The Online Safety Act 2023 creates a new offence of encouraging or assisting serious self-harm. The offence applies from 31 January 2024.
What is the new offence?
A person commits an offence if:
they do a relevant act capable of encouraging or assisting the serious self-harm of another person;
and their act was intended to encourage or assist the serious self-harm of another person.
“Serious self-harm” means self-harm amounting to, in England and Wales and Northern Ireland, grievous bodily harm within the meaning of the Offences Against the Person Act 1861.
The Act defines the means of communication by which a person “does a relevant act”, which includes in-person or electronic communications, publications, correspondence, and the sending or giving of items with stored electronic data.
The offence carries a maximum penalty of 5 years imprisonment.
Why is this offence needed?
The government explained the need for a new offence in these terms:
“I am aware of particular concerns around content online which encourages vulnerable people to self-harm. While the child safety duties in the bill will protect children, vulnerable adults may remain at risk of exposure to this abhorrent content. I am therefore committing to making the encouragement of self-harm illegal. The government will bring forward in this bill proposals to create an offence of sending a communication that encourages serious self-harm.
This new offence will ensure that trolls sending such messages to a person, regardless of the recipient’s age, face the consequences for their vile actions.”
The new offence appears to have strong support from interest groups.
The Molly Rose Foundation, a suicide-prevention charity aimed at young people, said it also supported the proposed new offence. The charity was established by the friends and family of Molly Russell, a 14-year-old girl who took her own life after viewing images promoting suicide and self-harm. In September 2022 a coroner ruled that content Molly had viewed relating to depression, self-harm and suicide “had contributed to her death in a more than minimal way”. The foundation said the proposed new offence would be a “significant move”.
Contact an expert criminal solicitor
Our role is to keep up to date with changes to existing criminal laws and brand new criminal legislation. If you are arrested or face court proceedings for a criminal matter you will wish to take advice from an experienced criminal lawyer.
Since 29th November 2022 a court can impose a positive requirement on a defendant under an SHPO (section 175 of the Police, Crime, Sentencing and Courts Act 2022).
This, says the government, includes a requirement to participate in polygraph testing for sex offenders.
In a recent case the Court of Appeal confirmed that there was no objection in principle to a Polygraph testing requirement, but certain safeguards would need to be observed. The Court rejected challenges to such orders under Articles 6 & 8 of the European Convention on Human Rights.
These safeguards are:
That the court must receive evidence about the suitability and enforceability of such a requirement from the individual or an individual representing the organisation who is specified to supervise.
As with SOPOs, no order should be made by way of SHPO unless necessary to protect the public from sexual harm as set out in the statutory language.
If an order is necessary, then the prohibitions imposed must be effective; if not, the statutory purpose will not be achieved.
Any SHPO prohibitions imposed must be clear and realistic. They must be readily capable of simple compliance and enforcement. It is to be remembered that breach of a prohibition constitutes a criminal offence punishable by imprisonment.
As re-stated by R v NC [2016], none of the SHPO terms must be oppressive and, overall, the terms must be proportionate.
Finally, any SHPO must be tailored to the facts.
There is no one size that fits all factual circumstances.
Scrutiny
It is clear that before imposing polygraph testing for sex offenders there must be the utmost level of scrutiny to ensure it is necessary and proportionate. All of our advocates are trained in this area of law and will ensure that there is an objection to any inappropriate terms being included in such orders.
The Dangerous Dogs (Designated Types) (England and Wales) Order 2023 was laid before parliament on 31 October 2023, which has important implications for the owners of the dog breed “XL Bully”. This statutory instrument will be accompanied by other legislative changes that form a package of laws that will fundamentally change the ownership rules in respect to this dog breed.
The government says that the principal objective is to introduce controls on the existing population of the this dog type to reduce the risk that they pose to public safety and to reduce the overall number of these dogs in the dog population.
Since 31 December 2023 the offences in section 1(2) of the Dangerous Dogs Act 1991 (“1991 Act”) have applied to the XL Bully type.
This will mean that all owners of dogs of the XL Bully type must keep their dogs on a lead and muzzled when in a public space.
