Reducing the use of pre-trial detention in the Chinese criminal justice system

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By Dr Tom Smith

In February 2019, Dr Tom Smith spent a week working in China as an expert consultant for a research and training project, entitled ‘Reducing pre-trial detention through improved defence and non-custodial alternatives’. The project forms part of a broad reform programme aimed at improving pre-trial detention practice in the Chinese criminal justice system, by lower detention rates; improving defence rights for suspects; and widening the use of non-custodial alternatives (such as conditional bail). A significant part of the reform programme is the introduction of pre-trial detention hearings (known as ‘official arrest hearings’). These can be most closely compared to a defendant’s first appearance in a Magistrates’ Court in England and Wales (although with a number of distinct differences). At present, these hearings are being piloted in a number of cities across China, with the aim of increasing the participatory nature of proceedings; improving the transparency of the process;  and enhancing scrutiny of detention decision-making. The project is being co-ordinated by the Great Britain China Centre (based in London), in partnership with academics from the Centre for Criminal Justice Reform at Renmin University of China (Beijing), and the Supreme People’s Procuratorate of the People’s Republic of China (the national agency responsible for regulating criminal prosecution and investigation).

Tom Smith and Luke Meyer at Shenzhen Procuratorate training day

Tom’s primary role in this phase of the project was the design and delivery of training sessions for a variety of Chinese criminal justice professionals, including procurators (whose role is comparable to both a Magistrate and a prosecutor); defence lawyers; and police officers. The purpose of the training was to improve the professionalism of the procurators, lawyers and officers in two pilot cities (Shenzhen, in Guangdong province; and Hefei, in Anhui province). In addition, the training aimed to influence their approach to considering the protection of human rights in criminal justice proceedings by introducing perspectives on best practice in England and Wales, whilst providing a critical insight into our pre-trial detention system. The training sought to equip defence lawyers with knowledge and skills applicable to their role in pre-trial detention hearings, which is essentially an adversarial one. Tom was accompanied by criminal defence lawyer Luke Meyer, a Partner at Tuckers Solicitors in Kent. Together, they co-designed the structure of and materials for the training sessions (lasting a day in each pilot city), combining both academic and practical perspectives. The training covered topics such as the current structure of English and Welsh law on remand (i.e. court bail and pre-trial detention of defendants); insight into day-to-day practice in police stations and courts; a review of existing research on pre-trial detention in England and Wales (largely based on Tom and Professor Ed Cape’s report, ‘The Practice of Pre-trial Detention in England and Wales’); and a series of thematic sessions examining criminal legal aid, the use of video-link technology, alternatives to detention in custody, and impact on vulnerable groups of defendants.

Tom Smith and Luke Meyer at Shenzhen Procuratorate training day

Tom and Luke delivered the first training day in Shenzhen on February 22nd and 23rd, alongside sessions by leading Chinese academics and senior figures from the Supreme People’s Procuratorate. On February 25th, they observed an official arrest hearing in Hefei, via video link technology. This offered first-hand experience of the practical implementation of the reform programme, involving a real-life criminal case. The figures involved included two procurators (acting in a similar capacity to Magistrates); a defence lawyer; two police officers (acting in a similar manner to prosecutors in England and Wales); and the defendant (who appeared via video-link). After the hearing concluded, Tom and Luke were invited to ask questions of the deciding procurators in the case as well as the participating police officers. This was a rare privilege: this might be equated to the opportunity to question a bench of Magistrates and a prosecutor about their handling of a remand decision, directly after completing it – something that simply would not happen in England and Wales. This underlines how unusual and important this opportunity was, and provided a significant and unique insight into the progress of the reform programme on the ground. The second day of training was then delivered in Hefei. During both training days, and during associated networking events, Tom and Luke met with procurators, lawyers, academics, and senior local and governmental officials, and answered a variety of questions about English and Welsh law and practice. They were also invited to offer recommendations for continuing the progress of the project.

Tom Smith at Hefei Procuratorate training day

The opportunity to be involved in this highly significant reform programme was an undoubted privilege. The processes being introduced in China are novel to its criminal justice system, which does not have the same legal traditions and adversarial roots as English and Welsh criminal procedure. The energy and effort that is being directed towards the programme by the various parties involved was impressive and engaging. It is worth remembering that these were two of several pilot cities across the country, involving and effecting thousands of people. Above all, the programme has clear potential for positive impact on the lives of criminal defendants in China, emphasising the protection of human rights, increasing the scrutiny of decision-making, and working towards reduced use of detention before trial. Such goals are shared by many jurisdictions, particularly in light of the United Nations’ Sustainable Development Goals (SDGs), one of which (SDG 16) includes reduction of unnecessary pre-trial detention. This is therefore likely to be part of the long-term agenda for reform in China and beyond. The chance to contribute to this project, by sharing knowledge and understanding of pre-trial detention practice in England and Wales, was a very positive experience. It is hoped that there will be further involvement in this project, as well as a wider strengthening of ties between UWE and China.

