Possession of knives or an offensive weapon is an offence if it is in public and without lawful authority or reasonable excuse. A weapon can be offensive as a matter of course (it is made for use of causing injury), adapted for such a purpose, or not adapted but carried with the intention of causing injury.
One of the key elements of the offence is that the weapon is carried in public, rather than being possessed in private, indoors. That is now not the case in respect of certain weapons.
The weapons that are banned in public by the Criminal Justice Act 1988 are now banned in private. This means that weapons such as zombie knives, shuriken, death stars and knuckle dusters can no longer be kept in your home. The ban also covers cyclone knives, spiral knives and rapid-fire rifles.
A new legal definition now covers flick knives, they have been unlawful since 1959, but now more knives will be covered. The definition is now:
“any knife which has a blade which opens automatically –
(i) from the closed position to the fully opened position, or
(ii) from a partially opened position to the fully opened position,
by manual pressure applied to a button, spring or other device in or attached to the knife, and which is sometimes known as a “flick knife” or “flick gun”; or
any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force and which, when released, is locked in place by means of a button, spring, lever, or other device, sometimes known as a gravity knife.”
The offence of unlawfully possessing a firearm is covered by section 54 of the Offensive Weapons Act 2019. It includes any rifle with a chamber from which empty cartridge cases are extracted using energy from propellant gas. The offence carries up to ten years imprisonment. The offence of possessing other weapons covered by the new ban carries up to six months imprisonment.
From December 2020 to March 2021, the government ran a scheme to allow the surrender of any of these weapons and claim compensation for them. During that time, 14,965 knives, 1,133 rapid-fire firearms and 32,000 ancillary items were surrendered, with 829 claims for compensation processed.
With this ban coming into force, the government has also issued a reminder about upcoming changes to the legal definition of “antique firearm”. In March, the Antique Firearms Regulations 2021 provided a legal definition for the first time. According to the government, the aim was to prevent the exploitation of a lack of clarity in law to gain possession of such weapons for use in crime. The definition is a firearm manufactured before 1st September 1939.
As a result of these regulations, owners have until 22nd September 2021 to apply to the police for a firearms certificate to allow legal possession. If you do not want to apply for a firearms certificate, the same date applies for the surrender, sale or other disposal of the firearm.
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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: “knives” by kyle.l.marsh is licensed under CC BY 2.0 ] Read More
Technology has been developed by the DVLA and the Home Office for police officers to use at the roadside to confirm the identity of a driver.
The technology allows instant access to a photograph of the driver. The picture is held on the DVLA driver’s database, and immediate access is provided to officers dealing with motoring offences.
The technology is currently being used by 18 police forces, with a plan to roll it out to a further ten forces over the next few weeks.
The real reason for the development of the technology is to speed up processes. At the moment, it can take up to sixteen minutes for an officer to confirm a person’s identity. An officer may have to conduct further checks on the information given by a driver, and in some cases, it can lead to a person’s arrest for their identity to be verified.
The use of the technology is currently limited to motoring offences and was first piloted in the summer of 2019. In the time to June 2021, the following benefits are said to have occurred:
- 14,000 hours saved by Road Police Unit Officers and local Policing Officers
- roadside checks are 66% faster, meaning less time wasted by drivers
- the police accessed 86,513 images to identify drivers at the roadside.
The system works by the officer searching the police national computer (also known as PNC) for the driving licence number, which is unique to the individual. That is used to obtain the correct image from the DVLA, which can be checked with the driver. The image is only accessible during the check and is not retained. The access to DVLA records is confined to use for the purpose of enforcing road traffic offences.
The 18 forces currently using the technology are:
- The City of London Police
- Police Scotland
- South Yorkshire
- West Yorkshire
- Devon and Cornwall
More technological advances are planned, including the digitalisation of provisional driving licences to be assessed before looking at a digital licence for full licence holders.
During lockdown, the DVLA also introduced new digital services for transactions. These include an online application for a tachograph card, a digitalisation of paper-based prosecutions, and an online service to change an address on a vehicle log book (V5C).
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If you need specialist advice in relation to any driving offences, 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: Crown Copyright ] Read More
In 2015 reforms were passed to allow some of the National Probation Service responsibilities to be dealt with by private companies. Known as Community Rehabilitation Companies, or CRCs, the companies were responsible for low to medium risk offenders while probation continued to deal with high-risk offenders. Companies were invited to submit tenders in what was described as a “chaotic and confused” process, and contracts were given to the successful bidders.
