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An activists’ perspective of the proposed changes in the Criminal Justice Bill

The Criminal Justice Bill currently going through Parliament proposes major and sweeping changes to the law, many of which will affect activists. The main changes to be aware are discussed in this briefing.

0. Contents

  1. Changes to the Police & Criminal Evidence Act 1984 (PACE)
    1. Extension of powers to take fingerprints and DNA
    2. Length of detention in police custody
    3. Extension of powers to stop and search
    4. Duties of the custody sergeant to log property
    5. Authorisation of  continued detention
  2. Sentencing
    1. Magistrates' sentencing powers
    2. Indication as to sentence for "either way"offences
    3. Longer term prisoners
  3. Bail
    1. General
    2. Release on police bail
    3. The Written Charge -a new method of instituting proceedings
    4. Conditional Cautions
    5. Street Bail - powers of police to grant bail other than at a police stations
    6. Offences committed on bail
    7. Appeals against bail decisions by magistrates
  4. Rules of Evidence
    1. Evidence of character and previous convictions
    2. Hearsay evidence
    3. Disclosure
    4. Appeal against Judge's rulings by the prosecution
    5. Retrial for serious offences
  5. Resources

 

1. CHANGES TO THE POLICE & CRIMINAL EVIDENCE ACT 1984 (PACE)

1.a Extension of powers to take fingerprints and DNA

The bill allows the police to take the fingerprints and DNA of anyone who has been arrested for a "recordable offence". This covers any arrest except where the suspect is arrested for breach of the peace. Under existing powers introduced in the Criminal Justice and Police Act 2001, the police may keep any fingerprints and DNA indefinitely, regardless of whether the suspect is subsequently charged or convicted of an offence. This power was declared compatible with human rights by the Court of Appeal last year.

1.b Length of detention in police custody

Currently the maximum period of detention for a suspect in custody is 24 hours, and this can only be extended to 36 hours in the case of serious arrestable offences with the authorization of a superintendent. It is proposed under the new law that this power be extended to all arrestable offences.

This will inevitably be used against activists, especially in mass arrest situations. It’s important to bear in mind however that many public order offences are not 'arrestable offences'; for example, Section 5 of the Public Order Act, and that for these the maximum arrest period will remain at 24 hours.

1.c Extension of powers to stop and search

Currently the police can only stop and search suspects if they reasonably suspect them of carrying offensive weapons, stolen items or articles used in connection with theft or burglary. It is proposed that this power be extended to people suspected of carrying articles used to cause criminal damage.

This power simply gives the police an additional reason to search you or your vehicle. The ostensible reason for introducing it was to search graffiti artists suspected of causing criminal damage, but it will of course be used against activists as well. In many protest situations, the police lack reasonable grounds to search you for stolen items or offensive weapons, and therefore cannot lawfully carry out a search (although of course they often do anyway).

An example of how the new power could be used might be as follows. You are stopped in a vehicle in the middle of the night close to where some criminal damage has recently taken place. The occupants of your vehicle refuse to give their names and addresses, and when the police do a vehicle check it is identified as belonging to a known animal rights activist. The police might then have the power to carry out a search of you and your vehicle for items used for criminal damage, which they do not currently enjoy.

In practical terms, this new power will not make a great deal of difference though. In the above situation the police can easily circumvent the current limitations on the power of search, by simply saying that they are searching for stolen items or for items used for burglary. So the new power simply confers a lawful search power on the police, which they have previously been using unlawfully.

1.d Duties of the custody sergeant to log property

Currently the custody sergeant is under a duty to log the property of all suspects when they authorize their detention at the police station. This will become discretionary under the new law.

This will not significantly affect activists - it has simply been introduced to reduce police paperwork and to free up resources. We have included it here, so that experienced activists used to the previous obligations on the police are now aware of the proposed changes.

1.e Authorisation of continued detention

Continued detention at a police station has to be authorized by an inspector at set intervals. Under the new law, it is proposed to allow this to be done by telephone.