Jack Grealish and the Media Response

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By Matt Hall

Over the last week or so, football has been the focus of much negative press attention stemming from incidents of fan/player altercation. In Scotland, Glasgow Rangers captain James Tavernier was approached by a spectator in a game versus Hibernian. Shortly after in England, Aston Villa player Jack Grealish was hit from behind during a game against Birmingham City. The incident involving Jack Grealish was highly reported across the media and perpetrator, Paul Mitchell, was subsequently sentenced to 14 weeks imprisonment.

The defendant was charged with battery contrary to s 39 Criminal Justice Act 1988 and the football-specific offence of ‘pitch encroachment’ contrary to s 4 Football Offences Act 1991. As the blog by The Secret Barrister helpfully outlines, the maximum sentence for battery is 6 months, and taking in to account the guilty plea at the earliest opportunity and the then entitled one third deduction, the magistrates could have gone to 17 weeks. The maximum sentence for ‘pitch encroachment’ is a fine. Therefore, 14 weeks was certainly the top end of the scale and on the face of it, the sentence appears stern. Moreover, the defendant was also handed a 10-year Football Banning Order contrary to s 14a Football Spectators Act 1989.

On a note regarding the sentence handed down to Mitchell, many police officers took to Twitter to highlight the swift justice ( just a little over 24 hours) and the severity of the sentence when compared to those who assault police officers. For example, a defendant recently convicted of assault under the 2018 Assaults on Emergency Workers (Offences) Actwas fined £120 and ordered to pay £50 compensation to the police officer he punched (see here). It has been suggested (in the absence of Sentencing Remarks) that the severity of the sentence handed to Mitchell was driven by the need for a deterrent, a legitimate aim of sentencing. Clearly, police officers may have a point here in asking where the deterrent is for those who assault officers going about their job. It is hard to imagine that a similar attack away from a football stadium would have resulted in a 14-week custodial sentence.

Despite the severity of the sentence, it is the knee-jerk and, to quote Stuart Hall, ‘short, simplifying and brutal’ media coverage and commentary that often follows disorder related to football that has been concerning. Following the incident involving Grealish, The Guardian reported that ‘football is urged to protect players’ whilst ex-footballer and current England Women’s manager Phil Neville drew the comparison to tennis player Monica Seles who was stabbed in the back during a tennis match in Hamburg in 1993, outlining his fears that if things do not change ‘a player will end up stabbed.’ The idea of fences returning to the stands was also mentioned and ex-footballer David Cotterill went one step further and suggested that armed police were needed at football matches to assist stewards. Whilst ex and current footballers are well within their rights to worry about their safety, some of the reporting and suggestions that the media give credit to are clearly ill-thought and nonsensical. Indeed, the media has often contributed to the moral panic that ensues when incidents such as this occur at football.

Photo by Vienna Reyes from unsplash.com

Emma Poulton has argued that the ‘hysterical headlines, emotive language and graphic imagery’ that often follow football related disorder contribute to the public viewing all fans of football as ‘hooligans,’ again, a concept that lacks a universal definition and is a construct of the media whom use it to cover an array of behaviour within the football context. What follows, and is true in this instance, is then an outburst for ‘collective punishment’ and headlines such as that in The Guardian that football needs ‘to do more’ to protect players or that armed police are necessary. Indeed, when alcohol was seen as a partial cause in 1985 to the Heysel Tragedy, again, fuelled by newspaper headlines, Parliament were quick to pass legislation that criminalised alcohol possession in direct view of the pitch. In similar vein following the Grealish incident, one media outlet published the opinions of a police officer who believes that cocaine is now a cause of much disorder at football.

Regarding Grealish, some perspective is clearly needed. The individual who attacked him was acting alone. Moreover, football fans are heavily policed and regulated in terms of legislation. As noted above, ‘pitch encroachment’ is a football specific offence and The Home Office’s own statistics demonstrate that arrests for ‘pitch encroachment’ are minimal; 188 arrests in 2015-16; 204 in 2016-17 and; 191 in 2017-18. I would argue many of these arrests take place during times of goal celebrations and not spectators running on the pitch to attack players. Moreover, and taking into account the millions who attend football, this is clearly a minute percentage. This was an isolated innocent and one that does not warrant the knee-jerk responses and ‘hysterical’ headlines that have followed.

It must not be forgotten that football is not unique in attracting disorder; many other sporting and social events attract disorderly behaviour, yet very rarely, if at all, do they attract such stigmatising or emotive headlines or suggestions. A prime example of this would be disorder at horse racing (see disorder involving 40-50 people here) or the 71 people arrested at the 2017 Glastonbury Festival for various offences ranging from drug offences, ABH and possession of an offensive weapon. The point here, is that football is targeted by the media and some members of society in a manner that no other events are.

Clearly, the media and commentators play a role in how football and its fans are perceived. The moral panic that ensues football is unique, in that no other sporting or societal event attracts such condemnation; condemnation that has led to an abundance of football-specific legislation being implemented. Therefore, and despite the media soundbites, football is heavily protected. There is no need to return to fencing in front of the stands, and clearly no need for officers at football to be armed. Statements like this by the media are irresponsible and indicative of what football and its fans have had to witness since the mid twentieth century. The result is a moral panic and a tarnishing of all spectators who pay a lot of money to watch football. As commented by Chief Superintendent Owen West of West Yorkshire Police, ‘one person did an idiotic and criminal act.’ This should not be forgotten, and you cannot legislate for the actions of one mindless individual.

