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Latest Insights
Sentencing update – Case notes
Case notes from Sarah Day and Marie Spenwyn providing an update as to recent key sentencing developments including a significant case affecting imposition of custodial sentences given capacity in prisons, approach to sentencing those who are sentenced when adults offending committed when a child and new sentencing guidelines.
Prison population and sentencing:
Summary of recent Statement from the Chairman of the Sentencing Council
The Chairman of the Sentencing Council, Lord Justice William Davis, has recently issued a statement in relation to concerns over the high prison population, following the Court of Appeal’s judgment on 3 March 2023 in R v Arie Ali [2023] EWCA Crim 232. The case of Ali clarifies that when sentencing an offence that crosses the threshold for a short custodial sentence where there continues to be pressure on prison capacity, as there is at present, the courts can take into account the impact of the current prison population levels to determine whether to suspend a sentence or impose a community order as opposed to a short custodial sentence. Quoting a letter from the Deputy Prime Minister to the Lord Chief Justice in February 2023, the judgment highlights that operating close to prison capacity has consequences for the conditions in which prisoners are held. Most particularly, they may well be further away from home (affecting the ability for family visits), be in crowded conditions and have reduced access to rehabilitative programmes.
Both the case of Ali and the subsequent statement by the Chairman make clear that the high prison population is an additional factor which can be taken into account when deciding whether a short custodial sentence must be imposed immediately or whether it can be suspended. It is not a factor which requires all short prison sentences to be suspended, as ever, that must be based on all the factors pertinent to the sentencing exercise. It would appear that the courts will be reliant on the government to communicate when prison conditions have returned to a more normal state.
As a final note, during a recent sentencing exercise in front of Lord Justice Edis sitting at Nottingham Crown Court, he indicated that the issue was only in relation to the male prison population. It is notable, however, that the statement from the Chairman is not limited in that way so it remains to be seen how this will be applied throughout the courts.
Sentencing adults for offences committed when a child
From the 17th March 2023 R v Ahmed [2023] EWCA Crim 281 is an important judgement in which the Court of Appeal has clarified the approach that must be adopted when sentencing an adult for offences committed as a child. In this case, the court heard five appeals together, which each concerned sexual offences and in which the question the court sought to resolve was the correct approach to sentencing an adult for an offence committed as a child. Each of the five sentences were reduced by the Court of Appeal.
A number of principles for sentencing those who offended as children but are sentenced as adults can be distilled (at paragraph 32):
The Court rejected the submission of the respondent that the Sentencing Council’s Overarching Guideline on Sentencing Children and Young People can only be applied where there is “relative temporal proximity”. The Court confirmed that whatever the age of the offender at the time of conviction and sentence, the Overarching Guideline is relevant and must be applied (in accordance with Section 59(1) of the Sentencing Code) unless the court is satisfied it would be contrary to the interests of justice to do so.
The court must have regard to the maximum sentence which was available at or shortly after the time of the offending.
The court must take as its starting point the sentence which it considers was likely to have been imposed if the child offender had been sentenced shortly after the offence.
If in all the circumstances of the case the child offender could not in law have been sentenced (at the time of his offending) to any form of custodial sentence, then no custodial sentence may be imposed;
Where some form of custody was available, the court is not necessarily bound by the maximum applicable to the child offender. The court should, however, only exceed that maximum where there is good reason to do so. The Court emphasised that the mere fact that the offender has now attained adulthood is not in itself a good reason. The Court further stated they found it very difficult to think of circumstances in which a good reason could properly be found, and thus respectfully doubted the decision in the case of R v. Forbes and others [2016] EWCA Crim 1388 in this one respect. However, the point was not specifically argued in these appeals and so the Court has indicated that a firm decision about it must therefore await a case in which it is directly raised.
In each case, the issue for the court to resolve will be whether there is good reason to impose on the adult a sentence more severe than he would have been likely to have received if he had been sentenced soon after the offence as a child. The starting points taken as set out in the points above, may not necessarily be the end point of sentence as they may increase or decrease. As the court is sentencing an adult, it must have regard to the purposes of sentencing set out in section 57 of the Sentencing Code.