2. SENTENCING

The Bill contains a major overhaul of sentencing in the UK. Magistrates will be given much greater powers, and a community service element is being introduced in to many sentences as an alternative or in addition to imprisonment. Currently there are huge discrepancies between courts across the country in how offenders are sentenced for the same offences. In order to promote more consistency in sentencing, a new “Sentencing Guidelines Council” is to be set up which will issue guidance to courts across the UK.

2.a Magistrates' sentencing powers

The white paper on criminal justice noted that magistrates could pass sentence in half of all either-way offences which went to the Crown Court, and proposes changes to rectify this. Currently magistrates can only sentence to a maximum of 6 months imprisonment for any one offence and 12 months for consecutive offences. It is proposed under the new law that this be increased to 12 months and 18 months respectively.

This new power will be used in conjunction with a new method of sentencing called "Custody Plus", which will apply to all sentences below 12 months. Anyone sentenced for 12 months or less will receive a maximum jail sentence of 3 months, followed by a minimum community service of 6 months.

2.b Indication as to sentence for "either way" offences

Currently the defendant has to make a simple choice in the case of either way offences, for example theft, as to whether to go for trial in the Magistrates' Court (summarily) or in the Crown Court (on indictment). Under the new law the following is proposed:

Where magistrates have decided that the case is appropriate to be tried summarily, this must be explained to the accused along with the fact that he has a right to trial by jury. The accused may then request an indication as to what sentence he will receive in the event of pleading guilty. If the magistrates indicate that the defendant will not receive a custodial sentence, this acts as a guarantee that he will not be imprisoned for the offence.

In previous bills, the government wanted to abandon the defendant’s right to trial by jury, but were repeatedly blocked by the House of Lords. The stated concern was that some defendants abuse the right to jury trial by using it as a delaying tactic, but the real reason was that crown court trials cost much more money than magistrates. The above “early indication” procedure is designed to encourage more defendants to stay at magistrates court, rather than run the risk of a far higher sentence in the crown court.

Activists along with other defendants will have some difficult dilemmas to face up to. An example might be if you were on trial for violent disorder, an either way offence where you may opt for trial by jury if you wish. The magistrates might offer you a guaranteed sentence of 6 months imprisonment, out of which you could only serve a maximum of 3 with the chance of early release on tagging. You could reject this and opt instead for trial by jury where the chances of acquittal are generally much higher. But if convicted you could face a far stiffer penalty of up to 5 years imprisonment. 

2.c Longer term prisoners

Under the current law, prisoners serving less than 4 years in prison are automatically released on license at the half way stage. Prisoners serving 4 years or more can apply for parole at the half way stage and are automatically released after two thirds of the sentence is served.

Under the new law, it is proposed that anyone sentenced to more than 12 months imprisonment (with the exception of certain dangerous prisoners) will serve half their sentence in prison and the remaining half in the community up to the full term of the sentence

3. Bail

3.a General

Major changes are being proposed to the system of granting bail due to perceived inadequacies in the charging procedure. It is aimed to rectify this by handing over decisions as to charge to the CPS in the majority of cases. They will then have the power to charge suspects directly by way of the new "written charge"(see 3.c below). Police will also be given new powers to grant "street bail", without having to process the prisoner in the police station.

It will also become harder for defendants to get bail if they are already on bail for another imprisonable offence, and prosecution powers to appeal against such bail decisions will be increased.

3.b Release on police bail

Activists are frequently released from custody without charge nowadays on police bail with a duty to appear at a police station at a later date. This is to enable the police to liaise with their lawyers and informally with the Crown Prosecution Service before deciding which charges, if any, to bring.

According to the white paper preceding the bill, 13% of cases are dropped by the Crown Prosecution Service (CPS) and 55% of cases are inadequately put together by the police. It is therefore being proposed that the CPS work much more closely with the police and that they make the decision as to charging in all but the most routine of cases.

Under the new law it is proposed that the police must receive guidance from the CPS as to what charges if any to bring against suspects being held in the police station. If they do decide to grant bail pending further enquiries, then the case will be referred to the CPS who will make the decision on whether or not to charge you with an offence. They may direct the police to charge you with a specific offence, to issue you with a conditional caution (see below), or not to charge you at all. Alternatively they may institute proceedings against you directly by way of a "written charge" -see below.

