Criminal Law Reform Now Conference

Jeremy Horder and Gabriele Watts 

As is well known, corporate officers may become individually liable for their part in the criminal wrongdoing of a company where the conditions for establishing vicarious liability are established, or it is shown that one or more directors perpetrated the criminal acts (with mens rea) themselves. However, a considerable number of crimes applicable to companies incorporate a general principle of individual liability: the ‘consent and connivance’ doctrine. The doctrine makes directors (or equivalent persons) individually liable for wrongdoing committed by their companies, if those individuals ‘consented or connived’ at that wrongdoing or, in some cases, if the wrongdoing was attributable to their ‘neglect’.

This paper interrogates the current use and principled basis for ‘consent and connivance’ as a route to liability for corporate directors, drawing a comparison with the more general doctrine of complicity. It is contended that whilst the inconsistent use of ‘neglect’ provisions should be criticised and largely resisted, a better understanding of ‘consent and connivance’ may justify expanding its application to include, for example, (a) cases where a Deferred Prosecution Agreement has been reached with a company, on the basis of an admission of guilt, and (b) cases in which a senior corporate officer has consented and connived at individual wrongdoing engaged in – in the course of their employment – by an employee, subsidiary or agent.

Daniel Bansal and Tracy Elliott

In this paper, we invite the Law Commission to include the current legal framework in relation to consent to bodily harm as a project in its 14th Programme. Although the Law Commission recommended reform of the common law defence of consent in 1994 (CP 134) and 1995 (CP 139), since the publication of those papers, the law has continued to favour the general rule that consent is not a defence to the causing of bodily injury unless it falls within a recognised lawful activity, per Brown [1994] 1 AC 212 (HL). This category-based approach has resulted in the inconsistent and unprincipled development of legal doctrine. For example, bodily harm caused during cosmetic genital surgery, piercing for decorative purposes, and contact sports have been recognised as lawful, but female genital mutilation, non-surgical body modification, and BDSM activities causing injury are not. Such examples highlight the incoherence of current doctrine and its failure adequately to balance personal autonomy with the criminal law’s paternalistic role in limiting the approbation of the law for significant violence. The law lacks clarity and has arguably failed to keep pace with changing public attitudes to body modification, ‘horseplay’, and BDSM activities. Parliamentary reform is long overdue.

Our proposal argues that the intentional causing of any injury to another person, other than disabling serious injury, should not be criminal if the other person consented to injury of the type caused. Once this threshold of harm is exceeded, it is argued that ‘consent’ is not really what is at issue, but whether it is in the public interest to permit the causing of such injury to another. In such cases, consent is a necessary but not sufficient requirement for the conduct to be lawful - the key factor is whether the conduct is in the public interest. We, therefore, argue that a statutory public interest defence, which specifies the circumstances in which consent or public utility will be regarded as justifying the causing of harm, would better reflect the reality of this defence and bring much-needed clarity to the law.

Tanya Palmer

The existing legislative framework regulating prostitution in England and Wales is piecemeal and lacking a coherent rationale. Whilst neither selling nor paying for sex is in itself illegal, a range of associated activities including soliciting, brothel-keeping and controlling prostitution are criminalised. The question of how this framework should be reformed is hotly contested, with some calling for a ‘Nordic Model’ approach, in which the purchase of sex is criminalised with the intention that this will eradicate the sex industry by ‘ending demand’.

By contrast, this paper argues against further criminalisation and for the repeal of existing offences on the basis that decriminalisation is the best way to minimise harm to sex workers. This approach is exemplified by New Zealand’s Prostitution Reform Act 2003 and championed by sex worker organisations including the English Collective of Prostitutes and the Sex Worker Advocacy and Resistance Movement. The paper will make the case for full decriminalisation, arguing that even offences which appear to be aimed at curbing exploitation by clients and third parties in practice put sex workers at increased risk of violence, social isolation and poverty. However, I will argue that the most urgent target for reform is those offences that directly criminalise sex workers. Specifically, section 1 of the Street Offences Act 1959 (soliciting for the purposes of prostitution) should be repealed, as should the brothel-keeping offences under sections 33-36 of the Sexual Offences Act 1956 which penalise sex workers who work together for safety.

