Crime Team Newsletter - October 2020

Author: Nichola Cafferkey
In: Article Published: Tuesday 13 October 2020

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Crime Team Newsletter – Fifth Edition 

It is with great pleasure that I welcome you all to the October edition of the 33 Bedford Row Crime Team newsletter.  

We have some insightful articles from members of our team this month:

Andrew Hill - 'Sentencing of Young People with particular reference to the Issue of Mental Health';

Andrew Kerr - 'CTL and COVID-19 - Part II'; 

Ylenia Rosso and Annahita Moradi - 'Speedy Summary Justice - Ethical Considerations vs. Speedy Justice'.

I am also delighted to share a guest article from:

Sam Raincock - Computer and Telecommunications Forensic Expert - 'Cell site analysis – Cell Coverage and Instructing an Expert'

Wishing everyone a productive and healthy month.

Nichola Cafferkey

[Head of Crime Team]

Sentencing of Young People with particular reference to the Issue of Mental Health

I will look at in this article at some of the sentencing principles and guidance when sentencing young people and in particular for serious offences and when they are suffering from mental illness.

The starting point is the Sentencing Council Definitive Guideline ‘Sentencing Children and Young People: Overarching Principles and Offence Specific Guidelines for Sexual Offences and Robbery’ (‘the Guideline’) applies to all children or young people who are sentenced on or after 1 June 2017. 

In terms of the ‘General approach’, the Guideline notes that the Court must have regard to the aim of the youth justice system, to prevent offending by young people; and the welfare of the young person (at para.1.1).

However, the ‘General approach’ is not of application when making certain orders under the Mental Health Act 1983.

The seriousness of the offence will be the starting point, however the approach to sentencing should be individualistic and focused on the young person, as opposed to offence focused, with a focus on rehabilitation where possible. A custodial sentence should always be a measure of last resort for young people (paras.1.2 to 1.3).

The Court should bear in mind factors which may diminish the culpability of a young person (para.1.5). Any restriction on liberty must be commensurate with the seriousness of the offence. The Court must consider the young person’s culpability in committing the offence and any harm, which the offence caused, was intended to cause, or might foreseeably have caused (para.1.9).

In having regard to the welfare of the young person, a court should ensure that it is alert to, inter alia, any mental health problems or learning difficulties / disabilities (para.1.12). The role of counsel and solicitors communicating with other family members where available may be critical.

Deterrence remains a factor in sentencing young people, although normally it should be restricted to serious offences, and often will be outweighed by considerations of the young person’s welfare. 

The Guideline provides that the key elements to consider when determining the sentence are: {para 4.1}

(i)   The principal aim of the youth justice system (to prevent re-offending by children and young people);

(ii)  The welfare of the young person;

(iii) The age of the young person (chronological, developmental and emotional);

(iv) The seriousness of the offence;

(v)  The likelihood of further offences being committed; and

(vi) The extent of harm likely to result from those further offences. 

The seriousness of the offence is the starting point for determining the appropriate sentence (para.4.2). 

In assessing culpability, the court will wish to consider the usual factors when looking at offending but also whether there are any mental health problems/learning difficulties or behaviours (para.4.5).

The Court should consider any aggravating or mitigating factors which may increase or reduce the overall seriousness of the offence (para.4.7). Specific reference to the unstable upbringing is a factor that invariable applies to many young offenders and in my opinion should not be downplayed.

The Guideline notes the benefits of an early guilty plea and it is worth a reminder that the fact that the case may be described as overwhelming does not affect a reduction in credit. And so the cliché that he had little option given the weight of the evidence has no bearing on the actual disposal.

The available relevant custodial sentences for young people before the Crown Court are:

(i)    Detention and Training Order (which must be for specific periods, up to 24 months);

(ii)  Long term detention, pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000;

(iii) Extended sentence of detention or detention for life, if dangerousness criteria are met. [at para.6.41]

At paras.6.42 to 6.45 the Guideline sets out the relevant considerations in terms of imposing a custodial sentence on a young person. 

Only where the Court is satisfied that the offence crosses the custody threshold, and no other sentence is appropriate, the court may, as a preliminary consideration, consult the equivalent adult guideline in order to decide the appropriate length of sentence (para.6.45).

In terms of the application of adult sentencing guidelines, the Guideline notes:

‘When considering the relevant adult guideline, the court may feel it is appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15 – 17…This is only a rough guide and must not be applied mechanistically. In most cases when considering the appropriate reduction from the adult sentence the emotional and developmental age and maturity of the …young person is of at least equal importance as their chronological age.’

A sentence under the dangerous offender provisions can only (in so far as is relevant) be imposed if:

(i)    The young person is found guilty of a specified violent offence; and 

(ii)  The court is of the opinion that there is a significant risk to the public of serious harm caused by the young person committing further specified offences; and 

(iii) A custodial term of at least four years would be imposed for the offence. 

[para.2.4]

A ‘significant risk’ is more than a mere possibility of occurrence. The assessment of dangerousness should take into account all the available information relating to the circumstances of the offence and may also take into account any information regarding previous patterns of behaviour relating to this offence, and any other relevant information relating to the young person. [para.2.5]

If a young person is found to be a dangerous offender, they can be sentenced to extended detention, or detention for life. [para.6.57]

A sentence of extended detention may be imposed only where the appropriate custodial term would be 4 years or more. The extension period must not exceed 5 years in the case of a specified violent offence. The term of the extended sentence of detention must not exceed the maximum term of imprisonment for an adult offender convicted of that offence. [para.6.58]

A sentence of detention for life should be used as a last resort when an extended sentence is not able to provide the level of public protection that is necessary. [para.6.59}

The Sentencing Council has published a definitive guideline in respect of totality, ‘Offences Taken Into Consideration and Totality’ (‘the totality Guideline’). 