Photo by Tom Grimbert from unsplash.com

Read more from Matt Hall in his previous blog post Matthew Hall presents “Thatcher’s Legacy on the Narrative Surrounding Fans of Football” at the Football Collective Conference.

Interdisciplinary Research into Organized Crime

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On Wednesday 30 January at UWE Bristol, Dr Mary Alice Young convened an interdisciplinary research event on the role of technology and the intelligent machine in organized crime. The event was supported by the Centre for Applied Legal Research and the Criminal Justice Unit. There were 60 attendees in total, including a group of senior investigators from the Metropolitan Police Service, law enforcement officers from the South West Regional Organised Crime Unit, Embassy attaches, investigators from HMRC, and colleagues from UWE’s departments including, Artificial Intelligence, History, Forensics, International Relations, Geography and Criminology. 25 students also attended (representing three faculties), and made valuable contributions to the discussion and connections with potential employers.

Event outcomes

Since the event on 30 January, Dr Young has been successful with a number of publications and planning upcoming workshops.

Dr Young’s interdisciplinary article, ‘Organised Crime and Security Threats in Caribbean Small Island Developing States: A Critical Analysis of US Assumptions and Policies’, has been accepted for publication by the European Review of Organised Crime, with one reviewer stating that it ‘re-orientates a long standing misreading of the Caribbean reality’ of organized crime. Dr Mike Woodiwiss (History, UWE Bristol) is the second author, and the work builds on interviews and field research carried out in Jamaica in 2018.

Dr Young’s forthcoming paper on the untold truth of the architecture of anti-money laundering policies has been accepted for discussion at the Tax Justice Network’s annual conference in July 2019 at City University, London.

Dr Young will also convene a plenary workshop on enablers of organised financial crime, and host the closed Think Tank on Organised Crime in September 2019, at the Cambridge International Economic Crime Symposium, Jesus College.

Technology and Law Policy Commission: Algorithms in the Justice System

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By Dr Tom Smith and Ed Johnston

Technology and Law Policy Commission: Algorithms in the Justice System

Wales Evidence Session, 7 February 2019

This event had 3 different panels speaking for about 30 minutes each regarding the use of algorithms in the justice system. The talks were a mix of practical and managerial algorithms. Both had aspects that were interesting to our teaching and research, as well as elements that were irrelevant.

The commission opened by making the point that we are not asking the correct questions concerning the use of algorithms in the justice system. We are not asking what ‘values’ underpin their usage (for example, issues like transparency and ‘explainability’). All panellists agreed that this is a growth area but the swift growth causes a number of concerns. Firstly, how do we define the ‘values’ that need to underpin the tech and its usage in law?

A major concern rests on the fact that algorithms are often opaque systems for decision making and there is a problem with ‘explainability’ (i.e. we cannot extract from machine learning the rationale for why the algorithm arrived at a particular conclusion). Arguably, this raises a red flag for lawyers in terms of justification of decisions to those affected, and especially for the potential conflict between Freedom of Expression and the use of AI to tackle forms of extremism in England and Wales.

There is a further problem with the lack of emotional intelligence associated with the use of AI. This raises questions about the lack discretion afforded to humans in legal systems when allowing machine learning to make decisions. Much of modern policing is done by using discretionary powers – a concern is the potential for the use of AI to allow the criminal justice ‘net’ to widen disproportionately and without adequate safeguarding. Additionally, if there is an element of human discretion operating alongside AI, who do we defer to in making final decisions (a classic man vs. machine argument)? This raises questions about the risk of humans delegating responsibility (and thus accountability) to machines.

As well as these elements, we need to answer questions concerning data control. What happens to the data that is generated by machine learning?

A further problem exists concerning the language being unpicked by the AI. We have many different languages spoken/written in society. Coupled with this we have local spoken/written language. Finally, we have code spoken by offenders to avoid detection on social media (for example in organised dogfighting). The dogfighting article suggests that there is an informal code spoken on social media to alert likeminded individuals to events and dogs for sale – how can the AI pick up such information? This would require continuous human input and updating to ensure that those targeting by such technologies cannot evade justice by ‘gaming’ such systems.

Ed asked a question about the Harm Assessment Risk Tool (HART) being used by Durham Constabulary but sadly it was not answered. I wonder what risks exist in using an algorithm to make bail decisions post-conviction. However, with the advent of the Released under Investigation status used frequently by police officers and the reduction of the use bail, this is perhaps not an issue (however, that feels very much like fudging the numbers to appear successful – this new unregulated status may in fact be a retrograde step which undermines attempts to reduce unnecessary use of bail). 

There are positives to the technology. The Facial Recognition software described by a Police Inspector appeared to be very beneficial. There are some 12 million images in the Police National Database and the average officer will upload 30 new images per day. Previously, there would be a 12 day wait to try and identify a suspect from the database. The new software will provide a result in 5 minutes. This is of particular benefit when tackling crowd disorder at sporting events. Previously, officers would have to stick their heads out the window of a police van to identify someone. Now the software can scan all individuals in a crowd. Whilst this has clear practical benefit there was little regard for the potential breach of civil liberties or discussion about training for officers on responsible and effective use.

