious the offence, the more likely it is that a prosecution is required.
When assessing the seriousness of an offence, prosecutors should include in their consideration the suspect’s culpability and the harm caused. This is done by asking themselves the next two questions;
What is the level of culpability of the suspect?
The greater the suspect’s level of culpability, the more likely it is that a prosecution is required.
Culpability is likely to be determined by:
- the suspect’s level of involvement;
- the extent to which the offending was premeditated and/or planned;
- the extent to which the suspect has benefitted from criminal conduct;
- whether the suspect has previous criminal convictions and/or out-of-court disposals and any offending whilst on bail or whilst subject to a court order;
- whether the offending was or is likely to be continued, repeated or escalated;
- the suspect’s age and maturity (see paragraph d below).
A suspect is likely to have a much lower level of culpability if the suspect has been compelled, coerced or exploited. This is particularly the case if they are the victim of a crime that is linked to their offending.
Prosecutors should also have regard to whether the suspect is, or was at the time of the offence, affected by any significant mental or physical ill health or disability. In some circumstances this may mean that it is less likely that a prosecution is required. However, prosecutors will also need to consider how serious the offence was, whether the suspect is likely to re-offend and the need to safeguard the public or those providing care to such persons.
What are the circumstances of and the harm caused to the victim?
- The circumstances of the victim are highly relevant. The more vulnerable the victim’s situation, or the greater the perceived vulnerability of the victim, the more likely it is that a prosecution is required.
- This includes where a position of trust or authority exists between the suspect and victim.
- A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public.
- It is more likely that prosecution is required if the offence was motivated by any form of prejudice against the victim’s actual or presumed ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity; or if the suspect targeted or exploited the victim, or demonstrated hostility towards the victim, based on any of those characteristics.
- Prosecutors also need to consider if a prosecution is likely to have an adverse effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence, the availability of special measures and the possibility of a prosecution without the participation of the victim.
- Prosecutors should take into account the views expressed by the victim about the impact that the offence has had. In appropriate cases, this may also include the views of the victim’s family.
- However, the CPS does not act for victims or their families in the same way as solicitors act for their clients. Prosecutors must form an overall view of the public interest.
What was the suspect’s age and maturity at the time of the offence?
- The criminal justice system treats children and young people differently from adults and significant weight must be attached to the age of the suspect if they are a child or young person under 18.
- The best interests and welfare of the child or young person must be considered, including whether a prosecution is likely to have an adverse impact on their future prospects that is disproportionate to the seriousness of the offending.
- Prosecutors must have regard to the principal aim of the youth justice system, which is to prevent offending by children and young people. They must also have regard to the obligations arising under the United Nations 1989 Convention on the Rights of the Child.
- Prosecutors should consider the suspect’s maturity, as well as their chronological age, as young adults will continue to mature into their mid-twenties.
- As a starting point, the younger the suspect, the less likely it is that a prosecution is required.
- However, there may be circumstances which mean that, notwithstanding the fact that the suspect is under 18 or lacks maturity, a prosecution is in the public interest. These include where:
- the offence committed is serious;
- the suspect’s past record suggests that there are no suitable alternatives to prosecution; and
- the absence of an admission means that out-of-court disposals that might have addressed the offending behaviour are not available.
What is the impact on the community?
- The greater the impact of the offending on the community, the more likely it is that a prosecution is required.
- The prevalence of an offence in a community may cause particular harm to that community, increasing the seriousness of the offending.
- Community is not restricted to communities defined by location and may relate to a group of people who share certain characteristics, experiences or backgrounds, including an occupational group.
- Evidence of impact on a community may be obtained by way of a Community Impact Statement.
Is prosecution a proportionate response?
In considering whether prosecution is proportionate to the likely outcome, the following may be relevant:
- The cost to the CPS and the wider criminal justice system, especially where it could be regarded as excessive when weighed against any likely penalty. Prosecutors should not decide the public interest on the basis of this factor alone. It is essential that regard is also given to the public interest factors identified when considering the other questions in paragraphs 4.14 a) to g), but cost can be a relevant factor when making an overall assessment of the public interest.
- Cases should be prosecuted in accordance with principles of effective case management. For example, in a case involving multiple suspects, prosecution might be reserved for the main participants in order to avoid excessively long and complex proceedings.
Do sources of information require protecting?
- In cases where public interest immunity does not apply, special care should be taken when proceeding with a prosecution where details may need to be made public that could harm sources of information, ongoing investigations, international relations or national security. It is essential that such cases are kept under continuing review.
Does the Coronavirus emergency change this test?
Revised guidance issued on 14th April 2020 to prosecutors states the following:
“One of these questions is f): Is prosecution a proportionate response?
When reviewing a case and considering this question, prosecutors should do so in the context of the ongoing impact on the criminal justice system of the Covid-19 pandemic.
In particular, prosecutors should note:
- The crisis is producing an expanding pipeline of cases waiting to be heard.
- Criminal proceedings and case progression are likely to be delayed. Significant delay may impact adversely on victims, witnesses and defendants, in some cases, may reduce the likelihood of a conviction.
- Each case that is introduced into the system, or kept in the system, will contribute to the expanding pipeline and delay.
Prosecutors should also note the Interim CPS Charging Protocol, which provides guidance on the handling of charging decisions during the Covid-19 crisis.
