It is now rare that a week goes by without a significant development in the criminal law of England and Wales making the headlines. Unacceptable disclosure failings and industrial action by the criminal bar suggest a criminal justice system in turmoil. However, it is hoped that planned reforms - no doubt in part a reaction to public shock at the failure to disclose key evidence in a spate of recent trials – will rebuild confidence in the system and address concerns long held by practitioners.
Other key developments include the introduction of a number of new criminal offences and sentencing guidelines: the watershed Supreme Court decision in Ivey v Genting Casinos , which heralded a significant change in the test for dishonesty; and, a challenge in the Supreme Court to the current system for checking and revealing criminal records.
News and debate
Disclosure has continued to dominate the headlines this year, leading to calls for major reform of the way in which the police and the Crown Prosecution Service (CPS) record and process unused material. The issue, which has long been a major concern for the criminal justice community, hit the mainstream media following the collapse of a number of cases on account of critical disclosure failings. In June the CPS announced the outcome of its review of cases concerning alleged rape and serious sexual offences. Issues identified included communications evidence such as texts, emails and social media being examined too late in the process. The findings suggest that investigators and prosecutors are struggling to process the high volumes of evidence generated through the use of smartphones and other mobile devices. More generally, practitioners have questioned the ability of the prosecution to address the problems identified, citing the need for a significant shift in culture and attitudes to disclosure within police forces and prosecuting agencies.
The CPS’s National Disclosure Improvement Plan has sought to address some of these issues. However, many remain sceptical that the embattled and underfunded CPS is able to implement the sort of radical reforms many see as necessary to avoid future miscarriages of justice. Change at the CPS is afoot with a new DPP to be appointed later this year. Elsewhere, the Justice Select Committee inquiry into disclosure of evidence in criminal cases heard evidence from a wide range of contributors. Recurring themes included the need to address disclosure at an earlier stage in proceedings; better training for police officers and prosecutors; and, the use of independent disclosure counsel where appropriate. The Committee’s report is expected to be published later this summer and will feed into the Attorney General’s ongoing review.
Funding issues continue to permeate all facets of the criminal justice system, with spending last year down by £950 million compared to 2010. In June, criminal barristers voted to end industrial action in a move that will see the Ministry of Justice make an additional £15 million available towards fees for reviewing evidence. The narrow margin by which the vote was passed suggests that the criminal bar is split, with many labelling the deal as no more than a temporary fix at best. While legal aid and access to justice continues to be a divisive topic, defendants who have privately funded their cases continue to struggle to reclaim their costs.
Key legal developments
The decision of the Supreme Court in Ivey v Genting Casinos  caused waves by removing the second limb of the test for dishonesty, established by the case of R v Ghosh , which required a jury – having already determined that the defendant’s behaviour was objectively dishonest “according to the standards of ordinary decent people” – to determine whether the defendant also knew that his behaviour was dishonest. Ivey, a professional gambler, had claimed that he was owed £7.7 million in unpaid winnings from a game of baccarat. Genting Casinos claimed that Ivey had cheated and that his ‘edge-sorting’ technique was not a legitimate strategy. By removing the subjective limb of the test, the case is likely to result in more convictions involving a wide range of offences, including theft and fraud.
Later this year, the Supreme Court will deliver judgment in R (on the application of P) v Secretary of State for the Home Department and others . The case considers the criminal record checks system, known as the Disclosure and Barring Service, which reveals applicants’ previous convictions and cautions in prescribed circumstances. The court of appeal had found that the scheme breached individuals’ right to private and family life under Article 8 of the European Convention of Human Rights. Critics have described the current system as blunt and disproportionate, resulting in people with relatively minor convictions and cautions facing stigma and hurdles in later life on account of their criminal records. The Home Office and Ministry of Justice have argued that the system seeks to safeguard the vulnerable and help ensure that employments, offices and licences which require a high level of trust continue to command public confidence.
‘Upskirting’ – secretly photographing underneath someone’s clothes without their consent – is to be made a specific criminal offence, following concerns that existing legislation is unfit to combat the offending behaviour. The offence has previously been prosecuted under the common law offence of outraging public decency and voyeurism under the Sexual Offences Act 2003. It is expected that in serious cases, those convicted of the offence could face imprisonment for up to two years and be placed on the sex offender register.
Sentencing and procedure
In February the Sentencing Council published a new guideline in relation to domestic abuse, replacing the 2006 domestic violence guideline. The new guideline refers to ‘domestic abuse’ in place of ‘domestic violence’, to account for offences involving psychological, sexual, financial or emotional abuse, as well as physical violence. It is widely expected that the new guideline will lead to more severe sentences for offences committed in a domestic context. The guideline specifies that offences involving serious violence, or where the emotional/psychological harm caused is severe, will warrant a custodial sentence in the majority of cases. The guideline will apply to all offenders aged 16 and older sentenced on or after 24 May 2018.
The definitive guideline on sentencing breach offences was issued in June and will come into force on 1 October 2018. The new breach guideline includes, but is not limited to, guidance for breach of a community order; breach of a suspended sentence order; failing to surrender to bail; and, breach of a sexual harm prevention order.
Other notable recent developments include the Criminal Finances Act 2017, which created unexplained wealth orders, requiring a person suspected of involvement in or association with serious criminality to explain the origins of assets disproportionate to their known income; amendments to the Criminal Procedure Rules; and, a review by the Environment, Food and Rural Affairs Select Committee of the Dangerous Dogs Act 1991, following a sharp rise in dog attacks.