A number of the definitive guidelines published by the Sentencing Council direct Judges and Magistrates to consider whether the victim of an offence has suffered severe psychological harm.
In some guidelines, that question has to be considered at step 1 of the sentencing process: a finding of severe psychological harm places the case into a higher category and thus increases the starting point for sentence.
In other guidelines, the issue of whether the victim has suffered psychological harm – and if so, the degree of that harm – falls to be considered at step 2 as a potential aggravating factor which justifies an increase above the guideline starting point for the relevant category of offence.
It is therefore critical that those defending criminal cases are fully versed in the law relating to this area, as it may greatly affect sentencing outcomes.
How does a Judge assess harm?
- Expert evidence is not an essential precondition of a finding that a victim has suffered severe psychological harm.
- A judge may assess that such harm has been suffered on the basis of evidence from the victim, including evidence contained in a Victim Personal Statement (VPS), and may rely on his or her observation of the victim whilst giving evidence.
- Whether a VPS provides evidence which is sufficient for a finding of severe psychological harm depends on the circumstances of the particular case and the contents of the VPS.
- A VPS must comply with the requirements of the Criminal Practice Direction and be served on the defence in sufficient time to enable them to consider its contents and decide how to address them. If late service gives rise to genuine problems for the defence, an application for an adjournment can be made.
When a sentencing guideline directs an assessment of whether the victim of an offence has suffered severe psychological harm or any other assessment of the degree of psychological harm, a judge is not thereby being called upon to make a medical judgment. The judge is, rather, making a judicial assessment of the factual impact of the offence upon the victim.
Thus, submissions to the effect that a judge who makes a finding of severe psychological harm is wrongly making an expert assessment without having the necessary expertise are misconceived.
The judge is not seeking to make a medical decision as to where the victim sits in the range of clinical assessments of psychological harm, but rather is making a factual assessment as to whether the victim has suffered psychological harm and, if so, whether it is severe.
The assessment of whether the level of psychological harm can properly be regarded as severe may be a difficult one. The judge will, of course, approach the assessment with appropriate care, in the knowledge that the level of sentence will be significantly affected by it, and will not reach such an assessment unless satisfied that it is correct.
But it is an assessment which the judge alone must make, even if there be expert evidence. It is the sort of assessment which judges are accustomed to making.
In making the assessment of whether the psychological harm in a particular case can properly be described as severe, or serious (if a different guideline is being considered), the judge will act on the basis of evidence and will be required in the usual way to give reasons for his or her decision in the sentencing remarks.
If the evidence was not such as could provide a sufficient foundation for the judge’s assessment, the point can be raised on appeal.
Save where there is an obvious inference to be drawn from the nature and circumstances of the offence, a judge should not make assumptions as to the effect of the offence on the victim.
The judge must act on evidence. But a judge will usually be able to make a proper assessment of the extent of psychological harm on the basis of factual evidence as to the actual effect of the crime on the victim. Such evidence may be given during the course of the trial, and the demeanour of the victim when giving evidence may be an important factor in the judge’s assessment.
The relevant evidence will, however, often come, and may exclusively come, from the VPS. The court is not prevented from acting on it merely because it comes from a VPS.
In assessing whether the psychological harm in a particular sexual case is severe, a judge must keep in mind that the levels of sentence which the sexual offences guideline sets out already take into account the psychological harm which is inherent in the nature of the offence.
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We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.
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: “Blow Your Mind” by kozumel is licensed under CC BY-ND 2.0) Read More
When someone is arrested for supplying drugs, it is not uncommon for drug money to be recovered as well. In the case of Mahmood  EWCA Crim 1532, the court dealt with the relevance of cash when determining which sentencing category an offence fell into.
A large quantity of drugs was seized from Mahmood’s premises along with around £30,000 in cash.
The Judge found that the offending fell into Category 2 harm, not Category 3 as had been submitted. The Judge aggregated not only the weight of the drugs found (in total, about half a kilogram), but also what the cash represented in terms of drugs. The Judge took the view that just under £30,000 of cash was equivalent to the value of about half a kilogram of heroin.