The Guideline provides that when sentencing for more than a single offence, the Court:

‘should pass a total sentence which reflects all of the offending behaviour before it and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single offence.’

The totality Guideline provides for the approach to extended sentences where there are multiple offences:

‘In the case of extended sentences imposed under the Criminal Justice Act 2003, providing there is at least one specified offence, the threshold requirement under s.227(2B) Criminal Justice Act 2003 is reached if the total determinate sentence for all offences (specified or not) would be four years or more. The extended sentence should be passed either for one specified offence or concurrently on a number of them. Ordinarily either a concurrent determinate sentence or no separate penalty will be appropriate to the remaining offences. 

The extension period is such as the court considers necessary for the purpose of protecting members of the public from serious harm caused by the offender committing further specified offences. The extension period must not exceed five years…The whole aggregate term must not exceed the statutory maximum. 

The custodial period must be adjusted for totality in the same way as determinate sentences would be. The extension period is measured by the need for protection and therefore does not require adjustment.’ (at p.10)

In relation to extended sentences, in Pinnell [2010] EWCA Crim 2848 the Court held that where the condition that the custodial term be at least four years applies (as with a young defendant), and a person has been convicted of a specified offence and one or more associated non-specified offences none of which alone would justify a four year custodial term, the seriousness of the aggregate offending must be considered. If a four-year custodial term results from aggregating the shortest terms commensurate with the seriousness of each offence, then that four-year term can be imposed in relation to the specified offence. 

In D [2014] EWCA Crim 2340, the Court of Appeal held that an extended sentence could be passed only for one specified offence, or concurrently on two or more of them. Associated non-specified offences should attract concurrent determinate sentences, or no separate penalty. The Court also said that, when imposing an extended sentence in a multiple offence case, the judge should always identify the specified offence which has triggered the extended sentence, and clearly link that to the relevant custodial term and extension period. 

These principles were applied in Smith [2015] EWCA Crim 1627, where a mix of concurrent and consecutive extended sentences, which the Court of Appeal said was unlawful, was varied on appeal to a single extended sentence of 12 years, with a custodial term of eight years and a four-year extension period, concurrent determinate sentences being imposed on other counts. 

In Pinnell [2010] the Court of appeal held that there was no objection in principle to imposing consecutive extended sentences, or to imposing an extended sentence consecutive to a determinate sentence, although this should be done only where there was a particular reason for doing so. The extension periods in the case of consecutive extended sentences will themselves be consecutive, and the total extended licence may properly exceed the maximum licence period for a single offence. 

The legal framework for ‘dangerousness’ is found at Section 226B of the 2003 Act makes provision for extended sentences for those under the age of 18 at the time of conviction (and see Blackstones 2020 ed. at E413).

The Offender must pass the ‘dangerousness test’, as provided for by section 229 of the 2003 Act. Section 229 applies where (a) a person has been convicted of a specified offence; and (b) it falls to a court to assess whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences. In making that assessment, the court:

(a)        must take into account all such information as is available to it about the nature and circumstances of the offence;

(aa)      may take into account all such information as is available to it about the nature and circumstances of any other offences which the offender had been convicted by a court anywhere in the word;

(b)        may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (aa) forms part, and 

(c)        may take into account any information about the offender which is before it. 

The requirement that a risk be ‘significant’ means more than a possibility – it must be ‘note-worthy, of considerable amount or importance’ (Lang [2005] EWCA Crim 2864).

A wide variety of information will need to be considered before such an assessment is made by the court. In Mayers [2018] EWCA Crim 1552 the Court noted that a psychiatric report would be appropriate in some circumstances, but should be clearly directed to the issue of dangerousness. Such reports, and other pre-sentence reports, are not binding on the sentence, but if the judge was minded to depart from the conclusion set out in a report, counsel should be warned in advance (Pluck [2006] EWCA Crim 1394). 

There is no pre-requisite to a finding of dangerousness that the offender has any previous convictions, and there is nothing wrong in principle with the judge finding that dangerousness was established on the basis of a single incident (Bourke [2017] EWCA Crim 2150).

In Chowdhury [2016] EWCA Crim 1341 the Court of Appeal noted that sentencers should be careful when reaching a finding of dangerousness in relation to young people, especially where there is no pattern of offending. Young people are more likely to act impulsively, more likely to be responsive to any sentence imposed, and more likely to change. 

In applying section 229 the Court will rely upon the facts of the offence; the offender’s previous record; normally the contents of a pre-sentence report, and the contents of any other relevant report, such as a psychiatric report. Other material may be taken into account, as in Hillman [2006] EWCA Crim 690, where the judge properly had regard to a synopsis of material prepared by the prosecution containing details of earlier alleged misconduct by the offender which had resulted in the making of an anti-social behaviour order against him. The Court of Appeal said that although the incidents referred to the synopsis had not been tested in adversarial judicial proceedings, they could be regarded as ‘hard information’ and could be relied upon. 

