Leon Kazakos KC
Editor
Foreword
Welcome to the Summer edition of the 2 Hare Court Crime Group Newsletter. At some point soon, when the Leveson Review delivers its recommendations, there will be deserved focus on the right to jury trial and the degree to which this government is committed to funding justice, in any area of the criminal jurisdiction. Until then we have the Sentencing Review to be getting on with; Sarah Przybylska writes an analysis of the realities of criminal justice as set against the proposals made. Gavin Irwin was recently instructed in the first ever trial for breaches of the Russia sanctions regime. He writes on a developing body of law which deals with the application of the Russia Regulations. Open Justice is currently and rightly the focus of – among others – the Judiciary’s Transparency & Open Justice Board, chaired by Nicklin J. The Single Justice Procedure ought to come under significant scrutiny by the Board. Brian O’Neill KC and Rebecca Malczewski write on the case for reform. Looking ahead to legislation currently finding its way through Parliament, Tom Beardsworth writes on further proposals for anonymity of suspects and Madeleine Price addresses the change in the landscape for online sales of knives proposed by the Crime and Policing Bill. Gabriele Watts addresses Crypto Wallet Freezing Orders, the latest salvo in efforts by the state to trace and recover assets. James Cox examines the impact of the ECHR on the imposition of Criminal Behaviour Orders and, finally, Daniel Chadwick looks at how the Crown Court in Canatar failed a defendant. I am very grateful to all the authors for giving up their time to write. We hope the newsletter is of interest and of use to you.
David Gauke’s Independent Sentencing Review was published on 22 May 2025 in response to what was described as a “crisis in prison capacity”. The aim of the report’s recommendations is to reduce the prison population. In broad terms it does so by transferring the burden from the prison service to the probation service.
One of the key recommendations of the Gauke review, accepted by the Ministry of Justice, is the “earned progression model”, in which offenders serving standard determinate sentences may be released at the one-third point (50% for offenders who would otherwise have been released at two-thirds) if they have “engaged constructively with the prison regime”. Once released they would be placed under “intensive supervision” by the probation service under “strict licence conditions” until the two-thirds point. Gauke recommended that the criteria for early release should include “the expectation that the offender will engage in purposeful activity”. The Ministry of Justice’s statement on 22 May 2025 accepted this model “in principle”.
This proposal will require significant investment. It is not clear at this stage what work has been done to assess the costs of the “earned progression model” both in prison and outside, when offenders are released earlier and require longer periods of probation supervision. Much has been made of the Texas prison model, which links good behaviour to early release. Texas is a state where offenders are required to fund their own post-release probation supervision through the payment of fees. It is also a state regarded as having a high spend on its prison system. All of us working in this area know the reality of prison conditions in this jurisdiction. 23-hour lockdown remains common and access to education and training is seriously lacking. It will be interesting to see what practical steps are taken to allow prisoners to “earn” their release. The reality may be that all offenders will be released at the one-third point unless they violate prison rules…
On 12 December 2024, Mrs Justice Cockerill handed down her ruling on the applications to dismiss in the first ever trial for breaches of the Russia sanctions regime.
The sanctions regime was created by the Sanctions and Anti-Money Laundering Act 2018 (‘SAMLA’). The Russia (Sanctions) (EU Exit) Regulations 2019 / 855 (‘the Russia Regulations’) were made under section 1 of SAMLA and came into force at 23:00 on 31 January 2020.
Sanctions are a foreign policy measure to assist in bringing about a foreign policy aim and a detailed overview of the scheme was provided in PJSC National Trusåt Bank and Ors v Boris Mints and Ors [2023] EWHC 118 (Comm), paras. 13-76. The provisions of the Russia Regulations are often, but not always materially the same as those under the European Union regime (examples of similar provisions can be seen in the annex to the judgment in Vneshprombank LLC and Kireeva v Bedzhamov [2024] EWHC 1048 (Ch)).
