Following widespread concern about the use of cautions to deal with violent offenders, justice secretary Jack Straw has this week announced a review into the way in which cautions, formal warnings and on the spot fines are used, and their impact on the courts in England and Wales. The review will also look at the use of fixed penalty notices. It will be carried out by the Office for Criminal Justice Reform, a cross-departmental team supporting all criminal justice agencies, and involve HM Inspectorate of Constabulary and the Crown Prosecution Service.  

 

According to ‘The Times’, half of all criminal cases in England and Wales are punished out of court. Last year up to 40,000 cases of assault were dealt with by a caution despite guidelines that say they should not normally be used for violent or sexual offences. Jack Straw told BBC Radio 4’s The World at One programme that “the guidance about cautioning is actually very clear. It says a simple caution should be used for low-level offending. Only in exceptional circumstances should it be used to deal with more serious offences…What we are going to look at is how that guidance is properly applied.” Asked if no violent offence more serious than common assault would in future be dealt with out of court, he said “that is basically the way the system is supposed to operate at the moment and we will certainly be looking very clearly at that.” The justice secretary went on to deny that the Government had encouraged the use of cautions and fixed-penalty notices to ease the pressure on overcrowded jails. He said that in most cases the offences being dealt with by the penalties would not previously have led to any police action.

The justice secretary’s concerns are shared by the DPP and by Britain’s leading policeman, as reported respectively in ‘The Times’ and the ‘Sunday Times’. Keir Starmer said that while there was a proper place for trivial offences to be dealt with outside the courts, the system had developed in an incoherent way and needed to be looked at again. “My view is there should be a structured, tiered approach which specifies what case will be dealt with at what level — and will be transparent.” Sir Paul Stephenson said that attempts to reduce pressure on courts and prisons meant that the police are expected to assume a criminal justice role. “The outcome of that has been an almost uncontrollable increase in cautions, and the introduction of the fixed penalty ticket, which in the public’s mind equates to a parking ticket”, and should not be used for “theft and thuggery”.

According to statistics published in the ‘Guardian’, a total of 2.2 million people were cautioned between 2000 and 2008, including more than 550,000 who were given repeat cautions. And as Marcel Berlins points out in the same newspaper, the police are issuing more cautions and fixed penalties “to offenders who, two or three years ago, would have had to stand trial and be legally represented”.

The Crown Prosecution Service has this week launched a 12 week public consultation on important changes to the Code for Crown Prosecutors, which is the document that sets out the principles which prosecutors must follow when they decide whether or not to prosecute an individual. The test set out in the Code is applied in every case and it requires prosecutors to consider whether there is sufficient evidence to charge an individual with a criminal offence and whether a prosecution is needed in the public interest.

In announcing the consultation, Keir Starmer QC, Director of Public Prosecutions, said “Following the announcement of the merger between the CPS and the Revenue and Customs Prosecutions Office (RCPO) earlier this year, I have considered further what changes to the Code for Crown Prosecutors should be made in order to ensure that all prosecutors in the new public prosecution service, along with police officers, are making fair and consistent decisions”. The main changes are:

• Prosecutors will have a discretion to determine whether, where there is sufficient evidence and it is in the public interest to prosecute, a prosecution is a proportionate response to the specific offending.
• Prosecutors will have a discretion to stop a prosecution in the public interest, in exceptional circumstances, before all of the evidence is available.
• A fuller section explaining the Threshold Test.
• A fuller section explaining the use of out-of-court disposals for both adults and youths.
• A fuller explanation of how the public interest is assessed.
• Further public interest factors are identified both tending in favour and against prosecution.

According to ‘The Times’, the consultation will fuel the debate on the numbers of cases escaping prosecution in the courts, which they estimate to be half the 1.4 million offenders dealt with by the justice system each year. A Crown Prosecution Service spokesman is reported as accepting that some offenders could be let off under the guidelines. ‘The Times’ also reports that the proposals were immediately condemned by the Magistrates’ Association, which said that it was yet another instance of the blurring of the respective duties of courts and prosecutors. John Howson, deputy chairman of the Magistrates’ Association, is reported as saying that the new discretion for prosecutors seemed to be “part of the complete muddle in the way we treat offenders and over the boundaries between where the prosecutors and the courts lie”, adding that “if someone has offended, they should be brought before the courts, where we have a range of penalties from an absolute discharge to custody. The job of prosecutors is to find the evidence, not to assess the weight of it”.

The consultation period ends on 11 January 2010 and a summary of the responses received will be published. The full text of the consultation can be found at:-

http://www.cps.gov.uk/consultations/rccp2_consultation.pdf

“It is a national disgrace that in 2009 rape almost always goes unpunished” writes Libby Brooks in the ‘Guardian’. “This is about systemic, institutionalised negligence. If you are raped, the likelihood is that the police won’t help you, and the CPS won’t help you. If you unusually achieve a trial, the prosecution won’t help you and the judge won’t help you”.

