Eden Legal Services

LOCKDOWN 2 REGS NOW IN FORCE

edelegal — Thu, 05 Nov 2020 18:31:54 +0000

Today, the 5th November 2020, England enters Lockdown 2 thanks to the increase in COVID19 cases across the country. This means that the The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 are now in force, with fines of up to £10,000 or prosecution for anyone that flouts the regulations. The full regulations can be read here: https://www.legislation.gov.uk/uksi/2020/1200/contents/made The regulations are lengthy, with around 65 exceptions to consider. Hopefully the points below will be of some assistance in navigating through the new rules. For the purposes of the Regulations, you are "vulnerable" if you are aged 70 years or over. Leaving Your Home You must not leave your place of residence (which includes your garden or garage), or be outside your home without a reasonable excuse. A reasonable excuse may include:

Using a business or service that is allowed to stay open. You can also access such businesses/ services for vulnerable people, but it must be reasonably necessary for you to do so.
Exercise- You can exercise outside on your own or with 1 or more members of your household, your linked household OR your linked childcare household OR with one other person who is not a member or your household, linked household or linked childcare household. You cannot be outside with all of your household and a member from another household. Gatherings of more than 3 are not permitted (see below) Carers, or children below the age of 5 years, are not included in the headcount.
Attending a place of worship
Attending an outdoor Remembrance Sunday event
Activities in connection with the sale/ rent of a property
Work, offering voluntary or charitable services, education or training
Seeking emergency assistance
Fulfilling a legal obligation
Accessing critical or charitable services
Medical Need
Escaping a risk of harm
Attending a support group
Respite Care
Visiting someone who is considered to be "at the end of life"
Attending a funeral
Attending a wedding/ civil partnership (these are limited)
Children can move between parents' homes
Accessing educational facilities
Arranging informal childcare for a child under 13 years with a linked household
Animal welfare
Attending a prison visit
Returning from holiday

Restrictions on Gatherings A gathering is where 2 or more people are present to interact with one another/ undertake an activity with each other. You cannot have people at your home or in your garden who are not part of your household or linked household. Parents from different households can go out together provided the child/ children are under 13 years of age You can gather with a linked household (see rules below) You can gather for work purposes. Whilst protests are not banned per se, the rules are unclear. It is likely protests may be permitted provided social distancing is followed. Relevant Gathering A relevant gathering for the purposes of the Regulations is one where there are more than 30 persons present. If you are involved in such an event, you could face a fine of £10000. There is no appeal process other than by refusing to pay the fine and attending Court, but the Courts are able to impose unlimited fines and costs if you are unsuccessful at arguing your case. It is important to seek legal advice. An exception to the rule on "Relevant Gatherings" is if the event is organised by a charity, business or political organisation that has taken necessary precautions. Exceptions to the Restrictions on Gatherings The exceptions are exhaustive, so if these do not apply, you must not meet:

You are present with the same or a linked household
The gathering is necessary for work, education or training
You are facilitating a house move
You are fulfilling a legal obligation
The gathering takes place in criminal justice accommodation
You are attending a support group of no more than 15 persons (children are not included in the headcount)
You are attending someone in hospital
You are attending someone in a care home/ respite care
You can accompany someone to a medical appointment provided they are a member of your household, a close family member or a friend.
You can attend a wedding of up to 6 people, although these are only permitted if a party is seriously ill
You are attending someone at "end of life"
You are attending a funeral of no more than 30 person
You are attending a commemorative event following a death of no more than 15 persons
You are involved in elite sport

What is a Linked Household? This is otherwise known as your "Support Bubble". Where 1 household has only 1 adult (and however many children) they can link with a 2nd household, with any number of adults and any number of children. This ensures that a single adult has a Support Bubble. Linked childcare household Where a household has at least 1 child under the age of 13 years, they may link with 1 other household for the purpose of informal childcare. Where you have 2 linked households, neither household can be linked with another household. (There must not be a third or fourth linked household) The COVID19 Regulations go on to discuss the closure of businesses and the rules for businesses that are still operational, but we have focused on the main points for members of the public for the purpose of this blog post. If you have received a Fixed Penalty Notice or have been charged with an offence under the COVID19 Coronavirus Regulations, please contact Hashmita Patel or Stephanie Brownlees on 01902 275 042.

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Search Warrants

edelegal — Thu, 08 Oct 2020 19:30:41 +0000

The Law Commission has recommended reforms that it says will reduce the number of unlawful search warrants being issued, and to assist in the collection of evidence and investigation of crime. 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.

