Archive for the ‘Chapter 5’ Category
Stop and search – getting the balance right?
One of the most controversial powers use by the police is the power to stop and search people. Heavy-handed use alienates those who are stopped and searched (and the wider community); failure to use these powers can lead to increases in crime.
There is no doubt that the experience of stop and search is felt most acutely amongst the black communities. There is clear evidence that young black men are disproportionately subjected to these processes. While the law and policies relating to stop and search may in theory try to strike a balance between policing needs and the rights of individuals not to be stopped as they go about their business, getting that balance right in practice remains a challenge, particularly for those police forces that use stop and search a lot. Particularly concerning are those who have been stopped and searched on numerous occasions. It is understandable that they might feel they have been treated unfairly.
In this context, a report from the Independent Office for Police Conduct (IOPC) into the use of stop and search by the Metropolitan Police, published in October 2020, is worth noting. Having looked in detail at a sample of stop and search incidents, the IOPC concluded that the legitimacy of stop and searches was being undermined by:
- a lack of understanding about the impact of disproportionality
- poor communication
- consistent use of force over seeking cooperation
- the failure to use body-worn video from the outset of contact and
- continuing to seek further evidence after the initial grounds for the stop and search were unfounded.
Recommendations made by the IPOC to the Met included:
- taking steps to ensure that their officers better understand how their use of stop and search powers impacts individuals from groups that are disproportionately affected by those powers;
- ensuring there is a structure in place so leaders and supervisors are proactively monitoring and supervising the use of stop and search powers…;
- taking steps to ensure that assumptions, stereotypes and bias (conscious or unconscious) are not informing or affecting officer’s decision making when carrying out stop and searches, especially when using these powers on people from Black communities;
- ensuring officers are not relying on the smell of cannabis alone when deciding to stop and search someone and use grounds based upon multiple objective factors;
- ensuring officers carrying out stop and searches always use the principles of GOWISELY and engage in respectful, meaningful conversations with the persons being stopped;
- ensuring stop and search training incorporates a section on de-escalation, including the roles of supervisors and colleagues in controlling the situation and providing effective challenge;
- ensuring officers exercising stop and search powers are ending the encounters once their suspicion has been allayed, in a manner that minimises impact and dissatisfaction, unless there are further genuine and reasonable grounds for continued suspicion;
- ensuring officers exercising stop and search powers are not using restraint/handcuffs as a matter of routine and are only using these tools when reasonable, proportionate and necessary;
- amending stop and search records to include a question about whether any kind of force has been used;
- ensuring officers are following policy and switching on their body-worn video camera early enough to capture the entirety of a stop and search interaction;
- supervisors taking a proactive role in monitoring and ensuring compliance with body-worn video policy.
The challenge with all such reports is to know how they are followed through in practice. Do they lead to changes in front-line behaviour? Or are they left on a shelf, largely ignored?
A very useful review of the law and changes in policy relating to stop and search was published, in November 2020, in a House of Commons Briefing Paper, No 3878. Written by Jennifer Brown, it sets out: the law; the use of the law; the impact of the law; and a brief history of recent changes to law and practice.
Among the points made in the paper:
- The numbers of stops has reduced by over 50% over the past 10 years (though there has been a sharp increase recently).
- Black people were nine times more likely to be searched than white people.
- Use of stops is predominantly by 5 police forces (the Met, Merseyside, West Midlands, Essex and South Yorkshire police forces).
- Most searches were conducted to find drugs.
- Around 20% lead to either arrest or out of court disposal.
- It is estimated that around 8% of all arrests in 2018/19 were generated by a stop and search encounter.
- Stop and search hardly ever results in the prevention of a crime.
The IOPC report is at https://www.policeconduct.gov.uk/news/review-identifies-eleven-opportunities-met-improve-stop-and-search
The House of Commons Briefing paper is at https://commonslibrary.parliament.uk/?s=stop+and+search+&library=1&year=all and follow the link.
New Code of Practice for the treatment of victims of crime
For some time, the Government has been promising the publication of a new Code of Practice on how the victims of crime should be treated by those involved in the criminal justice system. Following a consultation, the new code was published in November 2020. It has been laid before Parliament and came into effect on 1 April 2021.