Together, drugs of about half a kilogram and cash equivalent to a further half a kilogram amounted to an overall weight equivalent of about 1 kilogram according to the Judge. This meant that the case fell into Category 2 and not Category 3.
On the Applicant’s behalf, it was submitted before the Judge that since the heroin found was 434 grams, the case fell into Category 3.
However, the Judge rejected the submissions advanced on the Applicant’s behalf. He found that the Applicant fell within the centre of Category 2, as if he had been in possession of 1 kilogram of Class A drugs.
Mahmood appealed his sentence.
What did the Court of Appeal decide?
The court held that:
‘…the Judge was entitled to assess the nature of the dealing and to find that the Applicant had a leading role. The evidence in particular of large quantities of drugs and cash, keys and safes at different addresses has more than one of the indicia of a “leading role” being satisfied. The purity of the heroin, which is not explained by the Applicant, indicated that he is likely to have had close links with the original source. It was not cut, and there was evidence that it was highly likely to be of high purity.
For the reasons which he gave, the Judge was also entitled to rely on the cash as evidence of an expectation of substantial financial gain. That was whether the cash was looked at simply as cash in hand from drug dealing or, as the Judge found, that it represented profit from drug dealing.
The fact that there was evidence of a number of addresses, two safes containing substantial quantities of cash at different addresses and keys in one property relating to another property, indicated and added to the ability of the Judge to find that a commercial operation was being undertaken which went beyond simply street dealing.’
However, we have to treat this decision with a degree of caution. Mahmood had pleaded guilty to money laundering so far as the cash was concerned, as it was the proceeds of crime. When the cash can not so clearly be linked to criminal conduct, caution must be exercised before too readily concluding that it is a proper factor in assessing harm for sentencing purposes. In all cases, those defending will need to examine such evidence with the utmost care.
How can we help?
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.
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 theft of animals, and in particular dog theft, has been on the rise for some time. On LBC radio recently the Home Secretary Priti Patel described it as ‘absolutely shocking’ and said that she was in talks about upgrading pet theft to a more serious offence, meaning that more substantial penalties could apply.
The results of a BBC freedom of information request showed that five policing areas saw a double-digit increase in the number of dog thefts reported between January and July 2020, compared with the previous year.
Overall, about half of the 26 forces that responded to the BBC’s data request saw an increase over the last seven months, while the rest saw fewer reports.
Five forces had more report of dog theft between January and July 2020 than the whole of the previous year.
There was a significant increase across Northumbria, Devon and Cornwall and Leicestershire – compared to the same period in the previous year.
Northumbria Police saw the largest increase of reported dog thefts, rising from 27 to 67 reports.
In Leicestershire, there were 41 reports compared to 22, which was also more than the total for the whole of 2016, 2017 and 2018.
Do we need a new law?
The stealing of a pet amounts to Theft under s 1 of the Theft Act 1968, and in some cases could amount to a burglary. The offence of theft carries a maximum sentence of 7 years imprisonment, and burglary carries 10 years (for a non-dwelling) and 14 years for a dwelling house burglary.
It is inconceivable that any pet theft could result in a sentence anywhere near the maximums allowed for, making the creation of a new offence nonsensical, to say the least.
The Home Secretary is also mistaken in thinking that sentencing needs addressing at all. A court can always depart from a sentencing guideline to take account of novel issues, and in any event, the existing theft guideline already applies to pet theft.
The guideline assesses more significant harm having been caused where:
‘Items stolen were of substantial value to the loser – regardless of monetary worth.’
‘Emotional distress’ [resulted].
We might expect to see both in animal theft cases.
A general aggravating factor is ‘stealing goods to order’ as is ‘prevalence’.
Taking all these factors together demonstrates that existing maximum sentencing powers, and guidelines, are sufficient to deal with animal theft cases.
How can we help?
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly.
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: “puppy Campbell” by 23am.com is licensed under CC BY 2.0) Read More
A vast number of cases are awaiting a criminal trial that will rely, to a greater or lesser extent, on the admissibility of communications made via the supposedly highly encrypted Encrochat service.
