Contact Libertas Chambers

Contact Us

Tel: +44 (0) 20 7036 0200

Our Offices

London

20 Old Bailey, EC4M 7AN

+44 (0) 20 7036 0200

clerks@libertaschambers.com

Manchester

76 King Street, M2 4NH

+44 (0) 20 7036 0200

clerks@libertaschambers.com

Liverpool

20 Chapel Street, L3 9AG

+44 (0) 20 7036 0200

clerks@libertaschambers.com

Leeds

St Paul's House, 23 Park Square, LS1 2ND

+44 (0) 20 7036 0200

clerks@libertaschambers.com

Birmingham

The Colmore Building, 20 Colmore Circus, Queensway, B4 6AT

+44 (0) 20 7036 0200

clerks@libertaschambers.com

Bristol

33 Colston Ave, Bristol, BS1 4UA

+44 (0) 20 7036 0200

clerks@libertaschambers.com

CONNECT WITH US FOR THE LATEST NEWS & UPDATES

Twitter LinkedIn Libertas Lens

Last night we hosted a webinar titled 𝗖𝗹𝗼𝘀𝗶𝗻𝗴 𝗣𝗿𝗶𝘀𝗼𝗻𝘀? 𝗛𝗼𝘄𝗮𝗿𝗱 𝗟𝗲𝗮𝗴𝘂𝗲 𝗠𝗲𝗲𝘁𝘀 𝗜𝗻𝘀𝗶𝗱𝗲 𝗮𝗻𝗱 𝗢𝘂𝘁. If you would like to give it a watch then do so on our YouTube channel: youtube.com/watch?v=AVgiAz… #libertaschambers #legal youtube.com/watch?v=AVgiAz…

Yesterday from LibertasChambers's Twitter via Publer.io

Sign up today! #webinar #law #legal #barrister #barristers #event #lecture

About 3 days ago from LibertasChambers's Twitter via Publer.io

𝗣𝗿𝗲𝘀𝗲𝗻𝘁𝗲𝗱 𝗯𝘆 𝗼𝘂𝗿 𝗺𝗲𝗺𝗯𝗲𝗿 𝗗𝗿 𝗙𝗲𝗹𝗶𝗰𝗶𝘁𝘆 𝗚𝗲𝗿𝗿𝘆 𝗤𝗖. This webinar explores penal policy and prisoner potential. We discuss legal services as a lifeline and the impact coaching can have for those who find themselves ‘behind bars’.

About 3 days ago from LibertasChambers's Twitter via Publer.io

Final chance to sign-up for tonight's expert webinar. 𝗖𝗹𝗼𝘀𝗶𝗻𝗴 𝗣𝗿𝗶𝘀𝗼𝗻𝘀? 𝗛𝗼𝘄𝗮𝗿𝗱 𝗟𝗲𝗮𝗴𝘂𝗲 𝗠𝗲𝗲𝘁𝘀 𝗖𝗼𝗮𝗰𝗵𝗶𝗻𝗴 I𝗻𝘀𝗶𝗱𝗲 𝗮𝗻𝗱 𝗢𝘂𝘁. 𝗣𝗿𝗲𝘀𝗲𝗻𝘁𝗲𝗱 𝗯𝘆 𝗼𝘂𝗿 𝗺𝗲𝗺𝗯𝗲𝗿 𝗗𝗿 𝗙𝗲𝗹𝗶𝗰𝗶𝘁𝘆 𝗚𝗲𝗿𝗿𝘆 𝗤𝗖. eventbrite.co.uk/e/closing-pr…

About 3 days ago from LibertasChambers's Twitter via Publer.io

We are delighted to announce that we have committed to host interns as part of the Bar’s collective participation in the #10000BlackInterns scheme More information can be found at 10000blackinterns.com #libertaschambers pic.twitter.com/GPIPX0YhRJ

Last week from LibertasChambers's Twitter via Publer.io

The latest issue of the Libertas Lens is out! Give it a read: libertaschambers.com/media-hu… #libertaschambers #newsletter #legal #uklaw libertaschambers.com/media-hu…