The Code provides that victims have the following 12 rights. They are set out, in summary, as:
- To be able to understand and to be understood. You have the Right to be given information in a way that is easy to understand and to be provided with help to be understood, including, where necessary, access to interpretation and translation services.
- To have the details of the crime recorded without unjustified delay. You have the Right to have details of the crime recorded by the police as soon as possible after the incident. If you are required to provide a witness statement or be interviewed, you have the Right to be provided with additional support to assist you through this process.
- To be provided with information when reporting the crime. You have the Right to receive written confirmation when reporting a crime, to be provided with information about the criminal justice process and to be told about programmes or services for victims. This might include services where you can meet with the suspect or offender, which is known as Restorative Justice.
- To be referred to services that support victims and have services and support tailored to your needs. You have the Right to be referred to services that support victims, which includes the Right to contact them directly, and to have your needs assessed so services and support can be tailored to meet your needs. If eligible, you have the Right to be offered a referral to specialist support services and to be told about additional support available at court, for example special measures.
- To be provided with information about compensation. Where eligible, you have the Right to be told about how to claim compensation for any loss, damage or injury caused as a result of crime.
- To be provided with information about the investigation and prosecution. You have the Right to be provided with updates on your case and to be told when important decisions are taken. You also have the Right, at certain stages of the justice process, to ask for decisions to be looked at again by the relevant service provider.
- To make a Victim Personal Statement. You have the Right to make a Victim Personal Statement, which tells the court how the crime has affected you and is considered when sentencing the offender. You will be given information about the process.
- To be given information about the trial, trial process and your role as a witness. If your case goes to court, you have the Right to be told the time, date and location of any hearing and the outcome of those hearings in a timely way. If you are required to give evidence, you have the Right to be offered appropriate help before the trial and, where possible, if the court allows, to meet with the prosecutor before giving evidence.
- To be given information about the outcome of the case and any appeals. You have the Right to be told the outcome of the case and, if the defendant is convicted, to be given an explanation of the sentence. If the offender appeals against their conviction or sentence, you have the Right to be told about the appeal and its outcome.
- To be paid expenses and have property returned. If you are required to attend court and give evidence, you have the Right to claim certain expenses. If any of your property was taken as evidence, you have the Right to get it back as soon as possible.
- To be given information about the offender following a conviction. Where eligible, you have the Right to be automatically referred to the Victim Contact Scheme, which will provide you with information about the offender and their progress in prison, and if/when they become eligible for consideration of parole or release. Where applicable, you also have the Right to make a new Victim Personal Statement, in which you can say how the crime continues to affect you.
- To make a complaint about your Rights not being met. If you believe that you have not received your Rights, you have the Right to make a complaint to the relevant service provider. If you remain unhappy, you can contact the Parliamentary and Health Service Ombudsman.
While the new Code is to be welcomed, there are at least three challenges to be faced for it to become effective:
First, as the Government itself acknowledges, the existence of the code is not widely known amongst the general public. Their potential role in trying to ensure that the practices set out in the code are actually delivered won’t be fulfilled if they do not know about the code.
Second, there have been enough reports in the media in recent months which suggest that there is an urgent need for training on the content of the code in all criminal justice agencies – the police, prosecutors, the courts, the probation service, the parole board have all been criticised for ignoring victims.
Third, while the Victim’s Commissioner (currently Dame Vera Baird) has statutory responsibility to promote the interests of victims and witnesses; to take such steps as considered appropriate to encourage good practice; and to keep under the review the operation of the Code, a recent independent report argues that she lacks adequate legal powers to enable her to fulfil her responsbilities. The report recommends that the Commissioner needs additional powers to:
- Undertake effective review of the operation of the Code;
- Rely on the cooperation of bodies named in the Code when encouraging them to adopt good practice;
- Identify weakness in the implementation of the Code;
- Require action if bodies are found not to be complying with the Code;
- In the last resort and if necessary to clarify the law in the public interest, to bring appropriate legal proceedings;
- Receive and direct complaints from victims as users of services provided by bodies named in the Code;
- Conduct and commission research and training on, for example, what constitutes good practice and on victims’ emergent needs;
- Require changes to the Code if it is found to be inadequate;
- Ensure that Parliament is fully aware of victims’ needs, and upholds their entitlements and rights;
- Recommend changes to the law.