In Considine [2007] EWCA Crim 1166 the Court of Appeal confirmed that the word ‘information’ in section 229 was not restricted in its meaning to ‘evidence’, and that relevant information bearing on the offender’s dangerousness in a particular case might include material adverse to the offender but which had not been proved by criminal conviction.  

An extended sentence of detention can only be passed in the case of an offender under the age of 18 where the appropriate custodial term is at least four years. To the custodial term there must always be added the appropriate extension period, the maximum being five years for a specified violent offence.

The length of the extension period is a matter for judicial assessment in each case, and is that which the court considers necessary to reduce the future danger posed by the offender.

In ARD [2017] the Court of Appeal held that the length of the extension period is not to be determined by the age of the defendant or his lack of previous convictions save in so far as they were indicators as to the degree of harm the defendant posed into the future and for how long he would pose that harm. 

The total term of an extended sentence of detention must not exceed the maximum penalty for the offence. A person sentenced to be detained under s.226B is liable to be detained in such place as may be determined by the Secretary of State s235

Sentencing Offenders Suffering from mental health issues

I do not intend to look at the provisions of fitness to plead but I will concentrate on the sentencing of offenders who are suffering from ill-health at the time of sentence.

The test for imposing a determinate sentence is one of proportionality as to the seriousness of the offence (sections 143 and 152 of the Criminal Justice Act 2003 (‘the 2003 Act’). The terms of length, the sentence is to be imposed for the shortest term commensurate with the seriousness of the offence (s.153 of the 2003 Act).

Release from determinate sentences is automatic, subject to a licence period until the expiry of the sentence, at the half way point of sentence (s.244 of the 2003 Act).

A prisoner subject to a determinate sentence may be transferred to a hospital for treatment. Such an order is may be made by the Secretary of State under section 47 of the Mental Health Act 1983 (‘the 1983 Act’). Prisoners not so transferred may also be treated in prison, dependent upon available resources.

Section 37 of the Mental Health Act 1983 (‘the 1983 Act’) provides for the powers of courts to order hospital admission or guardianship. In so far as is relevant, section 37(1) provides:

‘Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law…and the conditions mentioned in subsection (2) below are satisfied, the court my by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.’

The necessary criteria are therefore:

  1. The defendant is convicted before the Crown Court;
  2. The offence is punishable with imprisonment but is not one for which the sentence is fixed by law, i.e. murder; and
  3. The conditions in subsection (2) are satisfied.           

Section 37(2) of the 1983 Act provides for the test for Hospital and Guardianship Orders, and requires that the court is: satisfied, on the written or oral evidence of two registered medical practitioners that:

(i)    the offender is suffering from a mental disorder (s.37(2)(a));

(ii)  the mental disorder is of a nature or degree which makes it appropriate for him/her to be detained in a hospital for medical treatment and appropriate medical treatment is available (s.37(2)(a)(i)); or

(iii) the mental disorder is of a nature or degree which warrants his reception into guardianship under the Act;

is of the opinion that the most suitable method of disposing of the case is to impose a hospital order, having regard to all the circumstances including:

(i)    the nature of the offence (s.37(2)(b));

(ii)  the character and antecedents of the offender (s.37(2)(b)); and 

(iii) the other available methods of dealing with him (s.37(2)(b)).

The elements under paragraph (a) above will therefore necessarily be the subject of medical evidence, but it is for the court to determine the issue. 

Pursuant to section 37(4) of the 1983 Act, a hospital order may not be made unless the court is satisfied that arrangements are in place to receive the individual into hospital within 28 days. A guardianship order may not be made unless the court is satisfied that the authority or other person is willing to receive the offender into guardianship. 

Section 47 of the Crime (Sentences) Act 1997 provides the court with a power to specify a hospital unit, as opposed to a hospital, as the place where the person subject to the order will be liable to be detained.

The making of a hospital order limits the court’s other sentencing powers, prohibiting the imposition of a fine, a community order, a sentence of imprisonment (to include detention), a referral order, a youth rehabilitation order or an order binding over a parent or guardian (s.37(8) of the 1983 Act).

The following principles are established by the case law:

There is no requirement for there to be established a causal connection between the disorder and the offences (R. v. McBride [1972] Crim.L.R. 322); 

The gravity of the offence, except in so far as the offence is an indication of the need for treatment in special conditions, is not relevant: R. v. Eaton [1976] Crim.L.R. 390. However, more recent authority has suggested that the welfare of the offender was an important consideration, but it had to be considered in light of the seriousness of the offence (R. v. Khelifi [2006] EWCA Crim 770 at para.11);

A hospital order is a discretionary order and a court is not bound to impose such an order in circumstances where the criteria for imposition are met. The decision is one for the judge’s discretion. (R. v. Khelifi [2006] EWCA Crim 770 at para.9);

Where there is no causal connection between the mental illness and the offending, policy considerations caused the courts to focus primarily on the offence itself and the need for effective deterrence; additionally, prisoners could be treated in prison or transferred to hospital[3] (R. v. Nafei [2004] EWCA Crim 3238 at para.14);

For the purpose of deciding what was most suitable, a court could give appropriate weight to the different release regimes (R. v. IA [2005] EWCA Crim 2077).

Restriction Orders

Section 41 of the 1983 Act makes provision for the ‘power of higher courts to restrict discharge from hospital’ (‘Restriction Orders’). Section 41(1) provides both the power to make the order and the relevant test:

‘Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section; and an order under this section shall be known as ‘a restriction order’. 

A restriction order can only be made in conjunction with a hospital order. 

