Speeding and GPS – Does the camera lie?

Posted on:

Peter Marrable was summonsed to court for speeding. The allegation was that he had driven at 72mph in a temporary 50mph zone.

The police produced evidence of the speed from a ‘Trucam’ device that was approved, calibrated and operating correctly.

Mr Marrable produced evidence from a GPS tracker that was fitted to his company vehicle that showed a speed of 53-54mph.

The magistrates had to decide if they were satisfied beyond reasonable doubt that Mr Marrable had exceeded the speed limit. They decided that the GPS tracker cast sufficient doubt as to the correct speed, so they did not convict him.

 

Is this a new defence?

No, there is nothing new in law that is raised by this case. 

In 1987 the case of Cracknell v Willis was heard. Cracknell was accused of driving while over the limit for alcohol. In the Magistrates’ Court, he wanted to produce evidence of the amount of alcohol he had consumed in order to show that the police intoximeter machine was defective. The Magistrates refused to allow him to produce the evidence and convicted him. Cracknell sought an opinion from the High Court.

The High Court considered the issue of how far, if at all, and by what evidence, a motorist was entitled to challenge the reliability of the machine. 

The Magistrates had not heard any technical evidence to say the machine was not working correctly. They said that they were bound to follow the case of Hughes v McConnell and refused to allow Cracknell to give evidence of the alcohol he had consumed.

In Hughes v McConnell the Magistrates had acquitted the defendant of drink driving after he gave evidence that he had only drunk 3 cokes and 3 bitter shandies. The prosecution attacked that decision on the ground that the defence evidence was inadmissible to challenge the accuracy of the breath test. The Divisional Court held that the validity and accuracy of the machine could not be challenged by evidence of the amount of alcohol consumed. The effectiveness could only have been attacked was by way of direct evidence of imperfection.

Back in Cracknell’s case, the Court considered the evidence that could be given. The Court concluded that no machine is infallible and if a challenge was limited to direct evidence of malfunction, it would mean the machine was treated as being virtually infallible.

The Court provided the analogy of a teetotal bishop having dinner with two other bishops. He is stopped on the way home and provides a positive breath sample. The bishop should be allowed the opportunity to call the two bishops as witnesses to give evidence he had not consumed alcohol, and for the magistrates to draw the inference that the machine must be unreliable. They concluded that the decision in Hughes was wrong.

 

Can anyone just give evidence of their speed?

Technically yes, but you may not be believed.

The Court in Cracknell went on to say that evidence that could reasonably suggest the machine was unreliable was admissible. This did not mean that defendants could challenge a breach analysis by “spurious evidence of their consumption of alcohol”.

In 1982 in Kent v Stamps the defendant gave evidence that his lorry was not capable of reaching 40mph, as alleged, on the particular road. He was acquitted as the magistrates found there was a doubt, but it was described as a very borderline case by the higher court.

The court will use its good sense to consider all of the evidence before it. The case of Marrable does not mean that any evidence from a GPS will always be accepted, simply that such evidence can be considered, as in the case of Cracknell.

If you are accused to speeding and know that you were not, get in touch. Your case is not as hopeless as some lawyers would have you believe.

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

“Blackmail” – “…attempted murder of the soul.”

Posted on:

A new series on Netflix, ‘The Stranger’, is receiving rave reviews, with viewers keen to discover the secret being kept from lawyer Adam Price, as the search continues for his missing wife. 

There are many sub-plots along the way, including the blackmail of several individuals keen to suppress unsavoury stories making their way into the public domain.

 

What is ‘blackmail’?

Section 21 of the Theft Act 1968 defines the offence in the following terms:

“A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief:

(a) that he has reasonable grounds for making the demand; and

(b) that the use of the menaces is a proper means of reinforcing the demand.

The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.”

In almost all instances the offence involves a threat to reveal information known about a person unless that person, or another on their behalf, pay to keep it a secret.

 

What is the penalty for blackmail?

The offence carries up to 14 years imprisonment, so is one of the most serious crimes on the statute book. 

In Hadjou 11 Cr App R (S) 29 the offence was described as one of the ugliest and most vicious criminal offences, akin to “…attempted murder of the soul”.

These are some examples of the general approach to sentencing:

Mincher [2016] EWCA Crim 1528 – Two years imprisonment, suspended for two years judged to be unduly lenient and replaced with five years imprisonment. Defendant threatened the complainant that if he did not give her the money she wanted, she would tell the police that he raped her. Defendant took in total £40,000 from the complainant and was described as a socially awkward and vulnerable man. 

