Editorial
Thank you for reading the latest edition of the Albion Chambers Crime Team newsletter. Autumn can be a cold, dark and wet experience, so much like a visit to HMP Bristol (but without the endless fun of trying to find a parking space in Horfield). The compensations come in the form of fireworks displays, pumpkin spiced beverages and this newsletter. Who needs sunshine?
Sarah Regan has taken the opportunity to reflect on a quarter of a century at the Criminal Bar, considering the landmark legal developments and changes to the profession which stand out from that time.
Rachael Stitt has written about the issue of remitting cases from the Crown Court back to the summary jurisdiction; one of those unexpectedly knotty issues which arise rarely but can cause all sorts of problems if not addressed correctly.
Finally, Joe Broadway looks at the proscription of Palestine Action and the potential defences for those prosecuted for related offences. Given the active culture of protest in Bristol, and the cluster of businesses plying their trade in Filton, this is something which can come up unexpectedly at the police station or at court and Joe’s article will ensure that the reader is equipped with a working knowledge of the relevant principles.
We hope that these articles are useful, thought-provoking and perhaps help to pass the time as you travel to or from another day at the coal-face of the criminal justice system.
Edd Hetherington
Head of the Albion Crime Team
A QUARTER OF A CENTURY AT THE BAR
25 years ago, in June 2000, I arrived in chambers as the private pupil of Nick O’Brien. My elation at being offered a pupillage was very soon dampened by William Hart, then head of the pupillage committee, presenting me with a letter informing me that as a private pupil I would be precluded from applying for tenancy. I was later asked to make an application and having spent 25 years in Albion, I thought it would be a good time to reflect on the changes of chambers and the criminal law over that time.
Chambers itself was a very different place at the start of the new century, not only in respect of the division of practice and number of members but also the buildings that housed us. Because in 2000, Chambers consisted of not only the South block which then as now housed the clerks and the library but both sides of the East block. The building to the left as you look at it from the Small Street end housed the room belonging to Paul Cook, Simon Burns and Martin Steen and the tearoom. Looking from the same vantage point to the right, we had not only the building that contains the conference rooms, but all floors reached by the stone steps just in front of that. But we also had a floor on a building known affectionately as the colonies, in Corn Street above Trail Finders.
The Colonies at that time, was used to house not only the newer tenants but also Jamie Tabor QC and Julian Lambert before each left to join the bench, Jamie Tabor in 2003 and Julian Lambert the following year. And it was their leaving that started the flood of successful appointments of Albion judges in subsequent years. Despite the spread of rooms, Chambers was a much smaller place then with roughly 47 members, 26 of whom practiced in crime. The majority of the remaining 21 were family practitioners but back then Albion also boasted a very strong civil team.
But Chambers wasn’t the only thing that was very different back then. Solicitors had been granted limited rights of audience in the Crown Court by the Legal Services Act 1990 and full access 9 years later in the Access to Justice Act 1999 via qualifications, something that was made even easier by the Higher Courts Qualification Regulations 2000.
Solicitors had had the right since 1972 to appear in the Crown Court in appeals and committals for sentence but very few did, instead choosing to instruct the more junior members of chambers. And although the legislation passed in the decade between 1990 and 2000 was aimed at making it easier for solicitors to expand their practice in the Crown Court, when I started out very few chose to do so.
On the topic of legislation, anyone practicing in crime today will be aware of the raft of legislation passed by successive governments and the constant burden of change criminal practitioners have to embrace. At times it feels as if there are new guidelines, offences, or maximum sentences weekly.
Prior to 2000, the most significant changes in criminal practice came from the enactment of the Police and Criminal Evidence Act 1984, the Prosecution of Offences Act 1985, the Criminal Procedure & Investigations Act 1996 and the Youth Justice and Criminal Evidence Act 1999. Respectively, that provided a standard of investigation and conduct by police officers, established the Crown Prosecution Service, provided a regime for the recording and disclosure of unused material, including a requirement for the first time, for the defence to play a part in that process by the provision of a defence statement and lastly, started the roll out of a raft of special measures designed to enable witnesses to give evidence more easily and introduced a regime to limit the cross examination of complainants in sexual cases.
Those 4 Acts were the start of a move towards greater transparency, fairness and consistency in the Criminal Justice System but in 2000 when I came to Bar, other than PACE, everyone was still grappling with the consequences of the other 3. The CPS was in a period of transition. They had very few higher court advocates but saw that as the way forward and over the next decade or so sought to have more in-house advocates in the Crown Court and to have more control over decisions in respect of Crown Court cases.
