Data Protection – A Shifting Focus

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Over the last few years, we have seen many matters that would previously have been prosecuted before the criminal courts, move into the jurisdiction of other bodies.

What we see as a result is a range of specialist regulators best placed to react to perceived industry failings, and if necessary, meet out swift and condign punishment.

As criminal lawyers, we too have kept pace with those changes, where once we would have defended tachograph cases in the local magistrates’ court, we now support vehicle operators before traffic commissioners. The alleged ‘crimes’ are the same, but the enforcement regime entirely different.

Last week we saw the Information Commissioner’s Office (‘ICO’) issue notices of intention to issue fines to two large companies.

British Airways is to be fined £193.39 million and Marriott Hotels more than £99 million. In each case, there was a large-scale breach of data protection (in one case involving over half a million users), and these fines reflect not only the extent of the breach but also an early indication as to a stronger line being taken under the new GDPR regime.

Information Commissioner Elizabeth Denham said:

“People’s personal data is just that – personal. When an organisation fails to protect it from loss, damage or theft it is more than an inconvenience. That’s why the law is clear – when you are entrusted with personal data you must look after it. Those that don’t will face scrutiny from my office to check they have taken appropriate steps to protect fundamental privacy rights.”

Another striking feature of these two cases is the international approach to data breach, explained here by the ICO

“ICO has been investigating this case as lead supervisory authority on behalf of other EU Member State data protection authorities. It has also liaised with other regulators. Under the GDPR ‘one stop shop’ provisions the data protection authorities in the EU whose residents have been affected will also have the chance to comment on the ICO’s findings.”

Whatever your business or profession, we make it our business to protect your interests and our specialist teams are fully up to date with all practice, procedures and emerging trends.

 

How we can assist

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

Proceeds of Crime

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Proceeds of Crime – when does it all end?

We have all read newspaper articles reporting that a drug dealer or fraudster made hundreds of thousands from their offending but was ordered to pay back a much smaller amount. That is not always the end of the matter.

What are the proceeds of crime?

If a defendant is determined to have had a ‘criminal lifestyle’ and benefited from it, or if he has benefited from his particular criminal conduct then the court must decide on a ‘recoverable amount’ and make a confiscation order requiring the offender to pay it. 

This is the amount they have gained from their criminal activities.

If a defendant can establish that he does not have the recoverable amount, he can be ordered to pay a lesser amount that he does have. That sum is the ‘available amount’, and that order is also known as a confiscation order.

It is quite possible to ‘benefit’ from crime financially but to have spent all of that money by the time you are arrested. It is in these circumstances, because you spent all the money on drugs, for example, that the benefit figure far exceeds any available amount.

What if I later win the lottery?

If a confiscation order is made, and the amount to be repaid is less than the recoverable amount, then the prosecutor or receiver (someone who is appointed to help enforce a confiscation order) can apply to the court under section 22 of the Proceeds of Crime Act 2002 for reconsideration of the available amount.

If this new calculation of the amount now available is higher than the original amount, the order may be varied, and you will have to pay more money back.

How much more could I be ordered to pay?

The court can order any amount it believes to be ‘just’, as long as it does not exceed the benefit amount (as found at the original hearing) although there is also a power for the court to reconsider the benefit amount. The court also has to take inflation into account and any change in the value of money.

What does ‘just’ mean?

The court must first consider whether it is just to make the order. The word ‘just’ means just in all the circumstances, bearing in mind that the purpose of such orders is the advancement of the public interest in confiscating the proceeds of crime. 

The court must take certain factors into account when considering what amount should be ordered. These are factors such as any fine imposed for the original offences, any forfeiture order already made, compensation or the victim surcharge.

Is there a time limit?

The prosecutor or receiver can make any number of applications for a new calculation of the available amount, and there are no time limits for the making of an application. 

There is a time limit of 6 years, starting from the date of conviction, to seek a revaluation of the benefit amount.

In what circumstances have applications been made?