About 2 weeks ago from LibertasChambers's Twitter via Publer.io

Sign up today! #webinar #law #legal #barrister #barristers #event #lecture

About 2 weeks ago from LibertasChambers's Twitter via Publer.io

𝗣𝗿𝗲𝘀𝗲𝗻𝘁𝗲𝗱 𝗯𝘆 𝗼𝘂𝗿 𝗺𝗲𝗺𝗯𝗲𝗿 𝗗𝗿 𝗙𝗲𝗹𝗶𝗰𝗶𝘁𝘆 𝗚𝗲𝗿𝗿𝘆 𝗤𝗖. This webinar explores penal policy and prisoner potential. We discuss legal services as a lifeline and the impact coaching can have for those who find themselves ‘behind bars’.

About 2 weeks ago from LibertasChambers's Twitter via Publer.io

Reminder: Sign-up is open for our expert webinar titled 𝗖𝗹𝗼𝘀𝗶𝗻𝗴 𝗣𝗿𝗶𝘀𝗼𝗻𝘀? 𝗛𝗼𝘄𝗮𝗿𝗱 𝗟𝗲𝗮𝗴𝘂𝗲 𝗠𝗲𝗲𝘁𝘀 𝗖𝗼𝗮𝗰𝗵𝗶𝗻𝗴 I𝗻𝘀𝗶𝗱𝗲 𝗮𝗻𝗱 𝗢𝘂𝘁. The Webinar is free to attend and begins at 18:00 on Thursday - 24th November. eventbrite.co.uk/e/closing-pr…

About 2 weeks ago from LibertasChambers's Twitter via Publer.io

Reminder: Sign-up is open for our expert webinar titled 𝗖𝗹𝗼𝘀𝗶𝗻𝗴 𝗣𝗿𝗶𝘀𝗼𝗻𝘀? 𝗛𝗼𝘄𝗮𝗿𝗱 𝗟𝗲𝗮𝗴𝘂𝗲 𝗠𝗲𝗲𝘁𝘀 𝗖𝗼𝗮𝗰𝗵𝗶𝗻𝗴 I𝗻𝘀𝗶𝗱𝗲 𝗮𝗻𝗱 𝗢𝘂𝘁. The Webinar is free to attend and begins at 18:00 on Thursday - 24th November. eventbrite.co.uk/e/closing-pr…

About 2 weeks ago from LibertasChambers's Twitter via Publer.io

Latest News

Libertas Lens – Issue 4 – 2022 Welcome to the fourth and final edition of The Libertas Lens for the year. In this newsletter, we introduce a new member, provide an update on our recent rankings in the Chambers and Partners and Legal 500 guides, include 4 expert insight articles, update you on the latest news and case updates, and provide links to a upcoming webinar from our expert team and special guest speakers. To view the edition click here To register for Libertas Lens and ensure you never miss out on our news, events and free webinars follow this link or click Join our Newsletter in the footer below.