The special restrictions applicable to a patient under a restriction order are set out in section 41(3) of the MHA. In particular, a Restriction Order restricts the ability of the responsible clinician to authorise the patient’s leave from hospital, their transfer to another hospital or discharge to community care, without Secretary of State approval. The Judge having decided that the protection of the public is necessary he ensures a slowing down of the clinicians if they are minded to move the treatment forward as above without a supervisory role on the Secretary State. In a case where the clinician will advocate no restriction order be imposed but the sentencing Judge concludes otherwise, de facto the clinician will be able to effect the future rather than the de jure secretary of state the medical profession being best placed to determine the future treatments. 

A Restriction Order cannot be made unless there is evidence that it is necessary to protect the public from serious harm. A court is not bound to accept the medical evidence for or against the imposition of a restriction order: it is ultimately a matter for the Court (Birch (1989) 11 Cr.App.R.(S)202). There is no requirement for a causal connection between the disorder and the offence. 

Release from a hospital order with a restriction order is governed by the First Tier Tribunal (Mental Health) (see R v Edwards [2018] EWCA Crim 595). Discharge of the patient occurs only when the defendant satisfied the First Tier Tribunal that his mental health poses no unacceptable risk to the public, and upon release the defendant will be supervised by a mental health team led by a psychiatrist. Discharge will inevitably be conditional rather than absolute.

Recall from an undischarged section 41 Restriction Order can only be made on the basis of a relapse in the defendant’s mental health, or a failure to comply with a mental health support package. Recall may be made by the responsible clinician and will be to hospital.

In Drew [2003] UKHL 25 the House of Lords noted that offenders subject to hospital orders (with or without restriction) are entitled to release when their medical condition has been successfully treated, whilst release from a life sentence is a matter for the Parole Board, taking into account all matters of risk, and thereby providing a greater degree of control over the offender.

In making the choice between a hospital order, with or without restrictions, and a custodial sentence, the Court in Vowles [2015] EWCA Crim 45 held that the court must consider all the evidence and not feel bound by medical opinion, and in considering whether a hospital order is the most suitable disposal the court must always have regard to the extent to which the offender requires treatment, the extent to which the offending is attributable to the mental condition, the extent to which punishment is necessary, and the need to protect the public, including the regime for deciding upon release and the nature of supervision after release. [Blackstones at E22.}

The matters to which the sentencing court should have regard include: 

  1. The extent to which the offender requires treatment for the mental disorder from which he or she is suffering;
  2. The extent to which the offending was attributable to that mental disorder;
  3. The extent to which punishment was required; and 
  4. The protection of the public, including both the regime for determining release and the regime after release

(ii)  The focus on a penal element was necessary because of the purposes of sentencing, as provided for by s.142 of the 2003 Act. Rehabilitation is but one of a number of purposes of sentencing (R v. Edwards [2018] EWCA Crim 595, at para.13);

(iii) The order in which the sentencing court should consider the various disposals is that set out in R v. Edwards [2018] EWCA Crim 595.

In conclusion the importance of reiterating some of the principles set out above when appearing at the sentencing hearing cannot be understated whilst the importance of the presentation of the clients mitigation, with a psychiatrist at court in those cases of such seriousness that the eventual disposal is at large cannot be overstated.

Andrew Hill 

CTL and COVID-19 – Part II

Following on from my article on CTL applications and Covid, two major developments have occurred. 

Firstly, the Coronavirus Crisis Protocol for the effective handling of Custody Time Limit has been withdrawn. 

Secondly the decision by Whipple J. in the case of R v P and 3 other Defendants, X, Y and Z (being heard at Woolwich Crown Court). 

Readers should not that HHJ Raynor, also sitting at Woolwich Crown Court rejected two CTL applications. Each time he concluded that Covid-19 was not a good and sufficient cause to justify an extension. Instead he considered that real difficulty lay in underinvestment in the Justice system. 

That view was also held by HHJ Graeme Smith sitting at Bolton Crown Court. 

Mrs Justice Whipple took the opposite view. In the case before her she concluded that the pandemic was a good and sufficient reason. She also rejected the Defence submissions that the reason for the delay was under investment in the Court system. The Learned Judge reached the view that the HMCTS recovery plan had a prospect of success. 

At para. 37 of her rulling Whipple J. relied on the following passage from R (Kalonji) v Wood Green Crown Court [2007] EWHC 2804 (Admin):

[10] … The courts cannot ignore the fact that available resources are limited. They cannot ignore the fact that occasions will occur when pressures on the court will be more intense than they usually are. In such a situation it is important that the courts and the parties strive to overcome any difficulties that occur. If they do not do so, that may debar the court from extending custody time limits.

Mrs Justice Whipple concluded that this was a complete answer to the resources and investment issue. 

While the decision in R v P is not a binding decision, though being made by a High Court Judge does give it significant persuasive force. 

However, with respect to the Learned Judge, the reality is that the Court system has not been invested in for at least a decade and it finds itself now unable to cope. The backlog started before Covid-19; and the pandemic simply added to it. 

An analogous situation is the NHS which struggles every normal winter to cope with winter illnesses like flu. 

When lockdown first started it was on the basis to give the NHS time to build its capacity to deal with Covid-19. Funding and resources were made available for this. 