There was widespread criticism of the privatisation, yet Boris Johnson said he wanted to further the reforms.
Various assessments took place in 2016 by the National Audit Office, Probation Inspectorate and the Public Accounts Committee. The results highlighted a gap between the estimated caseload volumes that CRCs used to cost their bids and the actual volumes they were working with. Delivery of services was “mixed and patchy” or “chaotic and inadequate”. There had been a dramatic decline in the quality and provision of services for the women being dealt with. In the final report of 2016, the Inspectorates of Probation and Prison looked at resettlement services for prisoners on short sentences and found them to be poor with little to commend about them.
In 2018 a report found that the CRCs were failing to tackle domestic abuse or keep victims safe. Those convicted of domestic abuse were found in more than half of the cases looked at, were not making enough progress on their court orders. Practitioners had failed to act on new information that victims and children could be in danger, and staff were found not to have the skills, experience or time to supervise offenders properly.
In 2019 the then justice secretary announced the government would be renationalising the probation service. The CRC contracts were to be brought to an early end with no new companies to be introduced.
The government decided that the “Transforming Rehabilitation” reforms, including the establishment of CRCs, had created many serious problems. They were unconvinced that the model could deliver an effective service, so changes are to be introduced.
A solution to the problem
A new unified probation service has been launched, with extra funding provided. The intention is to double the number of probation officers and the service to work more closely with the police, NHS, and local authorities. The public sector probation service will now supervise low and medium risk offenders and deliver unpaid work and programmes that were previously dealt with by the CRCs.
There will be twelve regional areas with a new specialist National Security Division tasked explicitly with monitoring terrorists, serious organised criminals and very high-risk offenders.
The national standards for the service are to be refreshed. There must be at least one face to face meeting with all supervised offenders once per month. A higher number of meetings will be required for higher-risk offenders. In conjunction with the police and social services where appropriate, for the first time, probation staff will visit offenders’ homes to “protect children, partners and other family members from domestic and sexual abuse.”
An increase in monitoring is to take place with electronic monitoring, GPS and sobriety tags. Probation will still be involved with victims and seek appropriate licence conditions at parole hearings. Eligible victims will now be referred to the Victim Contact Scheme under the Victims’ Code, with plans to extend the scheme to victims of stalking and harassment where the offenders are serving less than 12 months.
The main aim of the probation service is rehabilitation, more than 80% of crime is re-offending, so it is vitally important. Extra investment in tackling the drivers of crime has been announced with charities and companies involved to provide and signpost support in employment, housing advice and mental healthcare. This will include homeless prison leavers being given temporary accommodation to help prevent re-offending.
A package to provide support for prison leavers was announced earlier this year, with an emphasis on housing, closer supervision, and drug treatment programmes.
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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: © Crown Copyright ] Read More
On the 5th July 2021, the Knife Crime Prevention Order provisions of the Offensive Weapons Act 2019 came into force in specific areas for a period of 14 months. The area in question is the “metropolitan police district”, which consists of Greater London, excluding the City of London, the Inner Temple and the Middle Temple.
The sections allow the making of a knife crime prevention order other than on conviction. Three conditions must be met:
- an application has been made in accordance with section 15;
- the court is satisfied that on at least two occasions, the defendant had a bladed article with them without good reason or lawful authority in a public place or school or further education premises;
- the court must think it is necessary to make the order to protect the public from the risk of harm involving a bladed article, to protect any particular members of the public or to prevent the defendant from committing an offence involving a bladed article.
Section 15 sets out the requirements for the order. The application can be made by the police for the area where the defendant lives or is intending to go. When the application is made for a person under the age of 18, the youth offending team must be consulted.
Orders upon conviction
A knife crime prevention order can also be made upon conviction under section 19. This section applies when a person over the age of 12 is convicted of an offence, and the court dealing with him is satisfied the offence is a relevant offence. The same three conditions apply when an application is made for an order without conviction, other than an application made by the prosecution rather than under section 15. Additionally, an order can only be made if it is on top of a sentence imposed for an offence or a conditional discharge. A relevant offence is one which involves violence, a bladed article was used by the defendant, or another, in the commission of the offence, or the defendant or another person who committed the offence was in possession of a bladed article at the time.
Section 20 requires the prosecution to consult the youth offending team before making an application under section 19, where the offender is under the age of 18.