Libertas Chambers

The Aims of Sentencing – Preventing Re-Offending? – By Marie Spenwyn This article reviews the recent research report published by the Sentencing Council examining the effectiveness of sentencing with a view to approaches to mitigation. The report concluded that the evidence does not support a conclusion that more severe sentences have a significant deterrent effect on the offender or on offending behaviour generally. Measuring the effectiveness of sentencing is a key part of the role of the Sentencing Council. On the 30th September 2022 a report was published authored by Dr Jay Gormley and Dr Ian Belton entitled “The Effectiveness of Sentencing Options on Reoffending”. The following appears in the key findings section of the report: The evidence does not suggest that using more severe sentences (particularly sentences of immediate imprisonment over other disposals) has significant deterrent effects on the person sentenced or the general population. However, more evidence is needed to assess the deterrent effects of suspended custodial sentences, rather than immediate imprisonment, on those subject to such an order. The report also finds that the evidence demonstrates – in fact ‘strongly suggests’ – that sentences of immediate custody under twelve months are less effective than other types of sentence when focusing on preventing reoffending. The authors state in that context that there is a ‘reasonable body’ of evidence which indicates that use of short sentences can in fact increase reoffending. An understanding of these findings may assist those presenting submissions as to sentence in certain cases. The use of sentencing guidelines when mitigating in circumstances where it is clear what category a case will fall into, either by agreement or by direction from the bench during submissions, can often place a case into the significant bracket where – once an appropriate reduction for plea and for mitigation are taken into account – the question of whether a sentence can properly be suspended is a key consideration for the court. Reference to the guideline on use of suspended sentences and the significant authority of Petherick [2012] EWCA Crim 2214 assists those mitigating in making targeted submissions to seek to persuade the court to an option that does not involve immediate custody. Considering the import of aspects of this report in a measured way, focused as it is on the effectiveness of sentences, could well assist those tasked with inviting the court to avoid a prison sentence. Further, depending on the facts of the case and the circumstances of the offender, the advocate may also draw assistance from some of the specifics within the report – for example when representing females (see part 7). For children, the focus on age and brain maturity (see part 3) are areas that could be drawn together with the overarching principles when sentencing young offenders to highlight pertinent features. The aims of sentencing are enshrined in section 57 of the Sentencing Code for adults (offender aged 18 or over when convicted). Entitled “purposes of sentencing”, s57(2) states that, save in relation to disposals under the Mental Health Act 1983 or mandatory sentences, the court must have regard to: (a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences For children – those under 18 – section 58 reiterates that nothing in the code affects the duty of the court to have regard to the welfare of the child and the principle aim of the Youth Justice System: preventing offending or re-offending. For adults one of the aims the court must have regard to is deterrence and reduction in crime – so implicitly reduction in re-offending; for children it is the duty of the court to have regard to preventing re-offending. It is striking that the research does not find support on the current evidence that sentences of immediate custody – as opposed to other alternative disposals, specifically suspended sentence orders or in the case of children intensive rehabilitation orders – have a deterrent effect on the person being sentenced or the ‘general population’. When mitigating in a situation where there is a genuine question for the court as to whether imposing immediate custody in the form of imprisonment, detention in a young offender’s institution or, for those under 18, a detention and training order, an awareness of these findings could be usefully woven into submissions. In combination with a thoughtful pre-sentence report setting out a programme for sentence specifically targeting the prevention further offending acknowledging these findings might assist in what can often be a delicate balancing exercise for the court. Marie Spenwyn November 2022 Download Article here

Libertas Chambers

Simon Csoka KC secures stay of case against Joey Barton Joey Barton, former premiership footballer and manager of Bristol Rovers, was charged with a common assault on his wife. The prosecution sought to rely upon Body Worn Footage and refused to call his wife. Following detailed submissions on res gestae and upon the duty of the prosecution to call evidence, the case was stayed by a District Judge at Wimbledon Magistrates’ Court on 31st October 2022 on the basis that he could not receive a fair trial. Simon was instructed by Richard Derby of Potter Derby solicitors. Click the links below for the news reports: Mirror Sun Daily Mail