Vanessa Munro

The creation of a coercive control offence under the Serious Crimes Act marked an important transition within English criminal law – not only by recognising psychological and emotional forms of harm in abusive relationships as meriting punishment, but by understanding those harms in a wider temporal frame in which broader cycles of control are often established, cemented and naturalised. In this chapter, I want to explore two related contexts in which legislation may be required to ensure that this understanding of the dynamics and impacts of coercive control properly informs decision-making about criminal liability. First, I explore the parameters of perpetrators’ liability where their abusive conduct can be seen to have caused a victim to commit suicide or self-harm. Second, I explore victim-survivors’ liability for offences – both violent and non-violent in nature - which were prompted by the actions of, or conducted under the influence of, an abusive partner. In both contexts, while there are mechanisms within the common law that could effectively delineate the boundaries and bases of liability, the jurisprudence required to operationalise them in a way that recognises the complex impact of domestic abuse on victims’ agency, decision-making, and help-seeking is lacking. Thus, this chapter explores the case for bespoke provisions, bearing in mind both the growing empirical evidence regarding the connections between women’s experiencing domestic abuse and engaging in self-harming or self-destructive behaviours (including criminality), and the failure to date of third sector campaigns – including in relation to the Domestic Abuse Act 2021 – to make the case for dedicated and context-specific legislation.

Alex Stevens, Niamh Eastwood and Kirstie Douse

The Misuse of Drugs Act 1971 has been in force for 50 years and has failed spectacularly in its aim to reduce drug use but has, since its inception, criminalised millions of people. The harms of criminalisation are multiple and include the impact of arrest and punishment, to the effect a criminal record has on employment, education and travel. For many communities drug law enforcement has enabled the over policing and over criminalisation of Black and ethnic minorities. 

This proposal outlines how to to decriminalise the simple possession of drugs (without intent to supply) by repealing the subsections of the Misuse of Drugs Act 1971 (the MDA) that criminalises it. This would leave substances controlled under the MDA is a similar position to those that are currently controlled under the Psychoactive Substances Act 2016 (the PSA); it would be illegal to import, produce or supply them, but possession (without intent to supply) would not be a criminal offence. 

Samantha Bourton

Historically, few prosecutions were brought for tax evasion offences, with the tax authority preferring to conduct civil investigations, resulting in the imposition of civil penalties. The Inland Revenue prosecuted only 263 defendants for serious tax fraud from 1998-2002, with, in 2001-2, only 30 prosecutions brought. However, following the financial crisis and several high-profile tax evasion scandals, Her Majesty’s Revenue & Customs were tasked with referring over 1000 tax evaders for prosecution annually by 2014-2015. Despite this volte-face in tax law enforcement, insufficient attention has been paid to the increasing use of the criminal justice system in combatting this financial crime. Indeed, tax evasion offences have been enacted on an ad hoc basis, separately criminalising the evasion of most types of taxation, as well as many of the underlying behaviours involved, causing duplicity and redundancy. More pressingly, notwithstanding the expansive scope of statutory offences, the most commonly utilised direct tax offences remain overly broad common law offences, the dangers of which have been recognised by the Law Commission. This is in sharp contrast to the consolidation and modernisation of financial crimes, such as terrorism financing, money laundering, fraud and bribery, through the enactment of the Terrorism Act 2000, the Proceeds of Crime Act 2002, the Fraud Act 2006 and the Bribery Act 2010 respectively. Accordingly, this paper argues that the criminal offences pertaining to tax evasion should be simplified and modernised through the enactment of a contemporary statute, returning doctrinal coherence to this increasingly utilised area of criminal law.

Joe Purshouse

Over the course of the last two decades, there has been growing recognition amongst politicians, judges, and senior criminal justice practitioners that there should not be an open season on the public dissemination of identifying particulars of criminal suspects. Whilst the publication of such information, in the media or on social media, may be justifiable in certain circumstances, publication will often be detrimental to the criminal suspect’s reputation and privacy-based interests, and poses wider risks to the administration of justice. However, this paper will argue that fractured reform efforts in this area - which include, but are not limited to, an extension of the misuse of privacy tort and several revised internal policy documents - suffer from various deficiencies that render them unsuitable to provide robust ex ante protection to criminal suspects. This paper will trace the evolution of the debate on the right to anonymity for criminal suspects in England and Wales, discussing key moments in the development of the current legal and policy framework regulating this complex area. It will then articulate a rationale for affording criminal suspects a presumptive right to anonymity until the point of charge. Finally, the benefits of putting this right on a statutory footing, and the appropriate limits of any such presumptive right will be considered.  