However, Courts have struggled to adapt to these new challenges simply because there are too few of them and not enough staff anymore. That is because of a decade’s worth of underinvestment, not Covid-19. In that connection, it should be noted that the decision in R (Kalonji) v Wood Green Crown Court (the basis for Whipple J.’s decision) was made in 2007, before substantial cuts were made to the budget of the MoJ. 

Given that Judicial Review is available for CTL decisions, it may that this matter could be litigated in the High Court soon.

Andrew Kerr

Speedy Summary Justice - Ethical Considerations – v – Speedy Justice 

Barristers are bound by the overriding objective. Subject to our client's instructions and best interests, this requires us to try to settle as many issues as we reasonably can with our opponents. Annahita Moradi and Ylenia Rosso explain their experiences of how the objective often works in practice.  

With pupillage season about to start, common occurrences, problems and arguments often arising in the Magistrates’ Court are explored using personal experiences as examples together with laws and ethical considerations that protect your client. We seek to emphasise that summary justice must remain just, and the pressure of expediency or a lack of resources in the Magistrates’ Courts must never jeopardise your client’s best interests. This article also incorporates ethical considerations in light of the recent publication of Version 4.5 of the BSB Handbook which came into force on 1 September 2020 and the updated Criminal Procedure Rules 2020 (CPR).

1. No papers and the busy prosecutor 

Before every hearing, your first port of call is the prosecutor's door. There are three reasons for this: to seek papers and disclosure, to confirm their position, and to negotiate. If you are faced with an overnight custody matter, it may be the case that initial disclosure has not been served by the time you are at Court, and it is your duty to obtain these as a matter of urgency. 

You will often be confronted with an extremely busy practitioner with a long list of cases they have to prepare for the day, and a long queue of opponents waiting to speak to them. It is not their fault. They received their case list the night, or even just hours, before. Be patient, and empathise with their position, and even be helpful where it does not adversely affect your client's position. 

It is not in your client's best interests, however, to allow this to move the goal posts. If you are missing evidence or key information - you must find it. If you think there is a legal issue or potential abuse - you must argue it. If after negotiations your opponent seeks to maintain a baseless argument that contravenes law or due process - you must not excuse it. Regardless of their workload, prosecutors are also bound by the overriding objective in their case against your client, whose anxiety is building up in the dark confines of court cells. 

It is often junior’s experience, that some prosecutors use their uncontrollably busy workloads as a panacea shielding them from their overriding obligations.

Annahita’s experience: 

On representing a youth charged with violent offences, Annahita met with a prosecutor who failed to appreciate that she was entitled to receive her client’s interview summary as initial disclosure. Their response was that they did not have it and that her youth was able to tell her what he said in interview. Persistence was key here. After explaining that she could not rely on her youth’s account of what happened at interview, and refusing to allow her case to be called on without it, she received the interview summary, despite the prosecutor’s assertion that it was unavailable.

Under rule 3.3. of the Criminal Procedure Rules 2020, parties are under a duty to assist each other. The prosecutor and defence must communicate at the first available opportunity establishing likely pleas, disputed issues, material required and steps forward). The ethical considerations here are the rules on honesty, integrity and independency. It is your duty to protect your client’s best interests, and whilst behaving with respect to the court is absolutely paramount, your client’s best interest must be the centre of your focus.

The interests of justice (CD1) and the client’s best interests (CD2) can only be properly served, and any conflicts between the two properly resolved, if you conduct yourself honestly and maintain your independence from external pressures, as required by CD3 and CD4. You should also refer to Rule rC16 which subjects your duty to act in the best interests of your client (CD2) to your observance of CD3 and CD4, as well as to your duty to the court (CD1). Remember to work quickly, especially if your client is stuck in the cells!

2. No Video Recorded Footage 

Initial disclosure will often tell you that video recorded evidence (VRE) does not exist. It is your duty to question all lines of investigation. There is a difference between the police not having obtained VRE (in line with their duties to investigate) and VRE not existing because there simply was no camera in operation. Police must investigate thoroughly and follow all reasonable lines of enquiry, whether they point towards or away from any suspect. Failure to do so may be the subject of a successful abuse argument.

Annahita’s experience:

Annahita's client was elderly with ill-health. On the day of trial, the Crown had not complied with their disclosure duties. There was no Schedule of Unused Material. Three body-worn camera clips were missing. The prosecutor said there were no known CCTV cameras in the vicinity of the alleged crime scene. Sitting in the court room, Annahita's quick Google Maps search of the scene revealed two CCTV cameras directly above the relevant location. Her client had made a counter allegation to the police and the prosecutor was unaware of this. The Crown asked for an adjournment to serve proper disclosure, but her client’s best interest was to ensure matters proceeded quickly given her state of mental health. It was also in the public interest to ensure the CPS do not fall into a routine habit of failing with their disclosure duties and applying for adjournments on the day of trial to right their wrongs. Accordingly, Annahita opposed the Crown's application and the Bench rightfully refused it. The Crown offered no evidence. It is of utmost importance to test all information that comes your way and the way in which it is obtained. But for Annahita's Google search, the trial may have proceeded. 

3. Identifying the issues in the case

The Preparation for Effective Trial Form (PET form) and Better Case Management form (BCM) are normally completed by the defence, prosecution and the court clerk at first appearance. The latter being completed when the case is sent to the Crown Court. There is an obligation under the Criminal Procedure Rules to identify the issues in the case. The guidance on these rules explains this as follows:

“The key to effective case management is the early identification by the court of the relevant disputed issues [Crim PR 3.3(2)(a)]. From the start, the parties must identify those issues and tell the court what they are [Crim PR 3.3(a)]. If the parties do not tell the court, the court must require them to do so. The relevant disputed issues must be explicitly identified and the case must be managed by the court so that ‘live’ evidence at trial is confined to those issue.”