This will result in more decisions to grant police bail with more decisions being made by lawyers rather than police officers on whether to charge people with offences. A principal reason behind this change is to create more uniformity in charging throughout the country -there are currently wide discrepancies between police forces with regard to the charging of offences.

For activists the advantages are that fewer charges will be brought where there is obviously insufficient evidence on which to base them. However, the involvement of the CPS may lead to a more political dimension to prosecutions, with activists more likely to be charged if they belong to a certain campaign, pressure group etc.

3.c The Written Charge - a new method of instituting proceedings 

Under current law, it is usually the police who charge you with an offence or lay an information at the Magistrates Court in order for a summons to be issued requiring you to attend court. The new law gives an alternative power to 'public prosecutors" to charge you with an offence by way of a "written charge". They must at the same time issue a document known as a “requisition” which requires you to attend court to answer the charge.  A set list is given of people who may carry out the role of "public prosecutor' and it includes the police, the Crown Prosecution Service, the Attorney General and the Serious Fraud Office.

Where you have been given police bail in relation to an offence, the CPS will automatically take over the decision as to whether or not to prosecute (see §3.c Release on Police Bail above). If they do decide to prosecute they may do so by way of "written charge' without your having to reappear at the police station. This new way of charging is designed to make the procedure speedier and less cumbersome than the old method. It will also be used in conjunction with the CPS's new powers in relation to police bail (see above) to enable them to charge you directly without the need for further involvement of the police.

The principal way in which it affects activists will be as follows. Where you have been given police bail in relation to an offence, the CPS will automatically take over the decision as to whether or not to prosecute (see “Release on Police Bail” above). If they do decide to prosecute they may do so by way of “written charge” without your having to reappear at the police station.

So under the new law if you are released on police bail, there are four possibilities:

How does the written charge differ from laying an information to obtain a summons?

An “information” is an allegation that a person has committed an offence. When the police proceed against you by way of laying an information, they present information to a magistrate either orally or in writing containing your name and address, brief details of the offence you are suspected of, and the law which has been contravened.

The magistrate before whom the information has been laid then has jurisdiction to issue the suspected person with a summons to attend court to answer the charge. The clerk to the court must ensure that the information alleges an offence known to the law, that it was laid within any relevant time limits to commencing a prosecution, and that the court has the relevant jurisdiction – eg that the offence has been committed within the area covered by the court. The courts will nearly always issue a summons so long as the above criteria are met, and will only refuse to do so where the application appears frivolous or is an abuse of the process of the court.

By contrast the "written charge" procedure enables the police or CPS to proceed against you directly without having to go through the cumbersome procedure of laying an information first.

3.d Conditional Cautions

Currently the police can offer you a caution as an alternative to being charged. This is not as serious as a criminal conviction but it does form part of a criminal record. Under the new law the CPS will have the power to instruct the police to offer the suspect a “conditional caution”. This will not replace the ordinary caution but is aimed to cover situations where the CPS believe that charges are not necessary but the ordinary caution is inadequate. The conditions, which may be attached to these cautions, must have one or both of the following objects:

i) ensuring or facilitating the rehabilitation of the offender;

ii) ensuring that he makes reparation for the offence.

The nature of the exact conditions will be prepared later in a Code of Practice prepared by the Secretary of State. They are likely to include such measures as confronting the victims of crime or community service.

Further comments
The rationale behind the conidtional caution seems to be as follows. As things stand the police can either charge you, caution you or let you go. The caution is perceived to be not very effective in preventing further crime, particularly in the case of young offenders. So the new conditional caution will be used when it is deemed that the ordinary caution is insufficient, but that it is not in the public interest for the case to go to court. You could argue that it is a way of getting community service in by the back door, without the time and expense of a court hearing.