As the Government has stated that it wishes to introduce a new Victims Law, the Commissioner hopes that these proposals may be considered as a key element in the development of new legislation.
The new Victims Code may be found at https://www.gov.uk/government/consultations/consultation-on-improving-the-victims-code and follow the links to Government response, and Victims Code 2020.
The report on the Victims’ Commissioner’s powers is at https://victimscommissioner.org.uk/news/independent-report-calls-for-the-victims-commissioner-to-have-enhanced-powers-to-ensure-agencies-are-held-to-account/ – again follow the links.
Further information is available at https://www.gov.uk/government/publications/the-code-of-practice-for-victims-of-crime
Independent Review of Criminal Legal Aid – announcement
Just before Christmas, the Government made the long awaited announcement that the independent review of Criminal Legal Aid would start work in January 2021 – with a view to reporting by the end of 2021. The Chair of the Inquiry is to be Sir Christoher Bellamy, a retired judge – formerly President of the Competititon Appeal Trbunal. He will be supported by an Expert Panel, though the composition of the Panel has not yet been announced
The announcement contains a link to the terms of reference for the inquiry which set out in rather more detail than usual the aims of the inquiry and some of the issues it is required to take into account. The document states that the Criminal Legal Aid Review ‘has two main objectives’:
- To reform the Criminal Legal Aid fee schemes so that they:
• fairly reflect, and pay for, work done.
• support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce.
• support just, efficient, and effective case progression; limit perverse incentives, and ensure value for money for the taxpayer.
• are consistent with and, where appropriate, enable wider reforms.
• are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies; and
• ensure cases are dealt with by practitioners with the right skills and experience. - To reform the wider Criminal Legal Aid market to ensure that the provider market:
• responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer.
• operates to ensure that Legal Aid services are delivered by practitioners with the right skills and experience.
• operates to ensure the right level of Legal Aid provision and to encourage a diverse workforce.
The document also states that ‘ultimate objective of the Criminal Legal Aid System is to provide legal advice and representation to those who most need it’ and that in order to achieve this overarching objective,
“the Independent Review will seek to make recommendations that will ensure the Criminal Legal Aid System:
a. provides high quality legal advice and representation;
b. is provided through a diverse set of practitioners;
c. is appropriately funded;
d. is responsive to user needs both now and in the future;
e. contributes to the efficiency and effectiveness of the Criminal Justice System;
f. is transparent;
g. is resilient; and
h. is delivered in a way that provides value for money to the taxpayer.”
Furthermore “in order to conduct this analysis, the review will consider the following themes:
- resilience
- transparency
- competition,
- efficiency; and
- diversity.
For criminal legal aid practitioners this is a very important moment. It is clear that the current criminal legal aid is not working as it should. The question remains whether, despite the generally positive tone of the initial press release, a substantially reformed system will ultimately be implemented. This will be an important test for both Government and the legal professions. Much will depend on the political skills of the Lord Chancellor in ensuring that the resources to reform the system are available.
The announcement is at https://www.gov.uk/government/news/independent-review-into-criminal-legal-aid-to-launch-in-january. This includes the link to the terms of reference.
Sentencing Act 2020 given Royal Assent
On 22 October 2020, the Sentencing Act 2020 received the Royal Assent. A commencement date has not yet been set, but once it is, the Sentencing Code – which the Act contains – will come into force.
I have considered the content of the Code at https://martinpartington.com/2020/07/21/enacting-the-sentencing-code/
This is a significant achievement, undertaken by the Law Commission, which hopefully will bring greater clarity to the rules which the courts must apply when they sentence those convicted of crimes.
A press notice is at https://www.gov.uk/government/news/sentencing-code-granted-royal-assent
Covid-19 and the English Legal System (15) – Criminal Justice in existential crisis?
On Friday 30 October 2020 a research consultancy, Crest, published a report Impact and legacy of Covid-19 on the CJS: Modelling overview. Using existing data to model future developments, the report set out what it regarded as the possible impact of Covid-19 on the Criminal Justice System.