There is a developing body of law which deals with the application of the Russia Regulations:
Part 3 of the Russia Regulations creates criminal offences for…
Brian O’Neill KC and Rebecca Malczewski
The Single Justice Procedure (SJP / the Procedure) was introduced by the Criminal Justice and Courts Act 2015, its purpose being to hear high-volume, low-level, non-imprisonable offences swiftly. In the past decade, millions of cases have been dealt with under the SJP. The most recently published data shows that in one quarter alone, 182,902 defendants were dealt with via the SJP.[1] That was 64% of all defendants in the Magistrates’ Courts in that quarter.[2]
However, from the press to the public to politicians, the professions and the judiciary, there have been mounting concerns about its use. Ten years after its introduction, the Government has vowed to “fundamentally reform” the SJP if poor practices persist, with the Ministry of Justice (MoJ) holding a consultation to establish how it could be improved.[3]
The case for reform
The Chief Magistrate’s ruling in Northern Trains Limited v Ballington & Others [2024] was the nadir for the SJP. The case concerned two train operating companies prosecuting fare evasion offences under the Regulation of the Railways Act 1889 via the SJP, despite having no power to do so. More than 74,000 cases were identified as having been prosecuted unlawfully and the Chief Magistrate declared each of them to be a nullity.
To its critics, this case encapsulated why the SJP is inconsistent with the rule of law and in need of urgent reform. The reasons for this are many but can be categorised into two central issues…
Criminal lawyers are always aware of our clients’ concerns about adverse publicity during a criminal investigation, prior to charge. Investigations can last many months, even years, only to result in no charges being brought. Maintaining anonymity during that period is often a priority, second only to defending the allegations. In Bloomberg v ZXC [2022] UKSC 5, the Supreme Court confirmed that as a “legitimate starting point” a person under criminal investigation has, prior to charge, a reasonable expectation of privacy in respect of the investigation. However in any given case it is not certain as a matter of law that the ‘starting point’ is the ‘end point’.
For that and other reasons, there remains pressure to introduce clear statutory restrictions against identifying criminal suspects before charge. This is progressing piecemeal. In 2023 the Northern Ireland Assembly legislated to grant anonymity to sexual offences suspects prior to charge – the UK government having rejected a statutory amendment to similar effect in 2016. The UK government is currently working to grant anonymity to police firearms officers in certain circumstances until conviction or unsuccessful conclusion of their appeal (sections 134 to 137 of the draft Crime and Policing Bill). The latter was prompted by Sergeant Martyn Blake failing to maintain his anonymity in a murder trial for which he was ultimately acquitted.
The latest proposal is the ‘Anonymity of Suspects Bill’ which, it should be noted, is a Private Members’ Bill brought by Christopher Chope MP, a backbench member of the Conservative Party. The Bill is therefore likely to fall by the wayside, as was the fate of similar Private Members’ Bills in 2010, 2019 and 2022…
In the run-up to the 2024 general election, the Labour Party set out its vision for policing and criminal justice, setting itself the ambitious target of halving knife crime in a decade. The Crime and Policing Bill is the Government’s legislative follow-through on those promises. Introduced in the House of Commons on 25 February 2025, the Bill is comprehensive and wide-ranging. Among its most significant provisions are those in Part 2 aimed at tightening the regulation of remote knife sales.
Clause 29 & the Criminal Justice Act 1988
Under the Criminal Justice Act 1988 (“CJA 1988”), it is an offence to sell knives or other articles with a blade or point to those under the age of 18 years old. However, current provisions do little to encourage stringent age verification: a person charged with an offence of selling to someone under 18 has a defence if they can prove that they “took all reasonable precautions and exercised all due diligence” to avoid committing it.
Where that sale has taken place remotely (e.g. the buyer was not in the presence of the seller at the point of sale), the seller can only prove that they have taken “all reasonable precautions and exercised all due diligence” if they have:
Cryptoassets are a digital representation of value. There are numerous types of crypto asset, such as Bitcoin (a digital currency), ‘Non-fungible tokens’ (digital assets that represent real-life objects – either physical such as art, or digital such as audio clips) and crypto related funds (for example, blockchain funds). They have become a “significant part of the world of finance, with a global value estimate at $0.8 trillion”[1], and according to the FCA’s latest research “12% of UK adults now own crypto”[2]. However, crypto assets have also become a hotbed of crime — for example, a vehicle for complex money laundering schemes, terrorist financing and drug trafficking.