This case adds to a line of authorities from the Court of Appeal in cases such as R v Ghafoor [2002] EWCA Crim 1857 which emphasise that those who offend when under 18 should be treated differently from those who offend as adults and reviews them in the light of the overarching sentencing guidelines for children now in place since July 2017. The Court stated that this is in recognition of the fact that “in general, children are less culpable, and less morally responsible, for their acts than adults” as stated in R v Limon [2022] EWCA Crim 39. They therefore require a different approach and are not to be treated as if they were “just cut-down versions of adult offenders”. Of significance is the expression of these principles as applicable not only to cases where the offender has relatively recently crossed the threshold to adulthood, but where an adult is being sentenced – potentially decades later – for offences committed as a child. It is no doubt therefore that this will be a significant guideline case and of assistance to practitioners facing a sentencing scenario where the offender has either recently crossed the age threshold and must be sentenced as an adult, or whether the offending was historic offending which took place when a child and is of particular application to sexual offences.
New guidelines on sentencing for sale of knives to persons under 18 in force
Since the 1st April 2023 two new guidelines relating to the sale of knives by individuals and organisations (offences under s141A of the Criminal Justice Act 1988) to those under 18 have been in force. In circumstances where there had not previously been any guideline in place for these offences (punishable by a fine for organisations but with a maximin of 6 months imprisonment for individuals) the new guidelines are designed to allow for more consistency in the approach to sentencing these offences across the courts. There is one level of harm recognised the same risk of harm (to individuals and the wider community) is risked in relation to every sale. The offence is a summary only one in either case. The guideline for organisations includes specifics as to how they implement training and measures to verify age both in person and online. The sentencing ranges for organisations now provided will likely result in higher fines being imposed. As stated in the forward to the published response to the consultations these offences are not frequently prosecuted but have the potential for serious consequences. For offences that concern large quantities of knives of where there is ‘deliberate or reckless marketing of knives to children’ the guidelines would not apply.
New guidelines on sentencing child cruelty
Also in force from the 1st April 2023 is a guideline that updates those previously in force from 2019 specifically to take account of the change to the maximum sentences resulting from the Police, Crime, Sentencing and Courts Act 2022 applying to offences committed after the 28th June 2022. There is now a new level of “very high culpability” relating to both causing or allowing the death of a child (now life imprisonment) and causing or allowing serious harm/child cruelty (now 14 years).
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Libertas Chambers
What’s the law on the Koh I Noor?
Discussing the law on restitution, repatriation and reparations, Felicity Gerry KC and Fahrid Chishty have published an article in the prestigious Eastern Eye on centuries of history, how we should approach disputes over cultural heritage and whether they can lay claim to the Koh I Noor diamond?
You can read more here (page 12) https://www.easterneye.biz/digital/issue1704/
Libertas Chambers
Prosecuting Cultural Heritage Crimes in Ukraine: A Survey of the Relevant Principles and Provisions
With world leaders set to meet in London later this spring, all eyes are on the ICC. As the Investigation into the Situation in Ukraine develops, theorists and practitioners of international law have speculated as to the scope of potential charges against Russian officials. Prevailing discourse has focussed its analysis on a range of traditional atrocity crimes – genocide, war crimes and crimes against humanity – but where do crimes against cultural heritage fit within this matrix? And to what extent can such conduct, if evidentially made out, be prosecuted at the Hague? In this article, Fahrid Chishty deconstructs these critical yet understudied questions.
Fahrid has significant experience in the law relating to crimes against art and antiquities, having advised clients on countering transnational trafficking operations and cultural destruction redress. He has previously shared his expertise in relation to the Armenia-Azerbaijan litigation at the ICJ and the ‘blood antiquities’ crisis facing Afghanistan and Pakistan in 2023.