The “conditional cautions” should be regarded by activists in the same way as the existing one. There are no firm guidelines either way as to whether or not to accept them, but activists need to be aware of the reason why one might be offered. A caution does amount to an admission of guilt and they may be cited in future court proceedings as part of your criminal record. Often the police will offer a caution when there is not enough evidence to go to trial, but it may also be offered where the likely penalty for the offence is so low that it does not justify the court costs. Accepting a caution is a decision activists will have to make based on their own circumstances and the circumstances of the case. Some people will never accept cautions on principle. Others will accept them even where there is a fair chance that they will get off anyway, simply in order to get it out of the way.

Only time will tell how the conditional cautions are used and whether the resources will be made available for them to be effective. There is a major question mark generally as to whether the new community penalties which may be imposed using conditional cautions and the new sentencing arrangements will be sufficiently financed.

3.e Street Bail - powers of police to grant bail other than at a police station

Currently once you have been arrested the police must take you to a police station as soon as reasonably practicable. The police do have the power to release you before getting to the police station, but in doing so they cannot bail you to attend at a later date. Under the new law, it is proposed to give the police powers to release prisoners on bail before reaching the police station under a duty to appear at a specified police station at a later date.

This new power will significantly affect animal rights and other mass protests. In mass demo situations the police are often unwilling to make large numbers of arrests, as this means that police officers will be taken away from the scene for several hours to deal with them. Also as the venues for protests are frequently changed at the last minute, there is no cell space available in the local police stations for large numbers of prisoners, creating more logistical problems.

Under this power the police will be more willing to arrest larger numbers of protestors, knowing that they can take their details, and re-bail them to a later date. This will enable more police officers to stay at the scene of the protest and enable the CPS to review the evidence before deciding what charges if any to bring. It may well lead to larger numbers of arrests on demos. Note that the police cannot attach additional conditions to the bail – they can only do this after charge.

It was originally proposed that police also be given powers to impose conditions on police bail before charge, but this idea appears to have been dropped.

3.f Offences committed on bail

The white paper on criminal justice noted that nearly a quarter of defendants commit at least one offence on bail. The proposed changes are aimed at rectifying this, by making it harder to get bail if you commit an offence whilst already on bail for another offence.

Currently there is a general right to bail in criminal proceedings unless the offence being charged is indictable or triable either way and the defendant was on bail at the time of the offence. In such a case it is still possible to get bail but it is more difficult. It is proposed under the new law to extend this to cases where a suspect has committed an offence on bail where either offence is merely imprisonable.

So for example, if you are on bail having been charged with threatening behaviour (Section 4A Public Order Act 1986) and you are later charged with a Section 42 offence (refusing to leave a home demo) then you will not be entitled to a “presumption of bail” and the onus will be on you to show why you should be granted it.

 

3.g Appeals against bail decisions by magistrates

Under the current law, if you are refused bail by magistrates you can apply to the High Court for bail. It is proposed under the new law that these applications will be heard instead in the Crown court.

The prosecution may currently appeal against a decision to grant bail, where the offence in question is imprisonable by 5 years or more imprisonment. This power will under the new law be extended to cover any imprisonable offence.

The latter change is likely to be of more concern to activists. It means that if you are given bail by magistrates for very minor public order offences - eg Section 4 of the 1986 Public Order Act - the prosecution can apply to the Crown Court to have you remanded in custody. The power will probably not be routinely used, but it will be available to the CPS if they need it and is potentially open to abuse against activists by the police / CPS for political purposes.

4 RULES OF EVIDENCE

The Bill is proposing radical changes to the law regarding admissibility of evidence of character and hearsay evidence, with a general rule that such evidence be admissible unless the defence successfully argues that it will be prejudicial to the defendant.

It also proposes changes to the law on disclosure requiring a far more detailed defence statement from the defence in Crown court cases, and it gives the prosecution the right to appeal against judges’ rulings with regard to prosecution evidence and particular against “terminating rulings” where the judge directs that a case be dismissed.

4.a Evidence of Character and Previous Convictions

Currently the general rule is that a jury cannot be told about a defendant’s previous convictions or any character disposition which would make them more likely to have committed the offence.

Under the new law the general rule will be that such evidence is admissible, and it will be for the defence to argue that it will be prejudicial. Not only will previous convictions become generally admissible, but also evidence of character, previous charges, acquittals and virtually anything else which might shed the defendant in a bad light.