Lucy Welsh

The Criminal Cases Review Commission (CCRC) was created under the Criminal Appeal Act 1995 (CAA). There is general consensus that the CCRC is a significant improvement on its predecessor, but it remains heavily criticised for the way it uses the powers granted under the CAA to refer cases to the Court of Appeal.

Over the course of three years, our empirical study examined the impact of legal aid cuts on the work of the CCRC. It revealed that the impact of funding cuts on potential miscarriage of justice cases is exacerbated by statutory provisions that constrain the CCRC’s powers. This is detrimental to the interests of justice in the context of wider problems created by austerity. Two particular powers appear to be in need of reform.

First, the study revealed uncertainty around the operation of the real possibility and exceptional circumstances tests for referral under s.13 CAA. This affected lawyers’ decisions about whether or not a case would be taken forward by legal representatives. Additionally, lawyers were concerned that the breadth of the CCRC’s discretionary powers results in inconsistency.

Second, lawyers faced problems obtaining further evidence, or examining gaps in existing evidence, especially since the decision in Nunn [2014] UKSC 37.  However, the CCRC’s powers to work with lawyers who raise a potential post-appeal disclosure point is hampered by the restrictions in their powers under s.23 CAA.  In light of increased concerns around disclosure, there is a case for reforming the ability of the CCRC and lawyers to work more collaboratively in relation to post-appeal disclosure.

Paul Jarvis

The system of criminal appeals in England & Wales has developed piecemeal over many decades.  Its current structure is unprincipled and unbalanced. Within the summary jurisdiction of the magistrates' courts, a convicted defendant has three routes of challenge open to him: an automatic re-trial in the Crown Court, an appeal on a point of law to the Divisional Court and a judicial review. That process should be streamlined (and costs saved) by shutting down the latter two routes and requiring convicted defendants to take their appeals to the Crown Court irrespective of the grounds of challenge, and only on the basis that the Crown Court grants leave for them to do so.    Even in trials on indictment in the Crown Court there is a complex collection of appeal powers in play.  Of particular note, the prosecution has a very limited power to seek to re-try an acquitted defendant and only then where new and compelling evidence subsequently comes to light (see Part 10 of the Criminal Justice Act 2003 and Law Com. No. 267).  If the acquittal is the product of judicial misdirection or other errors of law at trial then why in principle should that verdict be allowed to stand?  In order to protect the rights of victims and public confidence in the criminal justice system more generally the prosecution should be entitled to appeal against unsafe acquittals in the same way defendants can appeal against unsafe convictions.

Stephen Wooler

The criminal justice system cannot – for sound constitutional reasons – be managed like most large organisations or entities through a single set of objectives and associated business designed to achieve specific outcomes. Its intrinsic nature requires that its component parts operate in healthy tension rather than always pulling together. 

However, the governance of the CJS has undoubtedly undergone major change in recent decades with a key theme being centralisation. Although a positive process in many ways, unforeseen consequences may be political and administrative blocks to reform of certain key issues; blocks that would not otherwise have existed, or at least not in the same way.

This proposal looks at structural changes in policing; prosecution arrangements; the courts and probation to see how they have influenced outcomes. It examines the handling of issues such as prosecution disclosure, custody time limits, the place of private prosecutions and co-ordination across the agencies on issues such as fraud/scamming and animal welfare. The CJS is managed through a structure heavily dominated by the main agencies, each with their own agendas. The dependency on central funding can be both a driver and inhibitor of change as justice becomes less local and access becomes more difficult both financially and geographically.

Questions presently unanswered include whether increased centralisation has achieved greater efficiency and effectiveness within the CJS; and whether governance arrangements properly balance the competing interests of the different aspects of the CJS. The quest is to understand the centralisation process; how it can hinder reform; discuss potential solutions.