Libertas Chambers

Latest Insights

The Aims of Sentencing – Preventing Re-Offending? – By Marie Spenwyn This article reviews the recent research report published by the Sentencing Council examining the effectiveness of sentencing with a view to approaches to mitigation. The report concluded that the evidence does not support a conclusion that more severe sentences have a significant deterrent effect on the offender or on offending behaviour generally. Measuring the effectiveness of sentencing is a key part of the role of the Sentencing Council. On the 30th September 2022 a report was published authored by Dr Jay Gormley and Dr Ian Belton entitled “The Effectiveness of Sentencing Options on Reoffending”. The following appears in the key findings section of the report: The evidence does not suggest that using more severe sentences (particularly sentences of immediate imprisonment over other disposals) has significant deterrent effects on the person sentenced or the general population. However, more evidence is needed to assess the deterrent effects of suspended custodial sentences, rather than immediate imprisonment, on those subject to such an order. The report also finds that the evidence demonstrates – in fact ‘strongly suggests’ – that sentences of immediate custody under twelve months are less effective than other types of sentence when focusing on preventing reoffending. The authors state in that context that there is a ‘reasonable body’ of evidence which indicates that use of short sentences can in fact increase reoffending. An understanding of these findings may assist those presenting submissions as to sentence in certain cases. The use of sentencing guidelines when mitigating in circumstances where it is clear what category a case will fall into, either by agreement or by direction from the bench during submissions, can often place a case into the significant bracket where – once an appropriate reduction for plea and for mitigation are taken into account – the question of whether a sentence can properly be suspended is a key consideration for the court. Reference to the guideline on use of suspended sentences and the significant authority of Petherick [2012] EWCA Crim 2214 assists those mitigating in making targeted submissions to seek to persuade the court to an option that does not involve immediate custody. Considering the import of aspects of this report in a measured way, focused as it is on the effectiveness of sentences, could well assist those tasked with inviting the court to avoid a prison sentence. Further, depending on the facts of the case and the circumstances of the offender, the advocate may also draw assistance from some of the specifics within the report – for example when representing females (see part 7). For children, the focus on age and brain maturity (see part 3) are areas that could be drawn together with the overarching principles when sentencing young offenders to highlight pertinent features. The aims of sentencing are enshrined in section 57 of the Sentencing Code for adults (offender aged 18 or over when convicted). Entitled “purposes of sentencing”, s57(2) states that, save in relation to disposals under the Mental Health Act 1983 or mandatory sentences, the court must have regard to: (a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences For children – those under 18 – section 58 reiterates that nothing in the code affects the duty of the court to have regard to the welfare of the child and the principle aim of the Youth Justice System: preventing offending or re-offending. For adults one of the aims the court must have regard to is deterrence and reduction in crime – so implicitly reduction in re-offending; for children it is the duty of the court to have regard to preventing re-offending. It is striking that the research does not find support on the current evidence that sentences of immediate custody – as opposed to other alternative disposals, specifically suspended sentence orders or in the case of children intensive rehabilitation orders – have a deterrent effect on the person being sentenced or the ‘general population’. When mitigating in a situation where there is a genuine question for the court as to whether imposing immediate custody in the form of imprisonment, detention in a young offender’s institution or, for those under 18, a detention and training order, an awareness of these findings could be usefully woven into submissions. In combination with a thoughtful pre-sentence report setting out a programme for sentence specifically targeting the prevention further offending acknowledging these findings might assist in what can often be a delicate balancing exercise for the court. Marie Spenwyn November 2022 Download Article here