The Court of Appeal has now issued a ruling following preliminary rulings at Liverpool Crown Court. Whilst this ruling does not mean that guilty pleas are inevitable, for some defendants it will nonetheless present a significant hurdle for them to surmount.
The main question was whether the communications were intercepted at the time they were being transmitted or, as the judge found, were recovered (intercepted) from storage. If the judge was right, subject to a number of subsidiary arguments, the evidence would be admissible.
The EncroChat material was obtained by a Joint Investigation Team (JIT) of French and Dutch investigators and prosecutors by interfering in the EncroChat communications system. It was then supplied to the United Kingdom authorities where it was used in a large number of investigations, including the one which led to the present case. The judge was required to hear evidence about how this occurred, and then to make findings of fact. He then had to apply the United Kingdom domestic law governing the admissibility of such material, which is found in the Investigatory Powers Act 2016 (“the 2016 Act”).
The 2016 Act adopted a domestic law framework which is unique in Europe and which resembles previous regimes. Historically, intercept material (classically phone tapping, but not limited to that) could be lawfully obtained by the authorities. Subject to a number of immaterial exceptions, it could not be used in evidence in proceedings but was reserved for intelligence use. The policy justification for that approach has been debated on many occasions and centres around protecting sensitive capabilities and wider operational and practical concerns. All were discussed in Intercept as Evidence, December 2014 Cmnd 8989 which was the report of a review of Privy Councillors provided to Ministers. In many other jurisdictions, including France and the Netherlands, there is no blanket prohibition on the admission into evidence of intercept material. The 2016 Act superseded the law found in the Regulation of Investigatory Powers Act 2000, which itself replaced the Interception of Communications Act 1985. Major changes between the current regime and the one established in the 2000 Act concern the new regulatory and supervisory system established by the 2016 Act. The law relating to admissibility of intercept material, and the definition of what is and is not intercept material also changed in important ways.
The essential point before the Court of Appeal was the submission, rejected by the judge, that the EncroChat material is intercept material and inadmissible in criminal proceedings because of section 56 of the 2016 Act, and further that it was unlawfully obtained under a Targeted Equipment Interference warrant, when its obtaining should have been identified as a kind of interception which would require a Targeted Interception warrant. Targeted Equipment Interference warrants are governed by Part 5 of the 2016 Act and may produce material which can be used in evidence. Targeted Interception warrants are governed by Part 2 of the Act and the product is inadmissible in evidence in almost all criminal proceedings, including these. The judge found that the EncroChat material in this case was obtained under Part 5 warrants. These were approved by Sir Kenneth Parker, a Judicial Commissioner, on 5 March 2020, and Sir Brian Leveson, the Investigatory Powers Commissioner, on 26 March 2020, prior to the obtaining of the EncroChat material. The second warrant was needed in order to widen the scope of the first for reasons which are not material to the issues before us. The issue is whether that approach was correct, or whether on a true understanding of the way the data were obtained, and of the 2016 Act, they comprised material obtained unlawfully under the wrong warrant and, in any event, were inadmissible.
The prosecution submitted that:
- i) the EncroChat messages were admissible and fell within the exception provided by section 56(1) and schedule 3 paragraph 2 of the Act because the messages were “stored in or by the system” at the time when they were intercepted; and, in any event,
- ii) that the material was not obtained as a result of “interception related conduct” because none of the five classes of such conduct (as contained within section 56(2) of the Act) applied to the present case, alternatively it was not conduct carried out in the United Kingdom within the scope of section 4(8) of the Act.
