CRIME: An Introduction

Economic Conditions and the Criminal Defence Community

In the midst of the Criminal Bar Association’s industrial action, the past year has seen significant change in the economic conditions affecting the criminal defence community. Sir Christopher Bellamy KC’s Independent Review of Criminal Legal Aid recommended an immediate increase of at least 15% to legal aid funding. This recommendation was deemed to be a minimum and necessary first step to assist the Criminal Justice System to function effectively, ensure that there continued to be a “level playing field” between defendants and prosecutors and to help reduce the backlog in the justice system. There have been significant developments at the time of writing; the government has agreed to introduce a 15% fee increase in current Crown Court cases.

The status of the publicly funded sector of the profession continues to have rippling effects on all participants in the criminal justice system; it is essential to upholding criminal justice and the rule of law. The majority of defendants continue to be publicly funded and a majority of criminal barristers rely on a combination of both publicly and privately funded work. Since the industrial action began in April 2022, there has been concern as to the future of the Criminal Bar as junior barristers have re-oriented themselves towards other practice areas.

The consequent unavailability of defence barristers has led to trials being adjourned and prosecutors making applications for defendants’ custody time limits to be extended; it has been suggested that the ongoing cost to the Criminal Justice System is likely to outstrip the amount required to resolve the action. At one point, judges at certain Crown Courts refused prosecution applications to extend custody time limits, resulting in some defendants in ongoing murder cases being released on bail. Conversely, the High Court suggested that trial delays due to the strike may provide a ‘good and sufficient’ reason to extend the custody time limits.

The number of criminal duty solicitors offering free and independent legal advice at the police station has continued to drastically dwindle, with scant new entrants to the profession. The Law Society reports that from October 2022 only 964 firms hold a criminal legal aid contract compared with 1,652 in April 2012. According to reports, certain areas of England and Wales have fewer solicitors than days of the week.

These conditions have raised fundamental questions as to the viability of the Criminal Justice System in its current form, the impact on access to justice and ability for clients to seek quality legal advice in a complex and high-risk area of practice. More firms than ever are offering private representation as an alternative to legal aid; however, economic conditions are likely to limit access unless the private market is to diversify.

Magistrates’ Court Sentencing Powers 

In a government attempt to alleviate the backlog in the Crown Courts, the Judicial Review and Courts Act 2022 received Royal Assent in April 2022. The new Act now increases the magistrates’ court’s sentencing powers to 12 months. This extension to district judges and lay magistrates’ sentencing powers is intended to free up 1700 days of Crown Court time every year. However, it remains to be seen whether the coming months will see an increase in appeals made to the Crown Court, where defendants seek to challenge sentences on the basis they were unduly harsh.

The Common Platform 

Over the past 12 months, advocates and court users have had to reckon with the new cloud-based system referred to as the Common Platform, which was due to modernise the existing technology used in the criminal courts. An increasing number of courts rolled out the Common Platform system over the last year, with certain magistrates’ courts in London being designated as Common Platform courts. It has been reported in the press to have cost the government £300 million and the system has been heavily criticised by the judiciary and members of the court administration. The platform has caused chaos for lawyers and court users alike by losing records overnight, adding additional charges and causing complications with the prisons system. Its rollout has now been temporarily paused pending resolution, with the HM Courts and Tribunal Service stating its commitment to continue to develop its design and implementation.

Legal Developments 

After intense political debate and discussion in the press, the Police, Crime, Sentencing and Courts Act 2022 better known as the ‘Policing Bill’ received Royal Assent on 28 April 2022. It was welcomed with widespread criticism from civil liberties campaigners and lawyers alike as to the increase in police powers and the curtailment of rights. The act introduces new provisions seeking to tighten the framework for policing protests, much of which is set out in the Public Order Act 1986. This includes, for example, widening the police’s ability to restrict protests by placing conditions on protesters. The Act also includes a new provision on criminal damage to memorials, which some see as a direct response to the ‘Colston Four’ case following the Black Lives Matter protest of 2020.

The Bill also introduces changes to the Assault on Emergency Worker offence to include a wider category of emergency workers, including ambulance paramedics. Since the pandemic, there has been a noticeable increase in suspects being charged with an assault-emergency worker offence and this is seen as the justice system reaffirming the social value of emergency workers. The maximum penalty for assaulting an emergency worker has now doubled to two years’ imprisonment.

In an attempt for legislation to match the fast-paced advancements and innovations in the digital age, the Online Safety Bill seeks to introduce new criminal offences and impose sanctions to create a safer environment for internet users whilst also defending free expression. Part of the proposals will see the regulator, Ofcom, having the power to fine non-compliant companies, block websites from the internet and compel non-compliant companies to improve their practices. New criminal offences such as destroying evidence, failing to attend or providing false information in interview with the regulator or obstructing the regulator when a company is being investigated have also been proposed.

Finally, the landmark UK Supreme Court case of Bloomberg LP v ZXC has been a significant development over the last 12 months in privacy law, but equally for suspects subject to criminal investigations. The ruling in the Supreme Court affirms, in general terms, that a person who is being investigated by the police but not charged, has a reasonable expectation of privacy in respect of information that relates to that investigation and as such what is published in the press. It therefore provided some comfort for private individuals who are the subject of criminal investigations. It also recognised the substantial reputational damage that can be done. Of course, the judgment is not authority that the media may never publish the fact of an individual being under investigation, but it still necessarily impacts on the media’s ability to report names and details of those under criminal investigation. The tension between the press and the private individual’s Article 8 rights has been omnipresent over the last year with multiple celebrities in the entertainment and sports sectors standing trial for criminal allegations.

BCL Solicitors LLP  

Ellen Peart  

David Hardstaff  

Rishi Joshi