Beltrami & Company Criminal Law & Glasgow Solicitors Blog

The Scottish Government has announced that it is to introduce a statutory human trafficking criminal aggravation. This will mean that existing criminal offences will be able to be ‘aggravated’ in future if it can be proved that the underlying offence was committed in connection with human trafficking.

The Home Secretary has announced that Gary McKinnon will not face extradition to the US.

A new scheme to text witnesses to remind them to attend court has been rolled out across Scotland by the Crown Office and Procurator Fiscal Service, following a successful pilot of the scheme at Edinburgh Sheriff Court.

Recent research has found that the majority of people support tagging criminals. Three quarters of the public (72%) support tagging prisoners out on parole until the end of their sentence, while nearly two thirds (64%) support the use of ankle tags for those serving a community sentence.

Cutting edge satellite technology is to be brought to Scotland to track offenders for the first time following the signing of a new contract, Justice Secretary Kenny MacAskill has announced.

The public are being asked for their views on the operation of important border security powers in a consultation launched by the home office.

Victims of crime could have the right to make a pre-recorded oral statement before sentencing to tell the court how a crime has affected them, Justice Secretary Kenny MacAskill has said.

The European Data Protection Supervisor (EDPS) has adopted his opinion on the amended Commission proposal for a Regulation of the European Parliament and of the Council on the establishment of 'EURODAC' for the comparison of the fingerprints of asylum seekers.

Fines collection remains strong across Scotland and a report issued by the Scottish Court Service shows that 90% of the value of sheriff court fines imposed over a three year period from 2008 to 2011 has either been paid or is on track to be paid through instalments.

Since 2008, more than 430,000 enforcement orders have been granted by the courts and more than 94,000 of these have been for deductions from benefits. Enforcement officers have also agreed revised terms in 140,000 accounts.

Online facilities now enable most fines to be paid round the clock. Just over 8000 transactions totalling £350,000 were made through this site during July, with online payments reaching £1.8 million during the 2011-12 financial year.

Most fines, including parking or police tickets, can now be paid online. Only fines which involve the endorsement of a driving licence with penalty points cannot be paid electronically including some police traffic tickets and penalties issued by the Safety Camera Partnerships for speeding or running a red light.

A man has been sentenced at the High Court in Edinburgh to five years imprisonment after being found guilty of rape and theft occurring in March 2011 in Glasgow.

The case was prosecuted under the new Sexual Offences (Scotland) Act 2009, specifically the provisions which set out that if a victim removes consent during sexual intercourse, and the accused continues, then the crime is one of rape.

Advocate Depute Gillian Wade, Head of the National Sexual Crimes Unit and prosecutor in this case, said:

“The new Sexual Offences Act, which came into force in 2010, sets out clearly what constitutes consent, and Scotland’s expert prosecutors will continue to use this legislation to its full.”

Many remand prisoners in England and Wales had a poorer regime and less support than sentenced prisoners, said Nick Hardwick, Chief Inspector of Prisons, publishing a short thematic review.

This is despite a long-established principle that remand prisoners, who have not been convicted or sentenced by a court, have rights and entitlements not available to sentenced prisoners.

At any one time, remand prisoners make up about 15% of the prison population, between 12,000 to 13,000 prisoners. Women and those from black and minority ethnic and foreign national backgrounds are over-represented.

The Network for Police Monitoring (NetPol) has published a new report, which claims that police forces across the UK are adopting a hard line 'total policing' approach to handling protests, which is restricting the right to protest.

The report also claims that the use of police tactics such as 'kettling', stop and search and pre-emptive arrests have effectively prohibited most forms of popular street protests.

Val Swain, commenting on the report’s launch on behalf of NetPol, said:

Anyone suspected or accused of a criminal offence in the EU should have the right to talk to a lawyer as soon as possible, and before police questioning starts, the European Parliament's civil liberties committee has said in amendments to a draft directive.

The new rules should apply as soon as a person is declared a suspect or charged, whether or not he or she is under arrest. The aim is to provide the same rights to a defence and a fair trial under member states' laws across the EU.

MEPs want EU countries to ensure that all suspects or accused persons are given access to a lawyer as soon as possible, and at the latest before questioning by the police or a judge begins. They say the lawyer should play an active role during the questioning (by making statements or requesting clarifications) and should be able to check the conditions of detention. He or she should also be able to present any evidence linked to the charges or request the police to gather it, the civil liberties committee adds.

There are over eight million criminal proceedings in the EU every year. The directive on access to a lawyer and communication upon arrest is the third step in a series of measures to set common EU standards on procedural rights. The first law, adopted by Parliament in June 2010, gave EU citizens facing criminal trials the right to translation and interpretation. The second measure, approved by the EP in December 2011, introduced a "letter of rights" to ensure fair trials across the EU.