Finally, the panel spoke of the need for regulation and the panels tried to centre in on accountability, oversight and transparency. We need to know a) how will the use be regulated (soft regulation or by legislation) or b) what happens if the evidence is wrongly used. We can exclude evidence under s.78 PACE 1984 currently, but does this broad protection go far enough?

Lots of questions, not many answers. It’s clear that this is a ‘sexy’ and attractive area of law, which is being pioneered primarily in other jurisdictions. Whilst the desire not to be left behind and to utilise technology effectively in the digital age is understandable, this area also potentially poses great danger. The use needs to be carefully considered from a protective, due process standpoint rather than focusing solely on the practical benefits of the technology to crime control and enforcement.

First PROTAX project focus group works to counter tax crimes in the UK and EU

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Prof Nicholas Ryder (UWE Bristol), Sam Burton (UWE Bristol), Prof Umut Turksen (Coventry University) and Dr Fanou Rasmouki (TRILATERAL) hosted the first focus group as part of an EU funded project, PROTAX , in Bristol on 31 January 2019. PROTAX project is focused on the human factors surrounding tax crimes. As such, it seeks to understand ground-level problems that hamper the application of law, investigation, collaboration and ultimately the conviction of tax crimes. By integrating stakeholder knowledge and expertise, PROTAX will generate law enforcement tools and guidelines to help counter tax crimes and reach harmonised levels of organisation and networking across the EU.

At the focus group, we welcomed tax experts, law enforcement agencies, relevant industry representatives. It has been an excellent opportunity to discuss how to counter tax crimes in the UK and EU.

The following themes were discussed during the focus group:

  • Exploring tax crimes
  • LEA requirements and organisational aspects
  • Inter-agency co-operation
  • International collaboration
  • Dual role of the financial sector: Prevention and facilitation of tax crimes
  • Benchmarks and best practices
  • Ideas to advance the fight against tax crime

Once the remaining 10 focus groups in 10 different EU countries are completed, we will convene a conference in Brussels at the EU Commission where we will invite all focus group participants and other stakeholders involved in the prevention, investigation and prosecution of tax crimes. The conference will provide a platform for professionals specialised in tax and tax crime matters to learn about the findings of the focus groups and contribute to the formulation of recommendations to the European Commission and stakeholders to enhance capabilities in the fight against tax crimes.

For more information on Protax see the project website: https://protax-project.eu/

SLSA Seminar Series: The Perennial Problem of Disclosure – A way forward?

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By Ed Johnston

Ed Johnston has recently been award £1,500 from the annual Socio-Legal Scholars Association’s Annual Seminar Series. Ed is currently organising a one-day conference at UWE Bristol Law School on the topic “The Perennial Problem of Disclosure – A way forward?” This one day event will take place on Wednesday 3 July 2019.

Prior to the mid-1960s, there was no requirement for defence disclosure. Between 1967 and 1996 the defence only had to disclose alibi and expert evidence. The prosecution would disclose elements of their case to ensure ‘equality of arms’. The issue of balance between both parties is long-running, since the prosecution have historically commanded significant resources to investigate and prosecute crimes (in comparison to the defence). The system of disclosure is a fundamental element of fair trial procedure as it helps to compensate for this natural imbalance. However, with the advent of the defence case statement under the Criminal Procedure and Investigations Act (CPIA) 1996, both the underlying culture and systemic purpose of disclosure experienced a seismic shift.

In the following two decades, the general focus of criminal justice policy has been toward prosecuting cases in an efficient manner; the defence case statement forms a pivotal aspect of this. The disclosure regime was extended by the Criminal Procedure Rules (CrimPR) which now mean that disclosure, albeit operating under the guise of ‘case management,’ is essentially mandatory in summary trials. In contrast, under the CPIA 1996, summary trials were only the subject of a voluntary disclosure regime. Despite the insistence (via both judicial guidance and executive policy making) on the need for a culture of early disclosure and co-operative working to permeate modern criminal procedure, the post-CPIA 1996 regime is marked by practical failings and (arguably) ideological contradictions. This has generated significant and sustained criticism, and led to miscarriage of justices as a result of an inadequate disclosure system and culture.

In late 2017 and early 2018, a series of criminal cases collapsed after significant police failures in managing disclosure of key evidence. The first and most widely reported of these was the case of Liam Allan, who was accused of rape and released on bail for two years, before vital undisclosed evidence emerged days into his trial. In the wake of this, the CPS, Metropolitan Police, a Parliamentary Select Committee, and the Government have engaged in reviews of the effectiveness and fairness of the current disclosure regime in criminal proceedings. As mentioned above, this is not new; the modern system of disclosure has been lamented almost since its inception in 1996. There have been a number of critical examinations, including by academics Plotikoff and Woolfson (A Fair Balance in 2001); by Lord Justice Gross (A Review of disclosure in criminal proceedings in 2011); and by HMCPSI and HMIC jointly (Making It Fair in 2017) and the Mouncher Review (also in 2017).

Liam Allan speaking at the First Annual Criminal Justice Research Unit lecture at UWE Bristol in December 2018.