Errors 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. Journalistic material 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. If you would like to discuss any aspect of your case, please contact Hashmita Patel or Stephanie Brownlees on 01902 275 042 or admin@edenlegalservices.co.uk [Image credit: "Day 255 - West Midlands Police - Searching using torch (Part of an officers Personal Protective Equipment Kit." by West Midlands Police is licensed under CC BY-SA 2.0]

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Failure to provide a specimen of breath

edelegal — Fri, 02 Oct 2020 09:54:06 +0000

Section 7 Road Traffic Act 1988 states that a person who, without reasonable excuse, fails to provide a specimen when required to do so is guilty of an offence. The offence can be punished by up to six months imprisonment and in some cases, also carries mandatory disqualification from driving. In legal terms, the offence is relatively straightforward, but in practice, there are lots of issues, both legal and medical, that lawyers less versed in road traffic law might well miss. Vulnerable detainees Vulnerable detainees must have the support of an appropriate adult. In Miller v DPP [2018] EWHC 262 (Admin) the court observed: "Amongst the reasons behind Code C requiring the presence of an appropriate adult is that he or she is independent of the police authorities, and is able both to safeguard the welfare of the detained person and to provide him with an independent perspective. The appropriate adult is likely to have a significant role to play in providing a calming influence on a minor or vulnerable adult who may have become, as in the present case, distressed and agitated as a consequence of finding himself confronted with a particularly stressful and pressured situation in custody. As [Counsel] submitted, the essence of the charge of refusing to provide a specimen involves the person under investigation understanding the nature of the request involved in requiring a sample and also, importantly, an insight into the consequences of the failure to allow the police to take an evidential sample. The appropriate adult is likely to play a key role in the process of both explaining the purpose of obtaining the evidential sample, and also the consequences of a failure to permit the police doing so." This point is often missed by custody sergeants as they do not wish to delay breath test procedures in order to allow for the presence of an appropriate adult. Medical Reasons The following medical aspects must be considered in all cases:

Injuries to mouth, lip or face.
Tracheostomy, rib or chest injury.
Respiratory issues, such as asthma.
Neurological problems such as facial palsy.
Phobias
Shock
Severe alcohol intoxication.
Short stature (as odd as this might appear there is an important 1993 study on this point).

Any lung disease issue needs to be carefully explored, and there is now quite a body of interesting medical research on this issue, particularly in the context of the Lion Intoxilyzer 6000 series (Honeybourne et al (2000)). We have considerable expertise in defending all manner of road traffic allegations and understand the critical interplay between law and medicine, which is often a feature of these cases. You should contact us as soon as possible to discuss the most appropriate case strategy. Do not leave it to amateurs. How can we help? If you need specialist advice, then get in touch with Hashmita Patel or Stephanie Brownlees on 01902 275 042 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. [Image credit: "Medical" by havens.michael34 is licensed under CC BY 2.0]

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Covid, Self-Isolation and Employer Duties

edelegal — Thu, 01 Oct 2020 10:54:48 +0000

The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 came into effect on 28 September 2020. The regulations:

prohibits an employer from allowing a worker to attend any place (except the place where they are required to self-isolate) for any purpose connected to the worker’s employment;
sets out the prohibition on knowingly allowing a self-isolating worker or a self-isolating agency worker to be present anywhere for work purposes, other than the place where they are required to self-isolate;
requires a self-isolating worker to inform their employer of the requirement on them to self-isolate; and
requires a self-isolating agency worker to inform either their employer, the agency or the principal of the requirement on them to self-isolate. It requires whoever has received such a notification to pass the information on to the two other parties.

An important point to note is that the rules apply not only to conventional employees but also to other workers, including agency workers. An employer or employee who breaches these rules can be prosecuted, or issued with fixed penalty notices ranging from £1,000 - £10,000 (for subsequent breaches). A corporate body may face prosecution in addition to any officer of the company who consented to the act, was in connivance, or was neglectful. Companies also need to carefully consider what reputational damage might be caused to their brand in the event of negative publicity or conviction. As always, the legislation is both detailed, ever-changing and complex, so if in any doubt as to your obligations, please get in touch with us as soon as possible. How can we help? If you need specialist advice, then get in touch with Hashmita Patel or Stephanie Brownlees on 01902 275 042 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. [Image credit: "Coronavirus COVID 19" by https://www.vperemen.com is licensed under CC BY 2.0]