The rationale behind this change- and the new law on hearsay evidence below – is that juries should be allowed to hear all the evidence available and can be trusted to use their common sense in deciding how much it should be relied on when deciding whether or not the accused is guilty. However such evidence of disposition has always been excluded in the past for being too prejudicial to the defendant. This change has come in for heavy criticism in many quarters and this part may well be challenged in both the House of Commons and the House of Lords.

If this were to become law, it could lead to the police arresting the “usual suspects”, which they might not have done previously due to lack of evidence. Many cases are based entirely on circumstantial evidence – in such cases, evidence of previous convictions, disposition etc may well be enough to tip the balance against the defendant.

4.b Hearsay evidence

The term ‘hearsay’ evidence describes any statement, the truth of which cannot be established by cross-examining the maker of the statement. It therefore includes any written – eg computer records - as well as testimony as to what someone else is supposed to have said. Currently ‘hearsay’ evidence is generally inadmissible in criminal law, subject to a number of exceptions. It is proposed to bring the criminal law in line with the civil law, with a general rule that all hearsay evidence should be admissible if it falls within a certain category, or alternatively if a court decides it is in the interests of justice that it should be admissible.

The white paper on criminal justice noted that in 2001, 30,000 cases were abandoned because witnesses and victims refused to give evidence or failed to turn up in court. 40% of witnesses did not want to give evidence.

Under the new law witnesses will be allowed to refer to their statements and any previous statements will be more widely admissible. Another change proposed under this section is to allow witness statements to be read out under without their having to give evidence, if certain circumstances apply. For example, they may not have to give evidence if they can show they are afraid to do so.

It is quite possible that prosecution witnesses in animal rights cases may apply to have their statements read out, on the grounds that they feel intimidated by animal rights activists. This could lead to more charges being brought against activists, where witnesses are assured that they will not have to give evidence in court.

4.c Disclosure

Currently a defendant being tried for an offence on indictment has to provide the prosecution with a defence statement outlining his defence as well as the names and addresses of any alibi witnesses.

Under the new law it is proposed that the defendant provide the name, address and date of birth of ALL witnesses and not simply the alibi ones. The definition of an “alibi witness’ is also expanded so as to include anyone whose evidence is inconsistent with a person’s having been present at the scene of the crime.

This proposed change has been widely perceived to prejudice defendants and deny the right to a fair trial. There is no supporting evidence that the current absence of advance disclosure is hampering prosecutions. Defence witnesses may be less likely to come forward if they think they are likely to be interviewed by the police.

4.d Appeals against Judge’s rulings by the prosecution

Currently in cases heard in the Crown court there is no right of appeal by the prosecution if a judge makes any ruling regarding admissibility etc of evidence, or if the judge directs that a case be dismissed. It is being proposed under the new law to give the prosecution the right to appeal against any such ruling up until the end of the prosecution’s case.

4.e Retrial For serious offences

Currently under the principal of double jeopardy you cannot be charged again with the same offence once you have been found not guilty. Under the new law it is being proposed that this rule be abolished for serious offences where there is new and compelling evidence that the accused committed the offence. It is thought that this is primarily aimed at cases where new DNA techniques provide compelling evidence of people who were acquitted before the techniques were developed.

Most commentators agree that retrial should only be possible - if at all - for serious offences such as murder, rape or where extreme violence has been involved. However the Bill has come in for criticism in that it proposes to make retrial possible for a much wider number of offences, including any offence for which the maximum penalty is life imprisonment. This includes arson endangering life and causing explosions, offences with which animal rights activists accused of arson are often charged.

5.Resources

The text of the proposed new law and explanatory notes are available here:
http://www.parliament.the-stationery-office.co.uk/pa/cm200203/cmbills/063/2003063.htm

The executive summary is available here:
http://www.criminal-justice-system.gov.uk/news/2003/november/Criminal_Justice_Bill_Nov_2003.html

 

Link to the summary:
http://www.criminal-justice-system.gov.uk/publications/cjbill/cjbill.html


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