The still new disclosure regime was having a very shaky start as everyone grappled with the change from what was known as the “keys to the warehouse” approach to a more regimented system of recording and assessing all material that came into the investigation.
Finally in terms of the YJCEA, judges initially struggled with a consistent approach to s. 41 and it took almost a quarter of a century for most of the special measures under the Act to be implemented.
But in addition to those changes, back in 2000, there were no sentencing guidelines. To find out what sentence you could expect, if defending or ask for if prosecuting, you had to go to the library, which unlike today, was a busy place and track down the relevant part of Thomas on Sentence.
Often someone else had the part you required and even more annoyingly hadn’t signed it out but once you had it you then had to find cases similar to yours as well as those you could distinguish from yours, in an attempt to identify an “about the right place” sentence.
Goodyear (2005) EWCA Crim 888 had yet to be decided and on a busy Friday when it was usual to have 10 or more PTPHs, discussions with the judge about a potential plea were unregulated and were more often than not initiated from the bench.
As well as no sentencing guidelines, there were no written directions of law, structured opening remarks or route to verdict and the summing of the facts was normally simply a quick, ramble through often illegible handwritten notes. Given the assistance juries are afforded today, it is almost unimaginable that even in respect of the most complicated trials back then, they were simply left to grapple with remembering and applying any directions of law.
Judges themselves were very different beasts. In one case, the jury sent a note asking the judge to assist with the standard of proof and what exactly was meant by sure. They were brought back into court where a very red-faced judge barked at them that sure meant sure and then sent back out. They were hung on the majority of offences but acquitted of some rapes, but the foreman was so upset, he sent a note 2 day later, saying they would have convicted of the rapes, if they had received assistance from the judge. A trip to the Court of Appeal was almost an ordeal by fire, more akin to being called into the headmaster’s office for corporal punishment rather than today which though still difficult, is a much more of a debate than a punishment. On one memorable occasion as the court reporters came to take details from me and my opponent, he was unable to provide his because he was struggling to keep from crying.
The Criminal Justice Act 2003 had yet to be passed, which meant that hearsay and bad character were subject to the rules of common law. When it came into force in 2005, it defined the admissibility of hearsay evidence, whilst retaining some of the common law exemptions and abolished all common law rules governing the admissibility of bad character. The effect of the latter was that not only was the admission of evidence of the bad character of the defendant codified, so was that of the potential bad character of a non-defendant. That together with the restriction placed on questions about a complainant’s previous sexual history meant that cross examination of witnesses in general and complainants in particular became very different after 2005. It was also that Act that ushered in the now notorious regime of Imprisonment for Public Protection.
In the same year, the Sexual Offences Act 2003 brought all sexual offences under the umbrella of a single Act and also introduced a raft of new offences. And the prosecution of sexual offences was simplified even further with the Criminal Procedure (Amendment) Rules 2007 which enabled a single count to relate to more than a single act, a change which was the greatest single impact in terms of indicting allegations of repeated sexual abuse.
To the sound of relieved sighs from many, I am not going to detail all of the subsequent legislation but as well as that set out above, the introduction of Sentencing Guidelines Council in 2010, the implementation of the Crown Court Digital Case System in 2016 and the ability to attend courts and conduct conferences with those in custody remotely via CVP which came in following the pandemic in 2020 illustrates just how the landscape has changed for those practicing criminal law today.
When I started many things were unfair. There were still relatively few women at the Bar, fewer still female silks and judges (although the number of each remains woefully low) and misogyny, sexism, racism and bullying was common. But other things were better. Barristers were much more respected than today, discussions about the listing of cases was a far more engaged process, we had more autonomy to make decisions, all courts had at least 1 canteen (Bristol had 2) and in Cardiff, each morning all of the National papers were laid out on the table in the robing room and the canteen staff would come in and take your order for breakfast and lunch. Lunches, especially on Friday’s were long and it was a rare Friday evening that the Bar and solicitors didn’t meet in All Bar One, staying until it closed. Change is inevitable and often for the best, but it is also good, once in a while, to look back.
Remittal to the Magistrates’ Court
It is not often that offences, having been sent to the Crown Court for trial or committed to the Crown Court for sentence, are remitted back to the Magistrates’ Court. Given a recent policy review by the Crown Prosecution Service (CPS) relating to offences of assaults on emergency workers, this element of the legal framework is suddenly being dealt with by practitioners in the Crown Court more regularly.
