Crime Group Autumn Newsletter

Welcome to the autumn edition of the Crime Group’s newsletter.

Since our last newsletter, the world and our working lives have changed immeasurably. From a professional perspective, the criminal group is fortunate to have had many of its members participate in socially distanced trials from their inception, and of course we all now attend many of our hearings and meetings from other locations. During the quieter times, numerous members of the group have remained busy producing articles, many dealing with this year’s varied and important judgments. This newsletter brings together those efforts, with articles produced by our members at all levels of seniority from the start of the (first) lockdown to the present day.

The 10 articles cover topics which have taken on particular significance during these strange times such as the impact of the more severe prison regime on sentencing, and CTL extensions. As well as the sorts of topics which will continue to cause a degree of head-scratching as our system keeps pace with technological developments, whether it be disclosure and data held by complainants’ mobile devices, or police analysts being called to present cell-site material.

We hope you find these articles informative. Please get in touch if there are any topics you would like to see covered in the next issue.

In the meantime, chambers remains fully operational, with reduced staffing levels and socially distanced measures to ensure those who need to visit can do so safely. Our clerking team are all available with agile working, as follows:

Phil Jones – Senior Clerk – pjones@st-philips.com – 0121 246 2163 / 07809 583912
James Withers – First Junior Clerk – jwithers@st-philips.com – 0121 246 2175
Su Turner-Gilbert – sgilbert@st-philips.com – 0121 246 2164
Dan Giles – dgiles@st-philips.com – 0121 246 2052
Tom Kelly – tkelly@st-philips.com – 0121 246 2143

Stay safe.

Criminal Behaviour Orders (“CBOs”) replaced Antisocial Behaviour Orders and are issued under the Anti-social Behaviour, Crime and Policing Act 2014 (“the Act”). In the recent case of R v Brain [2020] EWCA Crim 457, the Court of Appeal considered an appeal against a CBO and confirmed a number of principles relating to such orders generally. This article focusses on three of these principles as opposed to the facts of the case. A copy of the judgment is available here as specific paragraphs (“Para”) are referred to below.

A SUMMARY OF CRIMINAL BEHAVIOUR ORDERS:

The two statutory conditions under the Act for making a CBO are:

1. The court is satisfied beyond reasonable doubt that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person (Section 22(3) of the Act); and
2. The court considers that making the order will help in preventing the offender from engaging in such behaviour (Section 22(4) of the Act).

CBOs are preventative, as opposed to punitive, and should only include requirements which are proportionate, necessary and targeted to the offender and their relevant conduct.

To view the criminal behaviour orders article here.

While the Lord Chief Justice and the Lord Chancellor have announced that jury trials will commence this month, we are far from the pandemic’s conclusion. This fear is felt all the more by defendants facing sentencing hearings. Regardless of whether an offence was committed prior to the crisis, or in the currency, it does not change the new threat that an immediate custodial sentence brings – one of health.

Prisons were not designed to face a contagious health pandemic; this results in higher risks being posed to those in custody. So what are the repercussions of sentencing during this crisis? We know that any court can take into account the likely impact of a custodial sentence upon an offender, and upon others. However, the Court of Appeal has highlighted this, specifically in relation to Covid-19, in the case of R v Christopher Manning [2020] EWCA Crim 592, 2020 WL 02201888. 

You can read the full article here.

The 10th amendment to the Criminal Practice Directions (“the Directions”) entered into force on 13th May 2020. Its entrance may have been easily missed having come about while the country observes a new-normal of remote hearings and the beginnings of socially-distanced trials. Here I set out the key parts to be aware of.

1. New CPD III Custody and Bail section 14C.13 – 14C.15 Voluntary attendance at a court after failure to attend

The amendment provides new guidance where a defendant voluntarily attends court, or indicates that they want to, following the issue of a warrant for their arrest at a previous hearing that he or she failed to attend.

You can view the full article here.

As local authorities struggle with funding during the economic downturn, they will be looking at every source of revenue and how it can be increased. This places convicted landlords including those who have committed offences of failing to comply with a planning enforcement notice (PEN), at greater risk of being prosecuted and having their gains confiscated under the Proceeds of Crime Act 2002 (POCA).