The court held:

“Blackmail [is] one of the most serious and vicious offences in the criminal calendar. The authorities suggest that threats to disclose discreditable conduct, whether that conduct occurred or not, are to be taken even more seriously because the injury done to the victim “tends to be enduring fear, ever present anxiety and fear of discovery which gnaws away at the victim for long periods”.”

MJC [2015] EWCA Crim 1519 – 2 years imprisonment reduced to 8 months imprisonment.  The defendant was a 33-year-old married man of good character; his wife’s 14-year-old sister became involved in an exchange of sexually explicit images with a 16-year-old boy, the complainant. The defendant, aware of the pictures, threatened to report the complainant to the police unless he was paid £75. 

The court held:

“In the present case, it is evident that there was no sophistication or premeditation in the blackmail. However, for a mature man to make the kind of threats he did to a misguided young man, as the appellant did in this case, albeit over a limited period of time, was plainly deeply unpleasant.”

While there may be a wide variation in sentencing, the result being very much fact specific and no case having the status of a sentencing guideline, in almost all cases a sentence of imprisonment will result.

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

End of automatic release for some persons convicted of terrorist offences

Posted on:

On Sunday 1st February 2020 Sudesh Amman wore a fake suicide vest and stabbed two people in Streatham. Amman had only recently been released from a prison sentence imposed for spreading extremist material; he had been released after serving half of his sentence. Usman Khan, one of the London Bridge attackers, had also been released early from a prison term.

The government is now proposing emergency legislation to prevent convicted terrorists being released after serving half of their sentence.

 

What is the current situation?

Although certain sentences only allow a person’s release after the involvement of the Parole Board, many prisoners are automatically released after one half of their sentence has been served.

Many terrorist offenders are already serving extended sentences or life imprisonment. They are already subject to Parole Board review so would not be affected by the new proposals.

 

What is being proposed?

The government are seeking to prevent the automatic release of convicted terrorists at the half-way point. Such prisoners would only be released after they had served two-thirds of their sentence and after a Parole Board risk assessment. If the risk is too high, the prisoner would only be released after serving the full sentence.

When such changes are made, they are usually only applied to sentences imposed on or after a specified future date. In this case, it is said that the changes would apply to existing, as well as future, offenders. This would mean that offenders already serving their sentence could now face years more in prison. 

The Justice Secretary, Robert Buckland, stated that immediate action was required in respect of changing the rules on automatic release.

 

Is it legal to make the law retrospective?

Lord Carlile, the former reviewer of terror legislation, has said that he doubted whether changes to the release conditions of those who have already been sentenced could be applied retrospectively. He believes that challenges would be made to new legislation of this nature.

 

Would a challenge succeed?

Article 7 of the Human Rights Act says that you cannot be found guilty of a crime that was not a crime at the time it was committed. If you are convicted of a criminal offence, you cannot receive a heavier penalty than the one that was applicable at the time the crime was committed.

It is the second part that is important in this situation. At the time the offence was committed, and at the time of sentence, the offender would have been told that they would be automatically released after they had served half of the sentence. With a change in the law, it would mean they served a longer period in custody,

Robert Buckland’s counterargument appears to be that the changes relate to the administration of the sentence rather than the length of it. The actual length of the sentence imposed would not be affected. This may mean a focus on whether the proposal would punish the offender or protect the public. If the result is protection rather than punishment, it may be allowed by the Courts.

In 2004 the case of Uttley was dealt with in the House of Lords. Uttley had committed a number of historical sex offences and was only prosecuted 12 years later. By that time, the sentencing regime had changed. Under the old regime, he would have served two-thirds of his sentence, under the new one he would also serve two-thirds of his sentence, but he would also be released on licence. The effect of that would mean he was under supervision, and certain restrictions were imposed. He would also be at risk of recall to prison. Uttley argued that his release subject to licence would be incompatible with his rights under Article 7.

It is easy to see how the case of Uttley is similar to the argument that could be put forward by a prisoner convicted of terrorism offences who faces a longer time in prison. Uttley was not successful. The Court said that as the maximum sentence for Uttley’s offending remained the same, it was impossible to regard a sentence with the new element of a licence as a heavier penalty than that which could have previously been imposed.

