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August 2023
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Jury Trails and Covid 196/24/2020 In a startling announcement, Justice Secretary Robert Buckland admitted that the right to a jury trial is in his sights and might be curtailed in a few weeks time.
Before the Coronavirus pandemic, the Crown Court case backlog was approximately 39,000 cases. Since lockdown, that number has grown considerably as only a trickle of cases have been dealt with due to the inadequacy of the court estate. The pandemic was not, of course, responsible for the initial backlog. Many years of court closure and chronic underfunding meant that any slight pressure on the system, let alone a pandemic, might lead to a total collapse. Only a handful of jury trials have taken place in the last three months, and that situation is unlikely to improve materially. With the threat of a second spike in the Winter months, the Ministry of Justice is seeking an urgent solution to the problems it now faces. The options appear to be:
Option three would increase capacity by 40% and that, alongside Nightingale Courts, appears to be the direction that the government wishes to take. Buckland said: 'If it is done it would be temporary and not be the basis for a permanent change.' The Law Society believes that there are better solutions, commenting: 'Reducing jury numbers and using non-court buildings for additional court rooms are preferable solutions to tackling the backlog than restricting jury trials, especially given the reduction in social distancing measures announced today [23 June 2020].' Any changes of this nature will require legislation to be passed by parliament, and given a recess date of 21 July 2020 that must now be done with some urgency. We will be watching developments closely over the coming days. We will be ready to respond and play our part in ensuring that a world-class court system is not sacrificed on the altar of financial expediency. Accused of Benefit Fraud call us [Image credit: "The Royal Courts of Justice" by R/DV/RS is licensed under CC BY 2.0]
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The recent case of Jay Davison acts as a stark reminder of the consequences that can flow if hate material is published.
Davison was convicted of three offences of publishing material with intent to stir up racial hatred, for which he was subsequently sentenced to a period of four years' imprisonment to run concurrently on each count. What did he publish? Davison published written material on Instagram, including an image of himself bare-chested, holding a long-barrelled musket-type gun pointing upwards. His finger was on the trigger. The photograph featured alongside posts: "F*&^ Allah", "scum c*&$" and "stand up" (count 1); "Ever seen a white cut a head off... no cos there f*&^%$£ scum heil, heil, heil fuck Allah C*&^" (count 4) and "When has an arian cut another man's head off" alongside the comments "scum c*&^" and "f*&^ Muslims" (count 5). [we have altered the words as it is not necessary to reproduce them precisely to convey the essence of the messages]. His Instagram account had 394 followers, and it was set to "Private". In interview, he accepted posing for and posting the picture on his Instagram account. Davison claimed not to have racist views. He said that the gun was an ornament which was on the wall in a friend's house and that the incident had escalated into something silly, which he regretted. He said the language was disgusting, he was drunk, and they were not his beliefs. Davison would not provide the name of the friend to whom the gun belonged, nor would he tell the police where the gun could be found. What did the Judge say? The Judge considered the nature of the publications and the intention of the appellant. She found that his intent was to stir up racial and religious hatred. Identified as very significant was the photograph which the appellant posted with the comments. The Judge observed that the intention was that he would appear as someone in possession of a working firearm which would be believed by others, with everything that implied. The Judge did not accept Davison's evidence that he was disgusted by the language in the posts nor his claim that he did not know what some of his remarks meant. The Judge accepted that the posts had been put on a protected account which in theory meant that its distribution was limited to a few hundred people. However, there was nothing to prevent the post being disseminated to others who are not part of the protected group, which is what occurred in this case. In sentencing Davison the Judge took account of the authority of R v Bitton [2019] EWCA Crim 1372, in which the appellant pleaded guilty to six offences of publishing written material that was threatening, abusive or insulting with intent to stir up racial hatred and to seven offences of publishing threatening written material with intent to stir up racial hatred. The offences took place over an eight-day period and were posted on Twitter. The words used were described by the court as "vile and deeply offensive". Death threats were made during the course of messages tweeted. The appellant's Twitter account had some 724 followers. The words were published in the run up to the Brexit vote; they expressed anti-immigration sentiments in offensive and inappropriate terms. On appeal, the court held that the offending would have merited a sentence of four years. Maximum credit was given for the appellant's pleas which resulted in the sentence of two years and eight months. In sentencing Davison, the Judge identified as a significantly aggravating factor the fact that he posted a photograph of himself, half-naked and in possession of a large firearm which, in her view, made the case more serious than that of Bitton. What happened on appeal? The court identified four relevant factors: 1) The nature of the publication and the intent behind it; In this case, the published material was vile and grossly offensive. It was also threatening, and its content was compounded by the image of the appellant. 2) The need to deter others. In our judgment, there is a clear need for this court to do what it can to inhibit others from publishing material of this nature. 3) The number of people who saw the material. This is unknown. Although the appellant had a limited number of followers on his protected Instagram account, the postings had the potential for further dissemination of the material across social media. It was by this means that Ms Ali had received the post. 4) The consequences of individuals having seen the posts. Ms Ali stated that she felt scared and fearful. Save for this there is no evidence of any particular consequences arising from the appellant's actions. The Court of Appeal agreed with the assessment of the Judge that the image of the appellant, bare-chested and holding a large gun, with his finger on the trigger, was a significant aggravating feature of this offending. The court considered the authority of Bitton, but each case has to be decided upon its factual matrix. These were three convictions following a trial, and the sentence was passed by the trial judge who had a proper opportunity to assess the appellant and his intention. The court regarded the sentence as being at the upper end of the scale of such sentencing but, given the nature of these offences and the need to deter others, was unable to conclude that the total sentence of four years' imprisonment is manifestly excessive. Davison's appeal was therefore dismissed. [Image credit: "social media" by Sean MacEntee is licensed under CC BY 2.0] How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.
