Criminal Law Blog

  • 25 Apr
    Some Further Thoughts On Holiday Term Time

    “There is no doubt that, before the 1944 Act, a parent was liable to conviction if his child failed to attend for a single day or half day when required to do so. Most of the case law, both before and after that Act, was concerned with the scope of the statutory exceptions or excuses. But the introduction, in 1944, of the phrase “fails to attend regularly” raised the possibility that this was no longer the law.”

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  • 21 Dec
    Vulnerable Witnesses

    So Britain’s oldest Defendant begins his 13 year sentence at 101 years of age. There was a need to ‘adjust’ the normal procedures during the trial, but his extreme old age was no bar to prosecution. It’s a good illustration of how the Criminal Justice System has adapted to deal with witnesses and defendants who – some years ago – wouldn’t have seen the inside of a Courtroom...

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  • 13 Dec
    The Theatre of Forensic Enterprise

    The Rt Hon Iain Duncan-Smith, Conservative MP and a former senior member of Government, has written a widely-shared polemical in the Daily Mail in which he decries the Miller "Brexit" appeal as those "ponderous proceedings" in the Supreme Court...

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  • 01 Dec
    Some thoughts on guidelines & abuse of trust...

    Sentencing in historic cases of sexual abuse was considered by the CACD by Lord Judge, then Lord Chief, in October 2011 in R v H ([2011] EWCA Crim 2753, [2102] 1 WLR 1416, [2012] 2 Cr App R (S) 21, [2012] Crim LR 149). The essential principle is clear: offenders sentenced today for historic offences are to be sentenced in accordance with the regime applicable at the date of sentence, & current sentencing practice, subject to the perhaps obvious caveat that the sentence that can be passed is limited to the maximum sentence available at the time of the commission of the offence, unless the maximum has been reduced, when the lower maximum applies...

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  • 22 Nov
    SOME THOUGHTS ON .... SENTENCING

    “...any one who has been to an English public school will always feel comparatively at home in prison. It is the people brought up in the ... intimacy of the slums ... who find prison so soul destroying.”...

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  • 18 Nov
    The Brexit Referendum - were offences committed?

    Its been in the news in the last few days that the CPS is investigating claims made by the Leave campaign for the Brexit referendum, and whether offences may have been committed...

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  • 08 Nov
    Musings on Being Offensive

    Now I am not offensive per se – notwithstanding the rumblings from some areas of the clerks room – but there are some interesting titbits from the wise men in the higher places regarding offensive weapons, of course those of a political bent will know that the current Government’s policy Ending Gang Violence and Exploitation, published in January 2016, sets out six priorities of a cross-government approach to ending gang violence and exploitation...

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  • 02 Nov
    Looking Ahead at 2017…

    The Housing and Planning Act 2016 brings about some controversial changes. This article looks at potential criminal offences surrounding the “Banning Order”. These provisions are not yet in force. Although commentary on this area has been silent for the latter part of 2016; the impending new year may bring with it new offences...

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  • 01 Nov
    FRAUGHT COURT REPORTING

    The press, especially the local press, enjoys a good courtroom report. No defendant was ever described in these reports as having been “a bit silly” or having “been a little dull-witted.” All of these reports have the defendants “deliberately flouting the law” or similar (and when last did you use the word “flouting” in conversation?)..

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  • 27 Oct
    Some Thoughts on ... Necessity ...

    "So spake the fiend, and with necessity, the tyrant's plea, excused his devilish deed".

    Milton, Paradise Lost, Book IV, lines 393-4

    “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”

    Pitt the Younger. Speech in the House of Commons (18 November, 1783)

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  • 25 Oct
    Sexual History and The Exceptional Case

    Not being a fan of the glorious game, I confess I’d never heard of Ched Evans before his original trial. Now, of course, he has been acquitted and the Social and mainstream Media has gone into overdrive, with even the never-knowingly-underquoted former Solicitor-General declaring that ‘We’ve gone back…about thirty years’ and the complainant being (for the second time) named by the outraged Twitterati...