The statistics of rape are difficult to pin down. The British Crime Survey in 2000 calculated that 754,000 women had been raped at least once, 61,000 in the previous year. The group Campaign to End Rape estimated that in 2001 there were 190,000 serious sex assaults and 47,000 rape or attempted rape victims. As all figures are considered to be underestimated the incidence is staggering. The great majority of victims never report their attack, and of those that do only 25% will make it to court because the obstacles for a complainant remain enormous. In 2003/04 there were 12,354 recorded offences of rape. The persistently low conviction rate is just over 6%.

So embarrassing has been the failure to deal effectively with rape cases that the Home Office this week announced a series of new measures. An additional £1.8m is to be provided to set up more sexual assault referral centres, which “play a vital role in providing care and support for victims, while also giving investigators the best chance to build a successful case. They provide victims with immediate medical help, counselling, forensic examinations and the opportunity to give evidence anonymously, all in one location”. There will be training for police officers on what to do when a rape is first reported. Victims will meet with a specially trained officer within an hour of reporting the crime. There will be additional help for police and prosecutors investigating rape cases, to ensure that crimes are solved and attackers are punished. Targets will be set for rape investigations, and a Rape Performance Group set up, charged with quarterly monitoring and assessment of police and the Crown Prosecution Service’s handling of rape cases.

Introducing the new initiative, Home Office Minister Vernon Coaker called sexual assault cases “uniquely difficult crimes to investigate”. In a clearly coordinated move the CPS last month published a revised ‘Policy for Prosecuting Cases of Rape’ detailing all the steps (and difficulties) of such cases. It concludes with the not exactly resounding commitment “to playing our part in improving the way that rape cases are dealt with in the criminal justice system. We want victims to have confidence in the way in which we review and progress cases”. But campaigners are not impressed. According to Libby Brooks, Britain has some of the best sex crimes legislation in Europe, but a police service that won’t enforce it, a judiciary that refuses to apply it and a government that gives it insufficient priority.

The Advisory Council on the Misuse of Drugs is an independent body that advises government on drug related issues in the UK. It has 32 expert members. So why do ministers commission reports from them only to ignore their major recommendations?

Last year they were asked to review the classification of cannabis in the light of concern about the potential mental health effects and, in particular, the use of stronger strains of the drug. The Council recommended that “after a most careful scrutiny of the totality of the available evidence… cannabis should remain a Class C substance.” The government dismissed this advice and reclassified cannabis as a Class B drug. The Council has now produced a report on ecstasy, currently a Class A drug. They recommended that “in reviewing the evidence of the harmfulness of MDMA (ecstasy) to individuals and society, the Council’s collective view is that the balance of harms most closely equates to that of other substances in Class B.” Home Secretary Jacqui Smith has vetoed this proposed downgrading.

The purpose of the drug classification system is to gather together like substances, as evidenced by the stepped scale of potential sentences on conviction:-

Having possession of a controlled drug.
Max. Sentence on Indictment:
Class A drugs: 7 years or a fine, or both.
Class B drugs: 5 years or a fine, or both.
Class C drugs: 2 years or a fine, or both.

Supplying or offering to supply a controlled drug.
Max. Sentence on Indictment:
Class A drugs: Life or a fine or both.
Class B and Class C drugs: 14 years or a fine or both.

(See ‘Criminal Offences Handbook’, Anya Publishing)

In advising the government on the classification of a substance, the Council is required only to consider its harmfulness to individuals and society. It is not for them to take into account matters such as the message that is conveyed to the public, or the consequences for policing priorities. In rejecting the ecstasy recommendation, Home Office minister Alan Campbell said the government would not send a signal to young people that ecstasy was to be taken less seriously. But it already is by the police. In a key part of its report the Council state that ecstasy possession has a lower priority than other Class A drugs, specifically heroin and cocaine, and attracts a greater number of cautions (37%) than those for possession of other Class A drugs. The fatality evidence is significant. The annual death toll for ecstasy is 33 (apparently the same as horse riding) and for cannabis 17, both figures just fractions of the mortality rates for those other drugs of choice, tobacco and alcohol. Should they therefore be classified? A, B or C?

The drugs world follows strict market forces. Where there is demand there will be supply. Close contact with drugs investigation teams in Customs & Excise some years ago left me with great admiration for their skill, dedication and bravery in this most dangerous field. Outstanding results were obtained, but the level of street prices after big successes just showed that as one ring was taken out others moved in seamlessly. Efforts to get health messages home in the essential work of reducing demand can only be hindered by classifications that are clearly politically, not evidence, based, and are not substantiated by the every day experience of (particularly) young people.