It will also mean that anyone doing any of the following will be committing an offence under section 1(2) of the 1991 Act:
breeding, or breeding from, a dog of the XL Bully type.
selling, gifting or exchanging XL Bully type dogs (this will include rehoming).
abandoning or allowing XL Bully type dogs to stray.
advertising XL Bully type dogs for sale, exchange or gifting.
Offences from 1 February 2024
From 1 February 2024 it will be a criminal offence to own an XL Bully in England and Wales unless you have a Certificate of Exemption for your dog.
You will have until 31 January 2024 to apply for this exemption. Applications will be subject to a £92.40 application fee, to cover administration costs.
To keep an XL Bully dog you must ensure it is:
microchipped
kept on a lead and muzzled at all times when in public
kept in a secure place so it cannot escape
You will also need to neuter your dog. If your dog is less than one year old on 31 January 2024, it must be neutered by 31 December 2024. If your dog is older than one year old on 31 January 2024, it must be neutered by 30 June 2024.
As the owner, you must also:
be over 16 years old
take out insurance against your dog injuring other people – this is provided through Dogs Trust Membership
be able to show the Certificate of Exemption when asked by a police officer or a council dog warden, either at the time or within 5 days
Giving up an XL Bully dog to be euthanised
If you choose not to keep your XL Bully dog, you should take it to a registered vet for it to be euthanised.
You can claim £200 compensation towards the costs. You and your vet will need to fill in a compensation form to make a claim.
Contact one of our expert criminal lawyers
Our solicitors are able to advise you in relation to any aspect of the laws concerning animal ownership. Please do not hesitate to contact us if you are facing an investigation or prosecution.
Newly published research suggests that pre-recorded evidence in chief and cross-examination, often referred to as “section 28 evidence”, may be more advantageous to the accused that live evidence given in court before a jury. Conviction rates are reported to be 10% lower when this type of evidence is used (and up to 20% lower in rape cases).
In the 7-year period June 2016 -June 2023, s28 recordings were used in 4392 cases, involving 4645 defendants and 28793 charges.
Key findings of the research
Contrary to suggestions made early on in the piloting of section 28, the existence of a s28 recording does not lead to more guilty pleas.
In fact a s28 recording is associated with fewer guilty pleas. The guilty plea rate in section 28 cases in 2016 to 2023 was 10%. This represents the percentage of guilty pleas on all charges in all pre-recorded evidence cases, and is the lowest guilty plea rate in the Crown Court.
The overall jury conviction rate on charges where this evidence was used is 61%. This shows that juries convict more often than acquit when this evidence is used. This analysis demonstrates that the view expressed in the 2023 Ministry of Justice section 28 Process Evaluation, that it would be impossible to know whether s28 evidence impacted juror decision-making or outcomes, is incorrect.
The jury conviction rate was almost 10% lower when pre-recorded evidence was used (61%) compared to when it was not used (70%), and the hung jury rate was 3 times higher with section 28 cases (2.3%) than without this evidence. (0.7%).
This lower conviction rate is regardless of:
whether the s28 witness is a child/vulnerable or an adult/intimidated,
whether the s28 witness is female or male, or
whether the offence is a sexual offence or a non-sexual offence.
In relation to rape offences in particular, jury conviction rates when s28 evidence is used are substantially lower for all types of rape offence, whether for adult or child rape offences.
In most instances, the jury conviction rate for rape offences is 20% lower when the complainants’ cross examination is pre-recorded compared to when the complainant’s cross examination is not pre-recorded.
The findings that jury conviction rates are consistently and substantially lower for all offences when section 28 evidence is used is very strong correlational evidence that juries experience pre-recorded cross examination differently than they do other forms of live cross examination.
The lower jury conviction rates with s28 suggest an “inequality of arms” between the main prosecution witness and defence witnesses in cases with s28 prerecorded cross examination. That is likely to be especially the case between the defendant and the main prosecution witness if the defendant chooses to give evidence live in a s28 case while all of the main witness’s evidence has been pre-recorded (evidence in chief recorded under s27 and cross-examination/re-examination pre-recorded under s28).