Libertas Chambers

WhatsApp as a Means of Giving Evidence in Criminal Trials WhatsApp as a Means of Giving Evidence in Criminal Trials As the curtain falls on the pandemic, the Court of Appeal has issued guidance on the future use of technology in criminal trials. In Abdul Kadir v R [2022] EWCA Crim 1244, the Court rejected submissions by an Appellant that his convictions in the Crown Court were unsafe where the trial judge had refused his application to call evidence from his half-brother in Bangladesh via WhatsApp. Although the Court refused the application, it did shed light on the question whether judicial orders for live links for witnesses may extend to the use of WhatsApp or are restricted to the more conventional Cloud Video Platform (CVP) or Microsoft Teams operating systems. Delivering the Court’s judgment, Lord Justice Holroyde held that evidence may permissibly be given by witnesses via WhatsApp in the interests of justice. This is the case under both the temporary provisions that were in force during the pandemic (when the Appellant was tried) and the provisions as they now stand under the expanded regime imported by the Police, Crime, Sentencing and Courts Act 2022 (“PCSCA”). Background Abdul Kadir was charged with ten counts of rape, attempted and indecent assault in May 2019. He was tried at Snaresbrook Crown Court in May 2021. During his trial, he applied to adduce evidence from his half-brother, Sarmad, living in Bangladesh. It was anticipated that Sarmad would give evidence via CVP. The trial judge granted the application, but CVP proved impracticable and a satisfactory connection with the witness could not be secured. As such, an application was made for him to give evidence by way of WhatsApp. The judge refused the application on the basis that she had carried out her own enquires and formed the view that it would not be a safe and secure method for receiving evidence. Mr Kadir was ultimately convicted and sentenced to a special custodial sentence of 18 years, comprising a custodial term of 17 years and an extension period of 1 year. He appealed against conviction, submitting that the trial judge had erred in refusing the application for Sarmad’s evidence to be given via WhatsApp. In so doing, she had impeded his ability to fully challenge the complainants’ evidence and obscured a full picture of the facts from the jury. The law on Live Links During the pandemic, the criminal justice system was confronted with the need to accommodate a broader range of participants in criminal proceedings via remote means. As such, Section 51 of the Criminal Justice Act 2003 (“CJA”), which permitted witnesses to attend court via live links as a matter of judicial discretion, was temporarily amended to include a broader class of persons within its remit. Significantly, defendants were not excluded. The amendment appears to have served its purpose in keeping the criminal courts’ functioning during periods of lockdown and social distancing. Now that the pandemic has begun to subside and the world is steadily “learning to live with Covid”, many temporary measures, including the provisions governing grants of live links to participants in criminal proceedings, have been given a permanent footing. Section 200 of the PCSCA, which entered into force on the 22nd June 2022, is the source of the ‘new regime’. It not only amended Section 51 to make permanent the power to grant live links to a broader range of persons; it also introduced new powers altogether, such as the power to grant live links to juries in limited circumstances. Importantly, the new regime is supplemented by definitive statutory guidance from the Lord Chief Justice, which neatly summarises the latest framework.[1] Decision Given that Mr Kadir’s trial took place during 2020, when the previous ‘temporary regime’ was in full flow, the Court of Appeal’s judgment focusses its analysis on the law as it applied at that time. As such, Holroyde LJ begins the judgment with a helpful overview of the position. It can be distilled as follows. Essentially, during ‘Covid times’, Section 51 CJA provided that a person could take part in criminal proceedings through the use of “a live video link”.[2] According to Section 56(2D) of the same Act, “a live video link” meant a live television link or “other arrangement” that enables the participant to see and hear all other persons participating in proceedings and vice versa. Moreover, Holroyde LJ reminds the parties that all criminal tribunals have duty to carry out active case management under the Criminal Procedure Rules 2020 (“CrimPR”) which includes making use of technology. This extends to granting “appropriate live links”, irrespective of whether the parties have made express applications to that effect.[3] As to what constitutes an “appropriate live link”, the Criminal Practice Directions 2020 (“CPD”) provide that it: “is not a term of art. It has the ordinary English meaning of ‘fitting’ or ‘suitable’ […] What degree of protection from accidental or deliberate interception should be considered appropriate will depend upon the purpose for which a live link or telephone is to be used. If it is to participate in a hearing which is open to the public anyway, then what is communicated by such means is by definition public and the use of links such as Skype or Facetime, which are not generally considered secure from interception, may not be objectionable…”[4] Another dimension to the debate is the issue whether a witness who is based overseas is permitted under the laws of that jurisdiction to give evidence in connection with criminal proceedings in England and Wales without obtaining prior permission. In fact, many countries require an International Letter of Assistance (ILOR) before deciding whether to grant their nationals permission to participate in proceedings. In this respect, regard should be had to the principles set out in Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC), which usher practitioners to seek clarity from the Taking of Evidence Unit within Foreign, Commonwealth & Development Office (FCDO) as to whether there are diplomatic objections associated with calling remote evidence from witnesses in other jurisdictions. Turning to the Appellant’s grounds of appeal, the Court roundly rejected the submission