The case of Uttley is now however directly on point, and there will be uncertainty until the courts rule on this specific provision. We are alive to the possible legal challenges available and any person affected should not hesitate to contact us for early advice.

 

Are there any other proposals?

The Justice Secretary also said that the current maximum sentences would be reviewed and the sentencing framework for terrorism offences. This could, for example, mean a mandatory minimum sentence for certain offences, 14 years has been suggested for offences of preparing acts of terrorism or directing a terrorist organisation.

As well as reviewing sentences, the government will look to overhaul prisons and probation with tougher monitoring conditions, including lie detector tests to assess risks. An independent review of the Multi Agency Public Protection Arrangements has already been announced to include consideration of pre-release planning and management of offenders upon release into the community. 

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Money Laundering Update

Posted on:

The Money Laundering and Terrorist Financing (Amendment) Regulations 2019 came in to force on 10 January 2020, with the effect of implementing Fifth Money Laundering Directive into UK law.

Money laundering is said to be a key enabler of serious and organised crime, which costs the UK at least £37 billion every year, hence why there is so much government activity in this area.

Businesses that are caught by money laundering regulations need to ensure that staff are adequately trained in respect to the core obligations and changes, breach of which is a criminal offence and can in some instances attract further regulatory sanction.

Key changes:

Tax advisers: The definition of tax adviser is expanded to include those who offer material aid or assistance on tax matters.

Estate agency: The scope of regulated businesses in the property agency sector is expanded to include the letting agency sector for high value transactions with a monthly rent of EUR 10,000 or more.

Art intermediaries: Art market participants for transactions exceeding EUR 10,000, including art galleries, auction houses and freeport operators storing high-value art, are also brought into scope of the legislation.

Cryptoassets: Cryptoasset exchange providers and custodian wallet providers are also brought into scope of the MLRs, to ensure the UK meets evolving global standards and fully addresses emerging risks. Regulation 14A within Part 2 of the amended MLRs sets out the definition of custodian wallet providers and cryptoasset exchange providers. The latter includes where the firm or sole practitioner offers exchange services as creator or issuer of any of the cryptoassets involved (often this is referred to as an “initial coin offering” by industry). This is because initial coin offerings are another point of exchange at which those in possession of illicit funds could launder their money into a new, clean cryptoasset, obfuscating the original source or purpose of such funds.

The definition of cryptoasset exchange providers also extends to operating a machine which automates such an exchange, commonly known as a cryptoasset automated teller machine (“CATM”). The Amending Directive requires the UK to regulate “virtual currency” exchange providers and wallet providers. The FATF standards refer to “virtual asset” service providers.

The UK government has chosen to use the definition of “cryptoasset” in these Regulations instead of the term “virtual currency”. The UK’s Cryptoasset Taskforce previously set out that “cryptoasset” includes exchange, security and utility tokens. The government considers that all relevant activity involving all three types of cryptoassets should be captured in AML/CTF regulation. Respondents to the consultation on the implementation of the Amending Directive agreed with this approach and were of the view that the “virtual currency” definition in the Amending Directive should be broadened in scope.

In adopting the UK’s taskforce definition, it also confines the scope of cryptoassets to those using distributed ledger technology, which HM Treasury considers is a more specific and precise definition that still meets the EU’s ultimate intention to regulate this sector for AML/CTF purposes.

Enhanced Due Diligence (EDD)

The instrument makes amendments to Part 3 of the MLRs in relation to CDD measures to be taken by regulated businesses. Letting agency businesses must apply CDD DExEU/EM/7-2018.2 4 measures in relation to both the tenant and landlord for rental agreements with a monthly rent of EUR 10,000 or more.

Art market participants must apply CDD measures when carrying out transactions equivalent to EUR 10,000 or more in relation to the sale of a work of art. CDD measures must also be carried out by cryptoasset exchange providers and custodian wallet providers entering into a business relationship and in other specified cases in line with other relevant persons.

CATM operators must also carry out CDD for all exchanges of money for cryptoassets, whatever the amount. The reason for this is that the government has seen evidence that CATMs could be used for illicit purposes, such that setting a value threshold could see repeat business or “smurfing” just below this threshold to circumvent CDD measures.

The instrument makes several amendments to regulation 28 of the MLRs on CDD measures.

Firstly based on FATF recommendations 10.8 and 22.1, the instrument introduces an explicit CDD requirement for relevant persons to take reasonable measures to understand the ownership and control structure of their customers.

