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Court Clarifies Release Provisions7/31/2020 The High Court this week confirmed that the new release provisions, applying to some offenders, operate retrospectively.
The court was hearing a challenge to the Terrorist Offenders (Restriction of Early Release) Act 2020, which provides that persons convicted of certain offences will not be released automatically after serving half of their sentence. Instead, prisoners will only be eligible for release after serving at least two-thirds, and then only with the approval of the Parole Board. What happened in this case? The challenge was brought by Mohammed Zahir Khan, who in May 2018 was sentenced to 4 years imprisonment. He was due to be released on 1 March 2020. However, the 2020 Act came in to force on 26 February 2020, a few days before Khan was scheduled for release. The question for the court was whether this change to Khan's release date and the removal of automatic release, was lawful. There were several challenges to the Act that were argued, but concerning the provisions being retrospective, as in Khan's case, the court concluded: 'The fundamental question is what is the "penalty"? Is it the sentence imposed by the sentencing court or is it the sentence ameliorated by whatever provisions are then in force for early release? ...the principle is clear; an amendment by the legislature to the arrangements for early release raise no issue under Article 7. A change to those arrangements does not amount to the imposition of a heavier penalty than that applicable at the time the offence was committed. In those circumstances we reject the claim under Article 7. Throughout the relevant period, the governing authority for the detention is the original sentence. It is entirely foreseeable (if necessary with appropriate legal advice) that during the currency of a determinate sentence, which was calculated and imposed without account being taken of the possibility of early release, the arrangements for the execution of the sentence might be changed by policy or legislation. Accordingly, the lawfulness of the sentence was not undermined or compromised by changes of the sort made by the 2020 Act.' In summary, five principles can be drawn from the case law: i) The early release arrangements do not affect the judge's sentencing decision; ii) Article 5 of the Convention does not guarantee a prisoner's right to early release; iii) The lawfulness of a prisoner's detention is decided, for the duration of the whole sentence, by the court which sentenced him to the term of imprisonment; iv) The sentence of the trial court satisfies Article 5(1) throughout the term imposed, not only in relation to the initial period of detention but also in relation to revocation and recall; and v) The fact that a prisoner may expect to be released on licence before the end of the sentence does not affect the analysis that the original sentence provides legal authority for detention throughout the term. The court may likely be asked to deal with similar challenges brought concerning The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020, which came in to force on 1 April 2020 and applies to all persons sentenced on or after that date. Delays to court hearings may well mean that some people are now disadvantaged. Considering the approach in Khan, and earlier cases it is not likely that any challenge would be successful, but that remains to be seen. A detailed understanding of sentencing provisions is critical to protect best the interests of those facing custodial and other sentences. Our team stay up to date with all developments in this area and regularly discuss the tactical implications of current and intended legislation. In some cases, as Khan's illustrates, little can be done, but in others, an awareness of impending legislative change can be hugely advantageous. [Image credit: "The Royal Courts of Justice" by R/DV/RS 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. We also have a specialist team of solicitors dealing with digital evidence for people caught up in Operation Venetic.
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It is now a common feature of criminal cases that confiscation of an offender’s assets is considered following conviction. The Proceeds of Crime Act 2002 is designed to prevent a person from benefiting from the proceeds of crime.