Ecstasy report: see http://drugs.homeoffice.gov.uk/publication-search/acmd/mdma-report?view=Binary.
Cannabis report: see http://drugs.homeoffice.gov.uk/publication-search/acmd/acmd-cannabis-report-2008?view=Binary

A new law is proposed to prevent people accused of murder from using sexual jealousy, honour killing or revenge as partial defences. The Coroners and Justice Bill 2008-09, published last week, is a bill to amend the law relating to coroners and to certification and registration of deaths, to which proposals to amend the criminal law relating to murder have been attached.

The common law partial defence to murder of provocation, supplemented by section 2 of the Homicide Act 1957, provides that a defendant who would otherwise be guilty of murder will be guilty of manslaughter instead if he or she was provoked by things said or done (or both) to lose self-control. This is to be replaced by a partial defence to murder for circumstances where the killing resulted from a loss of self-control attributable to a ‘qualifying trigger’ in circumstances in which “a person of the defendant’s sex and age with an ordinary level of tolerance and self-restraint and in the circumstances of the defendant might have acted in the same or similar way to the defendant.” The ‘qualifying triggers’ for a loss of self-control can be where it was attributable to a fear of serious violence, to things done or said (“of an extremely grave character”) or to a combination of both. Under the existing common law the courts have held that the loss of self-control must be sudden, but the new partial defence makes clear this is no longer a requirement, although courts will take into account any delay between a relevant incident and the killing.

Specifically sexual infidelity on the part of the victim will not constitute grounds for reducing murder to manslaughter. Neither will so-called ‘honour killing’ on the basis of the victim’s behaviour. But the Government has stated that victims of domestic violence would be able to invoke this new partial defence where they could show they acted in fear of serious violence.

According to the ‘Guardian’ the Government faces opposition to the replacement of the current definition of the partial defence of diminished responsibility with one based on the concept of a “recognised medical condition”. It spells out the aspects of a defendant’s functioning which must be affected in order for the defence to succeed and sets out that the defendant’s abnormality of mental functioning should be at least a significant contributory factor in causing the defendant’s acts or omissions. It does not include ‘development immaturity’ as had been proposed in the consultation process that preceded this legislation.

It being the time of year for seasonal festivities it is not surprising that someone has come up with research into hangovers. Particularly in respect of ability to drive while suffering from one.

I suppose the best place to go for such research is among university students, and that is just what Brunel University have done. Although the sample group tested was unusually small, the results were remarkably uniform. A poor night’s sleep, low blood sugar and dehydration all markedly affect the ability to drive safely even if someone is within the drink-drive limit, the study found.

Eleven students were tested on a driving simulator while sober and again while suffering a hangover, though within the legal limit of alcohol in the blood. The two tests were compared and it was found that, on average, hungover drivers drove almost 10mph faster, left their lane four times as often and committed double the number of traffic violations like ignoring red lights or stop signs. The average speed for the sober test was 32.6mph which rose to 41.7mph while hungover. Sober drivers travelled 6.3% of the five-mile trip above the speed limit which rose to 26% while hungover. Traffic violations rose from an average of 3.9 for sober drivers to 8.5 for hungover drivers. Several representatives of the motoring press, including the Telegraph and Independent, replicated the tests and their results were universally similar to the test group. The Mail’s Sharon Marshall found the results “horribly real. It’s clear I am in no fit state to drive The terrifying thing is I would have passed a breathalyser test.”

The research was sponsored by insurers RSA. Their spokesman, Graham Johnston, said “What surprised us was that people were driving faster. The fact they were driving more erratically we’d expect. Not taking care, going through red lights, that’s more alarming.” He added “You may be legal, but be aware that anything that makes the driver less alert will make them a worse driver.” The message comes through loud and clear; driving the morning after is not a good thing to do.

A ‘two strikes and you’re out’ policy, in which excessive speedsters caught twice would lose their licence, is among proposals being considered by the government for strengthening road safety. A detailed analysis of traffic casualties shows that “extreme speeders” are more likely to be involved in an accident and the consequences will be more severe when they are. The evidence also shows that the same drivers speed excessively across all speed limits and the proposal is to introduce a graduated fixed penalty of 6 penalty points for drivers who exceed the speed limit by a very large margin – 20 mph in most speed limits. Get caught twice and you lose your licence.

There were 2946 road users killed in 2007, and nearly 28,000 more seriously injured. Publishing a consultation process designed to reduce this annual toll, Jim Fitzpatrick, the transport minister responsible for road safety, said that it “seeks views on proposals for measures aimed at improving compliance levels with key road safety laws. Transgressions of these laws are the cause of many hundreds of deaths.” The consultation sets out a package of measures aimed at “helping the responsible majority of road users and cracking down on the reckless few.” Apart from speeding, the very detailed package tackles drink driving, the wearing of seat belts, drug driving and careless driving.

