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Archive for the ‘Criminal Law’ Category

Proceeds of Crime not Being Reclaimed Effectively

March 15, 2016 by Kelly No Comments »

A recent review by the National Audit Office (NAO) has said that the government is failing to reclaim much of the money that it could confiscate from offenders as proceeds of crime. According to the report, the system for reclaiming money that has been earned through criminal activities has “fundamental weaknesses,” which has led offenders now owing the government around £1.6 billion in unreclaimed assets.

Previously, in December 2013, the NAO reported that the government was only reclaiming 26p out of every £100 of assets that had been identified as being earned through criminal activity, or 0.26% of the total. While the watchdog recognises in its more recent report that there have been improvements to the system in the intervening period, it says that these simply “have not been enough” to reduce the debt owed to the state by offenders. On the contrary, the debt in question has increased since late 2013 by a total of £158 million, largely as a result of interest on existing debts, which accrues at an annual rate of 8% as long as that debt remains unpaid.

2014 saw the establishment of the Criminal Finances Improvement Plan, designed to facilitate the reclamation of assets from criminals. However, while the NAO’s recent progress report recognises that this has played some role in encouraging the improvement of enforcement orders, it also remains limited in its achievements. This is partly, the NAO says, down to the plan’s failure to provide clear goals or to set out specific metrics for success. Furthermore, enforcement and prosecution agencies have failed to increase their usage of early-action measures. Usage of orders to freeze criminal assets (restraint orders) has actually decreased, as has the number of professional financial investigators.

The NAO’s recent progress report did recognise some positives, however. It said that on an “operational” level, joint working between agencies and organisations had been improved. Information-sharing and the use of expertise from multiple departments has been improved, partly due to the decision that certain key teams should be based in the same location. The report also praised the government’s efforts to improve the recovery of criminal assets that have been earned in the UK through illegal activities and then transferred abroad.

Furthermore, the watchdog recognised improvements in the way that confiscation orders are administered, but said that the impact of this was limited. Justice agencies need to “address the deeper systemic problems” in this area, the report said, as well as “show more determination and urgency.”

 

Better Training of Magistrates Could Prevent “Venue Shopping”

August 19, 2015 by Kelly No Comments »

According to the Law Society, magistrates should be better-trained when it comes to understanding their own powers and accurately apply sentencing guidelines. This, the Society said, could help put an end to a current practice of “venue shopping” among defendants for courts where they are likely to receive a more lenient sentence.

These statements were made in response to a consultation by the Sentencing Council, which set out to examine the matter of whether certain cases should fall to magistrates’ courts or the Crown courts. Better-training magistrates in these areas would, the Society suggested, reduce the risk of cases falling to the Crown courts “inappropriately.”

The reasoning behind this is based on what the Law Society describes as “a common perception of defence practitioners” about the ways in which certain cases are handled. Specifically, it relates to those cases which fall outside of definite Crown court or magistrates’ court territory, and therefore could fall to a court of either type depending on the individual circumstances of the case. Because of the different types of case that the two court types handle, the Society said, it is widely believed that many of these offences are seen as being “very much at the lower end of the seriousness spectrum” by judges in the Crown courts but are seen as much more serious by magistrates.

The result of this is that defendants stand to benefit from being sent to a Crown court in order to have their case heard rather than appearing before a magistrate, as they are likely to receive a more lenient sentence. Knowing this, defendants and their professional counsel may employ a number of methods in order to try and sway the decision of where the case will be heard towards the crown courts.

For this reason, the Law Society said: “There is a need for training for magistrates in the correct application of the sentencing guidelines aimed at eliminating or reducing disproportionate sentencing so that defendants do not ‘venue shop’.”

Alongside the call for improvements in the training magistrates receive with regards to sentencing guidelines, the Society also called for a number of other improvements to practice when it comes to deciding where cases will be heard and sentenced. The Society said that it is “preferable” that sentencing is handled by the same court that hears the case, as “the defendant’s demeanour during the trial may have a significant impact on the sentencing decision.” Furthermore, the Society revealed proposed new guidelines to ensure young offenders are only sent to Crown courts “where it is essential to the interests of justice, irrespective of adult co-defendants.”

