Monday Message – 20.05.17
Francis FitzGibbon QC
Bar Leaders (including your Chair) have reported the concerns about the current Recorder competition to the Judicial Appointments Commission (JAC). The JAC have indicated that the competition is going to continue. We have been informed that in the next few days they will give all candidates an explanation about measures to ensure that no candidate is disadvantaged by any problems surrounding the sifting exercise conducted on 7th March. We have also been told that the results of the sifting exercise are not carried forward into the assessment parts of the process (i.e. telephone assessment and beyond).
In the meantime, we have been asked to convey that (a) all those who persisted in the process but feel disadvantaged by their experience of it and (b) all those who by reason of their experience of the process disengaged from the competition altogether, should contact the JAC by email ([email protected]) without delay explaining what happened and their reasons for feeling disadvantaged or for disengaging. Obviously this need not be repeated by those who have already contacted the JAC to that effect.
New Sentencing Guidelines
Two new sentencing guidelines come into force on 1st June 2017, for children and young people, and for the reduction in sentence for a guilty plea. Both are essential reading.
The children guideline re-states the pre-eminence of welfare and prevention of offending:
While the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused. For a child or young person the sentence should focus on rehabilitation where possible. A court should also consider the effect the sentence is likely to have on the child or young person (both positive and negative) as well as any underlying factors contributing to the offending behaviour.
The approach is applied to the guidelines on sex offences, which appear humane and sensible
Sentencing a child or young person for sexual offences involves a number of different considerations from adults. The primary difference is the age and level of maturity. Children and young people are less emotionally developed than adults; offending can arise through inappropriate sexual experimentation; gang or peer group pressure to engage in sexual activity; or a lack of understanding regarding consent, exploitation, coercion and appropriate sexual behaviour.
The Sentencing Council also acknowledge that ‘black and minority ethnic children and young people are over-represented in the youth justice system’. One such group, not specifically referred to in the Guideline, are traveller children, who are massively over-represented. According to research by the Traveller Movement ‘Despite just 0.1% of the population of England and Wales identifying themselves as Gypsy or Irish Traveller, their children make up 12% of Secure Training Centres (STCs), 7% of Young Offender Institutions (YOIs) and 17% of the Keppel Unit’. This group can easily be forgotten, but it is well worth trying to understand their particular circumstances.
In the guilty plea guideline, full credit is only likely to be available to defendants who have indicated pleas of guilty at the first appearance, including indictable-only offences (when a plea cannot even be entered at that stage). The Sentencing Council has gone against the concerns outlined by the CBA in its consultation response where it was suggested that full credit should remain available for those offences (and the majority of either way offences) until the PTPH.
The guideline indicates that credit should not be withheld even in overwhelming cases and that police cooperation or admissions in interview are separate mitigating features.
Section 28 of the Youth Justice and Criminal Evidence Act 1999
The Lord Chancellor has used an interview in the Sunday Times to announce that from the autumn, Section 28 (pre-recorded cross-examination) will be used for adult complainants in all sex offence trials.
The reasons given are to spare victims the ordeal of giving live evidence, and to get more guilty pleas once defendants have seen the evidence. Don’t call me pedantic, but witnesses are witnesses or complainants, not victims. No one wants them to be needlessly stressed: that’s why the law already provides for evidence by live-link or behind screens, and why judges already intervene to ensure the proceedings are fair to all. Whether the CPS, defence, and Courts have the logistical and administrative capacity to pre-record every adult complainant as well as the under-16s is another matter.
The intended national start in September will cut across the Vulnerable Witness Training programme for young witnesses, which is not planned to be complete by then.
Here are the amended Criminal Procedure Rules relating to pre-charge bail.
Old Bailey Lecture
Tomorrow – Professor Ormerod on S41. Highly topical.
CBA Executive Committee
Thursday 23rd March, as No. 5 Chambers, Birmingham. All welcome.
Old Bailey Judges Retirement Dinner
Seven of the Old Bailey Judges retiring this year. The CBA, the SE Circuit and the Old Bailey Bar Mess are holding a dinner for them on Friday 19th May at Vintners’ Hall (tickets £95.00) – all welcome.
The consultation on reducing PPE for litigators and setting fees for Court-appointed cross-examiners closes on 24th March. These affect us. Your views are important. Please respond.
Saturday 20th May, IET Savoy Place
The Admissibility of Expert Evidence, Challenging Expert Evidence, CCTV / Digital Imaging Experts, Mobile Phone / Computer forensics, Ballistics, Forensic Pathology, DNA / Forensic Biology, Forensic Accounting, Forensic Psychiatry
CBA/SEC Summer Ball – 23rd June
We’re having a ball! Friday 23rd June, Saddlers’ Hall
Tickets £30 for under 7 years call; £45 for 7+; £55 for Silks.
The Kalisher Trust is sponsoring a new play by Alex Giles, ‘The Disappearance of Ms Bebb’, at Middle Temple on 2nd April. Details and how to book tickets from http://www.thekalishertrust.org.