Following that recent policy change, it appears that the CPS have started to review some Crown Court cases that were originally charged as assaults on emergency workers and are considering laying a summary only alternative – the rather more established offence of assaulting a police constable in the execution of his or her duty. This appears to be in relation to offences that, under the assaults on emergency workers sentencing guideline, would attract a lesser penalty.
Laying a summary only offence
Often when cases are sent to the Crown Court the 6-month time limit for laying a summary only offence has long passed. However, this is not a bar to substituting an indictable only or either way offence for a summary only offence. This is permissible where the new summary only offence alleges the “same misdoing” as the original offence and the amendment can be made in the interests of justice (R v Scunthorpe Justices Ex p. M [1998] EWHC 228 (Admin)). It was later clarified by the High Court in Dougall v Crown Prosecution Service [2018] EWHC 1367 (Admin) that if an indictable only or an either way offence is to be substituted by a summary only offence, the indictable only or either way offence must have been laid within 6 months.
Therefore, provided a defendant has been charged with assaulting an emergency worker within 6 months of the date of the commission of the offence it should be permissible to substitute it for a summary only offence, such as assaulting a police constable in the execution of his or her duty.
It has long been established by legislation that summary only offences can be added to an indictment and tried in the Crown Court in certain circumstances. For instance, if the summary only offence is founded on the same facts or evidence as a count charging an indictable offence or if it is part of a series of offences of the same or similar character as an indictment offence which is also charged (s. 40(1) of the Criminal Justice Act 1988). Even if that test is met, there are only certain (albeit common) summary only offences that can be added to an indictment. These include, common assault, driving whilst disqualified, criminal damage and others.
Remittal to the Magistrates’ Court for Trial
Pursuant to s. 46ZA of the Senior Courts Act 1981 (as inserted by s. 11 of the Judicial Review and Courts Act 2022), offences that have been sent by the Magistrates’ Court for trial in the Crown Court may be remitted back to the Magistrates’ Court for trial.
Provided the defendant is at least 18 years old and the offences are either way, the Crown Court may remit the offences if the defendant appears in court (or consents to the power being exercised in his or her absence) and if the defendant consents to the power being exercised. There are different considerations if the defendant is under 18 years old. In deciding whether to exercise the power to remit, the Crown Court must:
(a) take into account any other offence before the Crown Court that appears to the court to be related to that offence (whether the same, or a different, person is accused or has been convicted of the other offence), and
(b) have regard to any allocation guidelines (or revised allocation guidelines) issued as definitive guidelines under section 122 of the Coroners and Justice Act 2009.
Defendants who have chosen and/or who have been advised to elect for a trial in the Crown Court for offences like assaulting an emergency worker typically do not consent to being remitted back to the Magistrates’ Court for trial. If there is little prospect of a trial in the Crown Court going in their favour, it can be advantageous to consent to be remitted to the Magistrates’ Court and face (using the assaulting a police constable example) trial for a summary only offence with reduced sentencing implications. The trial will also be likely to take place sooner. However, the reasoning that led them to elect in the first place still remain.
Remittal to the Magistrates’ Court for Sentence
Pursuant to s. 25A of the Sentencing Act 2020 (as inserted by s. 11 of the Judicial Review and Courts Act 2022), the Crown Court may remit a defendant who is at least 18 years old and who has been convicted of an offence in the Magistrates’ Court and committed to the Crown Court for sentence or who has pleaded guilty to an offence (other than an indictable only offence) in the Crown Court. There are different considerations if the defendant is under 18 years old. Similarly, in deciding whether to exercise the power to remit, the Crown Court must have the same considerations as when it is deciding to remit an offence for trial.
In some circumstances, a defendant will plead guilty to a (or multiple) summary only offence(s) on an indictment and, should this be acceptable to the prosecution, the matter will proceed to sentence. In this instance, sometimes it can be advisable to consider remitting the matter to the Magistrates’ Court for sentence. This can be helpful in circumstances whereby a defendant has outstanding offences awaiting trial or sentence in the Magistrates’ Court. It also clears a coveted hearing spot in the Crown Court.
If you don’t have confidence in the diagnosis, you won’t have confidence in the proscription.
The title of this article is a misquote of Stephen R Covey, the author of “The 7 Habits of Highly Effective People”. But while it is incorrect, it cuts to the heart of the recent issues surrounding the Proscription of Palestine Action.
The recent decision by the government to proscribe Palestine Action under section 3 of the Terrorism Act 2000 is one that is not only controversial but has also seen a huge number of people entering the criminal justice system charged with offences brought under the Terrorism Act.
Members of Palestine Action were already facing criminal charges brought as a result of their protest activities, usually criminal damage offences involving arms producers (like Elbit Systems) and UK military assets that are believed to be involved in supporting the Israeli state’s military action in Palestine.