An order may be reviewed periodically, the defendant having to attend court for it to take place. If the order is longer than a year, it has to be reviewed. Where the order is less than a year, it must be reviewed within the last four weeks. At the review, consideration will be given to whether the order should be varied or discharged.
An order can be varied by imposing additional prohibitions or requirements. A variation can only occur if it is necessary to protect the public (or any particular members of the public) from the risk of harm or prevent the defendant from committing an offence involving a bladed article.
Appeal against an order
It is possible to appeal against the making of an order to the Crown Court. A person who applies for an order under section 14 (otherwise than on conviction) may appeal to the Crown Court against a refusal to make the order. An appeal can also be made against a refusal to vary, renew or discharge the order.
Breach of an order can lead to imprisonment of up to two years. As well as prohibitions, the orders can impose positive requirements such as attendance on drug rehabilitation programmes, educational courses and relationship counselling. The intent is for the order to be preventative rather than a punishment, hence the positive requirements. Attention should be paid, therefore, to tailoring the requirements to the needs of the individual.
Terms of the order
Examples of prohibitions could be non-association with named individuals, exclusion zones, and non-participation in specified activities. Care must be taken to ensure that prohibitions or requirements do not conflict with a defendant’s religious beliefs or work/educational commitments.
Orders last for a minimum of six months to a maximum of two years.
This pilot of the orders runs across London for 14 months; the government has already stated its intention to roll out the orders across England and Wales once the pilot has ended.
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We are specialists in knife crime law. If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email email@example.com. Let us help.
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The Domestic Abuse Act 2021 introduced a new offence of threatening to share intimate images, which came into effect on 29th June 2021.
Section 69 of the Domestic Abuse Act 2021 creates a new offence of threatening to disclose a private sexual photograph or film in which another individual appears, and by doing so, the person intends to cause distress to that individual, and the disclosure would be without the consent of that individual.
Under section 33 of the Criminal Justice and Courts Act 2015, it is already an offence to disclose such images; section 69 amends that offence to include threatening to do so.
Criminal law dictates that when a person is charged with this offence, it is not necessary for the prosecution to prove that the photo or film referred to in the threat exists. They also do not need to prove, where it does exist, that it is a private sexual photo or film.
A person charged is not to be taken to have intended to cause distress by threatening to disclose the image merely because that was a natural and probable consequence of the threat.
Why has this change come about?
The change has come following challenges by campaign groups arguing that a threat to post an image can be just as distressing as if the image had been posted. The Revenge Porn Helpline estimated that over 20% of their calls involved a threat to share an intimate image and said the threat can be a tactic used in relationships to coerce and maintain control.
The Law Commission conducted a review of the taking, making and sharing of intimate images without consent, and their recommendations are being prepared. The new offence now introduced has pre-empted any recommendations that may be made.
The Commission is looking at the current range of offences in this area and identifying any gaps in the scope of protection currently offered. The increased use of smartphones and social media has made it much easier for images to be taken and shared without consent. The concern is that there is no single offence to govern the making, taking and sharing of intimate images without consent. Instead, there is a “patchwork of offences” which have developed over time. The gaps include:
- An offence of upskirting exists but not one of “downblousing.”
- Sharing an altered image (by adding someone’s face to a pornographic image, for example) is not included.
- Motivations such as sexual gratification and causing distress are often covered by current laws but not others such as coercion or sharing as a joke.
In particular, the Commission will be reporting on:
– the meaning of terms such as private and sexual in the context of the offences above and similar;
– the potential impact of emerging technology which allows realistic intimate or sexual images to be created or combined with existing images;
– ensuring any recommendations comply with the right to freedom of expression.
Scope of the commission’s review
The Commission was not considering the issue of indecent images of children as this is a quite separate area. The review has also not looked at the issue of cyberflashing, for example, sending an intimate photo via bluetooth to a stranger’s mobile phone. A second review is to take place in respect of communications offences parallel to the current review.
The consultation paper suggested four new offences, one of which is the offence under section 69 detailed above:
- A base offence prohibiting the taking or sharing of an intimate image of a depicted person where they do not consent, and there is no reasonable belief in consent.
- Taking or sharing without consent where the intention is to humiliate, alarm or distress the victim.
- A similar offence where the purpose is for their own or someone else’s sexual gratification.
The final report from the Law Commission is expected by Spring 2022, so further new offences may follow in due course.