Typical Scenario "Jack and Jill have been married for 20 years, they both work and have lived in the same house for 25 years, the house is held in Jack's name although they have held a shared bank account for most of their relationship together and paid for the home by way of mortgage. Jack is convicted of an offence, and his benefit from crime is assessed at £200,000; the house is identified as an asset free of any mortgage or other incumbrance and is valued at £120,000." In this situation, it is highly likely that Jill would be able to establish an equitable interest in the property (i.e. that even though the house is not in her name, she has paid the mortgage alongside Jack, and is therefore entitled to a share of the proceeds of any sale). If Jack is forced to sell the house of pay over £120,000, what happens to Jill's share of the house? What does the law say? In the simplest terms Jill is entitled to her share of the family home, and assuming her share to be 50%, only £60,000 of the proceeds should go to satisfying the compensation order, the rest going to Jill. The Proceeds of Crime Act 2002 has been amended, and section 10A of the Act allows for Jill to make representations before the Crown Court before the order is made. If the Judge accepts Jill's account, Jill's interest in the property will be recognised at an early stage, and her financial investment will be protected. However, in the recent Supreme Court case of Hilton, which considered similar legislation in Northern Ireland, the court held that where a Judge is merely forming a view as to whether a third-party holds an interest in the property, that person need not be afforded the right to make any representations. This ruling recognises the fact that the third-party would still be entitled to make representations at the enforcement stage. The critical point to take from Hilton is that the section 10A procedure is designed to deal with straightforward cases where the third-party interest is not in doubt. It is not intended for more complex cases where tainted gifts and arrangements intended to defeat confiscation might be in play. Following Hilton, we are likely to see fewer cases where the Crown Court is willing to engage in the 10A process, which means further delay and uncertainty for many third-parties. It should also be noted that where a third-party is allowed to make representations under section 10A of the Act, it is critical to ensure that a robust case is presented, as the scope for any later challenge is limited. Eighteen years on the Proceeds of Crime legislation continues to throw up many legal difficulties that need to be carefully navigated. Our expert teams ensure that they are entirely up to date with emerging case law and legislation, therefore able to protect better the interests of clients and those close to them. Punishment for mortgage fraud. [Image credit: "Henry Street sign" by Adrian Cable is licensed under CC BY-SA 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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No Free Ride for Private Prosecutors7/17/2020 A peculiar aspect of the criminal costs regime is that a private prosecutor can apply for their costs to be paid by the State, regardless of whether they win or lose the case. This situation allows persons to pursue prosecutions which other bodies such as the Crown Prosecution Service may have declined to take up, with no financial risk. Some fear that this lacuna in the rules may encourage vexatious and frivolous prosecutions. In 2018 Anthony Wollenberg secured summonses against four defendants, alleging fraud. The defendants made an application to have the charges dismissed, which was successful before Her Honour Judge Taylor at Southwark Crown Court. Wollenberg's own application, to have his costs paid from central funds was refused. Wollenberg renewed his application to seek judicial review of that decision, but the High Court on 17 July 2020 refused permission. What do we learn from this case? The principles which emerge, and which should be applied when a court is asked to consider an application for prosecution costs under section 17 of the 1985 Act, may be summarised as follows:- (i) the general rule is that costs should be paid from central funds, unless a lesser sum is appropriate; the amount of costs to be paid are those that the court considers to be reasonably sufficient to compensate the prosecutor for any expenses properly incurred; (ii) there is a discretion to decline to make an order if, for example, the prosecution was started or continued unreasonably; (iii) or there is some other good reason for not doing so; examples include where proceedings have been instituted or continued without good cause or there has been misconduct; (iv) whilst those examples are given in the Practice Direction and in the rules, they are not determinative of the extent of the discretion upon whether to refuse costs to the prosecution. The touchstone is objective reasonableness and proper conduct. Therefore, if the prosecution have behaved unreasonably and/or improperly then the court may refuse to award costs from central funds. Whether the private prosecutors conduct of the prosecution can be reasonably described as unreasonable or improper is essentially a fact specific question: each case will depend on its own facts such that reference to other decided cases on their facts is of little assistance. Since these proceedings were for judicial review in respect of a criminal cause on indictment in the Crown Court, namely cost orders consequential upon their completion, ordinarily a decision of the Crown Court cannot be challenged by the High Court – see section 29(3) of the Senior Courts Act 1981. Where, however, there is a jurisdictional error of sufficient gravity to take the case out of the jurisdiction of the Crown Court, the High Court may intervene. In the Crown Court at Maidstone, ex-parte London Borough of Harrow [2001] 1 CR App R 117 it was held that a judge had no jurisdiction to make the order he purported to make, such