The key question was whether at the relevant time the communications were “being transmitted” or were “stored in or by the telecommunication system.” The judge found the latter to be the case. The EncroChat messages were properly regarded as falling within section 4(4)(b) of the 2016 Act and they had been obtained in accordance with a Targeted Equipment Interference warrant. He decided that for the following reasons:
- i) At the relevant time when the messages were made available they were not “being transmitted;” it was clear from the evidence in relation to the data exfiltrated from the receiving device that the data was not made available whilst being transmitted. The incorporation of the nickname for the sender from the data held in the receiver’s device demonstrated that the transmission process of the data had finished. The judge indicated that he had no trouble in concluding that the EncroChat data was not being transmitted at the time that it was taken and was properly to be regarded as “stored in or by the system (whether before or after transmission)” and subject to section 4(4)(b) of the 2016 Act. The judge ruled that he did not consider that the distinction between RAM and Realm as described by the defence experts equated to the distinction between “being transmitted” and being “stored” as set out in the statutory provisions. The defence approach sought to extend the notion of transmission well beyond anything which was contemplated by the 2016 Act.
- ii) The Equipment Interference Code of Practice was published pursuant to Schedule 7 of the 2016 Act and was admissible as evidence in criminal proceedings. It addressed the exercise of functions under Part 5 of the 2016 Act and the authorisation of Targeted Equipment Interference warrants and their operation. The judge considered that these provisions from this Code of Practice were consistent with the conclusions that he had already made in relation to this issue.
- iii) Having considered the provisions of section 99 of the 2016 Act, which contained the power to make a Targeted Equipment Interference warrant and the scope of such a warrant, the judge decided that the interceptions were carried out in accordance with the warrant that had been obtained. The warrant application accurately described the way in which the implant was to operate and the warrant authorised what was then done. This was a finding of fact set out in paragraphs 161 and 162 of the judge’s ruling. It was a finding of fact to which he was entitled to come, and there is no challenge to it in this appeal.
What did the Court of Appeal rule?
The Court held:
“We agree with the judge. The communication is that which is transmitted. What remains on the device is not what has been transmitted, but a copy of it or what, in older forms of messaging, might be described as a “draft”. That is so however quickly after transmission the obtaining of the copy takes place, or even if the copy is extracted while the original encrypted communication is being transmitted. The fact that what was obtained was an unencrypted message, means that what was on the phone, and what was intercepted, was not the same as what had been transmitted because what had been transmitted was encrypted. It cannot therefore have been “being transmitted” when it was intercepted: it can only have been “being stored”.
That being so, the harvesting was interception but was rendered lawful by the Targeted Equipment Interference warrants issued under section 99 of the Act.”
“We have concluded that the only substantial question which the judge was required to answer was whether the EncroChat material was stored by or in the telecommunications system when it was intercepted. Like him, we consider that these communications were not being transmitted but stored at that time. That being so, the appeal is dismissed.”
How can we help?
Police forces must explain the disproportionate use of police powers such as stop and search and use of force on Black, Asian and Minority Ethnic people or risk losing the trust of the communities they serve, a report published on the 26th February has found.
The Police Service Inspectorate (HMICFRS) aid that despite having more data on the use of force and stop and search, police forces are still unable to explain why these powers are used disproportionately based on ethnicity.
The inspectorate said that over 35 years since the introduction of stop and search, the police still cannot explain why these powers are used disproportionately. HMICFRS found that the most common reason given for the use of these powers is due to suspected drug possession. This unfairness risks further reducing public trust in the police and could lead to more Black, Asian and Minority Ethnic people being drawn into the criminal justice system.
As a result, the inspectorate is calling on police leaders to consider whether focusing stop and search on tackling drug possession is an effective use of these powers.
HMICFRS also called for police forces to analyse their data and either explain, with evidence, the reasons for disproportionality in stop and search and use of force, or take clear action to address it.
“The tragic killing of George Floyd in America in early 2020, and subsequent protests in the UK and globally, have highlighted once again the significant impact that police interaction can have – particularly on Black, Asian and Minority Ethnic, communities.
The public rightly expects the police to protect them by using their powers in an effective and fair manner. Unfair use of powers can be counter-productive if it leads people to think it is acceptable to not comply with the law. It may also make people unwilling to report when they are the victim of crime or come forward as witnesses.
Police forces must analyse their data and either explain, with evidence, the reasons for disproportionality, or take clear action to address it. The police must be able to show the public that their use of these powers is fair, lawful and appropriate, or they risk losing the trust of the communities they serve.
We know that the proportion of stop and searches that actually find drugs is very low, and the disproportionate use of these powers on BAME people is having a damaging impact on public trust.