Secondly, to require relevant persons to take reasonable measures to verify the identity of senior managing officials when the beneficial owner of a body corporate cannot be identified.

Policies, Controls and Procedures

The instrument also makes two further amendments in Part 2 based on the latest FATF recommendation concerning the policies, controls and procedures for regulated businesses. Firstly, based on FATF recommendation 15.2, relevant persons must ensure that they have policies to ensure they undertake risk assessments prior to the launch or DExEU/EM/7-2018.2 5 use of new products or business practices, as well as new technologies.

Secondly, based on FATF recommendation 18.2(b), parent undertakings must also ensure they have group-wide policies on the sharing of information about customers, customer accounts and transactions for AML/CTF purposes. Relevant persons must also take appropriate measures to ensure agents used for the purposes of its regulated business receive AML/CTF training, ensuring a first line of defence against illicit finance.

Bank Account Portal

The instrument inserts a new Part 5A into the MLRs, which requires the establishment of a mechanism for the FIU and competent authorities to access details pertaining to UK bank accounts, building society accounts, certain credit union accounts and safe-deposit boxes.

The details that can be accessed are limited to details about the account/safe-deposit box itself (the IBAN number, roll number or alternative, date of account opening/lease beginning, date of account closing/lease ending, and duration of a lease) as well as details about the account holder and beneficial owner, or safe deposit box owner, lessee, controller or key holder (their name, date of birth, address and ID number provided under regulations 28-29 and 33-37 of the MLRs).

This does not impose any additional requirements for institutions to collect data. Law enforcement cannot use this mechanism to access details about transaction history or contents of an account or safe deposit box.

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Covert Filming of Sexual Activity

Posted on:

In 2015 Emily Hunt complained to the police that she had been raped in a hotel room. She had also been filmed, naked and asleep, without her consent. Although she is entitled to anonymity, she waived that right to draw attention to her case. The Crown Prosecution Service did not authorise any charge, either for rape or voyeurism. Emily maintained that any sexual activity was not consensual but did not challenge the Prosecution decision not to charge the man with rape.

A person commits the offence of voyeurism if:

  • for the purpose of obtaining sexual gratification, he observes another person doing a private act, and
  • he knows that person does not consent to being observed for his sexual gratification.

In Emily’s case, the man accepted he had filmed her “in case he wanted to masturbate at some point”, it was also conceded that there was evidence he had filmed her without her consent.

Under the victim’s right of review procedure, Emily challenged the decision not to prosecute the man for voyeurism. The Prosecution upheld their original decision saying that a consensual sex act would involve a person observing your naked body and that the observation could extend to filming.

Emily applied for a judicial review of the decision, submitting that errors of law were made. 

In particular, it was argued that the Crown Prosecution Service wrongly treated the question of whether Emily consented to the sex as being decisive of the question of whether she was doing a private act when she was subsequently filmed naked and asleep. The focus was wrongly on whether she had a reasonable expectation of privacy rather than whether she was doing a private act. It was also argued that it was wrong to say that non-consensual filming of a sleeping person when naked, is not really different, in terms of privacy, to being observed asleep when naked. The real issue was the correct approach to the phrase “doing a private act”.

The Court of Appeal has now ruled that anyone who films a partner, during sex, without their permission is committing the offence of voyeurism. This decision was made in the case of a man who filmed himself having sex with prostitutes. Tony Richards had argued that he was allowed to film as a bedroom could not be a private place if he was lawfully present. 

Richards appealed against his conviction on two charges of voyeurism. Unusually, Emily Hunt was given permission to intervene in the hearing. She was allowed to put forward the submission that consent should be the primary issue in these cases. Richards argued that the issue could not be consent when the place where the offence occurred was shared with another person. The test, according to him, was whether the person had a reasonable expectation of privacy. Richards accepted that filming without consent was a “betrayal of trust” but not that it was an illegal act.

On dismissing the appeal, it was said “a defendant can be guilty of an offence of voyeurism even when he is a participant (in relation to having sex) … section 67 of the Act which protects individuals against the recording of any person involved in a private act is not limited to protecting the complainant from someone not present during the act.”

The Crown Prosecution Service subsequently confirmed that they would be reviewing their position in respect of Emily’s judicial review. A spokesperson said “what constitutes a ‘private act’ for the purposes of the offence of voyeurism had never been conclusively defined by a higher court” until the case of Richards.