It is common to see a legal defence for these activities being, in part, raised under Article 9 (freedom of thought, conscience and religion), Article 10 (free speech) and Article 11 (right to gather) of the European Convention on Human Rights, this article briefly examines the impact of the proscription of Palestine Action on the availability of that defence.
The Proscription of Palestine Action.
The Terrorism Act 2000 (the “TA 2000”) provides the Home Secretary with the power to proscribe an organisation, under section 3 of the Act, that the Home Secretary reasonably believes is concerned in terrorism. Once proscribed a group is then added to Schedule 2 of the TA 2000 which is a list of proscribed organisations.
The TA 2000 (at s.3(5)) defines being concerned in terrorism as including:
- Committing and participating in acts of terrorism.
- Preparing for terrorism.
- Promoting or encouraging terrorism; or
- Otherwise being concerned in terrorism.
The Challenge to Proscription.
This definition has been applied to groups such as Boko Haram, Al Qai’da and the Wagner Group, all organisations that are credibly implicated in serious human rights violations such as extrajudicial mass killings, bombings of civilian and military targets, militant violence, systematic destruction of civilian infrastructure and the use of sexual violence and torture.
In contrast to the activities carried out by other groups falling within this definition as so listed in Schedule 2, Palestine Action describes itself as:
“[A] direct-action movement committed to ending global participation in Israel’s genocidal and apartheid regime. Using disruptive tactics, Palestine Action targets corporate enablers of the Israeli military-industrial complex and seeks to make it impossible for these companies to profit from the oppression of Palestinians.”
The actions carried out by Palestine Action includes targeted criminal damage against financial institutions that finance weapons manufacture, specific military assets (e.g. spray painting of RAF jets) and weapons manufacturers, such as Elbit systems, a weapons manufacturer based in Israel with sites across the UK.
The method of criminal damage most commonly employed by Palestine Action is the use of red paint, which is sprayed or thrown over the exterior of buildings or on sites or assets owned by the organisations specified above.
In its explanatory memorandum to the Proscribed Organisations Amendment Order 2025 (No.803) the government specifically cited the organisations planned and promoted acts of criminal damage which have “resulted in hundred of millions of pounds worth of damage and lost revenue” and have “the aim of progressing it’s political cause and influencing the government” as being adequate to “meet the threshold of being concerned in terrorism as set out in the Terrorism Act 2000”.[1]
The government’s explanatory memorandum states that Palestine Action meets all three parts of the definition of “being concerned in terrorism” set out in section 3(5) of the TA 2000 in that they are committing acts of terrorism, preparing for terrorism and promoting terrorism.
It is clear on the face of the decision that the criminal damage and direct action carried out by Palestine Action, while often illegal on its own merit, appears to fall significantly short of the kind of activity that would normally be considered acts of terrorism.
However, Terrorism is defined within the TA 2000 at s.1 and is any action or threat of action that is designed to influence the government or intimidate the public or a section of the public, and the action or threat of it is made for the purpose of advancing political, religious, racial or ideological causes.
Section 1(2) sets out that the actions threatened fall within the definition of terrorism if it:
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person’s life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
As such it would appear that Palestine Actions activity, which is said to cause serious damage to property and intends to influence government, on the face of it falls within that definition.
It is worth noting at this point that no other organisation has, in the entire history of the TA 2000, been proscribed solely for causing serious damage to property under s.1(2)(b) without more.
What is important in the context of those facing criminal charges is that the proscription of Palestine Action is already being challenged by way of judicial review brought by the co-founder of Palestine Action, Huda Ammori, and, following a failed attempt by the Home Secretary to appeal the decision to grant permission to appeal to Ms Ammori, this will be heard in late November this year.
The question that arises from this is what impact proscription has, both in terms of those arrested for protesting in support of the group, and those arrested for continuing to carry out criminal damage as part of the groups planned civil disobedience. Additionally, the question that follows is what impact, if any, the pending judicial review, and any decision reached by the High Court, has on the defences available to those individuals.
The Impact of Proscription.
The effect of proscription is that actions carried out in support of Palestine Actions, or furthering the aims of that organisation now fall under the ambit of the Terrorism Act 2000, and protestors could find themselves charged with offences under the TA 2000.
The availability of defences under Article 9 (freedom of thought, conscience and religion) and Article 10 (free speech) were considered in the case of Anjem Choudary and Mohammed Mizanur Rahman v Regina[1]. In that case the Court of Appeal held at paragraph 68 that the criminalisation of support for proscribed groups, and the restriction on freedom of expression that this entails, “is a measure that is clearly directed to a number of legitimate ends: preserving national security, public safety, the prevention of disorder and crime and the rights and freedoms of others”.