We are therefore calling on police leaders to consider if focusing stop and search on drugs possession is an effective use of these powers, and to better explain the reasons for disproportionality. It is clear that now is the time to have an evidence-based national debate.”
As a firm we carefully scrutinise all incidents of stop, search, and arrest to ensure full compliance with the law. This approach ensures that all appropriate applications to exclude evidence, dismiss charges or argue abuse of process can be appropriately advanced. This report highlights a depressing litany of failure, which cannot be tolerated.
The Main Findings
In too many forces, officers and staff are not being provided with the skills they need to understand how they come across in everyday interactions. Nor are they being shown how they can build rapport to help prevent conflict and escalation in order to secure public co-operation and reduce the need for conflict management, de-escalation and the use of force.
Too few forces regularly review body-worn video footage as part of their internal monitoring and external scrutiny of stop and search and use of force. They should make more use of this valuable source of information.
While data about the use of Tasers and firearms has been collected for several years, data about use of force in general has been collected only since 2017, and so is not yet fully developed and has some limitations.
The 2019/20 data indicates that Black people were about 5.7 times more likely to have force used on them than White people. The data further shows that officers were more than nine times as likely to have drawn Tasers (but not discharged them) on Black people than on White people. Additionally, Black people were eight times more likely to be ‘compliant handcuffed’ than White people and over three times more likely to have a spit and bite guard used on them than White people. The reasons for this are unclear. It could mean that force is used on Black people with less justification than on White people, or there could be other explanations. This needs further exploration.
There is anecdotal evidence that the use of handcuffs during stop and search encounters is becoming routine in some forces.
Over 35 years on from the introduction of stop and search legislation, no force fully understands the impact of the use of these powers. Disproportionality persists and no force can satisfactorily explain why. In 2019/20, Black, Asian and Minority Ethnic people were over four times more likely to be stopped and searched than White people; for Black people specifically, this was almost nine times more likely. In some forces, the likelihood was much higher. Black people were also 18 times more likely than White people to be searched under section 60 of the Criminal Justice and Public Order Act 1994. Also, a failure to record ethnicity data in an increasing proportion of records is hiding the true disproportionality rate. This means that some forces are not able to see the full picture.
Most searches are for drugs, and the majority of those are for possession rather than the more serious offence of supply. And most searches are self-generated – that is, initiated spontaneously by the officer in response to what they see or hear, rather than intelligence-led or as a result of information from a third party. The prevalence of self-generated, possession-only drug searches, about a quarter of which find drugs, indicates that stop and search is not always being targeted at offences that are the most serious and high priority for forces, or that matter most to the public. Some forces may be either making operational decisions to target lower-level drugs possession over other crimes or failing to give officers sufficient direction and guidance on how best to use the powers to reduce crime based on what works. This is particularly pertinent in the case of drugs searches, because these contribute substantially to racial disparities in the use of stop and search. The report found that drug searches on Black people, and particularly possession-only drug searches, had a higher rate of weak recorded grounds than equivalent searches on White people, and fewer drug searches of Black people resulted in drugs being found.
How can we help?
A recent Court of Appeal case has considered recent changes to the early release provisions. The changes came about on 1 April 2020, when The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 came into force.
This statutory instrument’s effect was to alter the early release provisions for some offenders receiving relatively determinate lengthy custodial sentences. Anyone convicted of a relevant violent or sexual offence and sentenced to 7 years imprisonment or more, will now be released after 2/3 of their sentence, rather than 1/2.
By way of example, an offender who received a sentence of 12 years imprisonment would be released after serving eight years instead of 6 years, so “adding” 2 years to the sentence served.
Of course, Parliament is entitled to pass more or less whatever laws it wishes, but the feature of this legislation was that it applied to anyone sentenced on/after 1 April 2020, even if they had been convicted earlier.
Some offenders might, but for the Coronavirus pandemic, have been sentenced prior to the 1 April and therefore have avoided the new rule, but because of the shutdown of the criminal courts were sentenced after the 1 April.
What did the appellants say?