 

Legal Aid Agency Denies Putting Pressure on Solicitors

June 30, 2015 by Kelly No Comments »

The Legal Aid Agency (LAA) has denied claims that it put pressure on solicitors who were considering direct action in protest against legal aid cuts. Many solicitors around the country were considering taking a form of strike action by temporarily ceasing legal aid work starting tomorrow, but a number have claimed the LAA has put pressure on them to abandon the protest.

Legal Aid has already been on the receiving end of significant and controversial cuts, which many solicitors and legal professionals have criticised for limiting access to legal representation and ultimately to justice. Further cuts are due to come into force this week, prompting solicitors in various parts of the country to warn that they would take direct action. Most recently, East Yorkshire solicitors have agreed to take part in the protest. At a meeting held on Friday for lawyers in the area, the majority of attendees voted to refuse legal aid work when the new cuts come into effect.

The London Criminal Courts Solicitors’ Association (LCCSA) has received reports from a number of solicitors saying that they been called by the LAA which warned them against taking protest action. According to one solicitor, who was scheduled to work with the Legal Aid Agency tomorrow in Blackpool, was warned that refusing to work out of protest would lead the LAA to take action.

Claims of pressuring solicitors to abandon their protest were denied by the LAA. The organisation did, however, acknowledge that lawyers working with the agency frequently find themselves in conversation with contract managers who may remind them of the arrangements that have been made and their responsibilities “if appropriate.”

As well as those in East Yorkshire, legal professionals in areas such as Birmingham, Cardiff and Merseyside have already agreed to take part in direct action. A number of further meetings are planned so that solicitors and barristers in places like the West Midlands, Manchester, Leicester and Leeds can decide whether they intend to join the protest or not.

The LCCSA and the Criminal Law Solicitors’ Association also held a ballot on the matter of Direct Action, which closed at 10.00pm yesterday evening. An indication of the direction this ballot seemed to be going was given on Friday by LCCSA chair Jonathan Black who said that, so far as it had progressed up to that point, the ballot seemed to show that the legal profession was “overwhelmingly in support of action.”

 

“Blanket Ban” on Legal Highs

May 29, 2015 by Kelly No Comments »

The government has announced a “blanket ban” on substances known as legal highs, with offences carrying potential jail terms of up to seven years. Draft laws, announced in the recent Queen’s Speech, are to be published soon and have been described by ministers as a “landmark.”

Legal highs are more properly called “new psychoactive substances.” They are, as their nickname suggests, not illegal under current laws and are therefore commonly sold online and even in brick-and-mortar shops in town and city centres. Some of these are recently-discovered substances not covered under current laws, and many are substances originally intended for purposes other than human consumption but which have been discovered to be able to produce drug-like effects. Many provide effects similar to substances such as cannabis, ecstasy and cocaine, and they have therefore been used by predominantly young people as a legal, more easily-obtainable way to experience these effects.

Many legal highs are dangerous when used in this manner, and they have been linked to a number of deaths. According to ministers, those who make use of such substances are “taking exceptional risks with their health.” A ban on legal highs was previously included by the Conservative party in their election manifesto. The Labour party also promised a ban on these substances in their own manifesto.

The psychoactive substance bill will, the government says, prohibit “any substance intended for human consumption that is capable of producing a psychoactive effect.” There will be exceptions for caffeine, alcohol and tobacco as well as for medical products and certain foods. Drugs that are already legally controlled will also be excluded from the new bill and instead will continue to be covered by the laws that already prohibit their use.

Nitrous oxide, commonly known as laughing gas, will also be prohibited under the new bill when sold for casual human use. It will, however, still be legally obtainable for medical use, food processing, and use in industrial purposes.

The format of the new bill as a “blanket ban” is a response to the considerable difficulty that has come with policing these substances. The category is a very broad one, and new substances have been appearing on the market faster than they can be identified and outlawed by the government. A broad, general ban on psychoactive substances intended for human consumption has, therefore, come to be considered the only practical way to keep up.

