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.
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If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email firstname.lastname@example.org. Let us help.[Image credit: “Power & Equality” by Steve Snodgrass is licensed under CC BY 2.0 ] Read More
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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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: “RNLI Inshore lifeboat training off Weston Super Mare” by forkcandles is licensed with CC BY-ND 2.0 ] Read More
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.
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If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email firstname.lastname@example.org. Let us help.[Image credit: Informed Consent” by Kevin Krejci is licensed with CC BY 2.0 ] Read More
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.
How can we help?
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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[Image credit: “Day 165 – West Midlands Police – Arresting suspected offenders” by West Midlands Police is licensed under CC BY-SA 2.0 ] Read More
The current law relating to communications offences is proving to be out of date already given the surge in digital communication and social media in recent years. In an attempt to address this, The Law Commission has published a set of recommendations aiming to address the harms that arise from online abuse. As a counterbalance, protections for freedom of expression are recommended to increase.
The Law Commission is independent and was set up by parliament to keep the law in England and Wales under review and to recommend reforms. The organisation is headed by a Chairman with four Law Commissioners.
The project was funded by the government as part of its Online Harms strategy and is the third and final report to be published. Two related projects by the Law Commission were on hate crime and the taking, making and sharing of intimate images without consent.
The reforms would be of certain offences in the Malicious Communications Act 1988 and the Communications Act 2003. The Commission concluded that the current offences do not provide consistent protection from harm and may, in some circumstances, interfere with freedom of expression.
The review is of the criminal law covering threatening and false communications, as well as encourage and assisting self-harm and cyber-flashing. The aim is to make sure that the law works with new technology and is future-proofed, that it protects people from genuine harm and abuse and ensures there is space for discussion in that it does not disproportionately affect legitimate freedom of expression.
What is the problem?
Online communications have undergone a revolution which offers many opportunities for people to communicate with each other. The scale of which presents an increased scope for harm: thousands of people from all over the world can target a single person or a domestic abuser can exert control over a victim, for example.
The current offences do not allow use over such a wide range of conduct and some forms of harmful conduct, such as cyber-flashing, remain without criminal sanction. The communications offences in the Acts mentioned above are referred to in the report as “overlapping, ambiguous” and can be unclear for online users, technology companies and law enforcement agencies. “Pile ons” are referenced, where a group of people cause harassment to an individual online as such behaviour is not specifically addressed in the existing offences.
The Commission is also concerned that the current offences are so broad that they may interfere with the right to freedom of expression.
- Harm Based offence
The first recommendation is for a new “harm-based” communications offence to replace the two existing offences under section 127(1) of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988.
The new offence would be based on a more context specific analysis rather than focusing on broad categories of wrongful content. The questions would be given those likely to see a communication, was harm likely? The Commission aims for the offence not to criminalise communications that are grossly offensive but lack the potential for harm whilst ensuring that communications that are genuinely harmful do not escape criminal sanction.
The issue of deliberately sending flashing images to epilepsy sufferer is also discussed with a recommendation that the government considers introducing a specific offence to cover the behaviour.
The recommended offence is:
- the defendant posts a communication that is likely to cause harm to a likely audience;
- in sending the communication the defendant intends to cause harm to a likely audience;
- the defendant poses the communication without reasonable excuse.
- Encouraging or assisting serious self-harm
The Commission received evidence of “deeply troubling behaviour” where vulnerable people were targeted and encouraged to self-harm. An offence is recommended that has a high threshold of harm intended to be inflicted or encouraged, and that the defendant intended to encourage or assist that same level of harm. The high threshold suggested is one of grievous bodily harm.
Cyberflashing is the unsolicited sending of sexual images using digital technology, often experiences as a form of sexual harassment. The recommendation, therefore, is for the Sexual Offences Act 2003 to be amended to include a specific offence targeting the sending of images or video recording of genitals. This would mean that the additional protections provided in the Act, such as Sexual Harm Prevention Orders, could be available.
- Sending knowingly false communications, threatening communications, and making hoax calls to the emergency services
The current offence of knowingly sending a false communication has a low threshold of “causing annoyance, inconvenience or needless anxiety”. The recommendation is to raise the threshold so that the defendant would be liable if:
- he sends or posts a communication that he knows to be false;
- in doing so he intends to cause non-trivial psychological or physical harm to a likely audience; and
- in sending or posting he does so without reasonable excuse.
The provisional proposal in respect of hoax calls is to make it a specific offence. At the moment it is addressed under the Communications Act 2003.
The report is now with the government for review and to consider the recommendations.