that the trial judge had wrongly refused the application for evidence to be given by way of WhatsApp. This was primarily because Section 6C of the Criminal Procedure and Investigations Act 1996 (“Notification of Intention to call Defence Witnesses”) had not been properly complied with by the Defence. In effect, no written notice of the proposed witness had been given at any stage. His name was introduced into proceedings mid-way through the trial, and the Court and Crown therefore had limited means of checking the adequacy of the proposed arrangements or to consider suitable alternatives. However, as to the question whether WhatsApp would be suitable for receiving his evidence had Section C otherwise been properly complied with, the Court determined that it would. At paragraph 39 of the judgment, Holroyde LJ states in no unclear terms: “WhatsApp was capable of being an “other arrangement” which could meet the definition of a live video link in s56(2D) of CJA 2003. Given that it uses end-to-end encryption, it was capable of being regarded as sufficiently secure for use, in particular in the context of giving evidence in open court.” As such, it is now established law that live links in criminal proceedings extend to WhatsApp video-calling – providing it is in the interests of justice and the ordinary statutory requirements for a grant of live links are met. Implications The decision will come as welcome news to practitioners and defendants wishing to introduce evidence into proceedings from witnesses central to their cases. As experience has shown, CVP, Skype and Microsoft Teams can be impracticable and difficult to operate at times. WhatsApp, on the other hand, is user-friendly, more widely accessible and therefore potentially conducive to better quality communications. However, it is important not to jump the gun. We would be mistaken if we thought that WhatsApp will be the primary mode of giving evidence for witnesses not present at court going forward. In its decision, the Court made plain that judges should endeavour to decide which ‘tech’ to grant in furtherance of a live links order on a case-by-case basis. Care should be exercised to ensure that the choice of software or application is granted in view of the overall circumstances of the case. See the dicta of Holroyde LJ at paragraph 39: “We would add that a judge in similar circumstances today would similarly have the power to direct a live link via WhatsApp under the statutory provisions which are now in force, though it would of course be for the judge concerned to make a fact-specific decision in the circumstances of the particular case.” It is important to bear in mind that the use of WhatsApp may also pose novel difficulties in respect of witnesses who give evidence remotely. This is primarily because WhatsApp is operated mainly, albeit not exclusively, from a mobile phone device. As such, there is a risk that witnesses may be susceptible to a degree of pressure or coaching that is not apparent to those sat at the other end of the link in the courtroom in England. This could be, for example, through receiving text messages whilst using the device or having a persuasive family member positioned out of sight. By the same token, witnesses could screenshot or record proceedings in breach of judicial warnings to the contrary. This risk may be particularly acute where witnesses experience English language difficulties and are unaccustomed to the rules regulating criminal proceedings in this jurisdiction. Moreover, where contempt is committed in this manner, it is highly unlikely that sanctions could realistically be imposed on an offending witness. As such, Courts will inevitably tread very carefully when deliberating whether to grant applications to give evidence via WhatsApp. Whilst it is a potentially very valuable tool, practitioners and judges should be satisfied that the risks set out above can be obviated. The other outstanding question is whether this latest decision opens the door for other social media platforms to make a debut in English courtrooms. Although WhatsApp has a global user base, some countries prohibit use of the application altogether or promote the use of local alternatives. In addition, some witnesses may prefer Facebook Messenger, Instagram or Zoom video-calling due to interface or accessibility issues. Whilst it is tempting to see Abdul Kadir v R as authority for the proposition that live links should now extend to all social media applications providing video-calling facilities, it should be remembered that the pendulum swung in favour of WhatsApp on this occasion in great part due to its end-to-end encryption. As such, it should not be assumed that the decision has paved the way for other applications to be used where to do so would meet the interests of justice. In reality, it remains early days and the parameters of the new regime governing the use of live links in criminal litigation in the post-Covid era are still to be tested. Finally, participants in criminal trials should be alive to the (general) possibility that calling evidence from overseas may offend the domestic laws or diplomatic sensibilities of other jurisdictions. In these circumstances, Courts and practitioners should bear in mind that a decision to grant live links may impinge upon the UK’s international relations. Where this is the case, a question plainly arises as to whether the public interest is still being served. Certain jurisdictions will naturally operate more stringent restrictions than others, and these are nuances that will need to be factored into any applications to call evidence from overseas. Evidently, the power to grant live links in the context of overseas witnesses will engage a discrete set of questions which judges and practitioners will need to navigate sensitively, bearing in mind the ‘bigger picture’. Whilst live links – and now WhatsApp – are here to stay, it is clear that the regime governing their use may continue to evolve in scope and complexity. Fahrid Chishty, 25th September 2022 [1] See https://www.judiciary.uk/wp-content/uploads/2022/07/Live-links-Guidance-for-criminal-courts-July-2022.pdf [2] See Section 51(1)(b) of the Act [3] See r3.2(4) CrimPR [4] See Part 3N.4, CPD Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register

