CRIME: An Introduction

Crime Foreword 2021-2022 

Emerging from the pandemic 

The past year has seen several laudable initiatives and legal developments intended to increase protection to victims of domestic abuse and sexual offences. While such developments are to be commended, the ability of the criminal justice system to deliver on promises made remains to be seen.

The lower courts continue to reel from the impact of the pandemic, which has seen the already sizeable backlog of cases in the magistrates’ courts and Crown Courts swell to gargantuan levels. Despite the size of the backlog, the number of defendants brought before the courts dropped by nearly a third in the year to March 2021. Defendants eventually making it to the point of conviction and sentence face more lenient punishment with average sentences for violent and sexual offences falling steeply.

Against this backdrop, some have questioned the timing of the government’s Beating Crime Plan. Launched in July 2021, the plan aims to set out the government’s strategic approach to cutting crime: reducing homicide, serious violence and neighbourhood crime; exposing ‘hidden harms’; and building capacity and capability to deal with fraud and online crime. In an effort to improve criminal justice outcomes, the plan pledges to transform how the police and CPS handle investigations through initiatives including the Rape Review Action Plan; the CPS Rape and Serious Sexual Offences 2025 Strategy; and dedicated workstreams such as Operation Soteria, a pilot designed to push the police and CPS to focus investigations on the suspects rather than the complainants’ credibility.

The plan is impressive in its breadth; however, critics have labelled it as empty rhetoric and a distraction from years of chronic underfunding. A lack of adequate resources was similarly cited in a joint report by the Criminal Justice Joint Inspectorate, published in July 2021. Phase one of the report, which considers the way cases are investigated to the point of a charging decision, concluded that the relationship between the CPS and the police needs fundamental improvement and that current resources cannot meet demand.

There have been some positive steps towards addressing efficiency in the criminal justice system. Although the legal sector has traditionally been slow to fully understand the potential of technology - let alone to embrace it - some of the practical measures ushered in through the Coronavirus Act 2020 are undoubtedly here to stay. The widespread adoption of the Cloud Video Platform (CVP) - otherwise known as good old-fashioned video conferencing - has enabled a steady flow of court business to continue safely. In some cases, this has led to a welcome reduction in travel time for advocates, many of whom report workloads far in excess of their capacity.

Legal developments 

On 1 December 2020, the Sentencing Act 2020 came into effect in England and Wales, consolidating existing sentencing procedure law into a single Sentencing Code.

The Code covers sentencing for adults and under 18s and applies to all convictions on or after 1 December 2020, irrespective of the date on which the offence was committed. From this date, judges and magistrates need to refer to the Code, rather than to previous legislation, although there will be some transitional cases where an offender is convicted pre-Code but is sentenced later. For pre-Code cases, no punishment can be more onerous than that available at the time of the commission of the offence. Despite offering very little by way of new provisions, the Code has been celebrated by practitioners for its intuitive structure and comprehensive content.

The long-awaited Domestic Abuse Act 2021 received Royal Assent on 29 April 2021. Key provisions include the first statutory definition of domestic abuse; an extension of the scope of controlling or coercive behaviour to include abuse post-separation; and a new criminal offence of non-fatal strangulation. It extends the scope of disclosing intimate images to the threat to disclose intimate images with the intent to cause distress. Additional tools available to the police and prosecutors include a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order.

It is hoped that the new measures will better equip frontline professionals and prosecutors in dealing with cases of domestic abuse. However, critics have pointed out the limited procedural safeguards and opportunity for suspects to challenge the imposition of orders, raising questions of fairness and natural justice.

The law’s handling of domestic abuse and cases involving violence against women has been in sharp focus as the Criminal Cases Review Commission continues its review of up to 3,000 cold cases. The review follows the landmark case of Sally Challen whose 2010 conviction for murdering her husband was quashed after she was found to have suffered from coercive control. The commission has identified several cases which are being investigated and could be referred back to the Court of Appeal.

Avoiding another significant miscarriage of justice, July 2021 saw the successful appeal of 12 more former sub-postmasters who were wrongly convicted of theft and fraud offences based on evidence from the Post Office’s faulty Horizon computer system. At the time of writing, 59 former sub-postmasters who were wrongly convicted, many of whom were imprisoned, have had their convictions overturned. The case highlights the risks and challenges involved in bringing private prosecutions. Can an entity pursuing a prosecution be entrusted to play fair when doing so may not always be in its own interests? The Post Office/Horizon case raises questions pertinent across the entire criminal justice system.

Despite a tumultuous summer of protest, the Police, Crime, Sentencing and Courts Bill continues to make its way through parliament. Designed to deal with ‘disruptive and sometimes incredibly dangerous protests’, the Bill will significantly widen police powers and control over public gatherings. Although assurances have been given that the Bill will not enable authorities to effectively ban protests, many have questioned what the point of protesting is ‘if it can’t be noisy and disruptive’.

Other news and developments 

Tension has grown between justice ministers and the judiciary as pressure is put on judges to reduce the current backlog of criminal cases. Recorders have been asked to increase their sitting days by up to 500% to make use of the many unused courtrooms up and down the country, including the 47 remaining Nightingale courtrooms opened during the height of the pandemic. The spat has highlighted the competing duties of advocates who continue their own private practice while also serving on the judiciary. Practitioner groups point to a drop in the number of criminal specialists across the country more generally as exacerbating the problem.

Perhaps buoyed by inaccurate and in some circumstances misleading coverage in the press, there remains a widespread misunderstanding throughout the public of how the legal aid system works. Recent surveys have highlighted a lack of understanding as to when legal aid is available and how it is used. It is accepted across the board that the legal aid system is in dire need of an overhaul, although practitioners remain highly sceptical that the long-awaited Independent Review of Criminal Legal Aid will deliver relief.