that it could no longer be categorised as a matter relating to a trial on indictment so as to fall within the exclusion in section 29(3) of the 1981 Act. It was, therefore, amenable to judicial review. Also, in R(M) v Kingston Crown Court [2015] 1 Cr App R 31 Cr App R 3 it was said at paragraph 32:- "There is binding decision to the effect that, where an order is made relating to a trial on indictment, nonetheless it may be quashed in circumstances where the defect is so severe that it deprived the court below of jurisdiction to make it …the question is whether there is jurisdictional error of such gravity as to take the case out of the jurisdiction of the crown court". Conclusion The High Court has dealt a blow to the idea that a private prosecution offers a free-ride so far as costs are concerned. While there is nothing inherently wrong with the ability to pursue a private prosecution, it is to be hoped that this decision will act as a disincentive to pursue weak and frivolous cases. The court also makes clear that the remedy offered by judicial review will rarely be available as the bar is set very high in that regard, as per R (M) v Kingston Crown Court. Where our clients are privately prosecuted, we will not hesitate to ensure the court is fully appraised of all relevant costs law where the prosecutor seeks monies from public funds. [Image credit: "£50 note" by HowardLake is licensed under CC BY-SA 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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The capacity of digital devices to store vast amounts of information presents issues for law enforcement and prosecutors. Over the last few years we have seen many instances of non-disclosure of key evidence, and at the same time victim advocates have complained that police investigations are overly intrusive and act as a deterrent to people coming forward and reporting a crime, particularly sexual offences, as they fear the intrusion into the more intimate aspects of their lives. This week the Court of Appeal considered this issue further and identified four key points of principle, this new case law will present challenges when defending some allegations, and you can be assured that all members of our team are fully conversant with this new and developing legal landscape. With The Breaking News Of The Convictions, Operation Venetic & EncroChatWill the evidence they have gained from EncroChat be admissible in a court of law? You will need to speak with a specialist EncroChat Solicitors. The First Issue of Principle ‘Identifying the circumstances when it is necessary for investigators to seek details of a witness’s digital communications. These are usually, but by no means always, electronic exchanges conducted by way of multiple platforms on smart mobile telephones, tablets or computers. These platforms are so numerous that it is pointless to attempt to list examples. In essence, the question in this context is when does it become necessary to attempt to review a witness’s digitally stored communications? The linked question is when is it necessary to disclose digital communications to which the investigators have access?’ The court issued the following guidance: “There is no obligation on investigators to seek to review a witness’s digital material without good cause. The request to inspect digital material, in every case, must have a proper basis, usually that there are reasonable grounds to believe that it may reveal material relevant to the investigation or the likely issues at trial (“a reasonable line of inquiry”).” “It is not a “reasonable” line of inquiry if the investigator pursues fanciful or inherently speculative researches. Instead, there needs to be an identifiable basis that justifies taking steps in this context.” “The ease with which this material is now accessible does not make it more susceptible to scrutiny than would have been the case if it was only available in hard copy. It is necessary to state this obvious point because there is a misconception, that is possibly widespread, that certain types of criminal allegations — most particularly those that are sexual in nature — ipso facto result in the right to automatic and unfettered access by investigators to the complainant’s digital information. This is assuredly not the case.” “In conclusion on the first issue, and answering the question: “when does it become necessary to attempt to review a witness’s digitally-stored communications and when is it necessary to disclose digital communications to which the investigators have access?”, we stress that regardless of the medium in which the information is held, a ‘reasonable line of enquiry’ will depend on the facts of, and the issues in, the individual case, including any potential defence. There is no presumption that a complainant’s mobile telephone or other devices should be inspected, retained or downloaded, any more than there is a presumption that investigators will attempt to look through material held in hard copy. There must be a properly identifiable foundation for the inquiry, not mere conjecture or speculation. Furthermore, as developed below, if there is a reasonable line of enquiry, the investigators should consider whether there are ways of readily accessing the information that do not involve looking at or taking possession of the complainant’s mobile telephone or other digital device. Disclosure should only occur when the material might reasonably be considered capable of undermining the prosecution’s case or assisting the case for the accused.” The Second Issue of Principle ‘When it is necessary, how should the review of the witness’s electronic communications be conducted?’ The court issued the following guidance: “If a reasonable line of inquiry is established to examine, for example, communications between a witness and a suspect, there may be a number of ways this can be achieved without the witness having to surrender their electronic device. The loss of such a device for any period of time may itself be an intrusion into their private life , even apart from considerations of privacy with respect to the contents. Thus the investigator will need to consider whether, depending on the apparent live issues, it may be possible to obtain all the relevant communications from the suspect’s own mobile telephone or other devices without the need to inspect or download digital items held by the complainant. The investigator, furthermore, can potentially review the relevant social media posts of the complainant without looking at the individual’s mobile telephone, provided he or she is willing to provide a password. Consideration should, therefore, be given to whether all the relevant messages or other communications in this context are available on the suspect’s digital devices, within the witness’s social media accounts or elsewhere, thereby potentially avoiding altogether the need for recourse to the witness’s mobile telephone etc.” “If material on the complainant’s device needs to be reviewed as part of a reasonable line of enquiry, an important question is whether a review of a discrete part of the digital record will suffice. Indeed, it may be unnecessary to ask the witness to surrender the device or to facilitate a digital download. Instead, putting focussed questions to the witness together with viewing any relevant digitally recorded information, and taking screen shots or making some other suitable record, may meet the needs of the case.” “In conclusion on the second issue and answering the question: “how should the review of the witness’s electronic communications be conducted?”, investigators will need to adopt an incremental approach. First, to consider with care the nature and detail of any review that is required, the particular areas that need to be looked at and whether this can happen without recourse to the complainant’s mobile telephone or other device. Second, and only if it is necessary to look at the complainant’s digital device or devices, a critical question is whether it is sufficient simply to view limited areas (e.g. an identified string of messages/emails or particular postings on social media). In some cases, this will be achieved by simply looking at the relevant material and taking screenshots or making some other record, without taking possession of, or copying, the device. Third, if a more extensive enquiry is necessary, the contents of the device should be downloaded with the minimum inconvenience to the complainant and, if possible, it should be returned without any unnecessary delay. If the material is voluminous, consideration should be given to appropriately focussed enquiries using search terms, a process in which the defendant should participate. It may be possible to apply data parameters to any search. Finally, appropriate redactions should be made to any disclosed material to avoid revealing irrelevant personal information.” The Third Issue of Principle ‘What reassurance should be provided to the complainant as to ambit of the review and the circumstances of any disclosure of material that is relevant to the case?’ The court issued the following guidance: “The complainant should be told i) that the prosecution will keep him or her informed as to any decisions that are made as to disclosure, including how long the investigators will keep the device; what it is planned to be “extracted” from it by copying; and what thereafter is to be “examined”, potentially leading to disclosure; ii) that in any event, any content within the mobile telephone or other device will only be copied or inspected if there is no other appropriate method of discharging the prosecution’s disclosure obligations; and iii) material will only be provided to the defence if it meets the strict test for disclosure and it will be served in a suitably redacted form to ensure that personal details or other irrelevant information are not unnecessarily revealed (e.g. photographs, addresses or full telephone numbers).” The Fourth Issue of Principle ‘What is the consequence if the complainant refuses to permit access to a potentially relevant device, either by way of “downloading” the contents (in reality, copying) or permitting an officer to view parts of the device (including, inter alia, copying some material, for instance by taking “screen shots”)? Similarly, what are the consequences if the complainant deletes relevant material?’ The court issued the following guidance: “It is important to look carefully at the reasons for a refusal to permit access and to furnish the witness with an explanation and reassurance as to the procedure that will be followed if the device is made available to the investigator. If it is suggested that the proceedings should be stayed, the court will need to consider the adequacy of the trial process, and whether this will ensure there is fairness to the defendant, particularly by way of cross-examination of the witness, coupled with appropriate judicial directions. The court should not be drawn into guessing at the content and significance of the material that may have become unavailable. Instead, the court must assess the impact of the absence of the particular missing evidence and whether the trial process can sufficiently compensate for its absence. An application can be made for a witness summons for the mobile telephone or other device to be produced. If the witness deletes material, although each case will need to be assessed on its own facts, we stress the potential utility of cross-examination and carefully crafted judicial directions. If the proceedings are not stayed and the trial proceeds, the uncooperative stance by the witness, investigated by appropriate questioning, will be an important factor that the jury will be directed to take into account when deciding, first, whether to accept the evidence of the witness and, second, whether they are sure of the defendant’s guilt.” In all cases, we will remain vigilant and ensure that the rights of all those we represent are upheld. 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. Digital Evidence Solicitors.
