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).   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

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/

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. Download this article as a PDF here

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. 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

In her first article for the prestigious Prospect Magazine, Dr Felicity Gerry KC writes under the title “It is not radical to want to close prisons”. There are over 80,000 people in prisons and young offender institutions in England and Wales. A huge number are on remand, not convicted of any crime and supposedly presumed innocent. They are the prisoners most likely to commit suicide. Many of those waiting will be found not guilty or will be sentenced to less time than they have served. Thousands will be held in strict confinement for relatively minor offences, even where reasonable alternatives are known to be effective…. You can read the article here https://www.prospectmagazine.co.uk/politics/close-prisons-ministry-of-justice-backlog-police-jail-cell Prospect is Britain’s leading current affairs monthly magazine. It is politically independent, with no party-political affiliation or agenda. It is a not-for-profit organisation, founded in Britain in 1995. Prospect has established itself as a must-read title with key figures in government, journalism, policy making and business. People turn to Prospect for the ideas and trends behind the headlines and for a contrarian view of topics.

Chaynee Hodgetts has published an article in the Solicitors Journal on the risks of false positives in forensic alcohol testing The article is understood to be the first of its kind for the legal literature, in scrutinising the risk that false positive alcohol metabolite testing results could potentially be caused by hair bleaching and hand sanitiser. Chaynee, one of our newest tenants, has over 10 years’ experience as an academic and Law Lecturer, and is now an Honorary Lecturer in Criminal Law and Medical Law, assisting at both Bangor University and on MSc programmes at QMUL’s Centre for Trauma Sciences (C4TS) at the Blizard Institute. The article explains alcohol metabolite testing (tests for EtG, EtPa and FAEE), and highlights the little-known, but highly relevant, effect of hair bleaching and the risk of false positive results. It also explores a novel and original issue, only just developing in the scientific literature – and, to date, not explored in case precedent – whether alcohol-based hand sanitiser (ABHS) could be leading to false positive errors in forensic alcohol testing in criminal and family cases. The full article is free to access and share here: www.solicitorsjournal.com/sjarticle/hands-face-alcohol-trace-hair-dye-hand-sanitiser-and-forensic-tests/602831

Dr Felicity Gerry KC and Chaynee Hodgetts publish an article in UK Criminal Law Review the leading quality journal for all those involved in criminal law. The article examines the legal and evidential challenges of raising a modern slavery defence in the criminal courts of England and Wales. Felicity’s PhD was on criminal justice as a strategic game for trafficked women. She is also a contributor to Human Trafficking and Modern Slavery Law and Practice (Bloomsbury). She appeared for a successful applicant in R v AAD and others. Chaynee, one of our newest tenants has over 10 years’ experience as an academic. The article discusses three areas: The complexities of the admission of, and reliance on, expert evidence, despite the recognition in English law of the importance of identifying victims of human trafficking – and how the consequences of their victimhood can be long-term. The limitations of the statutory defence under s.45 of the Modern Slavery Act 2015 where the balance appears to remain problematic, rather than providing protection, due to the exclusionary provisions in Schedule 4. The limitations of the requirement for compulsion for the operation of the defence, rather than a recognition that the trafficked person loses their autonomy through exploitation and should not bear criminal responsibility The article was written together with Riccardo Pagano of Thompson and Co Solicitors. For those with a subscription the full article can be found here – https://www.sweetandmaxwell.co.uk/Product/Criminal-Law/Criminal-Law-Review/Journal/30791441

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