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  • 18 Oct
    Some Thoughts On.... INSANITY

    Fitness to plead seems to be like buses. You wait for one, and then 3 turn up, if not at once, then pretty close together, at least if my recent practice is anything to go by...

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  • 22 Sep
    The Big Red One to be replaced by the Big Blue?

    The Judicial Executive Board has decreed that Blackstone’s will now replace Archbold as the primary reference work for all Crown Courts. This is big news, for those of us that toil away in the criminal courts. Never again should we hear a Circuit Judge asking “and where will I find that in Archbold?” Never again will we be left wondering whether our seemingly-obvious point had not occurred to His Honour, or perhaps he simply had given up trying to find it in the, ahem, challenging index, or perhaps he simply wanted to give us time to read again the relevant paragraphs so that we could decide for ourselves that the submission so newly made had not a whit of merit.

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  • 01 Aug
    Some thoughts on talking to witnesses

    "There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted...

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  • 26 Jul
    Referral Orders – the most valuable tool in the youth justice system

    Referral Orders have been deemed to be the most valuable tool in reducing reoffending among young people in the youth justice system. A report by HM Inspectorate of Probation published in July 2016 compared Referral Orders to other youth sentences and found that the restorative justice methodology which is an integral part of Referral Orders is the distinguishing feature behind its success...

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  • 14 Jul
    Reading Between The Lines

    Most cases are not won or lost on the law, but on the facts, especially in the criminal law. So in this blog, I want to spend a few moments dwelling on factual research, and the importance of it, in running a case.

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  • 08 Jul
    Some Thoughts On... Adjourning Sine Die

    It is extraordinary how governments, regardless of political colour prove so adept at spending taxpayers money (i.e. yours and mine) and quite how little thought seems to go into some ideas - for example the Crown Court Charge (RI [unlamented] P]...

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  • 05 Jul
    Some Thoughts On.... Holidays in Term Time

    In the case, which achieved, nationally, some considerable publicity, following Mr. Platt's [P] success in the appeal by way of case stated from the Isle of Wight Magistrates' Court...

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  • 04 Jul
    Witnesses: Seen and Not Heard?

    The new guidance is upon us. Those who prosecute will no doubt have received emails and confirmation of the new approach to be taken to witnesses in the Crown court; and I know that locally additional internal training is being rolled out to all internal advocates and paralegals/legal support staff.

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  • 28 Jun
    JUNE’S LIFE CHANGING DECISIONS

    Here in Chambers we have not been immune from the sweep of momentous events this month. After a grassroots campaign lasting months if not years, a vote has been triggered and a plebiscite is to be held...

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  • 27 Jun
    How outrageous is that?

    Sometimes I agree that we should entirely codify our criminal law. And then I think of the Sentencing Guidelines and how difficult it is to create a framework that covers every situation. We don’t have that many common law offences left now, but they can be a useful weapon...

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  • 01 Jun
    Jogee three months on: R v Anwar and others [2016] EWCA Crim 551

    On 18th April 2016 at the Central Criminal Court, His Honour Judge Pontius QC ruled that there was no case to answer in relation to the attempted murder and possession of a firearm with intent in a trial involving six defendants on an indictment which also included a charge of conspiracy to rob. The Crown applied for leave to appeal this decision and the application was heard by the Court of Appeal whilst the trial was temporarily suspended.

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  • 24 May
    The Proper Procedure for Underlying Offences

    In March 2016, the Divisional Court handed down judgment in the case of James Robert Henderson v Crown Prosecution Service [2006] EWHC 464 (Admin). This case addressed a long-established and incorrect practice of imposing multiple convictions for what are properly construed as alternative charges.

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  • 20 May
    We Don't Need No Education…

    “The decision as to what constitutes exceptional circumstances is a matter for the head teacher. It is important, however, to stress that children wherever possible should be in school and learning, and a drive to reduce truancy and push up the number of days and hours that children spend in school is at the heart of our long-term plan to raise standards in our state schools.” (Education Secretary M Gove  - Hansard 24th March 2014)...