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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: © Steve Cadman licensed under cc-by-sa2.0 ] Read More
You may have heard the name Daniel Morgan being mentioned in the media recently.
Daniel was a private investigator who would carry out extensive work for the News of the World. He was found murdered in 1987 in a car park with an axe embedded in his head, with no conviction regarding his death.
An independent panel has produced a report of their findings from an inquiry into the death. The panel’s remit was to shine a light on the circumstances of the murder, its background and its handling. In particular, the police involvement, the role played by police corruption in protecting those responsible, the failure to confront the corruption, the incidence of connections between private investigators, journalists at News of the World, and alleged corruption involved in the linkages between them.
The panel started work in 2013 and produced the report early this year. In explaining the length of time taken, the panel said they had not anticipated the significant difficulties and delays and did not receive final documentation from the Metropolitan Police until March 2021.
Several recommendations were made in the report in light of criminal law to address areas where there continue to be serious shortcomings in current policy and practice in policing. Included in them is to ensure necessary resources are allocated to the task of tackling corrupt police behaviour. A statutory duty of candour is suggested to be owed by all law enforcement agencies to those they serve.
The Metropolitan police were said to owe the family of Daniel Morgan and the public an apology for “not confronting its systematic failings, for the failings of individual officers and for its lack of candour to the members of the family”.
The police were described as being institutionally corrupt, and Cressida Dick, the police commissioner, was personally censured for obstructing the independent inquiry set up to review the murder.
Back in 2011, the police accepted that corrupt police officers had protected the killers and that the murder inquiry that had probably been “solvable” was undermined.
The delay in final documentation was the seven-year period that the police refused to provide access to the Holmes accounts to the panel. Holmes is an IT system used by the police for the investigation of major incidents, such as murder. Holmes stands for Home Office Large Major Enquiry System and helps an investigation to be organised and thorough. This was the obstruction caused by Dick, referred to above, as she was the assistant commissioner who initially refused access. It seems that the police were more interested in protecting themselves.
“The Metropolitan police’s culture of obfuscation and a lack of candour is unhealthy in any public service. Concealing or denying failings, for the sake of the organisation’s image, is dishonesty on the part of the organisation for reputational benefit. In the panel’s view this constitutes a form of institutional corruption”.
The report criticised the police for the links to the News of the World, which was relevant due to the newspaper’s link to the victim. “It is appropriate for the Panel to state that the demonstrated links between personnel at the highest levels of the Metropolitan police and people working for a news organisation linked to criminality associated with the murder of Daniel Morgan, are of serous and legitimate public concern.”
The Home Secretary and the London mayor have both said Cressida Dick retains their full confidence. Priti Patel has requested Dick’s response to the report and has asked Her Majesty’s Inspectorate of Constabulary to look at the findings. The Metropolitan police have offered a £50,000 reward for information and a fresh review of the forensic evidence.
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Natural England (and Natural Resources Wales) is the government’s advisor for the natural environment in England and Wales. Established in 2006, its purpose is to help conserve, enhance and manage the natural environment. It enforces the laws that protect wildlife and the environment and state that enforcement is used as a last resort.
Natural England has responsibility for sites of scientific interest, environmental damage regulations, heather and grass burning, agricultural work affecting uncultivated land or semi-natural areas, breaches of wildlife licences and notices, pesticide poisoning to animals and complaints relating to weeds.
The regulator will conduct an investigation in appropriate circumstances in order to establish the facts and level of damage. They comply with the legal requirements under the Police and Criminal Evidence Act 1984 and its Codes of Practice. They use the criminal standard of proof beyond reasonable doubt, even in respect of civil sanctions.
Before imposing a sanction, the regulator would aim to provide advice and best guidance practice to ensure future compliance. Further sanctions were introduced in 2010, known as regulatory enforcement sanctions (RES). If an RES sanction is complied with, a criminal prosecution is not allowed by law (except in the case of a stop notice).
What sanctions are there under criminal law?
Sanctions used are:
- Compliance notice -specific steps to be taken in a specified time.
- Enforcement undertaking – offenders volunteer steps to remedy an offence, ensuring future compliance, restoring harm, giving up a financial benefit or providing restitution.
- Fixed monetary penalty – a notice requiring a fine of a fixed amount is served for a minor and clear-cut offence where advice and guidance have been ignored.