The UK, Ireland and Denmark will opt out of this directive.

Scotland’s Chief Statistician has published Recorded Crime in Scotland, 2011-12. The publication presents statistics on crimes and offences recorded and cleared up by the eight Scottish police forces in 2011-12.

The figures show that the total number of crimes recorded by the police decreased by 3% between 2010-11 and 2011-12.  In 2011-12, the Scottish police recorded 314,186 crimes, 9,061 fewer crimes than in 2010-11.

The main findings include:

A legal loophole whereby life prisoners could become eligible for parole earlier than those serving sentences of a fixed length will be closed after the Scottish Parliament voted in favour of a new Bill designed to improve the justice system.

The Criminal Cases (Punishment and Review) (Scotland) Bill will resolve a technical anomaly which arose following the Appeal Court's judgement in the case of Petch and Foye v. HMA, which meant that prisoners given a discretionary life sentence or Order for Lifelong Restriction (OLR) can apply to become eligible for parole earlier than those serving sentences of a fixed length.

Under new legislation, the courts will regain the discretion to set a 'punishment part' of those sentences that it considers appropriate in all the circumstances of a particular case.

The Bill will also provide a framework for the Scottish Criminal Cases Review Commission (SCCRC) to decide whether it is appropriate to disclose information concerning cases it has referred to the High Court for appeal against conviction which have subsequently been abandoned or have fallen. Although general in nature, the Bill will apply in the circumstances of the case of Abdelbaset Al-Megrahi, who was convicted in 2001 of the murder of 270 people in the Lockerbie bombing.

The Government has announced changes to the Immigration Rules for family migration as part of its programme of reform of the migration routes. These changes are due to come into effect in July 2012.

As part of these changes, the Government intends to end the situation where those claiming the right to enter or remain in the UK on the basis of ECHR Article 8 – the right to respect for private and family life – do so essentially without regard to the Immigration Rules.

The new rules will reflect fully the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis.

The Immigration Rules will reflect the UK Border Agency’s duty to have regard to the need to safeguard and promote the welfare – or ‘best interests’ – of children who are in the UK. The rules will set clear thresholds for the impact of an applicant’s criminality on the scope for them to be granted leave to enter the UK on the basis of their family life or leave to remain in the UK on the basis of their family or private life. The rules will also reflect the fact that family life established when the parties knew one or both of them lacked a valid basis of stay in the UK carries less weight under the case law of the European Court of Human Rights.

In particular:

The Supreme Court has given its ruling in the case of Julian Assange v Swedish Prosecution Authority.

Mr Assange is the subject of a request for extradition by the Swedish Prosecuting Authority for the purposes of an investigation into alleged offences of sexual molestation and rape. A European Arrest Warrant (EAW) had been issued by a prosecutor in Sweden in December 2010.

Mr Assange challenged the validity of the EAW on the ground (amongst others) that it had been issued by a public prosecutor who was not a ‘judicial authority’ as required by the Framework Decision and the Extradition Act 2003.

His challenge failed before the Senior District Judge at the extradition hearing and on appeal before the Divisional Court. The Supreme Court granted permission to bring an appeal on this ground as the issue was one of general public importance.

The Supreme Court by a majority of five to two has dismissed the appeal and held that an EAW issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of section 2(2) and 66 of the 2003 Act.

Subsequent to the ruling Ms Rose (counsel for Mr Assange) has indicated that she may make an application to re-open the Court's decision. Ms Rose suggested that the majority of the Court appear to have based their decision on the interpretation of the Vienna Convention on the Law of Treaties, on which no argument was heard.

The Supreme Court has granted Ms Rose fourteen days to make such an application. If she decides to do so, the Justices will then decide whether to re-open the appeal and accept further submissions (either verbally through a further hearing, or on paper) on the matter.

The European Court of Human Rights (ECHR) has given its judgment on the issue of prisoner voting, saying that it is up to Member States to decide how to regulate the ban on prisoners voting, but that an automatic and indiscriminate disenfranchisement of all serving prisoners, irrespective of the nature or gravity of their offences, such as exists in the UK, is incompatible with Article 3 of Protocol No. 1 (right to free elections) of the European Convention on Human Rights.

However, it accepted the UK Government’s argument that each State has a wide discretion as to how it regulates the ban, both as regards the types of offence that should result in the loss of the vote and as to whether disenfranchisement should be ordered by a judge in an individual case or should result from general application of a law.

The Court did not consider it appropriate to give guidance as to the content of future legislative proposals, which was a decision for the Government. However, it took the view that the lengthy delay to date demonstrated the need to set a timetable for the introduction of proposals to amend the electoral law in the UK.

The Court has therefore given the UK Government six months to bring forward legislative proposals to amend the law.