On 24 February 2022, the Kremlin declared its ‘special military operation’ in Ukraine. Its objective was purportedly to ‘demilitarise and de-nazify’ President Zelensky’s regime. At the time of writing, the war endures, with no signs of a ceasefire on the horizon. The implications of the conflict for trade, energy and agriculture – on the continent and beyond – have been profound. Yet negligible attention has been paid to the destruction or misappropriation of Ukraine’s cultural heritage in the theatre of operations. With the International Criminal Court (ICC) poised to deliver its preliminary findings vis-à-vis its Investigation into the Situation in Ukraine, the world expects the evidential picture to support the indictment of the Russian chain of command – notwithstanding the fact that key issues relating to immunities and jurisdiction remain unresolved. While criminal charges brought against Moscow’s leadership may be framed in terms of alleged atrocities committed against civilians – principally, mass killing, torture, abduction, arbitrary detention and sexual violence – calls are mounting in some quarters for the Prosecutor’s description of the charges to also enumerate alleged crimes against Ukraine’s cultural heritage.
Factual matrix
According to UNESCO, 218 cultural sites have been partially or totally destroyed in Ukraine since February: 95 religious buildings, 78 historical buildings, 18 monuments, 17 museums and 10 libraries. Ukrainian officials state that these were intentional, strategic strikes and amount to cultural genocide. Moreover, Russian troops stand accused of having pillaged swathes of cultural artefacts from museums and private residences nationally. According to one allegation, Russian soldiers forcibly removed Ukraine’s prized collection of Scythian jewellery – a series of golden ornaments dating from the bronze-age Steppes – from the Melitopol Museum of Local History. A diadem dating from the rule of Attila the Hun (d. 453 AD) was also allegedly looted.
Ukraine’s position is plain: Russia is intent on extinguishing Kiev’s independent cultural identity and expunging its peoples’ historical footprint. The Minister of Culture has called these actions war crimes. On 20 October 2022 a European Parliament Resolution described Russian actions as ‘an attempt to eradicate the identity and culture of a sovereign nation, also through strategic and targeted acts of destruction on cultural heritage sites, constituting a war crime under the 1954 Convention to which both countries are signatories.’ In this context, if the ICC Investigation evidence is inculpatory, can we expect the Russian leadership to face trial for war crimes committed specifically in relation to Ukraine’s cultural heritage?
Legal framework
The destruction of cultural heritage during times of war is sadly not a new phenomenon. At various junctures in history, international law has penalised the use of violence against buildings, objects or artefacts having cultural or historical importance. The Nuremberg Trials heard evidence relating to Nazi leaders’ confiscation, desecration and destruction of cultural heritage. The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 first established a duty on States Parties to respect and safeguard cultural property in times of military hostilities. This article focuses specifically on three war crimes contrary to the Rome Statute 1998.
First, Article 8(2)(b)(ix) criminalises the intentional direction of attacks on ‘buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.’ This provision is, prima facie, engaged; Russia is alleged to have intentionally directed attacks against monuments, museums and houses of worship inter alia. Whether it truly bites will turn on the probative value of the evidence.
What of venues that are not expressly listed in the provision? Sporting venues, community centres, cemeteries and parks are potential species of cultural heritage that are not adumbrated in Article 8(2)(b)(ix). The second provision, Article 8(2)(b)(ii), provides a solution. A lex generalis provision, Article 8(2)(b)(ii) classifies the intentional direction of attacks against ‘civilian objects’ as also a war crime. A civilian object is defined as object which is not a ‘military objective’, meaning that it does not by its nature, location, purpose, or use, make an effective contribution to military action, and its destruction, capture or neutralisation does not offer a definite military advantage in the circumstances Accordingly, potential cultural heritage sites that are not susceptible to Article 8(2)(b)(ix) may fall within the ambit of Article 8(2)(b)(ii) where it can be proven that there was no effective contribution to military action and its destruction did not offer a definite military advantage.
Lastly, Article 8(2)(b)(xvi) criminalises pillaging, defined as the appropriation of certain property without consent for private or personal use.
Russian responses
On the basis of the above, the Rome Statute plainly provides a basis for bringing charges against Russian officials in relation to crimes against cultural heritage. However, it will be for a Trial Chamber to determine on the evidence whether the offences are made out. As such, it is important to examine potential Russian responses to the charges at trial.
First, Russia may plead that Article 8(2)(b)(ix) has no relevance on the basis that Russian officials did not intentionally direct attacks against protected objects. That is to say, Ukrainian cultural heritage sites sustained damage as a result of bilateral military strikes and not unilateral Russian action. Accordingly, the damage inflicted was, on this interpretation, incidental and collateral. While tragic, it may be put that this is not a war crime within the meaning of the provision.