The appellants arguments were expressed in these terms:
‘The appellants each argue that through no fault of their own, or the defence generally, they will serve substantially more time in custody prior to release than would otherwise have been the case if the matter had proceeded to sentence as originally intended. They say that this is manifestly unfair and that it is wrong in principle that an appellant, through no fault of his own, should suffer the detrimental effect of the 2020 Order when the court’s intention had been that they should be sentenced before those provisions came into effect’
The Court of Appeal rejected the arguments put forward by the appellants, deciding as follows:
- Nothing in the legislative framework, or the definitive guidelines of the Sentencing Council, requires, or explicitly permits, a sentencing court to take account of the impact of the early release provisions on these decisions.
- It would defeat the statutory purpose of the early release provisions if their effect were ordinarily to be taken into account when passing sentence. The clear intention underpinning the 2020 Order (as is clear from the text of the Order itself, and is spelt out in the Explanatory Memorandum) is that, where it applies, the offender should, before being entitled to release, serve a further one sixth of the sentence than was previously the case. If the sentencing judge reduced the length of sentence to reflect the harsher effect of the early release provisions then that would directly undermine the legislative purpose.
- Accordingly, the courts have consistently made it clear that a sentencing judge should not ordinarily take account of early release provisions when deciding the length of a determinate custodial sentence.
- Nothing in the authorities explicitly rules out the possibility that there may be exceptional cases where it is appropriate to take account of the impact of early release provisions.
- The Court must take account of mitigating features when setting the length of a fixed-term custodial sentence (s231(2) and (7) Sentencing Code; s153 Criminal Justice Act 2003). There is no closed exhaustive list of mitigating factors. Depending on the case, they may include the fact that custody will have a particularly harsh impact on the individual offender. Moreover, a court may depart from the approach required by an applicable definitive Sentencing Council guideline where it would be unjust to follow that approach.
- The court has recognised the exceptional impact that the Covid-19 pandemic may have on sentencing decisions, however ‘we do not, however, accept that an analogy can properly be drawn, for the purpose of sentencing, between the effect of the pandemic on prison conditions, and the effect on the date of sentence (with the resulting impact of the 2020 Order). There is a principled difference between prison conditions and the effect of a change in the early release regime.’
- A change in the early release regime is different. It is a legislative change that is introduced by Parliament (or by a Secretary of State with Parliament’s authority).
- ‘Nor does the fact that the offender has been given an expectation that he will be sentenced before 1 April 2020, or otherwise sentenced in a way that defeats the change introduced by the 2020 Order, amount to a justification for departing from the [usual] principle.’
It is unlikely that there will be further attempts to challenge the effect of the 2020 Order, but as always we will be closely monitoring this and other cases to ensure the best outcomes for our clients.
How can we help?
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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.
This is the name of the paper presented to Parliament that proposes changes to the sentencing and release frameworks in the criminal justice system.
The paper sets out the “problems” they have identified in the system. They are automatic release, improving confidence and addressing the causes of offending.
Automatic release – the blanket use of automatic release was said to undermine confidence in the system as it results on too many serious and dangerous offenders are being released early. Following terrorist attacks in London, emergency legislation was introduced to address the issue in respect of terrorist offenders. The proposal is to now address it in terms of other types of “serious and dangerous offenders”.
Improving confidence – the paper states that confidence in non-custodial sentencing options is low and that the confidence of the judiciary and the public has to be won back. A wider range of non-custodial options are suggested for low-level offences.
Addressing the causes of offending – it is conceded that not enough has been done to tackle the causes of offending, particularly where it is driven by drug and alcohol abuse.
What are the proposals?
The government Impact Assessment lists the following to be implemented from the proposals:
Release from prison
Legislation has already been introduced so that those charged with serious and violent sexual offences who received a standard term of imprisonment of 7 years or more must serve two-thirds of their sentence. This means they will be kept in custody for longer and will be supervised on licence for the remaining one third, and subject to recall if they breach the terms of the licence or commit a further offence.
The proposal is also to make this apply to those convicted of serious and violent offences who received sentences over four years.