Enter the client who says nothing more than, “I didn’t do it”, and leaves you with no instructions other than to test the Crown’s case. Frustrating as this may be to all parties, that client, has every right to choose that stance. The ethical considerations here are the presumption of innocence, the right to a fair trial, and the right to a defence. If the only issue in the case is a factual denial then the Crown must be put to proof. There is no law obliging more information to be provided. It is imperative to advise your client that it may harm his / her case should s/he rely on a defence that was not identified early on; “Well why didn’t you say this before?” is a typical question in cross-examination 

Ylenia’s experiences: 

(1)  The BCM form: This case concerned a seven-handed drugs conspiracy which was inevitably going to be sent to the Crown Court. The client wished not to tell Ylenia his version of events before having had sight of all the evidence. He instructed her would give no indication as to plea at this stage. He had every right to do so. The legal adviser, however, seemed to think otherwise, and an argument ensued as to whether or not Ylenia should identify the issues so early on. Ylenia could not, they were not in her instructions. 

The BCM form rightly states that you must list the issues “in so far as they are known”. It anticipates that you may not know the issues. This is compliant with rule 9.3 of the CPR, namely, that “Where the Court sends a defendant to the Crown Court for trial, it must specify, (a) each offence to be tried; (b)in respect of each, the power exercised to send the defendant for trial for that offence; and (c)the Crown Court centre at which the trial will take place.” 

You are under obligations to (a) carry your client’s instructions forward and (b) to maintain confidentiality. You must also not irritate the Court, not least because a smooth hearing convenes all parties. Being practical assists everybody. The legal adviser could not have her way on this occasion. The law was in Ylenia's favour and good preparation allowed her to point this out. She asked the prosecutor to point her towards a law obliging Ylenia to state the issues and she could not. To complete the relevant box on the BCM form Ylenia used the words “issues currently unknown because disclosure is still outstanding.” It wasn’t quite what the legal adviser wanted, but her client’s interests remained protected. 

(2) The PET form: It is important to note case law confirms that the PET form is not evidence and cannot be used as such. This was confirmed in In Randell v DPP [2018] EWHC 1048 (Admin) and Valiati v DPP; KM v DPP [2018] EWHC 2908 (Admin). In Randell v DPP the appellant, on completing the PET form prior to trial, stated: "defence put the Crown to proof on all aspects of their case; factual dispute/denial". The legal advisor recorded that "the defendant refused to state any issues, warned that they cannot raise issues not previously mentioned". At trial the Crown sought to adduce the complainant’s evidence by way of hearsay under s.114(1)(d) of the Criminal Justice Act 2003 (CJA) (i.e. in the interests of justice), on the basis that the Defence had not identified the issues for trial. The Magistrates accepted this argument. On appeal it was recognised that the appellant had not engaged in assisting the Court to identify the issues for trial, but regard must be had to s.114(2) of the CJA, namely how important the evidence is in the context of the case as a whole. The Crown conceded that the appellant had not gained an unfair advantage by not identifying the issues in the case during preliminary proceedings. Most importantly, the lack of engagement with the pre-trial process cannot be equated with an acceptance of the truth of a complainant’s evidence. 

4. Pressuring the Defendant to Plead

This is uncommon but it has happened, and at times can enable junior counsel to second guess their advice to their client.

Ylenia’s experience:

A client charged with driving a vehicle when the alcohol level is over the prescribed limit sought to challenge the reading of the accuracy of the intoximeter’s reading. There is a legal presumption that the proportion of alcohol in the defendant’s breath at the time of the offence was not less than that in the specimen. There is still scope for a defence: the onus is on the defence to prove he could not have drunk as much as was shown on the reading. Ylenia's client instructed he was able to provide such proof. The case was heard by a lay bench. The prosecutor insisted that this was not a legitimate defence (which was wrong at law!) and that the issues in the case were not identified (even though they clearly were). The Bench agreed with Ylenia's opponent. Over 30 minutes, the chair sought to pressure her and her client to give more details which they did not have at the time. Having not yet had full disclosure, nor an expert report, nor collected defence witness statements, none could be provided. The chair attempted to pressure my client to plead guilty, saying the words: “You do not have to listen to your counsel if she’s told you not to plead guilty, you have no defence!.” 

This is wholly inappropriate! The ethical considerations here are that “you must promote fearlessly and by all proper and lawful means the client’s best interests… you must do so you must do so without regard to the consequences to any other person”. This means not succumbing to pressure when it is presented to you. It is important to remain calm and collected and continue assisting the Court in as far as you can, but never at the expense of compromising your client’s interests or instructions. The first way forward was to point to the law, case law and any evidence (or lack thereof) which supports your client’s position. In this case there was not much Ylenia could say to assist the Court because the Crown had not fully disclosed the MGDDA. Having not budged within that time, the Court had no choice but to accept the PET form as she completed it. 

5. Bail

A discussion on preliminary proceedings would not be complete without a discussion on bail, normally your client’s biggest concern. The Crown will often use the seriousness of the offence to justify grounds against granting bail. In isolation, this cannot be a reason to justify custody. 