The canoeist, John Darwin, faked his own death to receive life insurance payouts. The benefit amount in his case was found to be £679,073.02. In 2014 it was reported that he had only repaid £121 although most properties had been in his wife’s name and she had paid over £500,000 under a separate confiscation order. Before committing these offences, he was a teacher and prison officer and had pensions as a result. On the maturing of two pensions, the prosecutor made an application for reconsideration of the available amount, with the application being made five years after the confiscation order was imposed.

He was ordered to pay £40,000 by the court. This case clearly demonstrates that even legitimately obtained monies will be taken into account. 

Gurdeep Padda was a drug dealer, and in 2006 a confiscation order was made in the sum of £9,520, the benefit amount was said to be £156,226.74. In 2012 an application was made for reconsideration after Mr Padda gained employment and subsequently set up a limited company. The case proceeded on the basis that all the assets were legitimate and had been acquired after the conclusion of his prison sentence. He attempted to argue that as the funds were derived legitimately, they should not be confiscated to satisfy the original order. He was not successful, and a new calculation was made of £103,162.41, in upholding the order on appeal the court referred to the “legislative policy in favour of maximising the recovery of the proceeds of crime, even from legitimately acquired assets”.

Adrian Cole was sentenced for offences of concealing criminal property and false accounting in 2008, and a confiscation order was made in 2009 with an agreed benefit figure of £575,000 and an available amount of £55,000. It was envisioned that he would sell the property to realise the equity to pay the sum due, it transpired that others actually paid the money on his behalf and he did not sell the property. In 2014 he pleaded guilty to conspiracy to supply Class A drugs. In the resulting confiscation proceedings, an application was also made to recalculate the available amount from the 2009 order. 

Ian Mundy pleaded guilty to various offences involving the supply of drugs. A benefit figure was assessed at £172,365, and a confiscation order of £9,275 was made in 2008. In 2017 and application was made to the court as a property owned by Mr Mundy that had a negative value in 2008 was now worth £17,000 and he had several vehicles and positive bank balances. The increase in the value of the house was contested and confined to £10,000, referred to as a modest amount, vehicles were not worth as much as the prosecution had initially thought and one of the respondent’s savings accounts was for his daughter’s education.  The application was refused, and the prosecution appealed, the issue was what was ‘just’, and the Court of Appeal agreed that it was open for the judge to decline to vary the order. 

How we can assist

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

Convicted of a crime you didn’t commit?

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Denial and Parole

You have been convicted of a crime you didn’t commit, your appeals are exhausted, and you serve time in prison. Part way through, you’re eligible for parole. You hope finally to get out and put this behind you.

The parole board give you their decision, but parole is refused, seemingly because you refuse to accept your guilt. What can you do?

The Parole Board

The role of the Parole Board is to decide if it is safe to release a person. They mainly make decisions in relation to life prisoners, extended sentences, or offenders of particular concern such as terrorists or child sex offenders; they do not make a release decision about all prisoners. They also decide whether to re-release someone who has previously breached their licence conditions.

They will consider one question: whether the prisoner is a serious risk to the public.

Those who are a serious risk will remain in prison, and those who are not will be released on licence, serving the remainder of their sentence in the community under the watch of the Probation Service.

How does the Parole Board decide who to release?

To assess any risk to the public, the Board will consider many factors.

They may look at the circumstances that led to the offence being committed — such things as lifestyle, including any drug or alcohol use or abuse, relationships and acquaintances, living conditions and other factors. The Board will consider if those factors have changed.

They may also look at the circumstances the prisoner will be released into. Will they have a family network, a place to live, or a job? These things are likely to help the Board feel that any risks can be effectively managed outside of prison.

They will also look at a person’s record in prison. This includes their behaviour, their engagement with the opportunities in prison, and their relationship with their Offender Manager.

It is at this stage that problems can arise for people who deny they committed any offence. 

Various programmes available to help offenders confront and manage their behaviour require them to accept guilt because the programmes are built around gaining insight into the offence. 

This can be an effective bar to those who deny their guilt from taking part in these schemes and disadvantage them in front of the Parole Board.