The rather sober title of the report was not matched by the press release Crest drafted to draw attention to its study. This was headed “A perfect storm: why the criminal justice system is facing an existential crisis”. This apocalytic vision certainly caught the eye of some journalists – which is of course the reason why I am now writing about it now.
And the report is a really important one, which underscores the urgent need for the Government to get on with the appointment and work of the promised Royal Commission on the Criminal Justice system. (See https://martinpartington.com/2020/07/13/royal-commission-on-the-criminal-justice-system-details-awaited/)
The report starts by reminding readers that, even before Covid-19, the CJS was facing a number of long-standing problems: decreasing charge rates, worsening court timeliness and an estimated backlog in the courts of c.104K
cases, prisons and probation operating at full capacity. Covid-19 has added to those pressures. The report also predicts a future of increased pressure, the consequence of the likely rise in long term unemployment due to the economic impact of Covid, leading to more crime, and the 20,000 increase in police officer numbers, leading to more detection and the need to process more people through the system.
The research team’s modelling suggests, that without any action, the Crown Court backlog is projected to increase from c.45.5K in 2019 in to c.195.5K (x4) in 2024. and the magistrates’ court backlog is projected to increase from c.58.6K in 2019 to 580.3K (x10) in 2024.
Current responses by Government – e.g. making more courts covid-safe and opening Nightingale Courts in a number of town – just do not cut the mustard, in Crest’s view. Much more dramatic action is needed.
The principal criticism contained in the report is that there is currently no ‘whole-system’ view of the challenges facing the CJS. Different parts of the system work in isolation from other parts.
For example: the 20K police uplift will lead to a rise in pressure on the court backlogs; if the courts increase their outflow in sentenced cases, there will be a rise in pressure on prisons and probation.
Furthermore, assuming equilibrium is achieved in courts, suspended sentence orders are projected to increase by 24%, post-release supervision caseload will increase by 30% and community sentence orders are projected to increase by 14% by 2024. This will put extreme pressure on a probation service which was already underperforming.
There is, in the report’s view, inadequate recognition within Government of the interdependencies of each part of the criminal justice system.
The Crest report states that
“to bring the backlog back to pre-Covid levels will require a change in more than just capacity.
Options include:
● increasing the speed with which cases are dealt with: e.g. increasing the efficiency of listing, decreasing victim attrition, decreasing cracked trials etc.
● decreasing the amount of cases entering the court system by increasing effective out of court disposals
● decreasing the amount of police recorded crime originally entering the CJS through effective crime prevention programmes.”
I think some would argue that this list of options is not an original one. All these ideas have been discussed within the CJS, and achieving the outcomes suggested in the report is not easy. But what this report has very effectively done is highlight precisely the challenges that the now increasingly delayed Royal Commission must address. It should be a matter of urgency for the Government to get the Commission up and running.
The Crest Report is available at https://www.crestadvisory.com/post/covid-19-and-the-criminal-justice-system
Root and branch review of the system of parole and the work of the Parole Board
The work of the Parole Board has changed significantly over the last 10 years. New rules and new procedures have been introduced. It now holds more than 30 times the number of hearings it held in 2010. In its 2019 General Election Manifesto, the Government stated that it would undertake a fundamental review of the current system. The details of what is planned have now (October 2020) been published. The announcement states:
The Root and Branch review will focus on the following 4 areas:
1.An evaluation of the parole reforms to date:
- considering the overall performance of the parole process and identifying whether any further measures would help to improve the timeliness and efficiency of the process
- the response to Covid-19 (in particular with use of online hearings) and its implications on the way parole reviews may be conducted in the future
- examining the effectiveness of the reconsideration mechanism (introduced to enable prisoners and others ask for a reconsideration of a decision without the expense of taking judicial review proceedings) and whether there is a case for further reform of that process
- identifying any additional legislative or Rule changes that would further improve the parole process including whether the current release test continues to be appropriate
2.The constitution and status of the Parole Board:
- examining whether the Parole Board should remain a non-departmental public body or should be made more visibly independent from the Ministry of Justice
- whether possible alternatives, such as creating a new type of public protection tribunal, could deliver the parole function in a more efficient and cost-effective way
- considering the need for any additional measures to strengthen the Parole Board’s powers to reinforce its status as a court-like body
3.Improving public understanding and confidence:
- exploring whether further steps could be taken by the Board and other parts of the system to help explain and publicise what parole decision making is, how it works and what the assessment entails
- ways to better communicate that parole decisions are not about ongoing punishment for the offences committed and that release is not a reward for good behaviour in prison
- improving messaging that the parole system protects the public by authorising the continued detention of dangerous offenders and that only a minority of prisoners considered for parole are released
4.Openness and transparency:
- developing a way for victims to observe oral hearings in a safe and secure way without compromising the Board’s ability to perform its function and obtain the best possible evidence from the prisoner and professional witnesses
- considering the case for public hearings and whether this would be possible and appropriate in certain limited cases
- looking at ways to build on the work already done to improve openness and transparency.