The bill is intended to apply to the whole of the UK. It will provide police with search powers, relating to people, vehicles and premises, and with the ability to seize and destroy any such substances that they find.

 

Legal Aid Agency Gains Claim to Criminal Assets

March 20, 2015 by Kelly No Comments »

Recent years have seen the introduction of a number of unpopular new legal aid reforms. However, the most recent reform to be announced has proved rather more popular within the legal industry than any of the recent funding cuts and restrictions of access. Under changes outlined by the Ministry of Justice recently, the Legal Aid Agency would gain power over the assets of convicted criminals in order to recoup legal aid costs associated with providing their defence.

Under the new rules, which must gain parliamentary approval before they come into force, “restrained” assets belonging to those who are convicted of the charges against them.  This is designed to offset the cost of providing legal aid to individuals who are, according to the verdict of the court, guilty. Other outstanding defence costs could also be paid by the seizure of such “restrained” assets. Usually, these are profits or items of value gained or believed to be gained as a result criminal activities.

Currently such assets are restrained under 2002’s Proceeds of Crime Act. While restrained, the assets cannot be spent, moved or otherwise utilised by the defendant. If the defendant is subsequently convicted, the court may confiscate these assets.

Other considerations would continue to take priority over the reclamation of legal costs, the Ministry of Justice said. First, compensation and confiscation orders benefitting the victims of the crime will be fulfilled. If any assets are left over when the victims have, as far as possible, had their property returned and/or received all compensation due, the Legal Aid Agency will then have a claim to those remaining assets in order to recoup costs.

The move is designed to relieve strain on the legal aid budget by reclaiming a portion of the money spent on defending the guilty. According to the Ministry of Justice, estimates suggest that this could result in savings of up to £2 million in legal aid costs every year.

Chris Grayling, the Justice Secretary, welcomed the move. He said: “For too long people convicted of crimes have avoided paying what they owe. Legal aid is taxpayers’ money and we have a duty to make sure it is not being spent on those we believe can afford to pay towards their legal costs.”

Grayling also described the changes as a “vital further step in making the legal aid system fair and credible.”

If they gain parliamentary approval, these changes could take effect as soon as the 1st of June this year.

 

New Laws Could see Internet Trolls Jailed for Two Years

October 20, 2014 by Kelly No Comments »

According to Chris Grayling, the Justice Secretary, proposed changes to the law could see maximum jail sentences for internet trolls quadrupled. The current maximum sentence for online abuse is six months, but proposals could see this extended to two years.

Grayling said that he was determine to “take a stand against a baying cyber-mob” through the introduction of tougher laws. Grayling also describe internet trolls as “cowards who are poisoning our national life.”

“No-one would permit such venom in person,” Grayling said, “so there should be no place for it on social media.”

Currently, prosecutions for abusive or threatening behaviour online are handled under the Malicious Communications Act, and dealt with in magistrates’ courts. However, the act is now a decade old and, crucially, predates the role of social media in society, leading many to believe that it is no longer sufficient.

The quadrupling of the maximum sentence is not the only change that the propose reforms would make. The law, which would take the form of an amendment to the Criminal Justice and Courts Bill, would allow police more time for the collection of evidence relating to cases of online abuse. This would allow more prosecutions to be carried out successfully. Magistrates would also be empowered to refer the most serious cases of cyber-abuse to the crown courts.

There has been a particular spotlight on the matter of internet trolling recently, as many news outlets have reported on the online abuse that has been suffered by TV presenter Chloe Madeley. The spate of abuse came after Madeley spoke out in defence of controversial (and, she claimed, misunderstood) comments made by her mother Judy Finnigan on the subject of rape. After speaking out, Madeley received a number of abusive and messages through social media from internet trolls, including threats of rape.

Madeley herself has welcomed the news of the proposed law changes. However, she has expressed the view that social media should also be regulated. Whilst expressing her support for the concept of free speech, she said that “threats of any kind must not be interpreted as freedom of speech. Threatening to harm others is extreme and crosses the line of personal opinion into criminal behaviour.”

The proposed amendment is currently on its way through parliament, and is due to enter the House of Lords for debate within a week. The changes would only affect England and Wales and not Scotland.