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Memory Fallibility

edelegal — Wed, 30 Sep 2020 09:12:46 +0000

In the criminal courts, we are seeing an ever-increasing number of cases where the court hears evidence from witnesses recounting what apparently happened some years earlier. Of course, in many cases, some of that evidence would have been recorded at the time, by way of a witness statement. Still, it is widespread for such evidence to be supplemented by important additional detail that the witness appears easily to recall. That witness may not be lying, but it does not mean that we can rely upon such evidence. In this article, we consider how a court or jury should approach such evidence. The issue of the extent to which a court should rely on the recollection of witnesses and the fallibility of human memory first arose in a commercial setting through observations made by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd and Another [2013] EWHC 3560 (Comm) (‘Gestmin’) at [15] – [22], and more recently in Blue v Ashley [2017] EWHC 1928 (Comm) at [68] – [69]. In the Gestmin case, at [22], Leggatt J expressed the view that the best approach for a judge to adopt in a trial was to place little, if any, reliance on a witness’s recollection of what was said in meetings and conversations; rather factual findings were to be based on inferences drawn from documentary evidence and known or probable facts. This was followed in Blue v Ashley, where Leggatt J at [70], having rehearsed his own earlier observations in Gestmin, approached evidence of a crucial conversation in a way that was “[m]indful of the weaknesses of evidence based on recollection”. The Court of Appeal considered both of these cases in Kogan v Martin and Others [2019] EWCA Civ 1645 (‘Kogan’). This was a case where the judge at first instance had wrongly regarded Leggatt J’s statements in Gestmin and Blue v Ashley as an “admonition” against placing any reliance at all on the recollections of witnesses. In Kogan the court observed: "Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed. Earlier statements of this kind are discussed by Lord Bingham in his well-known essay The Judge as Juror: The Judicial Determination of Factual Issues (from The Business of Judging, Oxford 2000). But a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function. In particular, where a party's sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence." A court (and therefore a jury as well) must, however, be mindful of the fallibility of memory and the pressures of giving evidence. The relative significance of oral and contemporaneous evidence will vary from case to case. What is important, as was highlighted in Kogan, is that the court assesses all the evidence in a manner suited to the case before it and does not inappropriately elevate one kind of evidence over another. So where for example a witness was giving evidence about an incident which had lasted perhaps only a few seconds some years before, in circumstances where the recollection was taking place in the aftermath of unimaginably traumatic events, those features alone would highlight the need for this critical evidence to be assessed in its proper place, alongside contemporaneous documentary evidence, and any evidence upon which undoubted, or probable, reliance could be placed. We take care only to instruct advocates who are familiar with what is now a considerable body of case law in relation to witness testimony and its potential weaknesses. How can we help? If you need specialist advice, then get in touch with Hashmita Patel or Stephanie Brownlees on 01902 275 042 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. [Image credit: "confuse" by Tall Chris is licensed under CC BY 2.0]

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Disclosure of criminal records

edelegal — Tue, 22 Sep 2020 12:14:58 +0000

The government has recently approved a proposal to reform the disclosure of criminal records. 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 proposal 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? If you need specialist advice, then get in touch with Hashmita Patel or Stephanie Brownlees on 01902 275 042 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. [Image credit: "Forgive." by Tony Webster is licensed under CC BY 2.0]

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A Smarter Approach To Sentencing?

edelegal — Fri, 18 Sep 2020 10:52:14 +0000

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 as being 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. Minimum terms 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. Repeat offenders 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 and 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. Problem-solving courts 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? If you need specialist advice, then get in touch with Hashmita Patel or Stephanie Brownlees on 01902 275 042 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. [Image credit: "Day 165 - West Midlands Police - Arresting suspected offenders" by West Midlands Police is licensed under CC BY-SA 2.0]

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Law Commission advises the government to get tough on online abuse

edelegal — Fri, 11 Sep 2020 10:53:56 +0000

The Law Commission, which advises the government on law reform has published a report advising changes to laws covering online abuse. Online abuse is covered in the ‘communications offences’ found in section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003. The Law Commission believes that "these laws suffer from a range of problems. They argue that the offences do not adequately criminalise certain conduct – such as cyberflashing and pile‑on harassment – while the threshold of criminality, especially when applied to the online space, is often set too low. This can mean that freedom of speech is not properly protected." In short, they argue that these offences do not target the harms arising from online abuse. The result is that "the law over‑criminalises in some situations, and under‑criminalises in others". Proposal The Commission provisionally propose two complementary offences to replace section 1 of the MCA 1988 and section 127 of the CA 2003: The first new offence relates to a defendant sending or posting a communication that was likely to cause harm to a likely audience. It would apply where a defendant intends to harm, or is aware of a risk of harming when sending or posting a communication, without reasonable excuse for doing so. The offence does not require proof that anyone was actually harmed.