My colleague Ben Close and I have set out in this article three recent reported cases and the framework of the confiscation regime that permits the local authority to have the court treat the offence as evidence of a criminal lifestyle and the draconian consequences that can follow for the offending landlord. What is of note in these cases is that some local authorities have been so motivated by the opportunities afforded by POCA that it has been the driving force for the prosecution itself.

To view the full article, please click here.

Despite the Covid19 pandemic causing criminal courts in England and Wales to grind to a near halt, decisions have continued to flow from our higher courts. Two recent Judgments are of particular interest and potential importance.

Sutherland v Her Majesty’s Advocate (Scotland)

In Sutherland, the Supreme Court, sitting with 5 Justices, considered the use of evidence in a criminal trial obtained by members of the public operating through groups commonly referred to as “paedophile hunters”. Specifically, Lord Sales’ Judgment, with which the remaining Justices agreed, considered whether reliance on such evidence is compatible with the accused’s rights under Article 8 of the European Convention on Human Rights (ECHR).

You can view the full article here.

The Court in CB and Sultan Mohammed v The Queen highlighted four issues of principle that must be considered by the parties when dealing with this type of digital material.

You can view the full article here.

In the recent Court of Appeal case of The London Borough of Islington v Bajaj, we successfully defeated a Local Authority attempt to obtain a near £1 million confiscation order and maintained the original order that we had argued for in the Crown Court of just £200.00.

We represented a landlord prosecuted by the Islington Borough Council for offences relating to unlicensed houses of multiple occupation. During protracted litigation concerning two properties in North London, the client was acquitted of over half the charges he faced following a trial at the Highbury Corner Magistrates’ Court and was then committed to the Crown Court for confiscation proceedings.

To view the full article, please click here.

R -v- Broughton [2020] EWCA Crim 1093

The expert evidence of a 90% chance of survival did not exclude the realistic possibility that, even with treatment, the deceased would have died in any event. “Put another way, if an operation carried a personal 10% risk of mortality, both patients and clinicians would be able to confidently say the chances of survival were very high or good…but none could be sure”. Causation was not established to the criminal standard.

The judgement helpfully sets out the six elements that the prosecution must prove in a gross negligence manslaughter case (para.5): i. the defendant owed an existing duty of care to the victim, ii. the defendant negligently breached that duty, iii. at the time of the breach there was a serious and obvious risk of death, iv. it was reasonably foreseeable at the time of the breach that the breach gave rise to a serious and obvious risk of death, v. the breach of duty caused or made a significant contribution to the death, vi. in the view of the jury the circumstances of the breach were truly exceptionally bad and so reprehensible as amount to gross negligence. It was the fifth point that occupied the Court in Broughton.

You can view the full article here.

The Sentencing Council’s guideline for sentencing offenders with mental disorders, developmental disorders, or neurological impairments came into force on 1 October 2020. The guideline applies only to offenders aged 18 and older, who are sentenced on or after 1 October 2020, regardless of the date of the offence. The applicable guideline for offenders under the age of 18 remains the Sentencing Children and Young People guideline, particularly section 11.1 to 1.14.

The new guideline is essential reading for anyone involved in a case which features an adult offender who at the time of the offence and/or at the time of sentencing may have a mental disorder, neurological impairment or development, such as those listed within Annex A to the guideline.  It is important to note, Annex A does not provide an exhaustive list of impairments and mental disorders nor does it form part of the guideline, instead it provides information only and is intended as general assistance to sentencers in understanding common impairments and mental disorders, including developmental orders such as Autism, ADHD, and personality disorders.

You can view the full article click here.

In R v Andrew Turner [2020] EWCA Crim 1241 the Court of Appeal considered the issue of when a professional witness crosses the line and gives expert evidence, in the context of mobile telephone analysis. The appeal concerned a conspiracy to supply class A drugs, the prosecution relied on mobile telephone and surveillance evidence. The appellant was said to be a driving force behind the conspiracy and that various incriminating mobile telephone numbers could be attributed to him.

Routinely police officers are called upon to give expert evidence as to the nature of drugs supply, terms associated with supply, valuations of drugs and so on. Increasingly the defence is met with professional witnesses who act as mobile telephone analysts for police departments. Care should be given by those who defend as to the exact nature of the evidence given by such witnesses, are they just analysing data or do they trespass into expert evidence and provide opinions on matters they are not qualified to do so?

You can view the full article here.