The Government observes that:
“the underlying aim of this review is to determine whether the Parole Board in its current form and constitution remains the most effective model for what the future of the parole system may look like; to command public confidence in the decisions it makes; and to deliver its functions in the most effective and transparent way possible, whilst ensuring that there is an effective independent judicial mechanism for keeping under review the continued lawfulness of custody.”
At the same time as these terms of reference were published, the Government also published what is called a “Tailored-Review of the Parole Board“. This was undertaken in accordance with the Cabinet Office requirement that all public bodies are reviewed at least once per parliament.
This review of the Parole Board focused predominantly on operational changes that could be made within the current legislative framework, making recommendations which further improve collaboration within the parole system and highlighting existing legal powers that the Parole Board can use to compel the production of evidence and the attendance of witnesses, with the intention of ensuring that all cases progress in a timely manner.
On the same day as these two documents were published, the Government also published its first consultation paper which explores options for increasing the transparency of the parole system. The consultation seeks views on the possibility of allowing victims to observe parole hearings and on whether the media and wider public should also be given greater access to hearings where it is appropriate to do so. The Consultation runs until 1 December 2020. The Government hopes to respond to it by the end of 2020
Changes recommended in the tailored review will no doubt be brought into effect pretty quickly. The consequences of the root and branch review will take longer. But a period of considerable change at the Board can be anticipated.
The Terms of Reference are at https://www.gov.uk/government/publications/parole-system-reform/terms-of-reference
The Tailored Review is at https://www.gov.uk/government/publications/parole-system-reform and follow the link
The Consultation Paper is at https://www.gov.uk/government/consultations/root-and-branch-review-of-the-parole-system
Jury trials – a case for change?
One response to the difficulties of running jury trials in the current Covid-19 world, where social distancing is crucial yet difficult to achieve in a crowded courtroom, has been that – at least temporarily – alternatives to juries should be tried.
The Lord Chancellor has set his face against this idea. Indeed, most people who even float the idea that jury trials should be abolished tend to be treated with scorn.
Nevertheless, it is worth noting that there is the occasional voice to be heard, suggesting that jury trial is not all that it is cracked up to be.
In this context, readers of this blog might be interested in a book, published in 2019, by the late Louis Blom-Cooper QC who suggested that criminal trials might be run differently.
In Unreasoned Verdict, Blom-Cooper argues that:
The system of jury trial has survived, intact, for 750 years. This book explains the nature and scope today of jury trial, with its minor exceptions. It chronicles the origins and development of jury trial in the Anglo-Saxon world, seeking to explain and explore the principles that lie at the heart of the mode of criminal trial. It observes the distinction between the professional judge and the amateur juror or lay participant, and the value of such a mixed tribunal. Part of the book is devoted to the leading European jurisdictions, underlining their abandonment of trial by jury and its replacement with the mixed tribunal in pursuance of a political will to inject a lay element into the trial process. Democracy is not an essential element in the criminal trial.
The book also takes a look at the appellate system in crime, from the Criminal Appeals Act 1907 to the present day, and urges the reform of the appellate court, finding the trial decision unsatisfactory as well as unsafe.