In 2018, two further reviews followed in the wake of the Allan case and others (including those of Samson Makele and Oliver Mears): the Justice Committee published Disclosure of evidence in criminal cases inquiry in July, and finally the Attorney General published a Review of the efficiency and effectiveness of disclosure in the criminal justice system in November. The latter review concluded that the ‘system is not working effectively or efficiently as it should’ and identified above all the need for a change in culture (rather than law) was needed. There is an obvious appetite for improving the function of the disclosure regime; yet, despite the numerous reviews and investigation, it remains fundamentally flawed and this represents a risk of causing further miscarriages of justice (which may or may not be detected). Speaking in June 2018, the former DPP, Lord Macdonald, suggested that it was ‘inevitable’ that innocent defendants had been imprisoned as a result of disclosure not being readily available to defence lawyers (a claim the then DPP, Alison Saunders, was hesitant to echo). Arguably, the current crisis in disclosure represents one of the most significant and impactful problems in 21st Century criminal justice.

This one day conference in July 2019 seeks to bring together academic and practitioner perspectives to examine potential avenues for reform and improvement. If you would like to attend this event, please register online here.

The confirmed speakers for the conference are: 

Anthony Edwards: “Contemporary issues with disclosure in the police station.”

Anthony is a criminal defence solicitor who specialises in Corruption, Fraud and Major Crime. He is widely acknowledged as one of the leading authorities on Police Station law and he has published widely in the areas of criminal procedure.

Dr. Abenaa Owusu-Bempah: “Reconsidering defence disclosure.”

Dr. Owusu-Bempah is an Assistant Professor of Law at the London School of Economics. Her research interests focus on criminal procedure and fair trial rights. Her recent book, Defendant Participation in the Criminal Process, examines how the disclosure provisions of the CrimPR compel the defendant to actively participate in their own criminal trial. The book examines how the adversarial criminal process can be effected by essentially non-adversarial provisions.

Dr. Hannah Quirk: “ Uncovering disclosure errors: Appeals and the CCRC.”

Dr. Quirk is a reader in Criminal Law at Kings College London. Her research interests lie in wrongful convictions and sentences. She has published extensively on the erosion of the Right to Silence and wrongful convictions.

Please see our event page for further details or click here to sign up now.

Catherine Easton (editor of the European Journal of Current Legal Issues) has been commissioned a Special Edition of the journal, which will focus on the papers presented at the seminar. This proposal has been accepted and the edition will be published in the winter of 2019.

The Knife ASBO: The Incorrect Response

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By Ed Johnston

Last week, the Home Secretary suggested a new measure to tackle the ever-growing problem of knife crime in England and Wales. He suggested that children as young as 12 could be sanctioned with ASBO-style order, should the offender breach the order, they could be imprisoned for up to two years. There is undoubtedly a major problem with knife crime in London and this requires a solution. In November 2018, the House of Commons Briefing Paper Knife Crime in England and Wales indicated that the period 2017/2018 had the highest rate of number of knife or sharp instrument crimes in over a decade with nearly 15,000 incidents. However, whilst this crime increased year on year, the Sanction Detection Rate for crimes that involved knives was under 30%. It is clear that something needs to be done to tackle this very dangerous problem. Furthermore, the Briefing Paper highlighted the findings of the Crime Survey of England and Wales that suggested 6.2% of 10-15 year olds knew someone who carried a knife and 0.3% of that sample self-reported that they carried a knife. The Government has previously attempted to ‘get tough’ on knife crime, The Criminal Justice and Courts Act 2015 introduced a minimum custodial sentence of six months for repeat offenders of knife crimes. Nevertheless, this has not provided an answer to the reoccurring problem and knife crime is perpetually in the news.

Knife Crime in England and Wales briefing paper
House of Commons Briefing Paper Knife Crime in England and Wales

The Knife and Offensive Weapon Sentencing statistics published in December 2018 states that at the end of September 2018, there were 21,381 cases of knife crime formally dealt with by the criminal justice system. Of those cases, 36% of cases resulted in an immediate custodial sentence. A mere 11% of cases resulted in a caution, which is a 13% drop from September 2009. For almost 3/4s (73%) of offenders, this was their first knife or offensive weapon offence. So, whilst the courts are treating the problem with severity, the average custodial sentence exceeded 6.5 months in 2016 for the very first time; there appears to be no effective deterrent currently available. According to the House of Commons Briefing Paper, there were 5,053 admissions to English hospitals as a result of an assault by a sharp object in 2017/18. This is a rise of 14% on the previous year and when compared to 2014/15 it has increased by 39%. The problem is real, the courts have attempted to deter offenders by using harsher sentences which has driven up the average custodial sentence, however, nothing seems to be working. In fact, in the dawning hours of 2019, two people were killed in London before 6am.

