Up-skirting, PET forms and adjournments

Legislative change 

The Assaults on Emergency Workers (Offences) Act 2018 is effective for all offences on or after 13 November 2018. It creates an aggravated form of common assault (or battery), triable either way, carrying 12 months imprisonment on indictment. The right to elect will be welcomed by many clients. The offence is committed when the assault is committed against an emergency worker acting in the exercise of functions as such a worker. 

The circumstances in which a person is ‘acting in the exercise of functions as an emergency worker’ are not precisely defined but include circumstances taking place when the person is not at work but is carrying out functions which, if done during work time, would have been in the exercise of functions as an emergency worker.

‘Emergency worker’ is widely defined by section 3 of the statute and includes police officers, prison staff, a person employed for the purposes of providing, or engaged to provide, fire services or fire and rescue services, and NHS staff.

The statute then lists a series of offences where the court shall treat a conviction in such circumstances as an aggravating factor. In relation to other offences the court may treat the circumstances as an aggravating factor.

The Voyeurism (Offences) Act 2019 creates, for activities on or after 12 April 2019, new either-way ‘up-skirting’ offences, carrying two years on indictment, by inserting section 67A in the Sexual Offences Act 2003. Under that section a person (A) commits these offences if (i) without the complainant’s (B’s) consent, and (ii) without reasonably believing that B consents, either: 

• A operates equipment beneath the clothing of another person (B); or 
• A records an image beneath the clothing of that person.
• A does so with the intention of enabling A or another person (C) for a purpose defined by the statute to observe:

(i) B’s genitals or buttocks (whether exposed or covered with underwear); or

(ii) the underwear covering B’s genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible.

The purposes defined by the statute are:

(a) obtaining sexual gratification (whether for A or C);

(b) humiliating, alarming or distressing B.

Thus if A’s only motive was financial, this would not be caught by the act.

A picture taken for these purposes but other than beneath clothing is not a crime under this provision.

These ‘up-skirting’ offences are subject to the sexual offence notification requirements in the same circumstances as the established voyeurism offence, but only if committed for sexual gratification.

Case management

The use of preparation for effective trial (PET) forms continues to be misunderstood by courts and prosecutors. Their proper use has been considered in two recent cases. In Randell v DPP [2018] EWHC 1048 (Admin), on the PET form the Crown was put to proof and no issues were initially identified although, on a change of solicitors, the main issue was confirmed. The complainant was required to attend. The complainant attended but the Crown sought to rely on her section 9 statement under section 114(1)(d) of the Criminal Justice Act 2003 saying that the defence had not identified any issue on its contents. The decision of the court to accept that argument was flawed, as the Crown Prosecution Service conceded on appeal. Being unhelpful was not a concession of the truth of the complainant’s evidence (which was covered by section 141(1)(c)). The court had to have regard to section 114(2) and the statement was important in the context of the case as a whole. It was critical to the charges. 

In Valiati v DPP; KM v DPP [2018] EWHC 2908 (Admin) the defence argued that critical evidence was improperly taken from the form, so as to treat the content of the form as evidence to fill a gap in the prosecution case or support a conclusion reached. The court held that if circumstances arise in which it is sought to argue that the information provided on a PET form should have evidential significance, an appropriate application must be made and the hurdles both in relation to hearsay and section 78 PACE satisfied. The court is entitled to see the PET form under Crim PR 24.13(2) but it may not normally be put in evidence (Crim PD 24B4) as long as the case is conducted in the spirit of the Criminal Procedure Rules. The justices had confused ‘the provision of case management information with evidence without the same being formally introduced’. Only formal section 10 admissions in section 9 of the form might be used as evidence and defence lawyers should be very careful as to the use of that section of the form.

Adjournments and reopening

R (Rathor) v Southampton Magistrates’ Court [2018] EWHC 3278 (Admin) confirms that an adjournment should have been granted when a defendant had food poisoning and could not attend trial in a case, already adjourned for trial on three occasions, through no fault of his. When making a decision as to adjournment under section 11 of the Magistrates’ Courts Act 1980 (MCA), if the court believes the grounds for an adjournment are inadequate, the court should ordinarily express its doubts and thereby give the defendant an opportunity to seek to resolve them. ‘If a defendant claims to be ill with apparently responsible professional support for his claim, the court should not reject that claim and proceed to hear the case in a defendant’s absence without satisfying itself that the claim may properly be rejected and that no unfairness will thereby be done’. In any event the matter should have been reopened once the position was clear. Section 142 of the MCA is not limited to cases where the magistrates have made a mistake. The jurisdiction is broader. The fresh evidence in this case established that the non-attendance was involuntary.

Sentencing guidelines

For all relevant offences relating to child cruelty sentenced on or after 1 January 2019 this new guideline applies. The offences are:

• Cruelty to a child – assault and ill treatment, abandonment, neglect, and failure to protect (Children and Young Persons Act 1933 (section 1(1)).
• Causing or allowing a child to suffer serious physical harm (Domestic Violence, Crime and Victims Act 2004 (section 5)).
• Causing or allowing a child to die (Domestic Violence, Crime and Victims Act 2004 (section 5)).
• Failing to protect girl from risk of genital mutilation (Female Genital Mutilation Act 2003 (section 3A)).

The guideline is in the standard form but has an additional step 5 dealing with the parental responsibility of sole or primary carers.

When considering whether to impose custody the court should step back and review whether this sentence will be in the best interests of the victim (as well as other children in the offender’s care). This must be balanced with the seriousness of the offence and all sentencing options remain open to the court, but careful consideration should be given to the effect that a custodial sentence could have on the family life of the victim and whether this is proportionate to the seriousness of the offence. This may be of particular relevance in lower culpability cases or where the offender has otherwise been a loving and capable parent/carer.

Anthony Edwards is a solicitor at TV Edwards