Archive for May 2011

Were the Justice Secretary’s comments on rape out of order?

In a recent interview with the BBC, the Justice Secretary Kenneth Clarke was criticised for appearing to suggest that there are different categories of rape. So what is the position in law?

Section 1 of the Sexual Offences Act 2003 creates a single offence of rape. It consists of the intentional penile penetration of the vagina, anus or mouth of another person without consent. Whilst this single offence covers a broad range of conduct and circumstances, it is nevertheless true that ‘rape is rape’ and that the law should never tolerate the suggestion that any rape might be excusable. Whether the defendant in any individual case is guilty is decided by a jury: a panel which one hopes will apply sound moral and intellectual judgment when deciding its verdict. Unsurprisingly there is a perception that conviction rates are ‘too low’ and that attempts to tighten rape law so as to increase rates have been unsuccessful. Whatever the reasons for this, low conviction rates undermine public confidence in the system and can only discourage victims from pursuing complaints in the courts.

All change on charging?

One year ago the Home Secretary announced the introduction of a pilot scheme to pave the way for the gradual restoration of charging powers to the police. In her speech on police bureaucracy on 12 May 2011, Theresa May confirmed that the reforms had received such a positive response that the pilot would be extended by doubling the number of charges that the police can now preside over.

Whilst the CPS will retain the power to charge in the most serious and complex of cases, it is estimated that the new proposals will return to the police the power to charge defendants in 80% of criminal cases in England and Wales. This will reverse to a great extent the regime which saw the police initially lose conduct of criminal prosecutions by virtue of the creation of the CPS (pursuant to the Prosecution of Offences Act 1985) and latterly, in the course of the last six years, the power to decide on charge in many offences.

Contempt proceedings permitted against the Sun and Daily Mirror

Contempt proceedings against the media are rare but on 12 May the High Court granted the Attorney General permission to proceed against the publishers of the Sun and Daily Mirror newspapers for contempt of court in relation to their reporting of the police investigation of the killing of Joanna Yeates in late December 2010.

Restraint orders under scrutiny: the case of R v Windsor

Earlier this year, the Criminal Division of the Court of Appeal handed down their judgment in the case of R v Windsor [2011] EWCA Crim 143, causing a flurry of interest among criminal lawyers. The significance of the judgment is not that it broke any new ground in its interpretation of the provisions of POCA but that it contains an implicit warning that these restrictive orders should only be granted after considerable scrutiny.

Angus and forfeiture applications: the need to prove criminal conduct

Discussions of the impact of the Proceeds of Crime Act 2002 almost invariably involve the use of colourful adjectives such as inequitable and draconian. One of the prime objects of criticism is Part V Chapter 3 of the Act, which deals with cash seizures and forfeiture applications.

These provisions allow HMRC officers to seize from any person a sum of cash in excess of £1,000 if they have reasonable grounds for suspecting that the cash is obtained from or intended for use in criminal conduct. In practice, the requirement for a connection to specifically criminal conduct is often diluted by, or conflated with, the officer’s refusal to believe the defendant’s explanation about where the cash came from or what it would be used for. Once the cash is seized and detained, the officer will typically ask numerous questions which prompt the defendant to produce a small mountain of paperwork, as if the burden was upon the defendant to demonstrate beyond reasonable doubt the legitimacy of the cash.