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  • 06 May
    Visitors Book - Legal Obligation or Myth?

    I’ve just returned from a weekend ‘glamping’ in Cornwall. I say glamping because the tent had a double bed, a log burner, and rather oddly, a hatstand. It also had a notice which caught my eye, next to the visitors book. It asked me as a guest to complete the visitors book, because it was now a legal requirement to do so. Really?

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  • 15 Apr
    A FRIEND IN NEED?

    There is a small but significant group of defendants in the criminal courts who have given the whole of the legal profession up as a bad lot and decided instead to use a McKenzie Friend (MF) instead of instructing an advocate. As an MF is not entitled to charge for his or her assistance, there is an economic benefit to a defendant in pursuing the legal equivalent of alternative medicine, but as with non-NHS routes to healing, the spectrum of ability, integrity and competence is broad.

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  • 06 Apr
    SOME THOUGHTS ON WITNESS SUMMONSES ....

    Back in the dim distant past, i.e. about 20-25 years ago, applications for witness summonses under the Criminal Procedure (Attendance of Witnesses) Act 1965 used to be fairly straightforward: it was a mechanism by which a known, but reluctant witness, "likely to be able to give evidence likely to be material evidence", could be compelled to attend court and give evidence, or producing any document or thing "likely to be material evidence": see s. 2 (Archbold, 8-1; all emphasis added). In making the application, the advocate usually would be armed with a (signed) witness statement, duly signed by the witness, which could be placed before the magistrate(s) or judge.

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  • 23 Feb
    A Wrong Turn....

     

    The judgment of the Supreme Court this week (18th February) in R v Jogee and Ruddock v R [2016] UKSC 8, cannot have escaped the attention of many criminal practioners; indeed the high profile nature of the case and the media frenzy across broadsheets, tabloids and the BBC even led my non-lawyer husband to come home from work and ask ‘so what exactly is joint enterprise?’ (Thus affirming my suspicion that when I talk ‘shop’ he does in fact zone out and nod along oblivious to anything I actually say).

    I have to say for my part, whilst there is now a clear and definitive ruling as to the scope of joint enterprise which is welcomed, I do feel a little uneasy about the concept that the law as I knew and understood it was so wholly wrong and potentially unjust; I was born in 1985 so for the entirety of my life the courts have been convicting people on the basis of a flawed interpretation of a complex common law principle, derived from the well cited Chan Wing-Sui v R [1985] AC 168, and approved by the House of Lords in R v Powell; R v English [1999] 1 AC 1, both cases I still have undergraduate degree lecture notes about.

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  • 17 Feb
    Wake up and smell the coffee....for now....

    At the risk of aggravating true blue conservatives on the one hand and the more liberal club on the other; a word if I may, about the rather seventies sounding  Psychoactive Substances Act 2016.

     

    The Psychoactive Substances Act will come into force on the 6th April 2016. The Act will make it an offence to produce, supply or offer to supply any psychoactive substance if the substance is likely to be used for its psychoactive effects and regardless of its potential for harm. The only exemption from the Act are those substances already controlled by the Misuse of Drugs Act, nicotine, alcohol, caffeine and medicinal products. The main intention of the Act is to shut down shops and websites that currently trade in ‘legal highs’. Put simply any substance will be illegal to produce or supply if it is likely to be used to get high.

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  • 01 Feb
    The Power of Reasoned Argument

    So Mr Gove finally sees sense and the two-tier contracts disappear, for the time being at least. It’s nice to know that just sometimes, Ministers listen to the people on the ground.

    I’ve just finished a rather good book: ‘The blunders of our Governments’ by Anthony King and Ivor Crewe. The authors look back over the last half century at some of the spectacular failures of Government projects. The Assets Recovery Agency. Remember that? In the end they recovered less in assets than it cost to run the whole show. Voluntary ID cards. How much went west on that? The Child Support Agency. Hardly a resounding success. The Poll Tax? Such a good idea on paper.