It was later said, by the Centre for Women’s Justice who supported Emily’s campaign, that the Crown Prosecution Service was no longer resisting the judicial review and would look again at the decision not to prosecute. 

 

How can we help?

Voyeurism is a serious offence that can be dealt with at the Magistrates’ Court or the Crown Court and carries a maximum sentence of 2 years’ imprisonment. A conviction can also lead to notification requirements under the Sexual Offences Act 2003 and restrictions on working with children or vulnerable adults. The consequences of a conviction can, therefore, be far reaching. We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Prison Contraband

Posted on:

The government has announced further funding to strengthen security measures at several prisons. The funding will go towards advanced body scan technology, aimed at preventing drugs, weapons, mobile telephones and other prohibited items from entering the prison estate.

The scanners were developed specifically for the Prison Service and can produce instant images from inside the human body and reveal internally concealed contraband.

The technology will be installed first at 16 local jails with high volumes of remand prisoners – posing the most significant risk of smuggling. The £28 million that will pay for X-ray scanners across the estate is being funded from a £100 million package to boost security. The investment will support new measures to tackle drugs and violence in prisons, including X-ray baggage scanners and metal-detection equipment, phone-blocking technology and a new digital forensics facility.

The installation at the 16 prisons will begin in Spring 2020, with all scanners expected to be in place by the Summer. The prisons receiving scanners are HMP Exeter, Durham, Preston, Liverpool, Birmingham, Hewell, Lincoln, Bedford, Norwich, Chelmsford, Winchester, Elmley, Pentonville, Wandsworth, Bristol and Cardiff. The technology is set to be introduced in other prisons across the estate later this year.

Family members are often caught up with this type of illegal activity and it can be tempting to try and help a loved one asking for help, at what can be a painful time for all concerned. It is clear that the government and Prison Service appears to be clamping down on such behaviour, and therefore the chances of being detected are increased.

Taking prohibited items into the prison estate is a serious offence that almost always results in a prison sentence.

Suspended sentences are not endorsed by the Court of Appeal, which observed in a recent case:

 ‘We have considered whether the sentence should be suspended but we are satisfied that an offence of this kind is so serious that only an immediate custodial sentence is justified.’

In addition, coercion will provide little by way of mitigation, the court stating in one case that:

‘It should not be thought that the fact that someone who takes contraband into a prison has been put under pressure by a relative, partner, or friend, will carry much weight in the generality of these cases. It is relatively rare for people who carry such contraband to do so entirely at their own initiative and pressure of some sort is regularly brought to bear.’

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Driving Disqualifications

Posted on:

The Sentencing Council is responsible for issuing guidelines on sentencing for the courts to follow. Guidelines must be followed unless it is in the interests of justice not to do so. New guidelines are now being proposed in respect of disqualifications from driving.

 

What is being proposed?

The guidance mainly relates to cases dealt with in the magistrates’ court. Minor changes are proposed to sentencing guidelines for driving while disqualified, and more significant changes are proposed in respect of the ‘totting up’ provisions.

 

What is totting up?

The ‘totting up’ provisions come into play when an offender incurs 12 or more points on their driving licence. Once 12 points are imposed, the offender must be disqualified for a minimum period of time. The length of that period depends upon whether the offender has been disqualified before. This disqualification can be avoided if the offender can successfully argue that not being able to drive would lead to ‘exceptional hardship’. 

 

Exceptional hardship

The new guidance sets out the considerations for the court in deciding whether or not there are grounds to reduce or avoid a disqualification. The court will be told to have regard to the following:

  • the test is not inconvenience, or hardship, but exceptional hardship;
  • the court must have evidence of the exceptional hardship, which may come from the offender’s sworn evidence;
  • courts should be cautious before accepting claims of exceptional hardship without evidence that alternatives for avoiding exceptional hardship are not viable, this would include alternative means of transport;
  • loss of employment does not, on its own, necessarily amount to exceptional hardship. Whether it does or not depends on the circumstances of the offender and the consequences of the loss of employment on the offender and/or others;
  • the more severe the hardship, the more likely it is to be exceptional.

 

What else is proposed?

In the guideline for driving while disqualified, it is proposed to make it clear that an existing disqualification should be added to any new disqualification period. 

At the moment if an offender receives a six-month disqualification and a week later gets another six-month disqualification, he would end up with a six-month one-week disqualification, as they run alongside one another. Under the new proposal, his total disqualification would be for 51 weeks. 