- The aim of this proposed reform is to provide an effective mechanism for addressing a range of online behaviours.
- This could cover harmful and abusive emails, social media posts and WhatsApp messages, as well as pile-on harassment.
- The audience could include the recipient of a message, the defendant’s social media followers or other people – for example, someone else who sees a harmful tweet on Twitter.
- “Without reasonable excuse” is an element of the offence that must be proven by the prosecution.
- “Reasonable excuse” should be defined to include where the communication either was or was meant as a contribution to a matter of public interest. Under the proposals, the jury or magistrate will decide whether the defendant acted without reasonable excuse, but this factor must be considered. This requirement helps to ensure that freedom of expression is adequately protected. For example, it is unlikely that someone criticising the decision of a politician on Twitter, or airing a view on a particularly controversial issue, would be found to lack reasonable excuse.

The second new offence addresses knowingly false communications. Under the existing offence, it is a crime to send a knowingly false communication for the purpose of causing “annoyance, inconvenience or needless anxiety”. These new proposals would raise this threshold.

- The suggested threshold would be met if the defendant sends or post a communication that they know to be false, they intend to cause non‑trivial emotional, psychological, or physical harm to a likely audience, and they send it without reasonable excuse.
- The proposals wouldn’t cover communications that the defendant believes to be true – no matter how dangerous those communications may be.

The issue of ‘fake news’ lies beyond the terms of reference of this project so is not an issue that they address. The Commission have also proposed reforms to cover cyberflashing which, for victims, is often experienced as a form of sexual harassment, involving coercive sexual intrusion into their lives. Whilst much of this behaviour would be captured by the proposed reforms, outlined above, they are also proposing:

Amending Section 66 of the Sexual Offences Act 2003 to include the sending of images or video recordings of one’s genitals including when shared over AirDrop.
That additional protections, such as Sexual Harm Prevention Orders, could be available when appropriate.

How can we help? If you need specialist advice, then get in touch with Hashmita Patel or Stephanie Brownlees on 01902 275 042 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. [Image credit: "social media" by Sean MacEntee is licensed under CC BY 2.0]

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Recovery Plan for the Criminal Courts

edelegal — Tue, 08 Sep 2020 17:05:02 +0000

In March, nearly 50% of courts were closed, and jury trials were halted to reduce interaction between court users dramatically. Although 90% of courts have re-opened there is a backlog of cases. The government has announced a series of new measures to address the current delays in criminal courts. Although some lawyers would argue that there were already delays in the system, it is clear that the pandemic presented further challenges including the Crown Court’s ability to hear jury trials for all defendants within their custody time limits. Although by the end of August 66 out of 81 Crown Courts had re-started jury trials the limitations imposed by social distancing mean that pre-Covid levels of hearings are unlikely to be achieved for some time. The total number of outstanding cases where a defendant has been remanded in custody has gradually risen since 1st April 2020 even though cases with custody time limits have been prioritised. The “Coronavirus Crisis Protocol” came into play at the start of the pandemic and set a temporary framework for the efficient and expeditious handling of cases with time limits. The adapted protocol acknowledges that the pandemic is an exceptional situation and the adjournment of trials as a consequence of government health advice and of directions made by the Lord Chief Justice amounts to “good and sufficient cause” to extend CTLs. The current arrangement of extending the time limits on a case by case basis was only intended as a short-term measure and needed to be reviewed in light of the scale of impact the pandemic had on court business and the potential for a further spike in coronavirus cases. Custody time limits Potentially the most important issue for clients is the extension of the custody time limit. A custody time limit, or CTL, is the length of time a person may be kept in custody awaiting trial. The time limits are there to prevent defendants being held on remand for an excessive amount of time before their trial. The time limit begins the day after the first time the accused is remanded into custody. For serious offences, the CTL is currently 182 days. Temporary legislation has been announced that will increase this limit to 238 days, which is an extra 56 days or eight weeks, a total of 8 months. In some cases the time limit will increase from 112 days to 168 days, so from 16 weeks to 24 weeks (this only applies where a voluntary bill of indictment is preferred, or a fresh trial has been ordered by the Court of Appeal. These new time limits will come into force on 28th September 2020 but will only apply to those becoming subject to time limits on or after the start date. This is not intended as a permanent measure and will automatically expire after nine months. A judge can extend custody time limits beyond these dates, and in many respects this eight week extension to existing time limits is to partly mitigate against the risk that judges may be reluctant to recognise Covid19 as a good reason to keep people in custody for a lengthy period pre-trial. This change is said to recognise the further delays caused to the listing of trials due to Covid. It will provide more certainty for victims and the public in cases where there is a risk that defendants may abscond or commit further offences if released on bail. ‘Comprehensive plan’ A “comprehensive plan” has also been announced, along with £80m funding, to increase capacity in criminal courts. This includes – Employment of 1,600 new staff to support the recovery measures, such as extra cleaning staff. Setting up temporary courts known as ‘Nightingale courts. Ten Nightingale courts are up and running, and a further eight are being planned to open shortly. Rolling out technology to use video technology wherever appropriate with more cases to be heard remotely. Changes are also to be made to the physical set-up of courts to minimise risk, such changes as plexiglass barriers to separate jurors, meaning that more courtrooms could be used. The barriers are to be installed in 160 courtrooms and 80 jury deliberation rooms. ‘COVID operating hours’ to be explored. The government is considering increasing court working hours. This would mean that courts could open outside of 10am to 4pm to maximise use of the courts. These operating hours are currently being piloted at Liverpool Crown Court with further pilots scheduled to start in Hull, Stafford, Cardiff, Reading, Portsmouth and Snaresbrook. The morning session takes place from 9am to 1pm and the afternoon session from 2pm to 6pm. Additionally, the government has said there will be an investment of £142m across the court system to modernise courtrooms and to speed up technological improvements. How can we help? If you need specialist advice, then get in touch with Hashmita Patel or Stephanie Brownlees on 01902 275 042 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. [Image credit: "Coronavirus COVID 19" by https://www.vperemen.com is licensed under CC BY 2.0]