The test for bail is not whether bail should be granted. Lay justices often get this point wrong and it is vital to direct them as to the law: Defendants are entitled to bail as a matter of right, and the question for the Court is whether or not bail should be granted, but whether or not custody is necessary. For this reason, the Crown must support an argument for custody, not against bail. Any fear such as for failing to attend court, or potential commission of further offences must arise from somewhere, normally your client’s antecedent history. So if your client is of good character, normally no such fear can exist. 

Ylenia’s experience: 

Her client was found with 26Kgs of cocaine in his car. The matter was to be tried in the Crown Court. He was of good character. The Crown sought to use the seriousness of the offence to justify custody on the basis of a likelihood of conviction and lengthy custodial sentence. Further, the Crown raised fears of failing to attend and the commission of further offences. She made a bail application on the grounds that her client had no history of failing to surrender, no history of committing offences on bail and no history of non-compliance with court orders. The Crown were effectively trying to put aside the presumption of innocence in favour of speculation. She quoted paragraphs 10 and 11 of R v Thompson [2005] EWHC 2345 (Admin) which state that the likely sentence could not of itself provide grounds for a remand in custody. The application was granted. The Crown appealed. The decision was confirmed on appeal. 

Conclusion

We wish all those starting pupillage the very best of luck. The Magistrates’ Court may be intimidating at first, but the reality is that criminal procedure rules will always benefit basic principles such as the presumption of innocence. We work in difficult times and patience is key. This is why being well equipped will assist the Court when necessary and foster good relations with your opponent. In essence however, a lack of resources and court pressure is always secondary to your clients’ best interests. 

Annahita Moradi and Ylenia Rosso

Cell site analysis – Cell Coverage and Instructing an Expert

Cell site analysis features heavily in serious crime cases, particularly within county line drug and murder cases.   It is the process of determining the general location of telephones at times of their past connections via analysis of the cells used.  Cells are structure on the mobile network usually placed on masts/buildings.  They are assigned a unique ID number, their Cell ID.  This ID allows their location and type to be identified and plotted and is recorded by the network provider (such as EE, T-Mobile).

Cell site analysis is based on the information stored by the mobile network providers.  With the exception of O2, in general this past cell use is limited to text messages, start and end of calls and the use of data sessions [1]. Other cell use by the phone is not logged. 

In certain areas, the change of use of a cell and/or having a different start and end cell for a call does not necessarily mean that the phone has moved.  Similarly, the same start and end cell for a call or in use over a certain time, does not mean that the phone has remained static.   The issue is more complex and must be fully evaluated for each cell use/change. 

A cell’s coverage is the area where a cell can potentially be used to make calls/texts and/or use data.  The purpose of cell site analysis is to assess this coverage and determine where a phone may be at any given time of interest based on the cells it used.  

Cell coverage is dependent on a number of factors, however, the main influences are:

  • Type of cell – if it is a small cell (femto) providing coverage in a building or if it is a cell on a large mast/building will greatly influence the coverage.
  • Height of cell in the area – cells on masts at higher points within the general landscape provide a much larger ranges of coverage than those on smaller masts/street masts.
  • How built up the area is – in big cities, often there are large buildings densely throughout the area. This can greatly influence the coverage including potential for bouncing off buildings and no coverage close to the cell.
  • Bearing (azimuth) - most cells have a direction in which they are pointing.  Although there may be some coverage to the back of the cell, in general the coverage is directed to the area in which the cell points.  This can mean you can have a location 50 meters from a cell, however, a cell of interest may not provide coverage to it where it points in the opposite direction.

These factors can greatly change cell coverage which can range from under 100m to many miles from the cell, including in one of my past cases where this was almost 20 miles.  

Cell Coverage and Network Readings

When a telephone uses a cell, it can only be concluded that it was within the coverage area of that cell at that time.  Cell site analysis cannot be used to pin-point a phone to a particular location. 

In any given location/area, there may be many cells which can provide coverage.  Except in very rural locations or areas close to a cell, it is common in my experience to find multiple cells which can be used in each location, in some areas this can exceed 15 cells.  It is not a simple problem of a separate cell providing coverage to each point within the UK. 

When cell site analysis is conducted, all cells use by a phone must be considered around a timeframe of interest and never in isolation.  Where more than one cell is used around the same time, this means that the phone is within the general intersecting coverage of the cells used, which is usually a smaller overall area than the coverage of each of the respective cells.  Additionally, the cells used before and after a time of interest will also potentially influence where a phone may have resided.  This is important, since often compiled evidential tables and maps of cell use may have dual purpose, for example, to show connections of interest only and hence may omit other vital cell information which may site the phone in a different area.

Extensive network readings/surveys may assist in establishing the general extent of coverage area of the cell(s) of interest used, these are known as coverage mappings.  However, gathering these readings is very time consuming to conduct fully (approximately 5-15 hours required per cell in a given area).  Hence, they are used sparingly in a case, otherwise the costs and time quickly escalates.  Instead, an expert may be able to make predictions in relation to if a particular cell may provide coverage to a certain location(s)/area and to also determine general usage and travel behaviour in a process known as a paper-study.  This process usually greatly reduces the overall required readings, and in my experience can sometimes alone address the required analysis.

I regularly receive instructions to “determine all cells providing coverage in an area/location”.  Network readings may be captured to answer the question “Do the cell(s) used by the telephone of interest provide coverage to a location/area?”.  However, other cells in the area not used by the phone, are usually not relevant in this context.  Similarly, unless phones are roaming or in use via an emergency call, cells available on other mobile networks will not be relevant.