 

New Domestic Violence Disclosure Scheme Introduced

March 10, 2014 by Kelly No Comments »

The new Domestic Violence Disclosure Scheme, aimed at combating domestic violence, has now been introduced. The scheme, commonly called “Clare’s Law” in honour of late domestic violence victim Clare Wood (pictured), allows people to contact police in order to discover whether their partner has a history of domestic violence.

The scheme took effect on 8th March to coincide with International Women’s Day. The introduction of the scheme followed pilots in four areas across England and Wales; Manchester, Wiltshire, Nottingham and Gwent. Since the pilots started in 2012, a reporting number of more than 100 women gained information that could possibly prove life-saving. Based upon this success, the decision was made to roll out the scheme across the UK.

Theresa May, Home Secretary, expressed her pleasure at the introduction of the scheme. “Clare’s Law,” she said, “will give some help to those people who think they have a partner who may be acting in a way which suggests that they are somebody who is violent.” May said that the scheme, through allowing women with concerns to find out if their partners have a history of violence to reassess their situation and safety and be “able to take a decision as to whether to stay with them or not.”

The scheme is named in honour of Clare Wood, who was murdered by a violent ex-boyfriend in 2009. Ms Wood was unaware that her boyfriend had previous convictions for domestic violence, including one that resulted in a three year jail term. As such, she was not warned about the extent of his violent tendencies.

Ms Wood’s father, Michael Brown, has since campaigned enthusiastically for the introduction of a scheme allowing women to obtain information about any previous history of violence in their partners. He believes that his daughter would not have been killed had she been able to find out about her killer’s past.

Mr Brown said that he was “absolutely delighted” that the scheme had been rolled out to “bring protection into the country for half the population.” He also encouraged women to use the scheme without hesitation if they had concerns, saying “It’s there to be used. Get it used, ask! If you are in a domestic violence situation or you think you could be seek advice and get out of there.” In support of this point, he highlighted the fact that 120 women lose their lives to domestic violence annually.

In tandem with Clare’s Law, Domestic Violence Protection Orders (DVPOs) have also been brought in to bring extra protection to victims. Following a report of domestic violence, DVPOs could prevent offenders from contacting their victims in any way for up to 28 days.

 

 

UK Magistracy is “Shrinking and Ageing”

February 27, 2014 by Kelly No Comments »

According to a report from Transform Justice, the recruitment of lay magistrates in the UK is “facing a crisis.” The report, which was entitled Magistrates: Representative of the People?, found that the UK’s magistracy was “shrinking and ageing.” It also concluded that magistrates in the UK were disproportionately middle class and white compared to the country’s population.

Transform Justice also described magistrate numbers as being in “freefall,” after identifying that they had suffered a decline of 28% compared to 2007. In 2013, nearly 2000 people left the magistracy while only 300 joined. This discrepancy, according to the report, is due to most areas suffering from a “recruitment freeze.” The report claimed that the issue is not being sufficiently addressed at present.

Furthermore, the report discovered that far from simply failing to represent ethnic communities within Britain proportionately, the magistracy is actually becoming less representative. Proportionally speaking, the number of magistrates from ethnic minority backgrounds is 6% lower than the UK population, compared to just 2% in 1999.

Magistrates are also becoming older. In 1999, only 32% of magistrates were over 60. For 2013, the report found this figure had inflated to nearly 56%. In 14 different specific areas, this figure was above 60%.

Social class was found to be another area in which magistrates poorly represented the population of the UK as a whole. More than 50% of lay magistrates were in occupations that would be widely identified as middle class, including managerial, professional, and senior official roles. In the UK as a whole, on the other hand, these people account for only 28% of the population. Furthermore, people who work in customer services or sales roles account for 8% of the UK population but only 1.5% of magistrates.

Measures proposed in the report to deal with these issues include the introduction of positive discrimination and entrusting recruitment to the Judicial Appointments Commission.  The positive discrimination in question would enable recruiters to favour a candidate from an underrepresented group for reasons of better representation when two candidates are otherwise of equal suitability. This measure already exists for the recruitment of salaried judges.