It is clear that something needs to be done to tackle this problem. However, questions remain about Sajid Javid’s Knife Crime Prevention Orders (KCPO). The Home Secretary wants to amend the Offensive Weapons Bill in order to bring in these orders. Amendment 73A of the Bill suggests that the court can make an order if, on the balance of probabilities, on at least two prior occasions (within two years), the defendant was in possession of a bladed article without good reason, in a public place, school or further education premises. The good reason could be for work, educational purposes, religious reasons or as any part of a national costume. Whilst this is clearly aimed at deterring young people from carrying a knife, which is to be commended, the standard of proof is far lower than establishing if a defendant has committed a crime. All that needs to be established is the fact it is more likely than not the person has previously carried a knife twice. Should a defendant be subjected to a KCPO, there are a number of prohibitions that the court can impose. The court can prohibit the defendant from:

  • Being in a particular place
  • Being with particular people
  • Participating in regular activities
  • Using particular articles or having particular articles on them, or
  • Using the internet to facilitate or encourage crime involving bladed articles.

This is a civil injunction, hence the lower the standard of proof. However, any breach of the order will render the conduct criminal, and the defendant could be imprisoned. These types of injunctions are nothing new to the courts. They have had the power to stop defendants associating with certain people or entering certain spaces for years. The Anti-social Crime and Policing Act 2014, allows the court to ‘prohibit the respondent from doing anything described in the injunction’ or ‘require the respondent to do anything described in the injunction.’ Both sanctions would allow the court the bar an individual from being in a particular place, being with particular people, participating in regular activities or using the internet to encourage knife crime. This could mean a person subjected to an order could be banned from using social media.

 A new provision, is not required. Perhaps, the Home Secretary is looking to polish his ‘tough on crime’ mantra for when Teresa May steps down ahead of the next general election (with some suggesting that may be as early as this summer). Perhaps Mr. Javid should not look to widen the net of criminal justice by snaring more young people into its grasp, as the stigma of being involved or subjected to criminal sanctions is hard to shift for young people. Employment opportunities are only going to be hampered by being subjected to KCPO and it begs the question, how can this be effectively policed? If the aforementioned rise in custodial sentences does not deter young people from these offenses, will a bar on using WhatsApp or other social media platforms? Whilst the provisions, on paper, have some bite, the reality means that they are almost impossible to enforce. It is suggested that the orders will be reviewed periodically, although the police are already underfunded and struggling to tackle crime; it is unrealistic to suggest the police would have the resources to see if a KCPO is being complied with. Ultimately, the proposals are another example of an order which is enforced by a low standard of proof but carries consequences that could give rise to criminal sanction and could blight the offender’s future.

Perhaps the Home Secretary would be better served looking at alternatives to divert young people from knife crime, rather than creating new provisions, that replicate sanctions that are already on the statute book. The courts have tried using more serve sentencing powers and yet that has failed to remedy this ever-growing problem, it is hard to believe a regime that mimics existing legislation would fix this problem. Nevertheless, it will help Mr. Javid’s leadership bid as the Home Secretary looks like he is doing something, rather than actually doing something to tackle the growing epidemic of knife crime.

The disclosure crisis: A suspect and practitioner perspective

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On Wednesday 5 December 2018 UWE Bristol hosted the first annual Criminal Justice Research Unit lecture on the topic “The disclosure crisis: A suspect and practitioner perspective.” The event was organised and chaired by Dr Tom Smith and Dr Ed Johnston and funded by the Centre for Applied Legal Research.

Roughly a year ago today our first speaker Liam saw accusations of rape dismissed after the police failed to disclose crucial evidence which fundamentally undermined the claims made against him. Liam gave us a very a personal account of his experiences with the criminal justice system. Jerry Hayes and Anthony Edwards each provided varied and valuable professional perspectives on the problem of disclosure. We hope that this lecture will help to promote meaningful and long term change in this area as well as furthering our goal here at UWE Bristol of research that shapes the future of organisations.

The lecture has been recorded and is available to watch online as a video, or to listen to as a podcast:

View Full video

Listen to Podcast

 

 

Liam Allan

Liam Allan is a criminology and criminal psychology graduate who was charged with rape in 2015 and spent two years on bail before his case collapsed owing to failures with the disclosure regime. Liam gave us a very personal insight into his experience and the trauma of accusation, from the moment he was arrested until the case was dropped. Liam described being made to feel that he was “guilty until proven innocent”. Liam arrived at the Crown Court charged with 13 counts of rape; days into his trial, it emerged that the police had 60,000 non-disclosed text messages containing vital information which led to the collapse of the case against him. Following these events, there was huge media interest and public outcry. Subsequently, 600 cases were dropped, 6 of which were rape cases. Since that time, Liam has continued his studies and founded the Innovation of Justice campaign, which seeks to unite organisations, lawyers and barristers, individually seeking to improve different aspects of the criminal justice system.

 

 

Jerry Hayes

Jerry was the prosecution barrister for Liam’s trial, and played a fundamental role in the discovery of the non-disclosed evidence. Jerry described some of the fundamental issues with the criminal justice system, in particular in relation to sexual offences. He argued that many members of a jury jump to conclusions in a “no smoke without fire” reaction to rape cases (something Liam suggested he had previously done, prior to his accusation). Jerry emphasised the importance of remembering that people are complainants, not victims, until a conviction or a plea of guilty. Jerry described in detail how and why the system very nearly failed Liam Allan – who would have served up to 12 years in prison and been on the Sexual Offenders Register for life. He suggested that the evidence that was withheld had been deemed “too personal” to be revealed and not relevant to the case. Yet, he argued, it was not only capable of undermining the prosecution case; it made it absolutely clear that Liam Allan could not be guilty. Jerry described Liam’s case as the worst he had seen in 41 years of practice.