On occasions, I also receive instructions about the ‘most likely’ or ‘best serving’ cell in a location.  This in my opinion is an invalid proposition, it is also stated as misleading within the Forensic Science Regulator Code of Practice within Cell Site Analysis [2].  To determine the most likely cell use would require a considerable amount of data over a sustained period of time, except in a very small scope of situations.   Cell site analysis in general cannot answer this question. 

Where previous network readings have been captured by an analyst these can be requested and checked.   Further network readings would not negate their findings, hence if a cell has been captured providing coverage in a location of interest, then that is a factual point.  However, further readings may identify a larger coverage area of a cell or find a cell of interest serving in an area previously not found/surveyed.

Instructing an Expert

In the past year I have been instructed to:

  1. “Determine the coverage of all cells used by the telephone in the 6-month conspiracy period”
  2. “Check the home cell use for X and for connections between the phones X and Y.”
  3. “Check all of the opposing expert’s work”.

Cell site analysis cases can vary from a few hours work to 150+ hours.   This makes it impossible to estimate without clear information.  It heavily depends on the numbers of days of analysis and the amount of cell use as well as the relevance of specific use around certain times.  Phone use can vary considerably from a few cells used per day to in one case I was instructed where the average was over 1,000 cells.  

The first instruction listed above depending on the phone use, could take more than a year to complete since determining the coverage of cells is very time consuming.  In the majority of cases it will also be unnecessary, with a paper-based study of the records being able to show the general use and travel.  Expert coverage predictions can also be used which can also assist in the ability to target specific use of interest with network readings which will often significantly narrow the work and costs/time involved.  

Within the second instruction, it is unclear why these questions are being asked.  Is it to check only those questions or is to assist with the attribution of the phone?  It is essential for an expert to know the overall objection so they can determine if it is the correct question and also what other evidence may assist.

The third instruction will vary greatly depending on the expert’s interpretation.  This can sometimes result in an expert critiquing the report and not actually analysing the raw data, through to providing a full analysis and checking the accuracy of all their work and other relevant points.  The time/costs involved in both such scenarios will vary greatly, and the estimates obtained and resulting work will not be comparable.  Although a critique may highlight general issues, it is unlikely to find mistakes, potential missed evidence or other defence points of interest.   There may also only be certain dates and phones of interest/relevance which means the checks could be narrowed to these only and costs/time reduced. 

Information to Provide an Expert for a Comprehensive Estimate

In most cell site analysis cases, an expert requires case information to accurately provide an initial opinion/guidance and to establish the type of analysis required to accurately estimate:

  • What is the purpose of the analysis? Particularly, what are you trying to ascertain/achieve?
  • What are the dates/times of particular significance and which phones are of interest?
  • Details of what is alleged and what the defendant states has occurred with regard to these events.   Do they state they are located elsewhere?
  • Is the phone attribution accepted?  What about other alleged phones?
  • Where this is more than one attributed phone then evidence can be compared between the devices such as co-location analysis.  Hence, accepted attribution phones can be just as important within the analysis.
  • Attribution is a large area where other telecommunications analysis may better assist.
  • Is there any other location evidence?  For example, a car tracker or potential location points stored on a phone handset.

 Your cell site analysis expert will also require:

  • Expert/analyst reports, statements, charts and mappings.
  • Details of CCTV, witness and ANPR evidence.

Ideally, they also need for all phones of interest “the original, complete and unredacted PDF & spreadsheet connection records (call data records) including full cell information, including data use and DDR information”.  If you have not received these, you will need to request them.  These records are the evidence on which all cell site analysis examinations are based, hence, in a similar way to how a computer expert requires a full copy of a computer, a cell site analysis expert needs the complete set of original records as the basis of their work.  Using original and unaltered data is a fundamental principle of all digital forensics.

Conclusions

Cell site analysis now features in most types of criminal cases.  It is used to assess the location of phones at the time of their past connections, principally to assess where the telephone may have been located based on what cells were used.  The area in which the telephone may have been located is known as the cell(s) coverage.   With respect to cell use and coverage, it is important to note:

When cell site analysis is conducted, all cells used in a time period of interest must be considered.  Specific cell use cannot be considered in isolation since the cells used around the same time and also before and after will influence the potential location of a telephone.

An expert paper-study analysis of cell use can prepare a general synopsis of the locations of use of phone(s) and their general travel.  This can be performed initially to determine general usage and to also highlight cells/times/locations of interest where network readings/surveys may be required.   Since these surveys, particularly coverage mappings, are time consuming to capture, it is important they are only conducted when required.

Previous readings captured by other analysts can be requested and checked.  Further readings would not negate these findings, however, they may identify a larger coverage area and other locations where the cell(s) can provide coverage.

Other cells in the area or the ‘best serving’ cells are not generally relevant since it is only the cells used by the phone(s) that are of interest. 

The connection records are the data on which all cell site analysis is based.  It is a fundamental principle of digital forensics that these should be provided in the original, complete and unaltered formats.  

Sam Raincock BSc (Hons), MSc, CISSP, CCE, MBCS, MEWI, CEng FIET

Computer and Telecommunications Forensic Expert

[1] Data use of cells by phones is not ‘as is’ and must be carefully considered by an expert in terms of its meaning and use.  

[2] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 528197/FSR-C-135_Cell_Site_Analysis_Issue_1.pdf​