The offences affected will be rape, attempted murder, sexual assault by penetration, sexual activity with a child, manslaughter, wounding with intent, conspiracy to murder, sexual activity with a person with a mental disorder and abuse of children through prostitution or pornography.
Suppose a person serving a sentence for a non-terrorist offence is identified as a terrorist threat. In that case, there will be a new power to prevent their automatic release from a standard sentence. Instead, they will be referred to the Parole Board for a decision whether they can be released before serving their full sentence.
Whole life orders
For those convicted of the premeditated murder of a child, the expectation will be for a whole life order to be imposed. That is, that the person will not be eligible for release at any stage. Judges will also be given the discretion to impose such an order on offenders aged 18-20 in exceptional circumstances.
Life sentence tariffs
How a tariff is calculated will be amended so that the calculation is based on what two-thirds of the notional sentence would be, rather than half as it is now.
For those sentenced for murder, committed under the age of 18, the starting point is currently fixed at 12 years. This will be changed to between 8 and 20 years, depending on the age of the person.
Sentence for Offenders of Particular Concern (SOPC)
For certain sexual offences that lead to a SPOC, release by the Parole Board will only take place after two-thirds of the term has been served.
There are minimum sentences in place for certain offences such as third strike burglary and second-strike possession of a knife or offensive weapon. Judges have the discretion to impose a sentence less than the minimum and are now seemingly being criticised for doing so. The proposal is to change the criteria in which this can be done to reduce the prospect of a term less than the minimum being imposed.
Detention and training orders
The system will be reformed to remove fixed periods so that an order can be imposed from any length between 4 months and 24 months. The method for considering time spent on remand or bail will also be simplified.
Out of court disposals
A two-tier model is to be used by all forces to ensure consistency. The two options available will be Community Resolutions and Conditional Cautions. This means an end to simple cautions, and cannabis and khat warnings. The proposals do not affect fixed penalties.
Home Detention Orders
A new order will be introduced utilising electronic monitoring technology for a lengthy and restrictive curfew. Other elements can also be added, including treatment orders and alcohol monitoring.
Electronically monitored curfew
The maximum period of curfew will be increased from 12 months to 2 years and will be able to be used more flexibly.
High-end youth community sentences
There will be a pilot of these sentences which will increase the maximum length of ISS (intensive supervision and surveillance) from 6 months to 12 months. It will also add a location monitoring requirement as a mandatory element of ISS.
Location monitoring requirements
This will add the option of a standalone location monitoring requirement to a YRO.
Reform criminal records disclosure rules
Interestingly this proposal will reduce the rehabilitation periods that govern the length of time before a conviction becomes spent.
These courts are to be established incorporating a core set of “internationally recognised problem-solving components” through a centrally coordinated approach. This will include regular drug and alcohol testing, use of incentives, links to core services and regular court reviews of a community order.
Probation officer powers
Officers will be given greater flexibility to supervise offenders at any point within an order.
What will the impact be?
It is estimated, in the government’s Impact Assessment, that implementing the above proposals will result in a total increase in the adult prison population of around 600 offenders by 2028/29. The initial impact in 2021/22 will only be an additional 10 prisoners.
The paper and the government press release refer to GPS monitoring of certain offenders released on licence. Those offenders are said to be those convicted of theft and robbery who have the highest rates of re-offending. The Impact Assessment details the provisions to be implemented, and GPS monitoring of this type is not listed.
How can we help?
A review of the sentencing system found that a critical element in reducing offending was having access to employment. Having unspent convictions can be a barrier to gaining employment, so the proposal is to change the law to reduce the number of people required to disclose convictions.
Once an individual’s conviction is spent, they are considered, save for the exceptions below, as fully rehabilitated and treated as if they never had the conviction.
The current system
All cautions and convictions eventually become spent, except for prison sentences over 30 months.
- A simple caution is spent immediately;
- community sentences after the order plus one year;
- imprisonment of less than 6 months is spent after 2 years;
- imprisonment between 6 months and 30 months is spent after 4 years;
- imprisonment between 30 months and 4 years is spent after 7 years; and
- imprisonment over 4 years, the conviction is never spent.