How do the Parole Board make their decisions?

The Parole system is complicated and can take six months or more. The process begins with a ‘dossier’ of information being considered by a member. This stage is called the Member Case Assessment.

The case can then have one of four outcomes: the prisoner is released, transferred to an open prison, an oral hearing is directed, or the prisoner is refused parole.

An oral hearing is precisely that: a hearing that happens face to face. The Parole Board wants to hear evidence from the prisoner and other witnesses to find out more about the factors above.

An oral hearing can end in any of the other outcomes that the Member Case Assessment can.

What happens if I deny that I am guilty?

This can be tricky for a Parole Board because one of the ways in which they assess risk is looking at the insight a prisoner can demonstrate into their offending. When a person says they have done nothing wrong, it’s difficult to show any insight.

However, a denial of guilt is not, and should not be treated as an automatic bar to parole. This was made clear in the leading case of R (Owen Oyston) v The Parole Board [2000] EWCA Crim 3552.

A denial of guilt can be taken into account when assessing risk, but the court in Oyston made clear that it was only one factor to take into account, and the Parole Board should consider it in the context of all the evidence. 

Do people who deny guilt face a disadvantage at parole hearings?

The court in the Oyston case set out the ways in which a person who maintains their innocence may be at an evidential deficit compared to those who accept they committed an offence.

Those who maintain they are innocent are unlikely to express any, or any real, remorse or contrition. They are unlikely to express sympathy for any victims, except that they may express general sympathy for them having been the victim of a crime. 

They will probably not have taken part in prison programmes designed to address the cause of the offending, because those programmes require acceptance of guilt.

They may, in every other way, be a model prisoner, and they may show a willingness to engage in those programmes but be unable to by virtue of their denial of guilt.

The Parole Board may, in these cases, have a fear that they will have no motivation to obey the law in future, and prisoners who deny guilt can only undertake not to do what they maintain they have not already done. 

What happens if I have been denied parole?

Decisions of the Parole Board can be challenged by way of judicial review. This means asking a judge to review the decision. This is not a re-hearing and can only be used where the law has been wrongly applied, some has gone wrong in the procedure, or discretion has been exercised unreasonably.

How we can assist

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

New sentencing guidelines regarded arson and criminal damage

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Today the Sentencing Council published new guidelines covering arson and criminal damage of all kinds, as well as threats to destroy property. There were existing guidelines, but they were thought to be very limited and only covered the Magistrates Court, there were no guidelines for the Crown Court, which deals with the more serious offences.

Sentencing guidelines are designed to ensure that the court passes an appropriate sentence and does so consistently across all of these extremely varied cases.

A judge must follow sentencing guidelines unless it is not in the interests of justice to do so.

The new guidelines will replace those that existed in the Magistrates Court and extend to the Crown Court, covering all offenders aged over eighteen.

The Sentencing Council has said that the guidelines will make sure courts consider:

• The full impact of arson or criminal damage such as vandalism on national heritage assets including listed buildings, historic objects or unique parts of national heritage and history.
• The economic or social impact of damaging public amenities and services such as a fire at a school or community centre, or criminal damage at a train station, which can adversely affect local communities or cause economic hardship to neighbouring houses or businesses.
• The effect on communities when an area’s emergency services or resources are diverted to deal with an incident of criminal activity.

The guidelines provide starting points, and category ranges for offences of arson, arson and criminal damage (intending that, or being reckless as to whether life is endangered), criminal damage over £5,000, criminal damage under £5,000, racially or religiously aggravated criminal damage of both values, and threats to destroy or damage property.

The guidelines require a sentencer to determine the ‘culpability’, taking into account things like planning, intended amount of damage, and motive, and ‘harm’, taking into account physical or psychological harm caused, the value of the damage actually done, and any subsequent loss the damage causes.

Racially and religiously aggravated offences are given an ‘uplift’ for the level of aggravation, making for more severe punishment and possibly lifting an offence above the custody threshold.