Other important issues are touched upon – judicial ethics and court-craft; perverse jury verdicts (the nullification of jury verdicts); the speciality of fraud offences, and the selection of models for various crimes, as well as suggested reforms of the waiver of a jury trial or the ability of the defendant to choose the mode of trial. The section ends with a discussion of the restricted exceptions to jury trial, where the experience of 30 years of judge-alone trials in Northern Ireland – the Diplock Courts – is discussed.
Finally, the book proffers its proposal for a major change in direction – involvement of the defendant in the choice of mode of trial, and the intervention (where necessary) of the expert, not merely as a witness but as an assessor to the judiciary or as a supplemental decision-maker.
I think it highly unlikely that there will be any change in the foreseeable future. But that does not mean that arguments against the ways in which juries are currently used should not at least be considered and debated to see whether there might be alternative arrangements that might work better and more fairly.Source: adapted from publisher’s notice at https://www.bloomsburyprofessional.com/uk/unreasoned-verdict-9781509915224/
A Smarter Approach to Sentencing: the Government’s White Paper, 2020
Devising effective sentencing policy is hard. Ministers are often under great political pressures to deal with matters of public concern, which leads to frequent changes in sentencing law. This in turn can make the law hard to find and apply. The Sentencing Act 2020 is about to get the Royal Assent. Once in force it will provide a Code – an uptodate framework available online – within which new policies and changes to the law can be set.
Even before the ink has dried on the new Code, changes are in the pipeline. The Counter Terrorism and Sentencing Bill 2020 is well on its way through the Parliamentary process. (See https://martinpartington.com/2020/07/22/counter-terrorism-and-sentencing-bill-2020/)
More radical change is now promised by the White Paper on Sentencing, A Smarter Approach to Sentencing, published in September 2020.
It is a substantial document – reflecting a number of commitments made by the Conservative party in its election manifesto 2019 – on which the Government will be consulting over the next 12 months. A Bill is not anticipated until 2021.
The White Paper states that it is seeking to address three issues of public concern:
- Automatic Release: Sentences passed by judges and magistrates in the courts are criticised, often not for their overall length, but for the shortness of the time offenders actually spend in custody. The blanket use of automatic early release has, in the Government’s view, undermined confidence in the system. Too many serious and dangerous offenders are still released too early from custody; this risks public safety, and means the time spent in prison does not always properly fit the crime. The Counter-Terrorism Bill mentioned above deals with some of the issues; the White Paper argues for a more general policy to apply to all dangerous offenders, not just terrorists.
- Improving Confidence: Confidence in non-custodial sentencing options is low. The Government wants to gain greater confidence in the delivery of community sentencing. This is essential to reduce the prison population. Sentencers and the public need to be sure that there are effective non-custodial options, particularly for low-level offenders. The Government also wants to ensure that a wider range of non-custodial sentencing options are available to the courts, by capitalising fully on Electronic Monitoring technology, alongside enhanced community supervision delivered by a reformed National Probation Service and an expanded use of existing non-custodial conditions.
- Addressing the Causes of Offending: The Government wants to do more to address the causes of offending, particularly where it is driven by drug and alcohol misuse. In 2018/19, 28% of men and 42% of women entering prison reported having a drug problem. These issues are associated with offending, particularly low-level, repeat offending. Whilst there have been routes available to help treat and manage these needs in the justice system, as well as mental health needs, there have been too few options available to sentencers, and not enough confidence in the quality of these services.
The changes proposed in the White Paper are numerous. They include:
1. Introducing whole life orders for child killers, as well as allowing judges to hand out this maximum punishment to 18-20-year olds in exceptional cases to reflect the gravity of a crime. For example, acts of terrorism which lead to mass loss of life.
2. Introducing new powers to halt the automatic release of offenders who pose a terrorist threat or are a danger to the public.
3. Reducing the opportunities for over 18s who committed murder as a child, to have their minimum term reviewed – ensuring they cannot game the system and torment victims’ families further.
4. Ending the halfway release of offenders sentenced to between four and seven years in prison for serious crimes such as rape, manslaughter and GBH with intent. The Government proposes that they should have to spend two-thirds of their time behind bars.
5. Increasing the starting point for determining sentences for 15-17 year olds who commit murder from a minimum of 12 years to two thirds of the equivalent starting point for adults.This would ensure that the seriousness of the offence is taken into account and there is less of a gap between older children and young adults.
