Newsletters Criminal Defence 13th Jun 2022

2 Hare Court Crime Group Newsletter

Welcome to the latest edition of the Crime Group Newsletter.

Fiona Robertson


Welcome to the summer edition of the 2 Hare Court Crime Group newsletter.  With public confidence in the police being challenged over the pandemic, Hannah Thomas looks at breaches of Covid rules and protestors’ rights and Grace Forbes considers the Court of Appeal’s decision in R v Collins, Lewis and Jaffer on sentencing misconduct in a public office. We have developments in sentencing covered by Richard Heller who looks at the Sentencing Guidelines Council’s two draft sentencing guidelines for consultation for those convicted of selling knives to children. Gudrun Young QC and Shusmita Deb consider whether the term “particularly vulnerable” in the Sexual Offences Sentencing Guideline has been stretched too far. Finally Brian O’Neill QC helps demystify Schedule 21 of the Sentencing Act 2020 and the appropriate starting points in cases of murder. I am very grateful to all the authors for giving up their time to write. We do hope you find this edition both informative and interesting and welcome suggestions for future editions.

Fiona Robertson

Breaching Coronavirus Regulations: Parties v Protests

Hannah Thomas

In the wake of party-gate and the Sue Gray report, breaching Coronavirus regulations by gathering is once again headline news. The report found that numerous parties took place at No.10 Downing Street throughout the pandemic, involving senior government ministers, including the Prime Minister (for which he has already accepted a fine).

The report comes less than three months after the last headline story on the topic where it was found that the Metropolitan Police had acted unlawfully in advising the organisers of the #ReclaimTheseStreets movement (formed following the death of Sarah Everard) that their planned vigil and protest for her could not go ahead as it would breach Coronavirus regulations.

Whilst it is clear that holding parties during the Covid-19 pandemic was impermissible, the law relating to protests was often misunderstood. This article explores the law relating to protesting and its development throughout the pandemic.

The Law

The Coronavirus regulations

Coronavirus restrictions were enacted through a series of regulations issued under the Coronavirus Act 2020. The first set of regulations[1] came into force on 26 March 2020 and prevented more than two people gathering in a public place[2] with certain exceptions, not including protesting. Breaching the regulations without a reasonable excuse constituted a criminal offence punishable by a fine[3].

The regulations were amended many times throughout the pandemic. Protesting was not specifically listed as a permitted exception to the gathering rules in any set of the regulations governing a period of ‘lockdown’[4]. It was, however, permitted during periods of lesser restriction, with certain Covid-safe measures in place[5]….

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R v Collins, Lewis and Jaffer 2022: Sentencing Police for Misconduct in Public Office

Grace Forbes

Last week the Court of Appeal handed down a judgment scrutinising the principles that apply when sentencing a police officer for misconduct in public office.

The decision will be of particular legal and general interest at a time when public confidence in the police has been challenged. The judgment recognises this, emphasising the sanctity of public confidence in the police force and the need for sentences to deter and punish when that confidence is breached.

The Facts

Three appeals against sentence were before the Court.

The first concerned Darren Collins, a Digital Forensics Expert working as a civilian member of the police force. Over the course of nearly five years Mr Collins transferred thousands of crime scene images from police databases to his personal devices, including numerous images of dead bodies. The sentencing judge found that he had “acted from morbid and gratuitous curiosity”. After a 10% reduction to reflect his late guilty plea, he received a 3 year sentence.

The second and third appeals concerned James Lewis and Deniz Jaffer. They were police officers tasked with protecting the scene of the brutal murder of sisters, Nicole Smallman and Bibaa Henry. The two men breached the police cordon and took photographs of the women’s dead bodies. They exchanged the photos with each other, with numerous colleagues and (in Jaffer’s case) a friend. Derogatory comments accompanied some images, referring to the victims as “two dead birds full of stab wounds”.

As a result, during the murder trial the defence were able to suggest that the crime scene may have been compromised by the officers’ actions, albeit the defendant was ultimately….

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Draft Guidelines on Sale of Knives to Persons Under the Age of Eighteen

Richard Heller

On 1st June 2022, the Sentencing Council (“the Council”) published two draft sentencing guidelines for consultation – one for organisations, the other for individuals – for sentencing those convicted of selling knives (and razor blades, axes and other bladed articles) to persons under the age of eighteen, contrary to s.141A of the Criminal Justice Act 1988.