To take an example, criminal damage under £5,000 with elements of significant planning and causing a high amount of damage and distress would lead to a starting point of a high-level community order with a range from a medium-level community order to three months custody. If that were a racially aggravated offence, where the racial motive was a significant part of the offence, that would likely increase the starting point to a custodial sentence.

Commenting on the new guidelines, John Bache JP, National Chair of the Magistrates Association, said:

‘We are very pleased that the new guidelines for Arson and Criminal Damage have been published, and will be available for magistrates from 1st October. These new guidelines will be very helpful to magistrates dealing with these important cases and clearly set out the relevant factors in determining harm, beyond a focus on physical damage. It is, however, right that if an offender has mental health conditions or learning disabilities then courts must obtain assessments to fully understand whether this impacts on their culpability, and this guideline will help to ensure that this happens.’

 

How we can assist

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

Criminal Compensation Order

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The press has recently reported that children who were victims of serious sexual abuse have received paltry sums, £20 for example, as compensation from the courts. 

So, what exactly is a criminal compensation order?

The court has a duty to consider making a compensation order in any case where personal injury, loss, or damage has resulted from the offence. If it does not make a compensation order, it must give its reasons. 

The order requires that the offender pay a certain amount to the victim, usually within a year or two if paid in instalments.

The low figure of £20 was made public by Andrew Griffiths MP, who received the data in answer to a written question to the Ministry of Justice. His questions uncovered that of 6,861 people convicted of child sex offences only 26 were ordered to pay compensation. 

It’s difficult to comment on these cases because we simply don’t have most of the facts, but we will try to answer general questions about criminal compensation orders.

Why was the compensation so low?

The court must take into account the means of the offender when making a compensation order. 

This means that a compensation order will not ordinarily go hand in hand with a custodial sentence, especially a longer sentence, because the offender will not be able to earn and make payments. 

That is one of the reasons that an order of £20 may have been made, and that so few orders were made in the first place, as serious sex offences are more likely to lead to a custodial sentence.

The fact that there is no monetary loss to a victim in cases like this is also relevant. Child sexual abuse is a serious and severe crime, but not always one where compensation from the offender is appropriate.

Can I get compensation from the Government?

Yes, in many cases you can get compensation from the Government. The Criminal Injuries Compensation Authority is a publicly funded body that awards compensation to victims of violent, including sexual, crime. Parliament sets the awards. 

In 2017-2018, the Authority paid out £150 million to victims of violent crime. There is a two-year time limit for making a claim, in most circumstances, but that does not begin until age eighteen.

To be eligible for a payment from the CICA, a person need only show that it is more likely than not that they were the victim of crime. 

This is a lower standard than is applied at a criminal trial, and so it is available in some cases where there is not enough evidence to proceed in a criminal court.

The CICA operates under complicated rules, and people are not always able to navigate them well. Solicitors can help with making a claim, but their fees will eat into the amount of compensation. 

CICA payments can also be reduced or refused if you don’t co-operate with the CICA, or the police, or have a previous conviction, even where you are totally blameless for your injury.

Can I sue my abuser?

Yes, a claim for trespass to the person is also available in a civil court. This requires the same standard of proof as a claim to the CICA. If there has already been a criminal conviction, that will usually satisfy the requirement of proof. 

In a civil court, however, the time limit for making a claim is longer. In most cases of personal injury, it is three years, but when that limit starts running can be different, and it will not start in any event until a person turns eighteen.

Civil claims are brought by a person individually, and so if you chose to sue someone for a sexual assault, you would have to pay. 

Costs are usually recoverable from the loser, but that is not so in small claims court where the claim is for personal injury of £1,000 or less. 

If you are able to recover costs when you win, it also means that if you lose you may have to pay to other person’s costs. Claims of this sort are rarely made unless likely to involve a substantial sum of money, and the other party definitely has the means to pay.

What if the offender is a child?

Child offenders are not exempt from the compensation order. Some of those payments uncovered by Griffiths were offences by a person under 18 and ranged from £50 to £150.

The court still has a duty to consider making one. One crucial consideration will be the means – how much can a child be expected to pay? It’s unlikely they will have a significant income to put towards any order.