In general terms, all the rehabilitation periods are halved for those aged under 18 at the time of conviction. This recognises that children who offend are often vulnerable and still maturing.
There are still occasions when spent convictions have to be declared. These primarily relate to sensitive areas such as work with children or vulnerable adults, the law and high-level financial positions.
The most significant proposal is to remove the rule that convictions involving a sentence over 4 years can never become spent. This will not apply, however, to convictions for serious sexual, violent and terrorist offences.
- A community order will be spent on the last day of the order;
- imprisonment of 1 year or less will be spent after 1 year;
- imprisonment between 1 year and 4 years will be spent after 4 years; and
- imprisonment of more than 4 years will be spent after 7 years.
The rehabilitation period in respect of those convicted under the age of 18 will be half of those for adults.
The same principles will apply that even spent convictions will need to be declared in certain situations.
What difference will this make?
More than half of employers have said that they would not employ someone with a criminal record. Currently, someone who committed a serious offence of theft 20 years ago, and who has not re-offended since, would have to declare that conviction. Under the new proposals, they may not have to.
Is any other action being taken?
A Prison Leaver Project was announced last year which aims to assist those leaving prison. The government says this will provide £20 million of funding to support local leadership and identify new ways of tackling re-offending.
How can we help?
The Law Commission is considering proposals to reform hate crime laws. Hate crime is where a victim is targeted, perhaps for an assault, criminal damage or harassment, based on a protected characteristic.
What are protected characteristics?
Currently, the protected characteristics are race, religion, sexual orientation, disability and transgender identity.
Why are reforms needed?
The Commission says that there are issues with how the hate crimes laws work in practice. Several different pieces of legislation cover the laws and some overlap; it is also argued that not all of the protected characteristics are treated equally.
For some offences such as assault, criminal damage and harassment, there is an aggravated form of the offence for hate crimes. These require an increase in the sentence as a result of the hate crime element.
There are also separate offences for stirring up racial hatred or stirring up hatred based on sexual orientation or religion. The offence of stirring up racial hatred requires the behaviour to be ‘threatening, abusive or insulting’. For the other two offences, the behaviour must be threatening, and there is no mention of being merely abusive or insulting.
Some definitions of “transgender” in the current laws have also been criticised for using language that is outdated.
What reforms are being proposed?
Sex and gender – it is proposed to add sex and gender to the protected characteristics. This will enhance protections against crimes based on misogyny.
Additional characteristics – establishing criteria to decide if any other additional characteristics should be recognised. For example, age, sex workers, homelessness, philosophical beliefs and alternative subcultures. The aim is to identify and fill any potential gaps in the characteristics whilst referencing the underlying principle and the practical implications of changing the law.
Aggravated offences – the protections of the aggravated offences and the stirring up hatred offences to be extended. In that way all of the protected characteristics are treated the same. This would include any additional characteristics that may be added to the list.
Stirring up hatred – these offences would be reformed “so that they are less difficult to prosecute in cases where the defendant clearly intended to stir up hatred, but provide greater protection for freedom of expression where such intention cannot be proven”. The offences are proposed to be extended to cover incitement of hatred towards disabled and transgender people, and hatred on the grounds of sex or gender.
Racist chanting – the offence of racist chanting at a football match would be extended to cover chanting based on sexual orientation. There is also a consultation on extending the offence to cover other protected characteristics along with other forms of behaviour such as the use of racist gestures and throwing missiles.
What happens next?
The Commission will need to consider the impact of any changes on other aspects of the criminal justice system, including other offences and sentencing practice. They also need to ensure that any recommendations comply with human rights obligations such as freedom of expression and the prohibition of discrimination. Finally, there will be consideration of the implications of any recommendations for other areas of law, such as the Equality Act 2010.
The consultation is open until 24th December 2020. After that date the final recommendations will be made to the government next year.
It is worth noting that reform proposals such as this have the potential to highlight current problems. As a result, some judges may pay closer attention to them when sentencing; we might therefore reasonably expect some upward adjustment to sentence in a few cases.