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Encrochat and 'Operation Venetic'7/16/2020 The National Crime Agency this week announced that it had infiltrated the secure messaging system 'Encrochat', said to be used exclusively by people engaging in criminal activity. Operation Venetic has so far resulted in 746 arrests, and the seizure of:
The NCA says that: "There were 60,000 users worldwide and around 10,000 users in the UK – the sole use was for coordinating and planning the distribution of illicit commodities, money laundering and plotting to kill rival criminals." The issue of encryption There are three main issues with relying on encryption:
When the Operation Venetic cases reach court, we will be focussing on the admissibility of any evidence taken from encrypted devices. Do you need legal defence for EncroChat. Questions to be answered include:
The prosecution will likely seek to assert public interest immunity to protect its investigation techniques (we have seen this tactic deployed in recent cases); this is a complex legal area that we are familiar with, so can meet such challenges head-on. If you face investigation or prosecution, get in touch to ensure the highest quality legal representation. The most common charges that have been brought against encrochat users is conspiring to supply drugs. 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. Operation Venetic Defence Solicitors
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The Sentencing Council has launched a consultation on new guidelines for sentencing offenders for using a trade mark without the owner’s consent. The new guideline will apply to both individuals and organisations in England and Wales.
The new guideline will replace the current guideline published in 2008, which is used in magistrates’ courts and applies to individuals only. The Council is seeking views on the draft guidelines from judges, magistrates and others with an interest in this area. The unauthorised use of a trade mark offence can include possessing or selling counterfeit goods, or counterfeiting or possessing the means of counterfeiting goods, with a view to making a gain or causing a loss. How many people might this affect? Over the last 10 years there has been a steady decline in the number of people sentenced for these offences, from a high of a little over 800 each year, to as few as 350. That number does appear to be on the rise again, with over 400 offenders dealt with in the last year. In 2008, 13 organisations were sentenced, all in magistrates’ courts. By comparison, in 2018, 32 organisations were sentenced for unauthorised use of a trade mark, 25 per cent of which were sentenced in the Crown Court. What is a typical sentence? In 2018 the most frequently used sentence outcome for individuals was a community sentence, comprising 44 per cent of adult offenders sentenced. A further 33 per cent of offenders received a fine, 11 per cent received a suspended sentence, 5 per cent were sentenced to immediate custody and 3 per cent were given a discharge. The remaining 3 per cent of offenders were otherwise dealt with . The proportion of offenders receiving immediate custody has decreased substantially, from 27 per cent of outcomes in 2008. The statutory maximum sentence for the offence of unauthorised use of a trade mark for an individual is ten years’ custody, although in 2018 no sentences exceeded 36 months. In 2018 the average custodial sentence length (ACSL) was ten months. The highest ACSL over the past decade was in 2017, with an average of one year. After a community sentence, the second most common sentencing outcome in 2018 for individuals was a fine. For individuals sentenced in 2018, the average (mean) fine value was £286 and fine values ranged between £60 and £1,125. Of the adult offenders sentenced in 2018, 99 per cent were given a fine of £1,000 or less. What impact will this proposed guideline have? Overall, it is expected that the draft guidelines for individuals and organisations will encourage consistency of approach to sentencing and will not change average sentencing severity for most cases. However, there may be some increases in custodial sentence lengths for individuals sentenced for the most serious types of cases. For organisations, there cannot be any impact on prison or probation resources because organisations cannot receive custodial or community sentences, but there may be some increases in fine levels. However, Step 5 of the guideline asks sentencers to ‘step back’ and to consider the overall impact of all financial penalties. They may then adjust the sentence to account for this, and therefore reduce the fine level. Fines may therefore not increase considerably, if at all. Speak with our Fraud solicitors London The hidden penalty In many cases, it is not the substantive sentence that can be of most concern. Prosecutors will always consider making an application for confiscation ('proceeds of crime'), and this can often be for a substantial sum. You could face released under investigation. If you are being investigated or prosecuted for a trade marks offence, you must contact us as soon as possible. [Image credit: "Police Seize Counterfeit Watches" by fairfaxcounty is licensed under CC BY-ND 2.0] |