As in any given year, criminal lawyers are facing a wide range of challenges. Several new offences, mostly in new terrorism legislation, are due to be tested in the courts, while the concern over the conviction rate for sexual offences and issues of disclosure continue to dominate media coverage. In terms of high-profile cases, there are several prosecutions involving historic conduct which by their nature face evidential challenges and political or media scrutiny.
Practitioners are required to keep abreast of continually evolving procedures and a steady stream of significant Court of Appeal and Supreme Court decisions against the background of a continuously challenging financial situation, particularly where publicly funded work is concerned. It is no surprise that some practitioners are reporting an increase in private prosecutions, and the first Code for Private Prosecutors issued by the Private Prosecutors’ Association is to be welcomed.
Following the trend of recent years, criminal courts are being occupied by allegations arising out of conduct from several decades ago. Some MPs have called for amnesties in respect of the past conduct of British soldiers, particularly in light of the decision to prosecute ‘Soldier F’ for his actions during Bloody Sunday. The prosecution of Dennis Hutchings, accused of attempted murder during a patrol in County Tyrone in 1974, has courted controversy and a Supreme Court decision (on the Northern Ireland Director of Public Prosecution’s decision for the trial to be before a judge, rather than a jury). Political discussion of such issues is likely to increase as and when the trials begin.
The Hillsborough prosecutions also continue after a jury failed to reach a verdict in the trial of David Duckenfield, the former South Yorkshire Police chief superintendent, for gross negligence manslaughter. A retrial is scheduled for later this year.
After an extensive campaign by members of the public, ‘upskirting’ has become a criminal offence, with a maximum sentence of two years’ imprisonment. There has already been at least one arrest under the new provision.
There has been less progress, according to some, in more serious sexual offences. The Crown Prosecution Service (CPS) and the police have faced sustained criticism for what some see as a low rate of rape convictions. This has culminated in the on-going judicial review of the CPS’s policy towards rape prosecutions. The Centre for Women’s Justice claims that there has been a covert change in policy and practice, leading to decisions not to charge in cases with strong evidence.
Meanwhile, pre-recorded cross-examination of sexual offence complainants has been introduced, starting in the pilot courts in Kingston-upon-Thames, Leeds and Liverpool. This builds upon an existing scheme for children and vulnerable witnesses, which has also been extended to six more Crown Courts. While there is little doubt that this will ease the burden of giving evidence, some have voiced concerns that this will prejudice defendants, particularly if key issues emerge after the recording.
Disclosure issues also continue to attract attention in respect of the investigation and prosecution of sexual offences. In particular, the collapse of several trials owing to failures in prosecution disclosure has led to the introduction of controversial new guidance to police in respect of the investigation of the mobile telephones of victims.
Terrorism continues to be an ever-changing area of criminal law. The Counter-Terrorism & Border Security Act 2019 has now come into force, introducing several offences including ‘reckless expression of support for a proscribed organisation’, ‘obtaining or viewing terrorist material over the internet’, and ‘entering or remaining in a designated area’. It also increased maximum sentences and made extended sentences available for terrorist offences.
This year saw the culmination of the trial of the parents of Jack Letts for sending him money in Syria. The case had already been the subject of two Court of Appeal judgments and one from the Supreme Court (concerning the interpretation of ‘reasonable cause to suspect’ in section 17 of the Terrorism Act 2000). As the various new offences are tested in their first prosecutions, it might be expected that the appellate courts will be further involved in this area.
Court of Appeal
The Court of Appeal has overturned convictions in two significant cases this year. That of Sally Challen rightly received a lot of attention, her conviction for the murder of her husband being overturned on the basis that new evidence of the psychological impact of his coercive controlling behaviour rendered the conviction unsafe. The CPS subsequently decided to accept her plea to manslaughter and did not pursue a retrial of the murder count. This marks a development in the understanding of the relatively new concept of coercive control, which may be raised in similar cases in future, although in accepting the fresh evidence the Court of Appeal stressed that these were unusual circumstances.
In a very different context, the Court of Appeal overturned the conviction for gross negligence manslaughter of Mohammed Abdul Kuddus, the director of a restaurant that gave food containing peanuts to a woman with a fatal peanut allergy. Whilst the appeal was allowed on a different ground, the Court of Appeal took the opportunity to make clear that there is no requirement to prove a serious and obvious risk of death for the specific victim who dies, only such a risk to the class of people to whom the defendant owed a duty.
Against this background, the dispute over prosecution and defence fees continues. In response to an offer from the Ministry of Justice, the Criminal Bar Association voted not to take action for the time being. This far from resolves the matter, however, as the offer on defence fees was simply to publish new proposals later in the year. Depending on the content of those proposals, there may be more difficult decisions for criminal practitioners in the coming year.