The Court of Appeal went on to emphasise the submissions made by the Crown that “the offences in Part II of the 2000 Act are essential to the proscription process because they are the means by which proscription is put into effect. They enable the State to counter and attack such organisations, the influence they have on third parties and, ultimately, the threat that they pose to society” and that “to the extent that section 12(1)(a) thereby interferes with the rights protected under article 10 of the Convention, we consider that interference to be fully justified”.
This case has been subsequently confirmed in the Supreme Court.
The courts have consistently held that Article 10 does not shield those expressing support for terrorist organisations as it is a restriction that is proscribed by law, has one or more legitimate aims and is necessary in a democratic society to achieve those aims.
As such this is an argument that could clearly be reasonably expanded to actions committed by those members of Palestine Action in support of the organisations campaign of disruptive direct-action, such as criminal damage caused to organisations involved in the sale of arms to Israel.
This would have the effect of removing the defence under Article 10 for any direct-action or protest carried out in support of Palestine Action or by those claiming to be its members.
On the face of it this is a fairly clear cut and issue given the nature of the offences, in that the restriction of Article 10 rights under the Terrorism Act 2000 as they currently stand are likely to be proportionate. However, the challenge to the proscription by way of judicial review may impact both the assessment of proportionality, and so the availability of the defence.
On the 30th of July the Mr Justice Chamberlain, sitting in the High Court, handed down judgment on the application of Hudda Ammori for permission to appeal the proscription of Palestine Action[2].
In that judgment Mr Justice Chamberlain stated (at paragraph 44) that a defendant charged with criminal offences under the TA 2000 may be able to raise a defence to that alleged criminality by challenging the validity of the proscription of Palestine Action. He concluded that:
“On the face of it, since the order is secondary legislation, it seems likely that they would be entitled to do so, applying the principles set out by the House of Lords in Boddington v British Transport Police [1999] 2 AC 143. As a matter of principle, it seems likely that the defence could include the incompatibility of the order with Articles 10 and 11 ECHR”.
This view, and the possibility of the “chaos” of conflicting decisions on the legitimacy of the proscription in Magistrates’ Courts and Crown Courts across England and Wales were significant factors in the decision to grant permission to appeal the decision by way of Judicial Review.
That case is due to be heard at the end of November 2025. However, if the government or Ms Ammori choose to subsequently appeal the outcome of those proceedings, there could be a significant period of time in which the law is unclear on this point and where a defence relying on the legitimacy or not of the proscription of Palestine Action remains available to those charges with offences related to that proscription.
Conclusion.
Direct action is a historied form of political dissent and protest (going back as far as the suffragettes and further) designed to raise awareness of important issues. In recent times this has mostly taken the form of minor criminal damage, usually in the form of throwing paint, as epitomised by groups such as Extinction Rebellion and Just Stop Oil which will be familiar to most people.
By declaring such action to be terrorism appears on the face of it to be an egregious and unlawful interference in fundamental rights of protest and this is already said to have had a cooling effect (as highlighted by Ms Ammori in the case cited above) on protest in support of the plight of Palestine more generally as well as for Palestine Action specifically, as people change their behaviour out of fear of criminalisation.
In this context, and with an appeal outstanding, it seems only right that a defence under Article 10 can be presented, challenging the legitimacy of the proscription of Palestine Action or the proportionality of that proscription, by those charged with terrorism offences irrespective of the chaos that Mr Justice Chamberlain foresees.
Indeed, the Supreme Court, in the case of R (on the application of Lord Carlile of Berriew QC and others (Appellants) v Secretary of State for the Home Department (Respondent) [3] quoted Strabourg jurisprudence and highlighted the importance placed on Article 10, particularly where it relates to political speech.
Quoting the case of Sűrek v Turkey (1999) 7 BHRC 339, a decision of the Grand Chamber, the Supreme Court highlights at paragraphs 164 and 165 that:
“The court said at para 57: “(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. … As set forth in article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly”.
While the success of any such defence will not weigh on the legitimacy of the proscription, in the eyes of the law, and will not impact on the Judicial Review of the decision to Proscribe Palestine Action, it will perhaps afford some level of protection to those facing criminal charges in an uncertain legal background.
Disclaimer
Any comments made or views expressed on the law within any articles in this newsletter are the views of the writer and are not necessarily the views of any other member of chambers and should not be relied upon as legal advice.
