CRIME: An Introduction

Criminal Justice System 

In October 2023, history was made when Dame Sue Carr was appointed the first Lady Chief Justice of England and Wales. Whilst this inauguration is welcomed and an important day for diversity and inclusion in the legal profession, the senior judiciary have acknowledged that they must not be complacent, and that work remains for the judiciary to be as diverse and inclusive as it should be.

In other announcements, Stephen Parkinson was appointed by the Attorney General to become the next Director of Public Prosecutions, succeeding Max Hill KC. He is the first solicitor to hold this post since the 1960s.

The closure of Harrow Crown Court due to the discovery of potentially dangerous concrete, is symbolic of the continued strain on the criminal justice system. The Crown Court backlog of cases reached a record peak of nearly 65,000 cases, with trials being listed as far ahead as 2025. The strain is also being felt by the prison system, with chronic overcrowding being described as at breaking point. The impact is such that the Court of Appeal has ruled that judges should take into account overcrowding and harsher detention conditions as factors in favour of suspending sentences. The chronic state of our prisons was also blamed in part for creating ripe conditions for defendant Daniel Khalife to escape from HMP Wandsworth.

The sanctity of a properly working criminal justice system, particularly the ability to put right wrongs through an appeal process, was highlighted in the case of Andrew Malkinson; who was wrongfully convicted and jailed in 2003 for rape. In July 2023, his conviction was overturned after DNA linking another man to the crime emerged. His case highlights not only the importance of the appellate system, but also the importance of those lawyers who conduct this work. The fact that the legal team acted pro bono, however, shows the constraints in public funding in this area and gives rise to concerns over future miscarriages of justice.

In a similar vein, the Post Office Horizon IT Inquiry continues, with chair Sir Wyn Williams calling for legislative change to ensure fair compensation to those affected. 86 postmasters have had their convictions overturned, based on evidence from the deeply flawed IT system which had led to their prosecution and conviction.

New offences and legal developments 

The Policing and Crime Act 2017 has led to a significant increase in the number of individuals being released from the police station under investigation, as opposed to on bail, due to legislative limits placed on the ability of the police to extend bail further than an initial three-month period. Many individuals are released with no end date of the investigation in sight. The Criminal Appeal (Amendment) Rules 2023 introduces significant changes to pre-charge bail, allowing for extensions of up to six months being authorised by officers of the rank of Inspector and above, and nine months by Superintendents or above. It appears that the change was brought about due to significant concerns over suspects offending whilst under investigation but not subject to bail conditions, as opposed to the uncertainty faced by those under investigation without a bail date. The practical effect, however, is that bail will likely become the norm once again. Whilst it is hoped that having fixed bail dates will ensure that the police act expeditiously, there is concern amongst practitioners that the police have greater control over an individual’s liberty before a disposal decision, in particular where conditions are imposed. Care will have to be taken to ensure any conditions are just and proportionate, and that seemingly unnecessary extensions to bail are challenged.

Against the backdrop of multiple protests over recent years and the controversial Police, Crime, Sentencing and Courts Act 2022, the Public Order Act 2023 introduced a number of new protest-related offences, including “locking on” to another person or object, or being equipped to do so. This Act has faced widespread criticism, in particular the (not yet in force) expansion of police powers being an expanded suspicion-based stop and search power in relation to “prohibited articles” and the suspicion-less stop and search power in relation to protest activity.

The Domestic Abuse Act 2021 brought into law the offence of non-fatal strangulation. With no specific sentencing guidelines, the Court of Appeal this year provided guidance on the proper approach to sentencing, indicating a starting point of 18 months’ imprisonment. Unlike the sentencing of most assaults, harm caused is not a central consideration; indeed, the offence requires no element of physical or psychological harm (albeit its existence is an aggravating factor).

In the case of Ahmed and Ors, a specially constituted Court of Appeal provided clarity as to the sentencing of individuals who are convicted (as adults) of sexual offences committed when they were a child. The court confirmed that a sentencer must have regard to the maximum sentence which was available at the time of offending. The judgment emphasises that irrespective of how many years have passed since the offending, the court must consider the principles in the Children Guidelines. Other than providing clarity as to the law, the Court of Appeal also provided a stern message in respect of sentencing remarks which lack proper reasoning and clarity as to how the relevant regime has been followed.

In a consultation paper, the Law Commission published proposals for reform of sexual offence prosecutions, aimed at “countering the effects of rape myths and misconceptions of the trial process, treating complainants humanely, and ensuring that defendants receive a fair trial”. A number of proposals are made, including measures to help complainants be more involved in decisions about their personal records, as well as greater judicial scrutiny as to their deployment, and clearer restrictions on a complainant’s sexual history. The Law Commission notes that any reforms must be balanced with a defendant’s right to a fair trial. Practitioners await the extent of the proposals adopted and may have to adapt practices in these difficult and sensitive cases.

Notable cases 

The trial of nurse Lucy Letby was widely publicised, as was her sentence for the murder and attempted murder of 13 babies in her care. She was sentenced to life imprisonment with a whole-life term in prison. Her refusal to attend court to be sentenced sparked significant debate over current powers (or, lack of) to compel a defendant to attend their sentencing hearing. Many feel that it is an integral part of the sentencing process that the convicted defendant is present when sentence is passed. As a result of her refusal, the Lord Chancellor, Alex Chalk, stated that he was considering a change in the law to compel attendance. Whilst such a stance will be welcomed by many, others take the view that the practical realities would make it both impossible to enforce, and potentially more distressing to victims or family members in court. A defendant compelled to attend could act in a way which was disruptive to the proceedings, with the inevitable result being their removal from the courtroom; resulting again with no defendant in the dock. There has been discussion about the possibility of using a video streaming facility to the defendant’s cell, which would allow those in court to see the defendant as they are sentenced. If such a person had already showed an unwillingness to engage in the process however, it is questionable whether their reaction would be commensurate to that expected by a victim or their family and could be a source of further distress. Whilst it is an extremely difficult area to balance, there is a question mark over whether the potential solutions may be worse than the problem that they are trying to fix.

A decision by the Investigatory Powers Tribunal (IPT) came as welcome news to the National Crime Agency. EncroChat has played a significant role in a number of UK prosecutions post-2020 and has been the subject of a number of (unsuccessful) appeals as to the admissibility of intercepted data. The IPT was asked to rule upon the admissibility of evidence obtained via EncroChat in the context of warrants which had been used, and the candour of the NCA’s approach, in proceedings which were brought by a number of individuals following their convictions for drug-related offences. The IPT ruled in favour of the NCA on those issues. Whilst cases remain fact specific, the potential for successful challenges as to the admissibility of EncroChat evidence appear all the slimmer, and the often-deployed submissions that legal argument should be delayed pending the IPT ruling have fallen away.

Finally, the wave of high-profile historical sexual offence investigations and trials has continued, culminating in the acquittal of the Oscar-winning actor, Kevin Spacey, at Southwark Crown Court on sexual assault allegations. Several other investigations of high-profile individuals and celebrities are ongoing, with a level of media involvement not seen since the BBC descended on the home of Sir Cliff Richard. Practitioners have expressed concerns at the impact of such early and extensive reporting on the right to a fair trial.