 

What happens next?

The changes are subject to a consultation seeking comments on the proposals. The consultation closes on 15th April 2020, so the guidance will not be in force prior to that date.

It is clear however that a much more rigorous approach will be taken by the courts, sooner rather than later, and we can reasonably expect that courts will have in mind these proposals even though not yet in force. 

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Recording and Broadcasting in Court

Posted on:

It has long been a criminal offence to take photographs or make recordings in court; even sketch artists have to sketch from memory rather than while in court. 

In 2011 an 85-year-old man was sent to prison for recording court proceedings, and Stephen Yaxley-Lennon (commonly known as Tommy Robinson) recently faced contempt of court proceedings as a result of live-streaming video outside court commenting on an ongoing trial and was sent to prison. These are just two examples of many.

Changes began with the live streaming of court proceedings in the UK Supreme Court. In 2013 certain proceedings in the Court of Appeal were selected for filming and broadcast by the media. In 2018 a pilot commenced in the Court of Appeal whereby the Court selects the hearings to be streamed. The lower courts have never been filmed and broadcast in this way.

What is changing?

The government has published a draft law which, if passed, will allow filming in the Crown Court for the first time.

What is proposed?

Filming will be allowed in relation to sentencing remarks only and no other court user, including witnesses, jurors or court staff, will be filmed.

Why?

The reasoning behind allowing sentencing remarks to be filmed is that the public will be able to hear judges explain the reasons behind the sentences for the most serious offences. 

Can anyone make a recording, what are the rules?

No just anyone will be able to go into court and make a recording. The proposed legislation states that –

  1. recording is only of the judge when making sentencing remarks in court
  2. recording is by a person who is permitted in writing by the Lord Chancellor, and, who assigns the copyright to the Lord Chancellor
  3. recording only takes place with the permission of the judge, and following any conditions imposed by the judge.

In the first stage of this project only cases sentenced by the most senior judges will be broadcast. If the changes are successful, this is likely to be extended to all crown court cases.

What about broadcasting a recording?

Only recordings made in accordance with these rules can be broadcast, and the broadcast cannot breach any applicable reporting restriction. 

Any report of the proceedings that includes a broadcast of the sentencing remarks must be fair and accurate, and have regard to-

  1. the overall content of the report or presentation; and
  2. the context in which the broadcast is presented.

A broadcast must not be for the purposes of –

  1. a party political broadcast;
  2. advertisement or promotion, except where such advertisement or promotion relates to a report or presentation of proceedings that includes a broadcast;
  3. light entertainment;
  4. satire.

When will this happen?

The timescale will depend on the passage of the legislation through Parliament, so no date has yet been fixed.

We will be monitoring this development closely in order to assess what impact it has on overall sentencing levels, and to ensure there is no element of ‘playing to the gallery’ in order to satisfy the thirst that some people have for even longer sentences to be handed down.

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Helen’s Law

Posted on:

In 1998 a 22-year-old insurance clerk called Helen McCourt was murdered and Ian Simms was convicted of that murder. The Parole Board recently directed Simms’s release saying that they were satisfied that imprisonment was no longer required for the protection of the public. Helen’s family are objecting to the release as Simms has never revealed the whereabouts of Helen’s body as he continues to deny responsibility for her murder.

‘Helen’s Law’ would be the culmination of a campaign by Helen’s family to change the law to ensure that murderers must reveal the location of their victim before they were considered for parole.

What is being proposed?

The proposed law would require the Parole Board to take into account any failure by a prisoner serving a sentence for unlawful killing, or for taking or making an indecent image of a child, to disclose information about the victim.

In particular, with convictions for manslaughter or murder, where the Parole Board does not know where and how the victim’s remains were disposed of, and it believes the prisoner has information about it that has not been disclosed, it is proposed:

“when making the public protection decision about the life prisoner, the Parole Board must take into account –

  • the prisoner’s non-disclosure; and
  • the reasons, in the Parole Board’s view, for the prisoner’s non-disclosure.”

In respect of indecent images, the Parole Board must take account of the same non-disclosure in respect of the identity of a child in any relevant image.

What stage has been reached?

The Prisoners (Disclosure of Information about Victims) Bill 2019-20 was announced in the Queen’s Speech on 19th December 2019. A second reading took place on 8th January 2020.