Can a child’s parent be made to pay compensation?

In some cases, yes. If the offender is sixteen or over, the court may order the parents to pay any financial penalty, such as compensation or a fine. 

If the offender is under sixteen, the court must order the parents to pay the financial penalty. If the parents cannot be found, or it would be unreasonable, the court doesn’t have to order them to pay.

Why order compensation of £20?

Without the full facts, it’s difficult to say. There are many variables, but it does, on the face of it, seem an odd decision. 

People could think that it’s more insulting to order £20 compensation than to make no order at all. It could easily leave the victim with a feeling that £20 is all their abuse is worth. 

Equally, given the offender clearly had minimal means to pay, was an order worth making in the first place? 

How much should someone be paid for being the victim of a sexual offence?

Amounts vary across offences, but there are some guideline figures to look at. The CICA official table gives £11,000 as the amount for a child victim of rape, the same circumstances as the case where a compensation order of only £20 was made.

The Sentencing Council gives starting points for criminal compensation orders. For the same offence, the suggested starting point is only £3,300.

Without all the facts, it’s difficult to say why the compensation, in this case, wasn’t closer to these figures. It may be that the offender was sent to prison and only had £20 in his property, it may be that it was a child or person for whom £20 was a lot of money, the compensation may have been for money taken or lost during the assault or it may even be a reporting error, we simply do not know.

Disqualified Directors

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Recently, three men from Halifax were convicted after one of them was found to have run a company whilst disqualified. The other two were convicted of assisting him.

If you’re thinking of trying to evade a director’s ban, be aware that it can lead to a criminal conviction and even prison.

 

Why was he disqualified?

Andrew Brian had voluntarily accepted a disqualification in 2009 after his previous company had run up a significant tax debt.

 

How can you be disqualified?

The courts also have the power, in certain circumstances, to disqualify a person from acting as director of a company. The power comes from the Company Directors Disqualification Act 1986.

The Act empowers the Crown Court, the Magistrates’ Court, or the High Court to make an order that a person be disqualified from acting as a company director for a period of time. In the Magistrates’ Court, the maximum period is five years, in other courts, it is fifteen years.

The Crown Court, a criminal court, may make an order even where this condition is not met and has a very wide discretion whether to do so. The court can disqualify a person where they are convicted of an offence ‘in connection with the promotion, formation, management, liquidation or striking off of a company.’

Where an offence can only be dealt with in the Magistrates’ Court, a disqualification may be imposed if an offender has been the subject of three default orders or convictions in the preceding five years.

The High Court can only disqualify a person where it thinks they are unfit to act as a director, and usually this is done when the company is wound up by the court.

Being unfit includes allowing a company to trade when it can’t pay debts, not keeping correct accounts, or using company assets for personal benefit. Andrew Brian had used significant amounts of company money to pay his own mortgage.

People who are declared bankrupt are also automatically disqualified from acting as directors.

 

What does a disqualification order mean?

A disqualification order means that, without permission of the court, a person cannot be a director, act as a receiver of company property, or be concerned or take part in the promotion, formation or management of a company, or act as an insolvency practitioner.

Andrew Brian was not listed as a director of Met Euro Ltd, but it was found he exercised control over it and creditors dealt solely with him in breach of his ban on taking part in the management of a company.

His son Thomas Brian was the director when the company went insolvent after running up debts of £255,000. A significant amount of the benefit from the company had benefitted Andrew Brian personally, going towards his mortgage.

 

What happens if you run a company after being disqualified?

In any case where a person is disqualified, acting as a director, or in any other way prohibited by the order, is a criminal offence. It carries a maximum penalty of two years imprisonment and an unlimited fine.

In the case of Andrew Brian, he was disqualified for a further twelve years and handed a twelve-month sentence suspended for twelve months and ordered to complete 150 hours of unpaid work.

His son Thomas received a twelve-month community order for helping him to carry out the offence.