 

Anthony Edwards

 

Anthony Edwards has been a practicing solicitor for 45 years and gave us a professional overview of how disclosure should be handled to avoid major miscarriages of justice. Anthony explained some of the provisions of the Criminal Procedure and Investigations Act (CPIA) and gave an overview of the recent Attorney General’s review of disclosure. He argued that, with sexual offences, there is added complexity and difficulty due to frequent “credibility contest” in such cases – that is, they turn on one person’s word against another. He stated that it is a routine part of defence practice to deal with non-disclosure issues; from major fraud to cases of minor assault. He suggested that poor disclosure practice undermines the criminal justice system, as police and prosecutors do not look for what is actually needed in a case. Anthony highlighted that this issue will not just go away (and not done so for decades), arguing for an enormous cultural shift from the police, the prosecution and defence, to ensure that all evidence is properly disclosed from the start. Anthony highlighted the need for an independent disclosure review process, conducted by an independent barrister, arguing that history tells us that the police nor the prosecution can or will do a satisfactory job. Anthony highlighted the related issues associated with the use of social media by parties in a case; particularly the problems of detecting and accessing such material when it stored on a third party’s account. He asked: how an accused can find such material if they do not know it exists? Anthony suggested that, with an independent disclosure counsel running the process, a significant proportion of cases that currently reach court and are subsequently dropped or dismissed by a jury would be filtered out of the system at an early stage, avoiding injustice.

 

Question and Answer session

We had a range of questions, some sent in advance and then opened up questions from the audience. Liam talked about how the case affected his personal life and that he was suspended from his job for 2 months. The emotional strain of the case understandably caused Liam to breakdown in court, but he also spoke about the impact on his family and friends. There was much discussion around the CPS and CPIA, whether they were fit for purpose and whether Liam was judged fairly. Anthony and Jerry gave an insightful discussion of the failings of the criminal justice system and how these failings impact genuine victims of sexual abuse. The idea of anonymity for those accused of certain types of offences was discussed by all three speakers, and the idea that it should be anonymous until a judge, because there may be other offences, directs that it should be made publicly known. There was criticism of the CPS and police using their lack of resources as an excuse for their failings, and whether this is a valid excuse or reason, nonetheless it needs to be addressed.

 

The entire lecture is available online here:

Full video

Podcast

 

Presentation of a Paper on Brexit and EU Citizenship at a Conference in Austria

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In the past few years the concept of citizenship has for a variety of reasons regained fashion amongst national, European and international lawyers. In the UK the renewed interest in the notion of citizenship is partially explained by the effect of Brexit on the status of EU citizens in the UK (and UK nationals in the EU). Last year a wide range of events, which Christian Dadomo and Dr Noëlle Quénivet attended, were organised in Bristol to discuss citizenship (see here and here) and so when they saw a call for papers for a conference on citizenship at the University of Graz (Austria) they jumped onto the opportunity to present their work abroad and thankfully their paper entitled ‘Assessing EU Citizenship under the Myopic Lens of Brexit’ was accepted.

The conference ‘Transformation of Citizenship’, held on 20 and 21 November 2018, was organised by the Institute for International Law and International Relations in conjunction with the European Training and Research Centre for Human Rights and Democracy of the University of Graz (Uni-ETC) within the context of the project ‘Transnational Governance of Irregular Migration and the Transformation of Citizenship’.  It brought together a vast array of scholars from all around the world to discuss issues such as the sale of passports, global citizenship, statelessness, foreign terrorist fighters, solidarity, etc. Two panels were dedicated to Union Citizenship, thus highlighting the importance and relevance of the topic.

Christian and Noelle started their paper by reminding the participants that the CJEU had defined EU citizenship as a fundamental status that enables nationals of Member States to enjoy the same treatment in law and that since then scholars had been debating the legal value of such status. Christian and Noelle argued that Brexit brings to the surface again discussions about the legal value or more generally the worth of EU citizenship in contrast to (State) nationality. In their opinion, there are two ways of looking at EU citizenship. There is first a minimalist approach that focuses on the legal status and the rights with which individuals are endowed. It is the more palpable, almost every day life appearance of EU citizenship for EU citizens having exercised their right to free movement. Yet, attachment and loyalty to the EU cannot be fostered by a limited focus on citizens’ status and rights alone and so there is also a broader and more dynamic approach to EU citizenship that looks at the symbolism of EU citizenship and more specifically at the solidarity between EU citizens that should create some form of identity. It is more aspirational and inscribes itself in a vision of the EU as a polity in which a European civitas exists and thrives.

At first sight, Brexit undergirds this minimalist approach to EU citizenship in as much as many discussions centred upon the rights of the EU citizens in the UK (though less on the UK nationals in the EU27). The focus of attention was initially about the fate of these EU citizens in the UK and the rights they would lose as a result of Brexit. Both EU nationals in the UK and UK nationals in the EU realised the value of their EU citizenship. After all, you only appreciate what you had once you have lost it! For example, UK nationals both in the EU and more interestingly in the UK (even those who have never exercised their right to free movement) have applied for the nationality of an EU Member State to keep their EU citizenship.