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  • 16 Nov
    What Constitutes Using Your Mobile Phone Whilst Driving?

    Sometimes it's not the weightiest offences that result in interesting questions of law, but the much minor ones. In practical terms, the average citizen is far more likely to encounter our justice system (thankfully!) through minor road traffic violations, than a Crown Court trial.

    You may have heard recently of the case which has been decided by the Supreme Court over a parking fine of £85. That case is a civil matter, as parking enforcement usually is these days, but it illustrates that even small matters can progress up to our highest courts (and result in a Judgement in excess of 100 pages - Makdessi v Cavendish Square Holdings BV & ParkingEye Ltd v Beavis [2015] UKSC 67, if anyone is curious)

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  • 10 Nov
    2015 National Mock Trial Contest

    Never mind the Rugby World Cup. Or even Strictly. The best competition of the year is yet to come. On Saturday 21 November, Colleges, Academies and good old fashioned schools from Dorset and Hampshire will be fielding teams at Bournemouth Crown Court in the National Mock Trial Contest. And my old school, St Peter’s (Bournemouth) will be hoping for a fourth regional final and a third regional win.

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  • 06 Nov
    The right to correct or a duty to be still?

    Where does the advocate’s duty end and his or her rights to free speech begin? I was pondering this almost-philosophical question last week after I noticed that a well-known, fortnightly satirical magazine had printed a cocktail of untruths, baseless slurs and inflammatory assertions about an erstwhile client of mine. I am as sure as I could be (and yes, I too once used the “frozen-pond” analogy) that the source of these calumnies was the litigant in person against whom I had tussled in repeated skirmishes in the Crown Court,  the Master’s chambers and the High Court. Let’s call him Mr Cakes.

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  • 27 Oct
    Some thoughts on ... bad character.

    "English law took a wrong turning in the late 1980s when it imposed tight shackles on judges to deliver themselves sometimes of preposterous directions and ever wider and wider category of circumstances. It forsook a discretionary system in which, without attracting attention, judges could quietly deliver kindly and even unmerited directions if they felt so moved, and substituted a rigid regime where, almost regardless of the merits, every defendant was to be given the benefit of the doubt, even if this sometimes meant that the jury was asked to shut its eyes to the truth ... The misfortune is that we may be too fearful to turn back or to admit that much of a recent law on the subject [of character] reads like nonsense."

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  • 21 Oct
    Some more thoughts on the criminal courts charge

    The charge has no bearing on your ability to pay. It is totally inappropriate for people of no means to have to pay this charge. It happens to be current government policy but as an independent judge I regard it as extremely unfair”;

    was the comment made by a judge recently when imposing the charge of £900, applicable in that case.

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  • 07 Oct
    Water Water everywhere.....

    Not so very long ago I waxed, if not lyrical, then at least at length as to the changes brought about by the new Environmental Protection Sentencing Guidelines (for those of you who missed it the post can be found here .​)

    As I suggested it has not been long before we have seen the first significant Court of Appeal decision resulting from a sentencing exercise involving the new guidelines. It makes interesting reading.

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  • 15 Sep
    Mirror Mirror on the wall …

    Your physical appearance can make a difference in a criminal court as much as anywhere else. Many’s the time that pulchritude and a patrician bearing, married to a confident delivery, has swayed the tribunal where a closer attention to the facts and the law might have produced a different result. Robing rooms have long been rife with tales of X using his looks and charm, or Y trading on her appearance, to get ahead.

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  • 01 Sep
    Some thoughts on expert witnesses (ignoring any problems with funding!) ...

    In a criminal trial an expert can be called to give evidence where the jury cannot be expected to have the necessary knowledge of the field in question from their general knowledge of the world about them.