In other cases, though, more severe sentences have been imposed. In 2014, Colin Cowley-Hurlock received twenty months imprisonment for running up similar debts in respect of three companies.

It’s also possible that the court will confiscate any benefit you have gained.

 

How we can assist

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

Why hasn’t Michael Gove been arrested?

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A question on many people’s lips since the former Justice Secretary admitted to using cocaine several times earlier in his career.

So, could he face the legal consequences of this?

Cocaine is a Class A drug, the most serious category. Drug offences are governed by the Misuse of Drugs Act 1971 and whilst buying a controlled drug in this scenario is not an offence, possession is. It carries up to seven years in prison.

 

Is Michael Gove’s confession enough?

Possibly. The Prosecution will usually have to prove that a substance is in fact a controlled drug, and the most convenient way to do that is through a forensic report.

In this case, though, the drugs are long gone and can’t be analysed. The prosecution would have to rely on his public confession.

A confession was relied on in R v Chatwood [1980] 1 All ER 467 where the Court of Appeal said that a confession could amount to evidence that, on the face of it, the defendant had been in possession where he was expressing an informed opinion.

Whether Michael Gove’s opinion could be described as ‘informed’ will be the key question and would likely depend on how often he used the drug.

His confession could be used as evidence, however, if he were to be charged with attempted possession under the Criminal Attempts Act 1981.

The prosecution could accept that Gove did not actually possess cocaine but allege instead that he had tried to possess it. The maximum sentence is the same.

 

Has it been too long to charge Michael Gove with a drugs offence?

No. There is no general ‘Statute of Limitations’ in England and Wales. Offences only triable in the Magistrates’ Court usually have a limit of six months, but possession of a drug is not one of those.

He could, theoretically, still be charged.

 

Will Michael Gove be prosecuted?

The Crown Prosecution Service would make a decision as to whether a prosecution should proceed.
To do this, they apply the Full Code Test set out in the Code for Crown Prosecutors. This is the same for every offence.

The Full Code Test has two stages which need to be met. These are the evidential stage, and the public interest stage.

In short, there needs to be enough evidence for a realistic chance of conviction, and it must be in the public interest to bring a case. If a case fails either test, it will not be prosecuted.

The confession is potentially enough evidence for a case to be brought. A Crown Prosecutor would have to be satisfied that it, and any other evidence, is admissible and leads to a realistic prospect of conviction.

Any evidence from Owen Bennett, the City AM political journalist who outed Gove’s cocaine use in his unauthorised biography of the Environment Secretary, or Gove’s political advisors to whom he confessed would need to be carefully considered, and a prosecutor may have grave doubts as to its admissibility.

In the event there was enough evidence, the case would also have to pass the public interest stage. A case will usually pass this stage unless there are factors against the prosecution that outweigh those in favour.

This stage takes into account a lot of factors, including the seriousness of the offence, the circumstances, any harm caused, impact on any victims, and whether a prosecution is proportionate.

The likely penalty would be a small fine or community punishment at most.

Therefore, Gove could be prosecuted but it is unlikely in all of the circumstances. Reputationally and politically, this admission could exact a great cost.

 

How we can assist

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

Does Imprisonment Lead to Re-offending? Farmer Review for Women Highlights the Problems They Face

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Prison is supposed to be hard. It is, after all, a punishment. But it’s also designed to help people address their behaviour and stop them re-offending. When imprisonment leads to more offending, it isn’t working.

The specific problems faced by women have been highlighted recently by the Farmer Review for Women. Lord Farmer hopes to improve women’s experience within the criminal justice system with the aim of reducing re-offending.

But it isn’t just about prisoners. A previous study by Lord Farmer on male prisoners found 63% of male prisoners’ sons went on to offend themselves and adult children of imprisoned mothers are even more likely to be convicted.

The problems revolve mainly around the breakdown of family relationships, particularly as women are often primary carers, that flow from a spell in custody, whether on remand or in prison.

The Report found that women who receive family visits are 39% less likely to reoffend, and so the importance of alleviating these problems is obvious.

What are the problems?