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When Will I Be Sentenced6/10/2020 In cases where there is more than one defendant, it is a common scenario that one of more pleads guilty, perhaps at an early stage, but others continue their case to trial.
A question then arises as to whether those who have pleaded guilty earlier should be sentenced immediately, or at some other point. The starting point is that a Judge should await the outcome of the other defendants trial, to be as fully appraised of the facts as possible. In Payne (1950) 34 Cr. App. R. 43 the Court stated: "It may be a very convenient course to sentence prisoners who plead Guilty on the first day, but that ought not to apply where several persons are indicted together and one pleads Guilty and the other or others Not Guilty. In such a case the proper course is to postpone sentence on the prisoner who has pleaded Guilty until the other or others have been tried and then to bring the prisoner who has pleaded Guilty up in the Court where the other or others have been tried and let all who have been convicted be dealt with together, because by that time the Court will be in possesion of the facts relating to all of them and will be able to assess properly the degree of guilt among them." "It is a most inconvenient practice and it is a practice which is wrong and which ought to cease. [Courts] should be informed that where more than one prisoner is joined in an indictment and one pleads Guilty and the other or others plead Not Guilty, the sentencing of the first one should be postponed until the others have been tried and all whose guilt has been established should be sentenced together. I hope that [Courts] will take notice of the opinion of this Court and discontinue a practice which can only lead to disproportionate sentences being passed and will naturally leave a sense of grievance in the minds of prisoners." If a defendant who has pleaded is to give evidence for the prosecution it was the practice to sentence that defendant before giving evidence, but that rule is no longer followed, and the modern method is to default to the position of sentencing all defendants together. Ultimately it is a matter of judicial discretion (Palmer (1994) 99 Cr. App. R. 83, CA.) The default position remains the same for a co-defendant who is intending to give evidence on behalf of another defendant in the proceedings (Coffey (1982) 74 Cr. App. R. 168, CA.) Where a defendant is in custody and has already likely served any sentence they would receive, this is a compelling argument for sentencing early. However, it again remains a matter for judicial discretion. In almost all cases where a defendant has pleaded guilty, they want to be sentenced sooner rather than later, to accept the punishment and move on with their lives. Where appropriate, we will always advance a robust argument to the Court to persuade a Judge to sentence early. How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. (Image: "Bench" by Loozrboy is licensed under CC BY-SA 2.0)
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Reporting Restrictions6/6/2020 Although there is a general principle of open justice, that those who appear in court can be reported on, there are some exceptions.
It is a contempt of court to publish anything to the public which creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced, even if there is no intent to cause prejudice. This means that ignorance of the restriction is no defence. Automatic reporting restrictions Victims of sexual offences Victims of a wide range of sexual offences are given lifetime anonymity. This extends to reporting on any matter likely to identify the victim as well as just the victim's name. There is no restriction on naming the defendant in a sex case although care must be taken to ensure that naming the defendant does not lead to identification of the victim. Automatic restrictions also apply to rulings at pre-trial hearings, preparatory hearings, unsuccessful dismissal proceedings, allocation and sending proceedings in Magistrates' Courts, prosecution appeals against rulings, special measures directions, alleged offences by teachers against pupils, indecent material calculated to injure public morals and youth court proceedings. Youths There is an exception to the open justice principle, which generally bars the public from attending youth court proceedings. Although the press is allowed access, they are prohibited from publishing the name, address or school or any other matter likely to identify a person under the age of 18 as being "concerned in the proceedings". The restriction can be lifted in certain circumstances, that it is appropriate to do so to avoid injustice to the child, to assist in the search for a missing convicted, or alleged offender charged with a violent or sexual offence or for a convicted child if it is in the interest of justice to do so. This automatic protection does not extend to civil proceedings, such as behaviour injunctions. Discretionary reporting restrictions The court can make reporting restrictions in other circumstances. A youth defendant, victim or witness in adult criminal proceedings can be granted anonymity until he or she reaches the age of 18. Youth courts can also grant lifelong anonymity to juvenile victims and witnesses. Certain adult witnesses in criminal proceedings can also have reporting restrictions imposed in relation to them. Such a witness is eligible for protection if the quality of his evidence or his co-operation in the case is likely to be diminished by reason of fear or distress in connection with identification by the public as a witness. Are there any defences? There are three specific defences under the Act. The first is that it is a "fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith". The second is that a publisher or distributor can how that they took reasonable care and did not know or have reason to suspect that proceedings were active (publishers) or, thirdly, that a publication contained matter in breach of the strict liability rule (distributors). Can I use reporting restrictions to keep my case details and identity out of the papers? In most cases it will simply not be possible to have reporting restrictions imposed merely to stop local or national press reporting details of the case. Where an application for reporting restrictions can properly be made, we will of course advise you as to the procedure and prospects of success. How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. |