- Non-compliance penalty notice – can be served following non-compliance with a RES restoration or compliance notice. The level is set based on the costs an offender is avoiding by not complying with the notice.
- Restoration notice – specific steps to be taken in a specified time to ensure the position is restored, so far as possible, to what it would have been had the offence not occurred.
- Stop notice – to stop the offender from carrying on an activity until steps have been taken to come back into compliance.
- Third-party undertakings – an offender can provide restitution to affected local communities where they have been notified of the regulator’s intention to serve a compliance notice, restoration notice or a fixed monetary penalty.
- Variable monetary penalty – regulators can calculate the level of penalty to remove the financial benefit of non-compliance in more serious cases and deter non-compliance where appropriate.
Specialist civil sanctions are also available for cases falling within environmental damage and impact, injurious weeds and pesticides.
Criminal sanctions that can be imposed are simple cautions, prosecution or injunctions. Prosecutions are considered to punish significant and/or persistent environmental offending and create deterrence against future non-compliance.
The regulator has been most active in negotiating enforcement undertakings, followed by civil sanctions and SSSI (sites of specific scientific interest) prosecutions. Natural England says they prefer to take action other than prosecution but will do so where they are left with no other option.
Earlier this year, Andrew Cooper was prosecuted after he breached a stop notice and continued to plough land of historical importance. The land was regarded as archaeologically significant as many flint artefacts had been found with links to the Mesolithic and Neolithic eras. The fields were also used as training grounds by American forces in World War II. They featured dummy pillboxes, trenches and graffiti left by a soldier who later died in the Normandy invasion. Cooper was given a stop notice and ordered to remediate the land, but in 2017 he ignored the notice and continued to plough and lime a neighbouring field as well. He pleaded guilty to breaching the stop notice and was fined £7,500 with five months’ imprisonment in default, along with £24,000 costs.
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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.
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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.
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Using the Proceeds of Crime Act, HMRC seized £35,000 cash in plastic carrier bags from a Mr Mann as it was suspected he was fraudulently evading excise duty. Boxes of vodka worth around £220,000 had also been found on the premises.
Seized cash, it can be held for up to 48 hours, after which time an application must be made to court for its detention. Under criminal law, the court can allow such applications if the detention is justified whilst the circumstances are investigated, or the person from whom the cash was seized is prosecuted for an offence relating to the cash. The cash may also be detained if there are reasonable grounds to suspect the cash is intended for use in lawful conduct.
In Mr Mann’s case, officers of HMRC made an application for the detention of the seized cash. On 3rd October 2019, the order was granted for a period of six months.
On 24th March 2020, just under six months later, Mr Mann’s representatives consented to the continued detention of the cash for a further six months. Two days later, HMRC filed the information and applications for an order for further detention.
Continued detention of seized cash
An application for an order of continued detention under the Proceeds of Crime Act must be made before the original order has expired. In this case, the application was made in time as the order expired on 3rd April 2020. HMRC contacted the court on several occasions to arrange for their application to be heard, but the court failed to deal with the matter. Part of the problem may have been the national lockdown which began on 26th March 2020.
The order expired on 3rd April as no hearing had taken place for an application for the continued detention of the cash. A telephone hearing was finally arranged for 28th April 2020, and the case was listed for legal argument to be heard on the issue of jurisdiction. The District Judge subsequently ruled that there was no jurisdiction for the court to order continued cash detention when the original order had expired, even though the application had been lodged in time.
High Court proceedings
HMRC asked the High Court whether the District Judge’s decision was correct. HMRC put forward two cases that dealt with the application for initial detention after the 48 hours of the seizure. They argued that if the application was received in time, Parliamentary intention should not be thwarted if the practicalities meant that the court did not make its order strictly in the time period.
The High Court disagreed with HMRC’s argument, saying the scheme of the Act allowed cash to be seized without any court process initially. Within 48 hours, authority had to be obtained; after that, a court hearing had to be held with at least seven days notice to the respondent for any further extension. There was no power or jurisdiction to extend the time period once the order had expired.
Although there was no power to order the continued detention of the cash, the HMRC may have been permitted to re-seize the cash. It would also have been open to Mr Mann to argue that doing so would be an abuse of process. The High Court did refer to this possibility but said that would be a decision for another court to make, and they did not express an opinion.
Our team are fully conversant with the Proceeds of Crime framework and can assist you with any case in which cash has been seized by the police.
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