Any custodial stay, whether the first night in the cells or five-year prison sentence, can have a devastating effect on several areas of a person’s life.

Relationships with all family members, particularly with children and partners, suffer badly when one member of that unit is taken away for an extended period.

This is made worse by the fact that women are held on average 63 miles from home, increasing the difficulty of prison visits.

Anxiety of mothers and primary carers in custody is increased due to separation from the children, especially where the mother is the sole carer. Children are the first priority in this situation, and the Report found that little progress can be made with the prisoner until this anxiety is dealt with.

Domestic violence also is recognised for its huge impact on women’s lives, tying in to relationships and possible causes of offending.

What can be done to help?

The Report recognises that the early intervention in a wide range of circumstances including mental health, relationship breakdown, substance misuse, education and debt can all help to prevent offending.

It makes a number of recommendations to strengthen female offender’s family and other relationships to prevent re-offending and reduce intergenerational crime.

Recommendations

Earlier intervention to address the vulnerabilities of some women which can lead to them coming into contact with the criminal justice system and diverting them from it. If women had ready access to services and good peer support networks, it could prevent offending and the repetition of the cycle by children.

A specific recommendation is to create a personal circumstances file for a woman so that information can be shared through trusted organisations such as the police and local authority, NHS and Victim Support.

A renewed focus on alternative accommodation is required, bail hostels are currently geared towards men and prohibit children living there or visiting them. These restrictions need to be reviewed by the government and women in hostels need to be referred to services to assist with parenting or relationship issues where appropriate.

Pre-sentence reports should be mandatory for all women (and male primary carers) if a custodial sentence is a possibility. The report would clarify the repercussions of a custodial sentence on dependants and put forward detail of mitigating factors such as domestic abuse.

Women sentenced to custody or remanded must be given the opportunity to make telephone contact with dependents and organise childcare before being put onto transport. Consideration should be given to primary care or other relationships before a woman is remanded as even a short remand can have devastating effect on families, tenancies and the ability to provide for family.

The development of custodial centres should be a long-term strategy, used for women whose crime is serious enough to merit a custodial sentence but who are low enough risk to retain care of their children.

Where a custodial term is inevitable there are many recommendations to enhance rather than break down family ties. Such recommendations as improvements to the Assisted Prison Visits scheme and space for private family visits.

Some of the most frequent issues raised by women prisoners were access to release on temporary licence (ROTL) and child resettlement licence (CRL).To address this ROTL could be used far more frequently and creatively to help women fulfil caring responsibilities and aid resettlement, CRL could be widened to include other family circumstances and not just rest on sole carer status.

To aid communication during sentences the operation of prisoner email schemes needs to be consistent and all female prisons to develop an email reply system so that children do not think they are being ignored if no reply is received. Virtual visits and in cell telephony should be utilised to supplement face to face visits.

Conclusion

The cost of the recommendations is balanced throughout, for example, by the savings from keeping women out of the prison system and the cost saved by children not being cared for by social services. There are certainly a number of interesting recommendations, but it remains to be seen whether they are put into place.

In the meantime, our advocates will ensure that a comprehensive picture is presented to any sentencing court.

How we can assist

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

Prosecuting Sexual Offences – Time for a rethink?

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Justice, the renowned human rights organisation, has published a significant report that examines the prosecution of sexual offences, and in some areas calls for a radical overhaul.

Among the authors of the report is Judge Peter Rook QC, a senior Judge at the Central Criminal Court (‘Old Bailey’) and considered an expert authority on this area of law.

Two of the areas examined were preventing and reducing offending. Turning its attention to those who view indecent images of children (‘IIOC’), the report recommended as follows:

“Police-led diversion schemes have recently been developed. These seek to address the factors that may lead to offending behaviour without the need for prosecution. We have been inspired by the success of these programmes to develop our own proposal for a Conditional Diversion Scheme, for individuals who have viewed IIOC. We consider that this scheme will provide the correct intervention to these individuals as quickly as possible, helping to both save prosecution and court resources and ensure reoffending rates remain low. Our proposed scheme has been developed together with experts in the field and we consider it to be a sensible response to the volume of reports that the police receive each month.”