Alternatively, the Russia may plead the ‘military objectives’ defence. This would entail accepting that attacks were intentionally directed at Ukrainian cultural heritage sites, but that those attacks were justified on the basis that the sites in question made an effective contribution to military action and their destruction offered a definite military advantage in the circumstances. According to this position, cultural heritage sites were mobilised for war and therefore dispossessed of their status as protected objects at the material time. That is to say, churches, mosques and museums were militarised and repurposed as pseudo-garrisons from which Ukrainian armed forces and insurgents operated.
Lastly, in relation to pillaging, Russia may challenge the nature of the alleged appropriation carried out. While the evidence may paint a picture of Russian troops forcibly removing art and antiquities from Ukraine’s museums, the defence may plead that these were necessary safeguarding and protection measures. The relocation of cultural assets in wartime may be a military necessity. As such, it may be asserted that the alleged pillaging was justified and does not constitute a war crime contrary to Article 8(2)(b)(xvi).
These lines of defence are, ultimately, speculative and if pleaded, may not be insurmountable. Whether or not the charges will result in the conviction of Russian officials will, of course, be fact-sensitive and dependent on the evidence. However, the very fact that the charges may contain counts relating to war crimes against cultural heritage is a step in the right direction. Litigating the allegations may not only go towards securing justice vis-à-vis the destruction of heritage of humankind in Ukraine – it will also invite critical judicial guidance on important yet understudied issues intersecting international criminal law and cultural protection.
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Fahrid Chishty
Chambers Article: Closing Prisons? The Howard League for Penal Reform meets Coaching Inside and Out and The Longford Trust.
This Article by Dr Felicity Gerry KC accompanies our Libertas Chambers webinar on closing prisons which you can watch here – Libertas YouTube
The webinar explored 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. Presented by our Dr Felicity Gerry KC, these pioneering women discussed legal services as a lifeline and the impact alternatives such as coaching and employability projects, can have for those who find themselves ‘behind bars’.
Click below to read in full.
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Libertas Chambers
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Latest Events
Defence Statements & Openings: Rule 25.9 and being fair and concise
LIBERTAS CHAMBERS ONLINE LECTURE 22nd June 2023 at 6pm.
A practice is growing of asking Defence Counsel to open 1 or 2 sentences after the prosecution opening in serious cases which may not be in accordance with the Criminal Procedure Rules. Rule 25.9, taken together with the overriding objective allows for a fair and concise rehearsal of the issues raised in the defence statement or alternatively for the jury to be given the defence statement. This webinar discusses the delivery of defence openings / summary of issues, how defence statements can be framed to support a defence opening, and what is the bare minimum for opening defence issues which is fair.
Presented by our Dr Felicity Gerry KC and Marie Spenwyn
Felicity and Marie have significant experience defending in the most serious of criminal matters including homicide, terrorism and war crimes. Both are co-authors of The Sexual Offences Handbook (3rd Ed forthcoming). They are well versed in taking procedural challenges and taking the best strategic approaches for clients.
Register today – https://www.eventbrite.co.uk/e/defence-statements-and-openings-rule-259-and-being-fair-and-concise-tickets-633231280807
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Libertas Chambers
The Best Way To Develop The Law On Complicity AKA “Joint Enterprise” – Webinar Video
We recently held a webinar on The Best Way to Develop the Current Law on Complicity, AKA “Joint Enterprise”. In the wake of the 7th anniversary of the Supreme Court ruling in R v Jogee [2016], Dr Felicity Gerry KC & Professor Matthew Dyson (Corpus Christi College, Oxford) consider the current substantive law of complicity, and where it could be improved.
Presented by Dr Felicity Gerry KC and Professor Matthew Dyson
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.
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Libertas Chambers
The Best Way to Develop the Current Law on Complicity, AKA “Joint Enterprise”
This webinar has ended. To watch a replay of the webinar, head to our dedicated blog post
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
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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.
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If you would like to read a write-up of the event please do so by downloading from the link below:
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Libertas Chambers
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