What does the Parole Board do?

The Parole Board is required to protect the public from the risk of serious harm, a risk to life and limb. The test to be applied is that a direction for release cannot be given unless the Board is satisfied that it is no longer necessary for the protection of the public that the person should be confined.

What is taken into account?

The Board has to consider:

  • all information before it, including any written or oral evidence obtained by the Board;
  • each case on its merits, without discrimination on any grounds;
  • whether release is consistent with the general requirements and objectives of supervision in the community ie. protecting the public and securing the lifer’s successful re-integration into the community.

In assessing the level of risk, the Board take account of a list of issues including the nature and circumstances of the index offence, any impact on the victim’s family and the lifer’s awareness of the impact of the index offence

The current Parole Board guidance is already quite clear that the withholding of information by an offender has to be taken into consideration. It may mean that the offender still poses a risk to the public and would not, therefore, be eligible for parole.

Is Helen’s Law needed?

Strictly speaking, the Parole Board already considers the exact issues that it would be required to take into account under Helen’s Law. The only difference would be that the Parole Board’s established practice would become a legal requirement.

Other issues

The Criminal Justice Act 2003 specifically refers to an aggravating factor in sentencing being the “concealment, destruction or dismemberment of the body”. The Courts can, therefore, impose a longer sentence for those who conceal the location of their victim.

Helen’s Law is unlikely to amount to much of a change in criminal sentencing, but it does demonstrate the new government’s renewed focus on sentencing issues, suggesting that a tougher sentencing framework may be imminent.

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Date rape drugs and the law

Posted on:

Reynhard Sinaga was sentenced to life imprisonment for the rape and sexual assault of 48 victims. The student is believed to have laced drinks with GHB to make his victims lose consciousness and have no recollection of what happened. He denied the offences saying that the acts were all consensual and the men would “act” as though they were asleep in order to fulfil his fantasy.

GHB, sometimes referred to as the date-rape drug, is often used recreationally to reduce inhibitions. When taken in a larger quantity, it leads to unconsciousness, as with Sinaga’s victims. The drug is almost odourless and has a slightly salty or soapy taste which makes it easier to disguise in a drink. 

The Home Secretary, Priti Patel, has asked the Advisory Council on the Misuse of Drugs to review the classification of the drug. In her letter to the Council, the Home Secretary refers to the use of the drug by Sinaga and also by convicted murderers Stephen Port and Gerald Matovu. GHB, or gamma-hydroxybutyric acid, and GBL, gamma-butyrolactone, are currently Class C drugs. The drugs have a legitimate use, so it is legal to import, export, produce, supply, offer to supply or possess, except for the purpose of human ingestion, other than as a flavouring in food. 

The Council is being asked to undertake an urgent review of the classification of GHB and GBL under the Misuse of Drugs Act 1971, and the scheduling of the drugs under the Misuse of Drugs Regulations 2001.

 

What does this mean?

It is already an offence to supply or possess the drug if you know or believe it will be swallowed or ingested. The Home Secretary is, presumably, wanting it to be a more serious offence. As a Class C drug, the maximum penalty for possession is 2 years imprisonment and 14 years for supply. As a Class B drug, for example, the maximum penalty for possession is 5 years, but for supply, the maximum is still 14 years. The only real difference would be the increase in the maximum penalty for possession of the drug.

 

Is a change of classification needed?

In the context of the case of Sinaga the issue wasn’t just the possession or supply of GHB but the fact it was used to incapacitate his victims. There is a separate offence under the Sexual Offences Act 2003 of administering a substance to a person with intent to overpower that person to enable sexual activity with them. Such a substance would include GHB, the offence is not changed in any way by the classification of the drug used as the offence refers to a ‘substance’ rather than a drug. That offence carries a maximum of 10 years imprisonment.

In reality, however, when a defendant is facing allegations of rape, or murder, it is unlikely that the administering of such a substance would need a separate offence to be charged. 

The offence of administering a substance with intent tends to be charged when, for example, a drink has been laced with the intent that sexual activity would take place, but the offence doesn’t get as far as the sexual activity.

The fact the drug was given would, undoubtedly, be treated as an aggravating factor during the sentencing process. The sentencing guidelines for rape specifically refer to the aggravating factor of the use of alcohol or drugs on a victim to facilitate the offence. As an aggravating factor, it demonstrates higher culpability placing the offence at a higher starting point for the sentence.

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.