The consultation has been much-awaited by the Trading Standards community and follows a period of lobbying by various stakeholders, including National Trading Standards, the Association of Chief Trading Standards Officers and the Mayor of London Office for Policing and Crime, for the introduction of a guideline, in an effort to ensure greater clarity and consistency in a sentencing process all too often afflicted by a dramatic variance of outcome.  Data gathered for the purposes of a submission to the Council in 2019 illustrated how very large companies were receiving similar fines to much smaller businesses, with the occasional outlier seeing significantly greater fines despite there being no discernible difference in the relevant facts.  The need for a guideline was apparent.

The draft guidelines follow a now familiar stepped process from determining the offence category to giving reasons for the sentence passed.

Identifying the defendant’s level of culpability appears to involve an assessment of how far short an organisation would fall in establishing the statutory defence of due diligence.  The more precautions, the lower the culpability.   Large organisations that fail to put in place standard measures to prevent the sale of knives etc. to persons under eighteen can expect to receive substantial fines, with a range for the highest level of culpability between £200,000 and £1,000,000.  Even with low culpability the proposed range is £12,000 to £100,000 which represents, with the single notable exception of the….

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Vulnerable Victims – Sexual Offences Sentencing Guidelines

Gudrun Young QC and Shusmita Deb

The definitive sentencing guidelines on sentencing sexual offences involves a step-by-step process where first the sentencing judge has to determine the starting point by identifying the correct category of harm caused by the offence (ranging from Category 1 – 3) and thereafter the degree of culpability of the offender (Culpability A or B).  The starting point can then be moved upwards or downwards according to the mitigating and aggravating features of each case.

For many of the offences that fall within the guidelines (including rape, assault by penetration and sexual assault as well as the equivalent child sex offences), one of the factors that places an offence within Category 2 Harm is that the “victim is particularly vulnerable because of personal circumstances”.  Whilst the guidelines themselves do not provide a definition of “particularly vulnerable”, they clearly envisaged this should only be held to apply when a victim was particularly vulnerable” as compared to the majority of victims in similar cases so as to justify a finding of greater harm. Almost by definition any victim is vulnerable, and therefore great care must be taken not to widen the concept too broadly, especially bearing in mind that the consequences of doing so are serious – a significant increase in the starting point relative to an offence falling within Category 3.  If sentencing judges are too ready to find that a victim is “particularly vulnerable” then offenders may receive sentences which are, in reality, simply too high.

And yet it appears that this may be exactly what is occurring.  It has long been recognised that extreme youth/old age or a recognised disability can render a victim “particularly vulnerable”. However, a number of Court of Appeal cases in recent years have grappled with the meaning of the phrase “particularly vulnerable” with the effect that the class of victims falling within this category appears to have been gradually but significantly widened.  Indeed, whilst allowing sentencers (who are usually best placed to make an assessment of the facts) a degree of flexibility and discretion is necessary, there is a real danger that….

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STARTING POINTS In Cases of Murder – Sentencing Act 2020, Schedule 21

Brian O’Neill QC


In most sentencing exercises in cases of murder selecting the correct statutory starting point ought to be relatively straightforward, before the sentencer settles upon the minimum term having regard to the various aggravating and mitigating factors which may apply.  However, as two recent cases in my experience demonstrate that is not always so in the case of secondary parties.

As all readers will know the sentence for murder is mandatory and the Court is required either to determine the “minimum term” to be served before the “early release provisions” apply, or to provide that the order is a whole life order.



The appropriate framework is that set out in the Sentencing Act 2020 and the starting points for determining the minimum term are set out in schedule 21 as follows.

2(1) If—

(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and

(b) the offender was aged 21 or over when the offence was committed,

the appropriate starting point is a whole life order.

(2) Cases that would normally fall within sub-paragraph (1)(a) include—

(a) the murder of two or more persons, where each murder involves any of the following—

(i) a substantial degree of premeditation or planning,

(ii) the abduction of the victim, or

(iii) sexual or sadistic conduct,

(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,

(c) the murder of a police officer or prison officer in the course of his or her duty, where the offence was committed on or after 13 April 2015,

(d) a murder done for the purpose of advancing a political, religious, racial or ideological cause, or

(e) a murder by an offender previously convicted of murder….

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