The authors also had much to say concerning rehabilitative programmes and the effect of protective/preventative orders:

“When it comes to sentencing, this working party believes that lessons should be learned from the skills-based approach to rehabilitation, which has shown this to be an effective way to reduce reoffending rates. There should be a shift in focus to rehabilitation and more flexibility should be given to sentencers to allow them to make suitable orders that allow the individual to rehabilitate effectively. This is especially the case for Sexual Harm Prevention Orders, where we have heard that overly restrictive orders can isolate an individual from society once released from prison, hindering them from getting their lives back on track and risking further offending.”

Our work brings us into contact with a great many people who commit offences at all level of seriousness, and of course, many that have committed no crime at all. We know that criminal investigation and proceedings can have a devastating effect on those accused and their wider families.

In all cases, we work sensitively and diligently to prepare a robust defence case when that is required and to work hard with others to ensure outcomes that work for our clients and the wider community when it comes to sentencing.

We welcome this report and its mature examination of such complex societal issues.

How we can assist

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.

Sally Challen – An Issue of Coercive Control

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In February 2019 the Court of Appeal quashed Sally Challen’s conviction for the murder of her husband and ordered a retrial.

Last week the prosecution accepted a plea to the lesser offence of manslaughter and Challen received a sentence that meant she would serve no further time in custody.

 

Why was the appeal allowed?

Challen advanced two grounds of appeal:

  1. The fresh evidence on coercive control and the fresh psychiatrist evidence support the proposition that at the time of killing the appellant was suffering from an abnormality of mind. Had expert evidence on coercive control been available at the time of the trial, the jury may have reached a different conclusion on diminished responsibility.
  2. The fresh evidence also goes to the issue of provocation in that it helps establish the appellant was provoked to kill the deceased because of his controlling and coercive behaviour.

The foundation for both lines of the challenge was her husband’s controlling and coercive conduct, conduct which is now a criminal offence in itself. Section 76 of the Serious Crime Act 2015 criminalises a pattern of abusive behaviour, the individual elements of which are not necessarily unlawful in themselves. This is designed to better protect victims of domestic abuse.

Counsel for Challen argued that the courts have recognised the concept of battered person syndrome, but that syndrome focuses on the psychological impact of repeated physical abuse, whereas coercive control focuses on systemic coercion, degradation and control.

The lack of knowledge about the theory of coercive control at the time of the appellant’s trial, meant that the partial defence of diminished responsibility was not put as fully as it could have been and the defence of provocation was not advanced at all by counsel then representing the appellant.

The appellant’s actions were not, therefore, put into their proper context.

 

Did the court agree?

The court held:

“We were not persuaded that had it stood alone the general theory of coercive control on the facts as presented to us would have afforded the appellant a ground of appeal. However, it did not stand alone. We have focused on [the Doctor’s] post-conviction diagnosis that the appellant suffers from borderline personality disorder and a severe mood disorder, probably bipolar affective disorder, and suffered from those disorders at the time of the killing. If that is correct, it is in that context that the theory of coercive control may be relevant.

We express no view on whether the appellant was the victim of coercive control and no view, if she was a victim, on the extent to which it impacted upon her ability to exercise self-control or her responsibility for her actions. However, because expert evidence was not available to defence counsel at trial, neither the possibility that she was suffering from these two disorders, nor the issue of the impact upon her of the abusive relationship were explored at trial in any detail. The issue of provocation was not advanced at all.”

Accordingly, a retrial was ordered.

In the end the prosecution accepted the plea to a lesser charge of manslaughter in light of overwhelming evidence as to the husband’s behaviour and the effect on Challen’s state of mind at the time of the killing.

 

What does this case tell us?

From a legal perspective it tells us two things:

  1. Coercive control is now a relevant factor to be taken into account when considering what defences might be available; and
  2. That as medical and other disciplines evolve, we have to take stock of older cases to see whether those advances might support a fresh appeal.

 

How we can assist

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.