However, the wider, aspirational approach towards EU citizenship is no less visible in Brexit for there have been demonstrations in favour of the EU in a State whose nationals have always been sceptical towards the EU, support in the European Parliament for ‘associate’ EU citizenship and a European Citizenship Initiative launched in July 2018 with the objective of keeping EU citizenship for UK nationals in the EU27. Therefore, it is possible to state that Brexit has revealed that EU citizenship goes beyond this minimalist approach that focuses solely on rights to a vision of EU citizenship as something that has a wider appeal and is based on solidarity along the French motto of ‘liberté, égalité et fraternité’.

More fundamentally, the European Union has enabled a shift in the way non-nationals are viewed: from foreigners to workers (homo economicus), to residents and to EU citizens. With Brexit the pendulum might go all the way back to viewing UK nationals in the EU who were EU citizens as foreigners and EU citizens in the UK as foreigners. Yet, the rhetoric of both the UK and the EU shows that they are adamant to reverting to square one. Consequently, it might be possible to state that Brexit has demonstrated that EU citizenship has subtly though fundamentally challenged the way EU citizens who have exercised their right to free movement are viewed. Though Brexit undeniably highlights the duality of EU citizenship, a status in its own right as well as a complementary over-layer that acts as a gate to rights that will be lost post-Brexit, it has revealed the intrinsic value of EU citizenship for EU citizens living in another EU Member State. As a result, Christian and Noelle argued that Brexit shows that EU citizenship is more than just a bundle of rights. EU citizenship has a transformative power in the sense that it is not just a ‘top up’ but has become part of a Union citizen’s legal heritage, especially in relation to long-term residents. And so, reverting to the status quo ante is nearly impossible.

What is more Brexit offers an opportunity to reinforce and complete EU citizenship and putting EU citizenship at the forefront of the European project. Like the French revolutionaries who created French citizenship on the tryptic ‘liberty, equality and fraternity’, the EU citizenship can equally be further developed on the tryptic ‘freedom of movement, equality treatment and solidarity’. Freedom of movement is fully developed, equal treatment can be completed by extending the so-called special (political) rights and notably the right to stand and vote in all national elections including referenda in their country of residence, and finally solidarity needs better promotion as it is only in its infancy.

Matthew Hall presents “Thatcher’s Legacy on the Narrative Surrounding Fans of Football” at the Football Collective Conference

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On Friday 30th November 2018, Matthew Hall (UWE Bristol, Law), along with Ashley Jane Lowerson (University of Sunderland, Law) presented their paper at the Football Collective Conference at Hampden Park, Glasgow. This is an event attended by many scholars from across all disciplines from around the world. Also attending were current and ex-professional footballers and members of the Football Association.

Titled, ‘Thatcher’s Legacy on the Narrative Surrounding Fans of Football’, Matt and Ashley introduced by discussing Mrs Thatcher’s early days as PM and the ‘tough on crime’ rhetoric that she often espoused. It was discussed how some scholars have argued through a punitiveness lens that Mrs Thatcher’s legislative programme was anything but tough. The prison population remained around the 45,000 mark during her time as PM and only under Major and Blair did a sharp increase occur (and now is around the 80,000 mark). Thatcher’s legislation merely created an ‘illusion’ of toughness and ‘laid the foundations’ for a more punitive approach some years later.

Matt and Ashley then discussed how measuring the ‘toughness’ of law through a punitive lens was a narrow approach and legislation can influence in other ways. Attention turned to football fans and some of the legislation that was created with fans of football in mind, particularly since the events of Heysel in 1985. Ashley discussed the Sporting Events (Control of Alcohol etc.) Act 1985, Public Order Act 1986 and the Football Spectators Act 1989 and how collectively, these have arguably created a stigma that has become attached to all fans. In particular, when taking in to account the wide nature of some of the legislation in that numerous restrictions apply to all fans and not just those who seek to cause disorder.

Matt then went on to discuss Goffman’s theory of stigma and Frost’s conceptual framework. Structural inequalities were discussed and how the law can be constructed in ways that reflect negative meanings to certain groups in society; how stereotypes and prejudice can result from structural inequalities; and finally, discrimination in that these groups then become treated differently in society because of their stigmatised status. Discussed on this point was the nature of how the police often favour the tougher ‘command and control’ approach when policing football matches as opposed to other large gatherings such as political protests, where a more ‘facilitative’ role is adopted with the use of Police Liaison Teams to create a ‘friendlier atmosphere.’ Also, how public houses quite often refuse admission to fans of football on match days for no other reason other than they are football fans and in early 2018, Chorley councillor Danny Gee attempting to ban all fans of football from entering Chorley Centre on Saturday afternoons.

Matt and Ashley then discussed how stigma can be legitimised by law, and in terms of football fans, this is arguably the case. Mrs Thatcher may not have been regarded as ‘tough’ by some scholars with her legislative programme, but fans of football would disagree. 1985, under Mrs Thatcher PM, saw the first football-specific legislation introduced and arguably, this is one of Thatcher’s legacies surrounding the narrative of football fans in the current day.