6. Longer tariffs for discretionary life sentences. Increasing the minimum period that must be spent in prison by requiring judges to base their calculation of the tariff on what two-thirds of an equivalent determinate sentence would be, rather than half as they do now. This will mean life sentence prisoners serve longer in prison before they can be considered for release by the Parole Board.
7. Raising the threshold for passing a sentence below the minimum term for repeat offenders, including key serious offences such as “third strike” burglary which carries a minimum three-year custodial sentence and “two strike” knife possession which has a minimum six-month sentence for adults. The should make it less likely that a court will depart from these minimum terms.
8. Piloting Problem Solving Court models in up to five courts, targeted at repeat offenders who would otherwise have been sent to custody.
9. Making full use of tagging technologies to create a tough restrictive order in the community. To support rehabilitation, courts and probation staff will have greater flexibility to impose curfew orders.
10. Piloting new ways of delivering timely and high-quality Pre-Sentence Reports.
11. Introducing new legislation to create the possibility of life sentences for drivers who kill.
12. Doubling the maximum sentence for assaulting an emergency worker from 12 months to 2 years.
The White Paper also proposes reforming criminal records disclosure to reduce the time period in which offenders have to declare offences to employers.
The full details of the White Paper are at https://www.gov.uk/government/publications/a-smarter-approach-to-sentencing
This entry is adapted from the Government Press Release: at https://www.gov.uk/government/news/radical-sentencing-overhaul-to-cut-crime
Search warrants: proposals from the Law Commission
One of the important powers the police have when they are investigating crime is the power to search premises and if necessary seize property that might be evidence to be used in a subsequent prosecution. A search warrant is an authorisation by a magistrate giving the police (or other investigtors) to make a search.
Around 40,000 search warrants are issued in England and Wales every year. There are over 175 different powers to issue search warrants. Some, like the general power under section 8 of the Police and Criminal Evidence Act 1984 (“PACE”), are used to look for evidence of a criminal offence. Some more specific powers allow the searcher to remove stolen goods, drugs, firearms or other dangerous materials, or to rescue people or animals in danger or distress. Other powers relate to complex financial or specialised investigations.
However, as the Law Commission notes, there are problems with the current system. These include:
- Error: A 2016 review by the National Crime Agency found that 79% of investigations had defective warrants (of which 8% had significant deficiencies).
- Inefficiency: Sometimes it can take three weeks to obtain a search warrant, during which time evidence might have been lost and further crimes committed.
- Insufficient powers: Law enforcement agencies do not have effective powers to obtain electronic evidence, which might be stored on remote servers in an unknown jurisdiction. Such material can be vital for the successful prosecution of serious criminal offences.
- Inadequate safeguards: There is currently not enough protection for individuals whose electronic devices are seized. Safeguards also vary depending on the type of warrant issued, so some individuals have fewer statutory protections than others.
To meet these shortcomings, the Law Commission has made a number of recommendations:
- Strengthened law enforcement powers: These include:
- Updating law enforcement powers so that they more clearly apply to electronic devices and data and allow digital evidence to be seized and copied.
- The expansion of “multiple entry warrants” which would allow for a property to be searched on multiple occasions and “all premises warrants” which would allow all premises occupied or controlled by a specified person to be searched.
- Permitting a police constable to search a person found on premises under the authority of a search warrant issued under PACE.
- Giving the Insolvency Service and NHS Counter Fraud Authorities in England and Wales the ability to apply for and execute search warrants.
- Improved process: The Law Commission makes recommendations to improve procedural efficiency, reduce the scope for serious errors and ensure that the issuing authority, a magistrate or judge, is presented with an accurate and complete picture of the investigation. These include: ensuring that the duty of an applicant to provide full and frank disclosure to the court is properly adhered to; introducing standardised entry warrant application forms and a template for entry warrants; considering the possibility of creating an online search warrants application portal; improving procedures for hearing search warrant applications to ensure that there is adequate judicial oversight.