In October the minister disappointed safety experts when he stated that the government had decided against reducing the legal limit for alcohol in a driver’s blood (see ‘Drink and driving’ blog posted on 27.10.08). Instead he proposes to tighten up the enforcement regime by developing targeted checkpoint enforcement. The introduction of digital breath-testing equipment, at a reported cost of £2m, will remove the necessity for a blood or urine test, reducing police time spent dealing with drunk driving. And a reduction in the legal limit in a driver’s blood is not ruled out at some time in the future.

Drug driving, which is estimated to cause 20% of all road deaths, presents different problems. There is no legislation in place to allow for easy prosecution. The current law requires proof that a driver is impaired by drugs. The procedure is complex and cases are few. The consultation promises to explore whether a new offence needs to be created.

The DoT claim to have achieved a very high overall level of seat belt wearing, but have nevertheless developed a new, hard-hitting THINK! campaign which you have probably seen on TV already. In addition, the Home Office is currently consulting on an increase in the penalty for failing to wear a seat belt from £30 to £60 in 2009. Also proposed is a fixed penalty offence for careless driving, which will enable the police to enforce with a minimum of bureaucracy against careless drivers who admit their fault. The fixed penalty would be £60 and 3 penalty points.

If you want to contribute to the consultation process you have until 27 February 2009.

See: http://www.dft.gov.uk/consultations/open/compliance/roadsafetyconsultation.pdf

The trouble with discussing the relationship between alcohol and driving is that the basic principles are so technical. Once you start talking about milligrams of alcohol per millilitres of blood most people are lost.

That is a shame, because the outcome of the debate is quite literally a matter of life and death, particularly as the government has decided against reducing the legal limit for alcohol in a driver’s blood. This is despite suggestions it could save 65 lives a year. The government had previously planned to cut the limit from 80 to 50 milligrams of alcohol per 100 millilitres of blood. Cutting the limit to 50 milligrams – equivalent to about half a pint of beer – would put drivers at risk of prosecution after just one drink, and bring them in line with Europe. But Road Safety Minister Jim Fitzpatrick has now said that the consultation document on plans to reduce drink-driving, to be published this month, will not recommend the reduction. According to ‘The Times’, he said “we are not convinced that dropping to 50 is the right answer. Drivers who are between 50 and 80mg are not the ones we’re most worried about. It’s the ones above 100.” He said his focus would now be on better enforcing the existing limit. Police could be given new powers to stop and test drivers at random rather than needing to suspect an offence is being committed.

Road safety campaigners have accused the Government of backtracking. The proposed reduction had been supported by the Association of Chief Police Officers and the Royal Society for the Prevention of Accidents. Andrew Howard, head of road safety at the AA, said that the motoring organisation used to oppose any lowering of the limit but had changed its position recently. The BMA’s Head of Science and Ethics, Dr Vivienne Nathanson, told BBC News that the BMA believed a reduction in the drink-drive limit would prevent deaths and reduce the number of lives ruined by drinking drivers. “There is clear evidence of the link between rising blood alcohol concentrations and dangerous driving behaviour,” and she added that a new impetus was needed to reduce the toll of injury and death.

Ben Webster, writing in ‘The Times’, suggests that “by leaving the alcohol limit unchanged, the Government will avoid the awkward question of whether to introduce a lower penalty for registering just over 50mg. At present, anyone caught drink-driving serves a minimum ban of 12 months. Most countries that have lower limits only fine drivers and give them penalty points for minor breaches.”

The Road Safety Act 2006 (Commencement No. 4) Order 2008 brings into force from 18th August 2008 the following major provisions of the Road Safety Act 2006:-

Causing death by careless, or inconsiderate, driving
A person who causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, is guilty of an offence.

Enabling Provision: s.2B Road Traffic Act 1988, inserted by s.20 Road Safety Act 2006
Triable Status: Either way
Max. Sentence on Indictment: 5 years or a fine or both
Max. Sentence Summary: 12 months or statutory maximum fine or both
Both ways: Obligatory disqualification; obligatory endorsement; 3-11 penalty points.

Causing death by driving: unlicensed, disqualified or uninsured drivers
A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under—
(a) section 87(1) of this Act (driving otherwise than in accordance with a licence),
(b) section 103(1)(b) of this Act (driving while disqualified), or
(c) section 143 of this Act (using motor vehicle while uninsured or unsecured against third party risks).

Enabling Provision: s.3ZB Road Traffic Act 1988, inserted by s.21 Road Safety Act 2006
Triable Status: Either way
Max. Sentence on Indictment: 2 years or a fine or both
Max. Sentence Summary: 12 months or statutory maximum fine or both
Both ways: Obligatory disqualification; obligatory endorsement; 3-11 penalty points.

(See Criminal Offences Handbook, 4th edition, pp 329/330 (available from Anya Designs Ltd))