When considering whether prosecution or continuing proceedings is a proportionate response, this factor must be weighed with all other relevant public interest factors, such as the seriousness of the offence and the circumstances of and the harm caused to the victim, to form an overall assessment of the public interest.
Each case must be decided on its own facts and merits, but factors that are likely to be relevant to determining what is in the interests of justice, not only for victims and witnesses, but also for each suspect and defendant are:
- Whether an out of court disposal may be an appropriate response to the offender and / or seriousness and consequences of the offending.
- Whether a guilty plea to some, but not all charges, or to a less serious offence, would enable the court to pass a sentence that matches the seriousness of the offending.
- The length of time a suspect / defendant has spent on remand in custody; and any likely period of remand prior to trial.
The age and maturity of the suspect / defendant: prosecutors should have regard to CPS guidance on Youth Offenders.
All cases involving youth offenders must be dealt with expeditiously and avoid delay, which has at its core the principle that there is little point in conducting a trial for a young offender long after the alleged commission of an offence when the offender will have difficulty in relating the sentence to the offence. To maximise the impact on the youth offender, the case must be dealt with as soon as possible.
Where appropriate, prosecutors should engage with defence representatives.”
What does this mean in practice?
In short, we expect many cases that would ordinarily have been prosecuted, to be disposed of differently. This does not necessarily mean that there will be no sanction, but it does increase the likelihood of a out of court disposal.
Of course, a sanction should only be accepted if there is guilt. Where that can be established, careful thought will need to be given to the proper approach, particularly in respect to early admission.
We can expect this process to be subject to a great deal of complex negotiation.
All of our solicitors are well versed in this aspect of law and are ready to secure the most appropriate outcome for all of our clients. However, it is important that you seek advice at the earliest possible opportunity.
How can we help?
The dictionary definition of “to mitigate” is to lessen in force or intensity, to make less severe. Mitigation is the act of reducing how harmful, unpleasant or bad something is. It is something that causes the court to judge a crime to be less serious or to make a punishment less severe.
There are obvious mitigating factors that most people know about. These include factors such as an early guilty plea or not having any previous convictions.
R v Sanyaki
A recent case at the Court of Appeal highlighted a mitigating factor that some may not have considered.
Sanyaki was a student nurse. Over a four-month period she photographed the front and back of credit cards belonging to other students. She then used the details to pay for goods and services totalling around £7,000. She pleaded guilty to fraud and also the theft of a driving licence and credit card belonging to a student.
The student appealed against the ten-month period of detention that was imposed. She was 18 at the time of the offending in her first year of an adult nursing course. She was asked to leave university when the offences came to light. However, she found a job as a full-time care assistant. She was 20 at the time of sentence and of previous good character.
The sentencing judge took the view that the sentence could not be suspended as it was a prolonged course of conduct, stealing the details of a variety of different people.
The approach of the Court of Appeal
The Court of Appeal is slow to interfere with an exercise of judgement as to whether or not to suspend a sentence where all relevant considerations have been taken into account.
The Court will only interfere if the decision was plainly wrong in principle or results in a sentence which is manifestly excessive.
What happened in this case?
In this case it was found that the judge did not weigh all the relevant considerations in considering whether to suspend the sentence. The Court of Appeal considered that the sentence should have been suspended.
They stated that students who do this kind of thing can expect no concessions from the court. However, the effect of a conviction on future careers, particularly those of previous good character and where the offences were committed when they were young, is a piece of personal mitigation that cannot be overlooked.
The fact that she was a student, therefore, was a mitigating factor. The Court considered the impact that the sentence was going to have on her career, although she would not be able to continue her nursing course and her job as a care assistant.
Sanyaki’s appeal was successful, and her sentence was suspended, and she was to complete unpaid work hours.
How can we help?
Expert evidence is used to provide information to the court, which is likely to be outside of the knowledge of the magistrates, judge or jury. Opinion evidence can be given if the expert is qualified to provide such an opinion.
Duty of an expert witness
An expert is under a duty to help the court by giving opinion which is objective and unbiased in relation to matters within their expertise. The duty is one which is owed to the court rather than the party who is providing the instructions.
The Criminal Procedure Rules require an expert to provide certain information such as any potential conflict, an appeal which has been allowed due to a deficiency in their evidence, convictions or adverse judicial comment.
Will an expert always be heard?
Applications can be made to exclude expert evidence if it is argued its prejudicial effect outweighs its probative value. The courts have also indicated a willingness to exclude the evidence if it is insufficiently helpful to a jury in reaching its conclusions. The court can also reject evidence, for example, if it decides that the witness has not properly established his independence or has not complied with his duty to the court.
We will not hesitate to challenge experts called to give evidence by the prosecution if there is a prospect of exclusion.
What types of expert are used in criminal cases?
There is a wide range of relevant expertise in criminal law. This could include forensics such as DNA and fingerprints or footwear marks, facial recognition where identification from a still or CCTV is in issue, medical experts in respect of injuries, psychiatric or psychological reports, autopsies or gait analysis.
How do you find an expert?
We have a register of tried and tested experts in every discipline. An expert witness is not just an expert in their field, they have additional skills such as report writing and experience of giving evidence in court.
It is important, therefore, to get the right witness for your case and we can do this for you.
How can we help?
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;
- car rentals;
- pet shops;
- corner shops;
- post offices;
- 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
- Community and youth centres
- Places of worship for services
- Cinemas, Theatres and Concert Halls.
- 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.