- Electronic evidence and materials: Amending the legal framework that currently governs the search and seizure of electronic material to facilitate the collection and examination of electronic material in a way which does not inhibit criminal investigations or impose unreasonable demands on law enforcement agencies. This could allow for electronic devices to be searched and data to be copied while on the premises. (The Government should consider whether this should include data stored remotely (even if in another jurisdiction).) The Commission also recommends measures to ensure transparency and accountability and limit the interference with property and privacy rights. Unneeded data should be swiftly deleted, and devices returned as soon as is practical.
- Safeguards: These should be reformed to ensure that non-police investigators, such as members of the Serious Fraud Office, are subject to similar safeguards as the police. The Commission also recommends that an occupier should have a right to ask for a legal representative to be present to observe the execution of a warrant.
- Personal records and journalistic material: In relation to personal records and confidential journalistic material, we conclude that they should remain obtainable under PACE in very limited circumstances. We recommend that the Government considers whether the law governing access to these categories of material under PACE strikes the right balance between the competing interests at play, and whether the law ought to be reformed.
As this project was undertaken at the request of the Home Office, there is reasonable likelihood that firm policy proposals will emerge in due course.
Source: adapted from https://www.lawcom.gov.uk/project/search-warrants/
The Criminal Legal Aid Review: interim announcements
The Government announced, way back in December 2018, that it planned to undertake a review of the Criminal Legal Aid scheme. This was a response to a fierce campaign (including instances of strike action) by the legal professions complaining about the very poor rates of pay now offered for criminal legal aid work, and evidence that – at those levels of pay – the future prospects for a criminal legal aid service looked bleak.
Although, under the Legal Aid, Sentencing and Punishment of Offenders Act 2013, the scope of the Criminal Legal Ad scheme had not been reduced in the same way as the civil legal aid scheme had been, Government austerity measures certainly bit on the pay and conditions of those undertaking criminal legal aid work.
The announcement of the review in December 2018 provided some acknowledgement by the Government that all might not be well. But setting up a review can be used as a mechanism for postponing hard decisions. As the result of further lobbying by criminal legal aid practitioners, the Government decided that it would offer an accelerated set of interim measures to try and mollify the legal profession – at least in the short term.
On 21 August 2020 the Government’s decisions on the accelerated measures were announced. In making the announcement, the Lord Chancellor stated that the changes would represent an injection of around £51m into the Criminal Legal Aid Budget. Set against a total spend (in 2019-2020) of around £820m on Criminal Legal Aid it is only a modest increase (just over 6%). The additional resources will be used to deal with a number of detailed issues such as how litigators and advocates are paid for work on unused material and how advocates are paid for work on paper-heavy cases.
In announcing his decision, the Lord Chancellor commented:
“[The] accelerated areas are only the first step towards the wider review, which we always intended would result in reforms that would support a sustainable and diverse market of practitioners. Since then, Covid-19 has thrown into sharp relief concerns about the sustainability of the market. …
“Fundamentally, we want to ensure that the market can: meet demand now and into the future; provide an effective and efficient service that ensures value for money for the taxpayer, and continue to provide defendants with high-quality advice from a diverse range of practitioners. …
“Having reflected on whether our original approach to delivering the review was the right one to achieve these overarching aims, I have decided that the next phase of the Review should involve an independently-led review that will be ambitious and far-reaching in scope, assessing the criminal legal aid system in its entirety, and will aim to improve transparency, efficiency, sustainability and outcomes in the legal aid market. It will consider working practices and market incentives and how these can drive efficient and effective case progression and deliver value for money for the taxpayer. Planning is in progress and I plan to launch it as soon as possible after Parliament returns [in September 2020].
“Alongside the independent review, we will also prioritise work to ensure that the fee schemes … are consistent with and enable wider reforms that seek to modernise the criminal justice system, in line with our original aims for the review. Given the rapid changes in ways of working that have been adopted across the justice system to support recovery in the courts, it is essential that the criminal legal aid system actively enables the defence profession to play its role in these efforts.”
So a lot of further change may be anticipated. In the meantime, long-suffering criminal legal aid practitioners will soldier on, hoping for better times ahead.
Details of the announcement and the details of the Government’s changes – which will be brought into effect by regulations in August 2020 – see https://consult.justice.gov.uk/criminal-legal-aid/criminal-legal-aid-review/
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 