Libertas Chambers

Criminal Appeal (Amendment) Bill or ‘Joint Enterprise’ Bill On 22 September the Times Law section published an article by our Dr Felicity Gerry KC on the Criminal Appeal (Amendment) Bill or ‘Joint Enterprise’ Bill under the title “A glimmer of hope for hundreds wrongfully convicted of crimes”. You can read the article (paywall) here: https://www.thetimes.co.uk/ – some of it is reproduced below. A Private Members’ Bill currently before Parliament identifies the miscarriage of justice in ‘joint enterprise’ cases and passed its first reading in the House of Commons on 6 September 2022. The Criminal Appeal (Amendment) Bill or ‘Joint Enterprise’ Bill, seeks to amend the test which prevents those affected by an error of law from appealing their conviction unless they can prove they ‘would not have been convicted’ (the test articulated in R v Johnson and others [2016] EWCA Crim 1613). As is well known, hundreds, if not thousands, of people, often young, black and/ or with a disability were convicted of crimes they did not commit and have thus far been refused leave to appeal. In murder trials they were alleged to be accessories merely because they ‘foresaw’ a friend might commit a crime. In R v Jogee [2016] UKSC 8 (Jogee), now 6 years ago, the UK Supreme Court decided there had been an error of law which had been wrongly adopted for 30 years and only those who intended to assist or encourage a crime should be convicted as accessories. Subsequently, the Court of Appeal set the bar for appeal so high that only one case has passed the threshold. That person went on to be one of the London Bridge heroes who tackled the terrorist attacker. Others who have been prevented from appealing are Alex Henry who lives with autism and did not touch the victim. Asher Johnson, a young black youth who withdrew before a knife was produced and T’Shai Ennis, a black youth with a cognitive disability whose application for leave to appeal was refused last month, who also did not touch the victim. Dr Gerry KC currently represents all three of these young men. Henry and Johnson’s cases are current at the Criminal Cases Review Commission after filing petitions for mercy. Following the refusal of leave in Ennis’ case [2022] EWCA Crim 1088, the UK Supreme Court is ‘functus’ so it cannot consider the race and disability issues raised both in relation to evidence of bad character and knowledge of the essential facts for the purposes of complicity. The Ennis decision at paragraphs 38 and 39 reads as follows: Dr Gerry QC contended that the substantial injustice hurdle sets far too high a threshold, which has proved impossible to surmount in practice. It amounts to a lack of access to justice and involves the surreptitious return of the proviso previously set out in section 2(1) of the Criminal Appeal Act 1968 which was repealed on 1 January 1996. Further, it is discriminatory. Dr Hulley and Dr Young’s work illustrates the over-representation of black and ethnic minority men in cohorts of people convicted under joint enterprise principles. She argued that the test also raises particular issues relating to the convictions of those with disabilities which may have complicated the approach to foresight. However, the substantial injustice test is well established. It flows directly from the Supreme Court’s observations as to the rationale for it in Jogee. The approach to cases of this nature was clearly set out by this Court in Johnson. We do not consider that there is any basis for us to depart from it. It follows that to the extent that the applicant relies on the change of law since Jogee, in order to justify an exceptional grant of leave to appeal his conviction, he must show substantial injustice. Accordingly, the Court of Appeal has cemented its view that the substantial injustice test will apply in a very broad range of factual circumstances. This will not be a case-by-case approach. Priority is given to finality before the court and the opinion of the court on guilt. It seems remarkable that, whilst the UK Supreme Court was brave enough to admit an error, there is no movement to correct the consequences. At present the solution seems to be a matter for the Executive. There is a current review by the Law Commission into the functioning of the Court of Appeal, so the Bill is timely. It can only be hoped that Parliament will have the political will to support those families affected who have seen their children and other loved ones incarcerated because of a miscarriage of law. It is notable that the famous appeal by Derek Bentley was successful decades after he was hanged when it was accepted that his jury were wrongly directed. There is therefore a conflict between court of appeal authorities – now wrongful judicial directions are not sufficient to overturn a conviction. In Ennis, submissions on incorrect directions were specifically rejected. Justice is always slow but, as these prisoners grapple with a sentence that research by Cambridge University has shown lacks legitimacy, the pressure is on to bring some trust back to the appellate system. The story does not end there: Since 2016, cases have been before the courts using the ‘intention’ test, but the law has developed to allow people to be convicted on little or no contribution to the crime. In one recent trial which Dr Gerry KC defended, where CCTV literally showed the defendant did not join in, the fact that he got out of a car was said to be enough to convict him of murder. Fortunately, the jury saw sense and he was acquitted. It is at least arguable that the law on complicity has lost sight of the element of causation. It is not entirely clear why there is any appetite to convict people who make no contribution to a crime but in murder this puts people’s children and family members at risk of a mandatory life sentence with a minimum term of 25 to 35 years for a killing they did not do. It is a crisis in criminal justice that needs to be rectified and the Bill is a first step in that direction.