As part of the UK’s efforts to tackle crime and keep pace with the rapidly changing nature of it, the Economic Crime and Corporate Transparency Act 2023 introduced several amendments to the Proceeds of Crime Act 2002 specifically in support of the recovery of crypto assets.
Since April 2024, Crypto Wallet Freezing Orders (“CWFOs”)[3] enable law enforcement agencies to rapidly freeze and seize crypto assets, requiring only that an enforcement officer has “reasonable grounds” to suspect that the crypto assets held in a crypto wallet “are recoverable property” or “are intended by any person for use in unlawful conduct”. However, the assets must be held in a wallet that is administered by a UK-connected crypto asset service provider. Crucially, such an application can be made without notice, and heard before a Magistrates Court. If the application is granted, then the assets can be frozen for a period of up to two years but can be extended for a period of up to three years beginning with the day on which the crypto wallet freezing order was made…
A considered approach to a defendant’s ECHR rights is always necessary in criminal practice. The recent case of R v Al Magloub [2025] EWCA Crim 640 highlights this in a particularly routine context – the imposition of a Criminal Behaviour Order (“CBO”). CBOs allow the court to impose sweeping prohibitions and requirements on a convicted person where the court is satisfied, beyond reasonable doubt, that the offender has engaged in behaviour likely to cause harassment, alarm or distress, and making the order will help prevent further such behaviour (s.331 Sentencing Act 2020). Conditions must be reasonable, enforceable, proportionate, and understandable (see Boness [2005] EWCA Crim 2395, P (Shane Tony) [2004] EWCA Crim 287, and Khan [2018] EWCA Crim 1472).
Plainly, the conditions imposed under a CBO can have significant implications for an offender’s qualified ECHR rights: notably their right to a private life (Article 8), freedom of expression (Article 10), and freedom of association (Article 11). Infringement of these qualified rights is permissible under the ECHR, but only in a lawful and proportionate manner, necessary for a legitimate aim. Given the court’s obligation not to act in a way that is incompatible with a person’s Convention rights (s.6 Human Rights Act 1998), it is essential that this test is adequately considered.
In Al Magloub [2025] – a case concerning a street robbery – a CBO was imposed prohibiting, among other things, the Appellant from being in a group of two or more people in a public place, unless those people were a family member. This condition clearly and significantly interfered with the Appellant’s Article 8 and Article 11 rights: he was unable to meet with his social workers in their public office, unable to see friends in public, and even unable to speak to supermarket workers. Despite this, and while the condition may have been imposed in a lawful manner for a legitimate aim, it does not appear that there was any consideration at first instance of the proportionality of such an interference. Indeed, it is hard to see how such a draconian prohibition could ever be justified as a proportionate way of preventing future robberies or other similar criminal behaviour…
Introduction
In the recent case of R v Canatar [2025] EWCA Crim 611, the Court of Appeal allowed an appeal against conviction in circumstances where the Crown Court had contrived in the appellant’s absence to permit the prosecution to bring new charges arising out of the same incident as offences the appellant had already pleaded guilty to, whilst riding roughshod over magistrates’ court procedure.
Background
The appellant failed to stop his BMW car for police, instead making off at high speed through residential streets, only stopping when he hit a bus stop. He then got out, picked up a metal bar and brandished it at a police officer, who was scared and fell over. After a failed attempt to drive off in the police car, the appellant was arrested, and the BMW was searched. 14g of cannabis and 13 wraps of cocaine were found in the vehicle, together with £300 cash and a Nokia burner phone with text messages relating to drug supply.
The appellant was charged with dangerous driving, possession of cocaine and possession of cannabis. He pleaded guilty in the Magistrates’ Court to all these offences and was committed to the Crown Court for sentence. However, when the matter came before the Crown Court, the prosecution was permitted to bring two new charges – possession of cocaine with intent to supply and assault of an emergency worker. In the absence of the appellant, the Crown Court judge exercised his powers under Section 66 of the Courts Act 2003 to sit as a District Judge in the Magistrates’ Court. The judge dealt with allocation and sent the charges for trial in the Crown Court. He then directed that not guilty pleas be entered on behalf of the absent appellant…
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