    Procedurally, expert witnesses are now governed by Part 33 of the Criminal Procedure Rules 2014. The trend appears to be (?), whilst unspoken, towards a more inquisitorial approach, with some of the provisions for expert evidence reflecting, to a degree the approach adopted in civil proceedings.

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  • 24 Aug
    Faking It: Imitation is the highest form of flattery

    For the second time in a matter of months reports of ‘fake’ lawyers have been in the news. Having been told by those more senior than I in many a robbing room that our profession no longer commands any sort of ‘respect’ this struck me as interesting; presumably if there are people out there ‘faking it’, being called to the Bar is something one ought to still be proud of (especially for those of us who actually have been!)

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  • 17 Aug
    Walking on Broken Glass........

    Recently, and for the first time in my experience, a victim of a s20 assault attended at court to read out his Victim Personal Statement (VPS).  It was harrowing.

    The re-orientation of the Criminal Justice System and the sentencing hearing in particular, towards victims of crime is now well known; and if not accepted then at least understood. It is telling that on this particular occasion the hearing was put back for an hour or so to allow the victim to attend having indicated in his VPS that he specifically wished to do so; over the objections of the Defence.

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  • 11 Aug
    Revenge Porn

    It is estimated one in 10 ex-partners have threatened to post intimate photographs of their exes online, with a further estimated 60% of those going through with it. Those are the findings of a survey by internet security company McAfee. Whilst those numbers are from an American survey, and participants chose to take part, potentially skewing the results, it is without doubt that ‘revenge porn’ has become a concern.

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  • 03 Aug
    If it ain't broke...

    I did my first ‘Leveson-style’ trial the week before last. Judge Cutler is keen to be ahead of the game. I opened the case for the Crown and my opponent then had a chance to explain the case for the Defence.

    He declined.

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  • 31 Jul
    All Change for PoCA

    On 01 June 2015 a number of changes to the confiscation regime under the Proceeds of Crime Act 2002 came into force. Most were brought in through the Serious Crime Act 2015, but some are from earlier legislation and only now put into force. The main changes concern proportionality, third party interests, time to pay and enforcement.

    In times gone by, it was only serious drug dealers and other “Mr Big”s who needed to worry about confiscation: and many of them had long-since stashed their ill-gotten gains away, whether here or in sunnier climes, to await their release from prison (apocryphally, one of the Great Train Robbers came good on a courtroom promise and took his brief out for a drink on the day of his release from his long prison sentence: when the lawyer tried to pay, asking how a newly-released ex-con could afford champagne, the villain replied “I took part in the biggest ----ing robbery in history. How the ---- do you think I’m going to pay?” before producing a wad of white fivers.)

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  • 23 Jul
    Michael Gove wants to swap porridge for poetry…

    The new Lord Chancellor has just delivered his maiden speech on the UK’s prisons, and, in what must be a welcome change for Mr Gove, he is receiving widespread applause amongst penal reform groups for the candid manner in which he confronted the very worst aspects of our prison system.

    Indeed Mr Gove outlined an ambitious plan to look towards closing some of the older prisons and selling them off to generate revenue to plough back in to the system, creating new, fit for purpose institutions designed for 21st century justice. The focus of these new prisons (in addition to creating state of the art institutions with more autonomy for prison governors) will be education. There will be new programmes to address the woeful lack of basic literacy and numeracy that exists amongst the prison populous, tailored towards providing a new incentivized “early release scheme” for prisoners to earn their release through engaging with education.

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  • 17 Jul
    A thought about section 41, Criminal Justice & Youth Evidence Act 1999.

    Section 41 of the Act, which we all know and love, is a constant source of headaches, prosecuting or defending (OK, & who really, truthfully, understands R v A?).

    The issue, in a sexual offences trial is, as is (more often than not the case in this writer's experience), not an issue of consent (s.41(3)(a)), and, of course, just as where it is an issue of consent, "no evidence may be adduced, and ... no question may be asked in cross examination ... about any sexual behaviour of the complainant" without leave of the Court: s. 41(1) [Archbold 8-238]. This has technically effectively long been the law, albeit perhaps more honoured in the breach then the observance: cf. the chequered history, in terms of application, of the Sexual Offences (Amendment) Act 1976.