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Secrets & Spies

edelegal — Wed, 02 Sep 2020 11:27:32 +0000

The Official Secrets Act protects the United Kingdom from spying and leaks. The legislation dates back to 1911, 1920, 1939 and was last updated in 1989. Since then, there have been many advances in data technology and communications affecting the nature of unauthorised disclosures and espionage. As a result, the Law Commission has provided a report to Parliament stating that the legislation is outdated and making recommendations as to how it can be updated to meet modern-day threats. What recommendations have been made? Language - the language of the Official Secrets Acts is described as being archaic; suggestions are made to replace the word "enemy" with "foreign power" to include terrorist organisations and companies controlled by a state. The terms "sketch, plan, model, note and secret official password and code word" to be replaced with "document, information or other article", which would also include any program or data held in electronic form. Espionage - Currently, the offence is not committed if the person is not a British national or public servant if the espionage is engaged in while abroad. The recommendation is that an offence would be committed regardless of whether an individual is a British citizen. There should, however, be a "significant" link between the person's behaviour and the interests of the UK. Leaks - in cases where information has been leaked, the recommendation is that the requirement that the leak has caused damage, be removed. As an alternative, there would be a need to show proof of a particular mental state such as the belief or knowledge that the leak would cause damage. As in espionage cases, an unauthorised disclosure is not committed if made by someone who is abroad when the disclosure is made and who is not a crown servant or a British citizen. It is recommended that the Act is changed; so, it would be an offence for an unauthorised disclosure to be made by a government contractor who is abroad, regardless of their citizenship. Defence - there would be a public interest defence available to those charged with making an unauthorised disclosure. The individual would not be guilty if it were found that there was a public interest in making the disclosure. The Commission recommends that the defence is based on what Article 10, the right to freedom of expression, requires. The defence should be available to anyone charged with an offence and would be a two-part test. It would require both the subject matter and also the manner of the disclosure, to be in the public interest. Factors which define the public interest are a political question for Government and Parliament to define. Independent Commissioner - an independent statutory commissioner would be available for public servants and civilians to report any concerns to. This would be where the disclosure of those concerns would otherwise constitute an offence. The commissioner would then investigate those concerns. In cases where disclosing to the commissioner would not protect the person's Article 10 rights, they would be able to advance the public interest defence. This would also apply where they nonetheless made a disclosure without authorisation. Sentencing - for unauthorised disclosure, the current maximum sentence is two years. The Law Commission concluded that this didn't always reflect the damage that an offence could cause or the culpability of the offender. The recommendation is for the maximum sentence to be increased although the Commission did not suggest what it should be. What happens now? It is for the Government to respond to the recommendation after a full review of the report. How can we help? If you need specialist advice, then get in touch with Stephanie Brownlees or Hashmita Patel on 01902 275 042 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. [Image credit: "Spies" by western4uk is licensed under CC BY-SA 2.0]

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