It is also suggested that it should be made easier for working people to serve as magistrates. This, it is suggested, could be done by introducing an absolute right to take time off in order to sit. Further suggestions include a fixed tenure of ten years and greater sentencing powers for magistrates.

The report claims that a key source of these problems is the lack of clear, specific policy regarding magistrate recruitment. While there have been active efforts to improve diversity among the salaried, professional arm of the judiciary, no such agenda has existed for lay magistrates.

 

Stronger powers for Home Secretary to strip citizens of passports

May 4, 2013 by admin No Comments »

In the wake of the Boston bombings, the long standing legal battles over Abu Qatada, and recent court proceedings over three alleged UK terrorist conspirators, the Home Secretary has announced that under new rules it will be easier for the Home Secretary to strip UK citizens of their passports if they are involved with terrorism or terrorism related activities.

Under previous rules, the Home Secretary has the right to take away passports only in extreme circumstances, relating to national security. This has happened only 17 times since 1947, with the last confiscation taking place in 2005 (which itself resulting in legal actions against the government).  The ability to remove passports is one of the actions granted to the Home Secretary under Royal Prerogative powers. As such, the rules can come into effect both immediately, with neither Parliamentary approval nor an act of Parliament required; however, the rules of ministerial responsibility and judicial review mean that the Home Secretary is still fully accountable for any such actions carried out whilst exercising any such Royal Prerogative powers.

Not only does the introduction of such new rules strengthen the Home Secretary’s powers in this area, but it is a powerful message and action to take against terrorism. Many would be terrorists travel abroad to training camps; with no passport, this ensures that they cannot make such a journey. In her statement outlining the new rules, Ms May said that the new rules would be invoked only against people who gave intelligence and security services concern by their “actual or suspected” activities, or if they planned to travel to attend training camps or to carry out or support terrorist activities.

In her speech, Ms May stated that  “passport facilities may be… withdrawn from British nationals who may seek to harm the UK… by travelling on a British passport to, for example, engage in terrorism-related activity or other serious or organised criminal activity… This may include individuals who seek to engage in fighting, extremist activity or terrorist training outside the UK, for example, and then return to the UK with enhanced capabilities that they then use to conduct an attack on UK soil… The need to disrupt people who travel for these purposes has become increasingly apparent with developments in various parts of the world.”

In the aftermath of several terrorist incidents globally over the last few weeks, Ms May is returning to very old powers of Royal Prerogative to counter a very modern threat. Whilst the morality of such rules may be questionable, the legal and constitutional basis for the introduction of new and stronger rules is without question. In an age of increased global awareness and travel, such powers over passports will be very practical in countering domestic terrorists.

 

Defence of ‘Marital Coercion’ under Question after Pryce Trial

April 2, 2013 by admin No Comments »

On Sunday 31st March 2013, the justice secretary Chris Grayling stated the government are considering whether to abolish the defence of ‘martial coercion’, which was unsuccessfully used by Vicky Pryce in her trial regarding speeding points she adopted on behalf of her husband.

The defence of marital coercion is only available for a wife and dates back to 1925 however there have been recommendations to abolish it since 1977 considering it illogical to have a defence only open to married women. This archaic defence is now deemed to be in conflict with gender equality. Marital coercion dates back to a time women did not have equal rights and were dependent upon their spouse. Vicky Pryce was a well-educated woman who was a notable economist and as such hiding behind her status as a wife in order to avoid criminal liability for her actions is an out of date concept, conflicting with the key principle of presumption of innocence within article6 of the Human Rights Act 1998. It has been argued that there is no justification left for a law which states married women are more likely to be coerced than men or unmarried women.

The government are currently considering reforms to gay marriage laws, and it is deemed this defence would also be at conflict with this due to it only being available to a woman. It is believed the defence will be removed when gay marriage legislation comes into place.

There are many who have argued this defence is not appropriate for modern circumstances as we are now in a society where women are financially independent of their husbands and therefore are less susceptible to coercion. It is also out of touch in terms of same-sex couples. Despite the advice of the Law Commission to abolish the defence of marital coercion, it is believed by some that action will not be taken unless there is political gain involved.