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  • 08 Jul
    QASA continues: my apology to my lay clients

    I’m sure you didn’t miss it, but just in case you did, the judgement of the Supreme Court in R. (on the application of Lumsdon) v Legal Services Board [2015] UKSC 41 was published on 24th June 2015; for those of us practising criminal advocacy in the Crown Court it makes for interesting reading, albeit one could not feign surprise at the decision.

    There is no denying that across the country there is a concern that the quality of criminal advocacy must be maintained and protected; indeed I am yet to meet a member of the bar who does not appreciate quality, flair and experience in their opponent; if anything it makes you up your own game. Clearly those of greater experience need not be so concerned by the idea of accreditation and assessment, but one wonders what future lies ahead for those who seek to progress and move forward with more complex work with the Scheme as proposed.

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  • 03 Jul
    Decisions, Decisions, Decisions......

    More often than I would care to imagine I find myself in a hot, crowded, over worked and understaffed Court of an afternoon, ‘discussing’ with my opponent why this particular regulatory prosecution is taking place in the first place. When one moves away from the rough and tumble of more general criminal offences it is increasingly common to find that the principle of fighting a case on its actual merits is not the first port of call for the defence.

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  • 16 Jun
    Historic Complaints

    It’s 3 ½ years since Jimmy Savile died (I know: where does the time go?) and the tidal wave of historic complaints shows no sign of slowing down. But there are many traps for those prosecuting old cases and even though juries are clearly beginning to change their attitudes, the technicalities still need to be observed.

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  • 08 Jun
    WHO’S PLEA IS IT ANYWAY? (With apologies to Clive Anderson)

    Until relatively recently, and since the late Nineties, anyone accused of committing a crime could expect to be investigated by the Police, or by another investigative body, and could then expect to be summoned to the Magistrates’ Court for a first hearing.

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  • 05 Jun
    Criminal Court Charge

    The first cases capable of attracting the Criminal Court Charge (CCC) have now been heard and, for those unlucky enough to be convicted, the charge has now bitten. Gone are the days where the financial sting of a criminal prosecution extended to Prosecution costs, the Victim Surcharge and perhaps compensation. Post 13th April 2015, any person who commits an offence and is then found guilty will face the imposition of the new charge. 

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  • 27 May
    Sexual Offences Prevention Orders

    In England and Wales, it  appears to have passed many people by (including some prosecutors), but SOPOs are now a thing of the past, having been replaced by "Sexual Harm Prevention Orders" ["SHPO"] & "Sexual Risk Orders" [SROs], two titles that hardly trip off the tongue!

    The Sexual Offences Act 2003 has been amended by the Antisocial Behaviour, Crime & Policing Act 2014 section 113 and Schedule 5, to insert sections103A-K into the 2003 Act, repealing sections 104-129 of the 2003 Act (the new provisions can be found in Archbold 2015, @  paragraphs 20-322a - 20-322l, @ pp. 2217-2223).

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  • 09 Jun
    All Change in Environmental Prosecution Sentencing

    All change in environmental prosecution sentencing
    And so, at last (and for my money not a moment too soon), both prosecution and defence can look forward to a more unified approach to sentencing practice when it comes to environmental prosecutions.

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  • 02 Jun
    Low Value Shoplifting: Simplifying or Complicating the System?

    Until earlier this month, stealing from a shop would colloquially be termed shoplifting but would simply amount to an offence of theft under section 1 Theft Act 1967. On the 13th May 2014 the new offence of ‘low value shoplifting’ came into existence by virtue of Section 176 Anti-Social Behaviour, Crime and Policing Act 2014, which has inserted into the Magistrates Court Act 1980 the new Section 22A and created a new, summary only offence.

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