Libertas Chambers

Latest Events

The Best Way to Develop the Current Law on Complicity, AKA “Joint Enterprise” The Best Way to Develop the Current Law on Complicity, AKA “Joint Enterprise” LIBERTAS CHAMBERS ONLINE LECTURE 23 February 2023 at 6pm. THE BEST WAY TO DEVELOP THE LAW ON COMPLICITY AKA “JOINT ENTERPRISE” As concerns rise about the incarceration of accessories to murder for increasingly long periods of time, this webinar will consider the current substantive law of complicity, and where it could be improved. The focus is on the physical components of the crime and will suggest there are the tools available in the law already to improve the law, particularly picking out the need for a substantial contribution by the accomplice, and a sufficiently high level of fault. Presented by our Dr Felicity Gerry KC and Professor Matthew Dyson (Corpus Christi College, Oxford): Felicity is well known for leading in the UK Supreme Court in R v Jogee and for defending cases involving issues of complicity in homicide, terrorism and international crimes. Matthew was a defence expert in R v Jogee. He made a leading contribution to the correction of the error of law and is widely published in the field. This webinar presents his recent research into how to regulate liability in complicity with greater legitimacy. Register today – https://www.eventbrite.co.uk/e/the-best-way-to-develop-the-law-on-complicity-aka-joint-enterprise-tickets-473220534357 To ensure you don’t miss out on future events please register for our newsletter by clicking here.

Libertas Chambers

Art Law, Cultural Loss and Terrorism – Webinar Video We recently held a webinar presenting the research of Dr Jonathan Harris from his edited collection Terrorism and the Arts Practices and Critiques in Contemporary Cultural Production. We also discussed contemporary legal challenges in the context of terrorism and art and considered art law in the context of cultural loss in transnational and international law. Libertas’ own Dr Felicity Gerry KC and Fahrid Chishty presented the webinar alongside Dr Jonathan Harris. Felicity is experienced in law on accountability for destruction of cultural heritage and organised crime involving the trafficking of antiquities and has been instructed in a complex historic matter involving reparations for cultural loss. Fahrid specialises in organised crime and has published on the systematic erasure of historic Armenian heritage. To ensure you don’t miss out on future events please register for our newsletter by clicking here. If you would like to read a write-up of the event please do so by downloading from the link below: Download Article here

Libertas Chambers

CLOSING PRISONS? HOWARD LEAGUE MEETS COACHING INSIDE AND OUT – Webinar Video: click here Dickens wrote when the Marshalsea prison was closed: “the world is none the worse without it.” Prisons are an expensive failure. There are over 81,000 people in prisons and young offender institutions in England and Wales. Most are vulnerable. The system fails them and fails to prevent crime. It is a brutal lack of a solution maintained by click bait political and media nonsense. This webinar explores penal policy and prisoner potential with Andrea Coomber KC(Hon), CEO of the Howard League for Penal Reform, Clare McGregor, Founder of Coaching Inside and Out Abi Andrews, Employability Manager at the Longford Trust. We discuss legal services as a lifeline and the impact coaching can have for those who find themselves ‘behind bars’. Presented by our Dr Felicity Gerry KC: Felicity has spent decades researching and campaigning on injustices for prisoners, particularly, women, IPP prisoners and those convicted of ‘joint enterprise’. She will discuss the abject failure of sentencing guidelines, the appalling ‘container’ mentality of penal policy and the need for a totally new approach to close prisons. Register today – https://www.eventbrite.co.uk/e/closing-prisons-howard-league-meets-coaching-inside-and-out-tickets-440841898987 To ensure you don’t miss out on future events please register for our newsletter by clicking here.

Libertas Chambers