What influences jury decision-making in these cases?
No comparability between main prosecution witness and other witnesses including the defendant. The s28 witness is likely to be the only witness in a case where no evidence is presented live to the jury (either in court with or without a screen or via a remote link).
Timing of the main prosecution witness evidence. The evidence of the main witness for the prosecution is presented first; it is the first evidence a jury will see/hear; it will all be presented by video playback (twice); all other witness are likely to appear in person and appear after the witness with all pre-recorded evidence.
Evidence structured differently for s28 witnesses from any other witness. This includes (1) the s27 ABE evidence in chief recording that has to serve a dual purpose of an investigative tool for police at the start of a case and evidence in chief to a jury at the end and (2) often more limited and formalised cross examination when s28 is used.
Disjointed nature of evidence in chief and cross examination. This may arise for several reasons: because the ABE is primarily recorded for police evidence gathering purposes and not specifically for trial evidence purposes; because the s28 style of presentation and questioning is different from ABE and also different from other in-court cross examination of other witnesses; because the witness is likely to look and sound different in the s28 recording than in the s27 ABE recording given the differences in recording location, set up and time.
Poor quality of pre-recorded evidence. This may apply to both s27 ABE (evidence in chief) and s28 (cross-examination) evidence.
Poor quality of playback equipment in court. This can include poor audio (necessitating written transcripts for the jury and resulting in the jury looking at the transcript and not the witness), screens too far away, images too small within screens, etc., and may apply to either or both s27/ABE and s28 evidence.
Inherently weaker cases use s28. It is also a possibility that s28 is used in cases where the evidence needed for conviction is weaker than in cases that do not use s28, and this is what is producing lower jury conviction rates in s28 compared with non s28 cases.
Conclusion
The authors of the research argue that:
‘…it would be prudent for the police and CPS to routinely advise witnesses of the lower jury conviction rate when pre-recorded cross examination is used. That way witnesses, especially adult witnesses that would be capable of giving live evidence (either in court with or without screens or via live link), will be empowered to make their own informed decision about which if any special measures they require and wish to use in order to give their evidence.’
Contact us for pre-recorded evidence cases
Pre-recorded evidence is mainly used in Crown Court trials. Seeking legal advice at the earliest opportunity will allow us to provide advice to you about the law and the evidence in either a police investigation or a prosecution.
If you have been interviewed by the police and face court proceedings we can make a real difference to the outcome of your case.
Examples of how we will prepare your jury trial can be read here.
We have offices across the East Midlands and will happily travel across the country to provide representation types of offences.
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At VHS Fletchers, we recognise the key to providing a good service to our clients is being able to work as a team and provide a quick and reliable service.
Our Derby lawyers escape for Christmas
Our ability to work as a team was certainly put to the test by our Derby criminal lawyers when they went to Make Your Escape, the immersive escape room experience in Derby. As part of the Derby office Christmas celebrations they took on the challenge of the ‘Spellbound’ escape room with a difficulty rating of 5 out of 5.
According to the escape room staff, this was one of the most difficult rooms in the Midlands to escape from. No other team had managed to negotiate the various clues and spells to escape on that day.
Our Derby lawyers Denney Lau, Nicola Hunter, Sarah Green,Georgia Collins, Chloe Wright, Siobhan Moore and Patrick Fisher and the team managed to escape in a record time of 46 mins 45 seconds, leaving nearly 15 minutes to spare. On the night our team was supplemented by Dan Church, who had recently left employment with us to return to the independent bar.
There was no better way to illustrate the team spirit that can be found at our Derby office and their fast thinking in a difficult and pressured situation. You’ll agree that the ability to think on your feet is a key attribute to successful legal representation.
Contact one of our Derby criminal lawyers
Now that they are free to continue to provide 24 hour advice and representation at police stations and at court, should you require our services than contact details can be found here.
Our advice and assistance in police interview will always be free of charge to you, and legal aid is often available for Magistrates’ and Crown Court representation. We can assist you with application.
Alternatively, to contact us, you can use the form below:
