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The King’s Speech delivered on 17 July 2024 set out the new Government’s legislative agenda for the years to come. Among the measures introduced are a series of changes in law relating to criminal offences and the criminal justice system more broadly.
Silas Lee and Laurence Harris discuss the key developments to criminal law signalled by the Speech.
The stated purpose of this legislation is to ‘deliver a justice system that gives victims the justice system they deserve and ensure victims of crime and anti-social behaviour get the support they deserve’.
The Speech commits to providing:
The rights of the victim have been a recurring theme throughout Sir Keir’s career. Most significantly, in his role as DPP, he introduced the Victims Right to Review, which created the right of victims to request a review of certain CPS decisions not to start a prosecution or to stop a prosecution. Later, as an MP, his 2015 private members’ bill Victims of Crime Etc. (Rights, Entitlements, and Related Matters) sought to expand further and codify such rights. Looking further back into his career, one might even see a foreshadowing of such politics in cases such as R v DPP ex p Treadway [1997] 7 WLUK 653, in which Sir Keir appeared as junior counsel in a rare successful judicial review of a DPP decision not to prosecute five police officers.
However deeply held and committed Sir Keir’s government may be to empowering victims of crime, creating additional rights counts for little in the absence of their effective enforcement. The day-to-day experience of practitioners remains that it is the hardware of the criminal justice system, the lack of functional court rooms, available judges, legal aid licensed solicitors’ firms, and suitable counsel which cause the delays and decisions that can lead to victims’ and the wider public’s disenchantment with the justice system.
Speaking to the BBC in 2014, two months after he resigned as DPP, Sir Keir remarked of the cuts to the criminal justice system and the CPS that “There will come a point where really no further cuts can be sustained and I think we’re very, very close to that point”. Sadly, the gravamen of his concern remains true today. In the absence of a broader reimagining and refinancing of the criminal justice system, the Victims, Courts and Public Protection Bill may underdeliver on its laudable aims.
The new government proposal on crime includes preventing “young people being drawn into crime and criminal gangs by strengthening the law to tackle those who exploit children for criminal purposes, and create arrangements for local Young Futures prevention partnerships to bring together services to support at-risk teenagers.” Such measures will be welcomed, but there will be questions among professionals as to how such measures will function in practice and whether sufficient resource will be put in place to meet the challenge.
The efficacy of “strengthening the laws aimed at those who exploit children in criminal gangs” remains to be seen. Those exploiting children to commit offences, often in the supply of drugs, are unlikely to be deterred by strong laws. Moreover, exploited children do not tend to name or give evidence against those that are exploiting them. This is just as much the case when the exploited child is the one being prosecuted. The proposals beg the question as to whether attitudes in government and law enforcement will truly change when it comes to young people suffering exploitation by criminals and criminal gangs.
Section 45 Modern Slavery Act 2015 was a welcome development providing those who are exploited with a specific defence, but practitioners often consider it as limited in scope. The reality is that many children and young people go on being prosecuted for criminal conduct in which there is a significant degree of exploitation. There can be difficulties in evidencing the defence and reluctance from some clients to be seen to be “grassing” on those above them in the chain.
The NRM process is slow and, beyond triggering a review by the prosecution as to whether they continue the case, offers little in the way of tangible benefit to a defendant. Often, it is down to a defendant to give persuasive evidence to a jury about their own exploitation. Some defendants are better equipped for that task than others.
The overall picture is this: we know that hundreds or thousands of young people are being exploited in drugs networks across the country. While the NRM process was a step in the right direction it was a drop in the ocean compared to the resources and determination within organised criminal groups responsible for the grooming and exploitation of young people.
The recent Jay Review set out eight learning points relating to the country’s response to criminally exploited children. It suggested a statutory definition of criminally exploited children and the broadening of the section 45 defence as well as true national leadership to stop what it calls “preventable harm” being caused to children.
We consider that those measures would go a long way to paving the legislative path towards helping young people undergoing or at risk of exploitation. However, doubtless they would cause difficulty in successfully prosecuting those same young people for involvement in county lines drug dealing and other criminality. There is an undeniable tension between the desire to prosecute young people involved in crime and to recognise their exploitation and act accordingly. It is not at all clear that the balance is shifting based on these new proposals.
One measure which will have caught the eye of many of those working in the field was a proposed new Respect Order. Labour’s manifesto read as follows:
“Antisocial behaviour is not merely a ‘low-level’ nuisance. It hits the poorest communities hardest and, if left unchecked, leads to more serious offending. Yet, the Conservatives weakened enforcement powers. Labour will fix this by introducing new Respect Orders – powers to ban persistent adult offenders from town centres, which will stamp out issues such as public drinking and drug use. Fly-tippers and vandals will also be forced to clean up the mess they have created.”
It has become a thing of habit for a bold new government to rewrite the provisions on anti-social behaviour and this Government has not disappointed. Blair introduced the ASBO, May the CBO and now Starmer proposes the new RO.
Members of Chambers frequently represent youth defendants. We have seen some forces applying for orders against vulnerable children, including those who are lightly convicted. Often, draft orders are complex and some defendants struggle to understand them. Occasionally defendants will be on police bail for one matter, court bail on another and have a CBO, all with different terms. Any alleged breaches may lead to yet another set of court proceedings.
The stark reality remains that standalone CBOs are often seen to present a lower bar to obtain than criminal prosecutions, such that they have become a quick alternative to prosecution. Common targets of CBOs and similar orders are the homeless and drug addicts. Some query the approach of further criminalising groups that may respond better to properly resourced intervention.
This is an area in need of genuine reform. CBOs are currently supposed to be aimed at tackling the most serious and persistent offenders. There is a place in the criminal justice system for such measures, when targeted correctly. The proposed changes sound as though they are aimed at further broadening the use of such orders. Whether that is to good effect remains to be seen.
The new government has set out a bold ambition of “halving serious violence”. It proposes new powers to “crack down on crime and anti social behaviour”.
A new offence is to be created of “assaulting a shopworker”. It will not be a surprise to anyone reading this piece that assaulting a shopworker is already a crime. Not only is it a crime, but it is an aggravating factor if an assault is committed against someone “providing a service to the public”. That being the case, what is the new government seeking to achieve? It remains to be seen whether the new offence will come with a higher maximum sentence.
If sentencing powers are not increased, it is difficult to see what the new measures will entail other than a change of name. If sentencing powers are increased, there may be unfortunate side effects. If defendants have the right to elect Crown Court trial the cost of prosecuting cases will rise, the pressures on the Crown Courts will increase and the time taken to resolve matters is also likely to rise.
All this and more has been seen in relation to the recent assault emergency worker offence. It remains to be seen whether the new government takes a similar course in respect of shop-workers. One wonders if the new government might have a more creative approach in mind.
Similar considerations apply to the proposal for “stronger measures to tackle low level shoplifting.” It remains to be seen if those measures are tougher sentences. Under the Anti-Social Behaviour, Crime and Policing Act 2014, low value shoplifting (£200 and under) is deemed a summary only matter. Will the new Government’s stronger measures lead to more cases being sent to the Crown Court, or will a half-way measure of some sort be adopted?
On knife crime, the proposals include banning “ninja swords” and strengthening the laws aimed at those who exploit children in criminal gangs.
Swords with curved blades over 50cm in length are already banned by Section 141 of the Criminal Justice Act 1988 (per The Criminal Justice Act 1988 (Offensive Weapons) Order 1988). However, there is a curved blades defence (para 3 Criminal Justice Act 1988 (Offensive Weapons) Order 1988/2019) if the weapon “was made before 1954 or was made at any other time according to traditional methods of making swords by hand”, which may apply to some “ninja swords”. It can be anticipated that either additional weapon descriptions are added to the 1988 Order or the defence is narrowed by further amendments.
The new Government proposes to set up a Border Security Command which will be vested with counter terrorism powers to investigate those involved in immigration crime.
The proposals include longer sentences for a range of border crimes, including advertising the services of migrant smuggling groups and supplying materials used for migrant smuggling.
The case of R v Le and Stark [1999] 1 Cr App R (S) 422 sets out that the starting point for facilitation offences will usually be immediate custody due to the requirements of a deterrent sentence.
The recent trend has been to increase sentencing powers for facilitation offences. From 1991 the maximum penalty was 7 years’ imprisonment. From 2000 that increased to 10 years’. In 2003, 14 years’. In 2022 it finally increased to a maximum sentence of life imprisonment.
The new suggestion is to implement tougher penalties for preparatory offences such as “enabling the advertising the (sic) services of a migrant smuggling group” and “precursor offences such as relating to the supply of materials needed to facilitate organised crime gangs”. That may include additions to existing legislation creating new statutory offences with their own maximum sentences.
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