CrimeScribe Yearbook Volume 2 by Professional Dentistry

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Contents...

1 2

CrimeScribe Foreword ................................................................................................. 4 CrimeScribe Edition No. 54........................................................................................ 10

Crown Court Disclosure in document-heavy cases........................................................... 16 So what does all this mean in practice?.............................................................................. 18 Initial details of the prosecution case.................................................................................. 20

Where the defendant has been bailed by the police...................................................... 22

NEW FORMS............................................................................................................................. 27 The Sentencing Council......................................................................................................... 29

R v Jagelo SCCO Ref: 96/15 (6th of January 2016)............................................................ 30

Regina and David Stuart Platt [2016] EWCA Crim 4........................................................... 32

Premises Orders....................................................................................................................... 102 Statutory instruments.............................................................................................................. 104

CrimeScribe Edition No. 60........................................................................................ 106 The Sentencing Council......................................................................................................... 106

The 2017 Criminal Legal Aid Contracts................................................................................ 109

Sexual Risk Orders................................................................................................................... 111

Legal aid contributions.......................................................................................................... 114

Case-Law................................................................................................................................. 115

Case-law.................................................................................................................................. 29

Prohibition Orders................................................................................................................... 100

Case sent to the Crown Court – no indication of guilty plea........................................... 26

Case Law................................................................................................................................. 92

Guilty plea in the Crown Court............................................................................................. 26

CrimeScribe Edition No. 59........................................................................................ 92

Legislation................................................................................................................................ 98

A uniform national Early Guilty Plea scheme...................................................................... 12

So what does the Act do?.................................................................................................... 85

Better Case Management (BCM)........................................................................................ 12

Psychoactive Substances Act 2016...................................................................................... 84

Better Case Management initiative..................................................................................... 10

Summary.................................................................................................................................. 16

CrimeScribe Edition No. 61........................................................................................ 118

Armando Andrade [2015] EWCA Crim 1722....................................................................... 33

Initial Details of the Prosecution Case.................................................................................. 118

CASE-LAW................................................................................................................................ 120

CrimeScribe Edition No. 55........................................................................................ 36

The scrapping of the Dual Contracts proposals................................................................. 36

The Criminal Courts Charge.................................................................................................. 37

The facts of the Ruddock case............................................................................................. 38 The Sentencing Council......................................................................................................... 42

Credit for Indications of guilt................................................................................................. 44

Amendments to the 2015 Criminal Procedure Rules.......................................................... 49

The sentencing of Dangerous Offenders – August 2016.................................................... 128

Chan Wing-Siu v The Queen................................................................................................. 38

A word or two about Section 4............................................................................................. 121

10 CrimeScribe Edition No. 62........................................................................................ 136

CASE-LAW................................................................................................................................ 37

Fitness to plead in the Crown Court..................................................................................... 136

CASE-LAW................................................................................................................................ 141

11 CrimeScribe Edition No. 63........................................................................................ 150 CASE-LAW................................................................................................................................ 151

QASA........................................................................................................................................ 49

Statutory Instruments.............................................................................................................. 159

Prosecuting and Defending in the Magistrates’ Court...................................................... 160

CPD.......................................................................................................................................... 50

12 CrimeScribe Edition No. 64........................................................................................ 170

CrimeScribe Edition No. 56........................................................................................ 52

Legal aid rates........................................................................................................................ 52

Statutory instruments.............................................................................................................. 52

The Sentencing Council......................................................................................................... 170

Driving or attempting to drive............................................................................................... 172

CASE-LAW................................................................................................................................ 182

Directives................................................................................................................................. 53 Bail............................................................................................................................................ 55

The Sentencing Council......................................................................................................... 56

Guidelines concerning Dangerous Dog offences.............................................................. 57

Amendments to the Criminal Procedure Rules 2015.......................................................... 58

13 CrimeScribe Edition No. 65........................................................................................ 184

Case-Law................................................................................................................................. 61

Statutory Instruments.............................................................................................................. 64

CASE-LAW................................................................................................................................ 67

Legal aid.................................................................................................................................. 72

CPD for barristers.................................................................................................................... 74

Criminal cases review commission....................................................................................... 74

CrimeScribe Edition No. 58........................................................................................ 76

CASE-LAW................................................................................................................................ 76

Let us now consider Section 35B........................................................................................... 80

SMARTPHONES........................................................................................................................ 82

Unrepresented defendants in the Magistrates’ Court....................................................... 83

Early guilty plea outcry!.......................................................................................................... 83

Statutory Instruments.............................................................................................................. 184 Codes of Practice under PACE............................................................................................. 185

The Sentencing Council......................................................................................................... 185

Case-Law................................................................................................................................. 185

CrimeScribe Edition No. 57........................................................................................ 64

Section 1 CrimeScribe Foreword

A Forward to the 2016 Editions of CrimeScribe Hello and welcome to this forward to the 2016 editions of CrimeScribe covering editions 54 – 65. CrimeScribe is a monthly digest of all matters of importance to criminal practitioners. Statutory instruments, legislation, guidance from The Sentencing Council, case-law, Directives and anything else of relevance within a given month will be included in the content. It also contains papers on difficult areas of law such as ‘offences of particular concern’, ‘the sentencing of dangerous offenders’, ‘fitness to plead in the Crown Court’, ‘fitness to plead in the Magistrates’ Court’. It is an extremely easy way of keeping up-to-date with all that is happening and saves you the bother of having to trawl through various websites when you most probably don’t have the time to do it anyway! Edition number 54 contained a paper on Better Case Management (BCM) and the summary of a number of cases of which the most important was that of Collins which examined the so-called ‘householders defence’ within Section 76 (5A) of the Criminal Justice and Immigration Act 2008. Edition number 55 dealt with the case of Jogee and Ruddock and the Supreme Court’s ruling on the mental element of the secondary party in joint-enterprise. It also dealt with the Supreme Court decision of Taylor which examined the mens rea required in relation to causing death (aggravated vehicle taking) following the Supreme Court decision of Hughes concerning causing death (uninsured). Edition number 56 dealt with the changes to Code E of the Codes of Practice (February 2016). It also contained extracts from Directive 2012/13 which is a Directive of the European Parliament concerning disclosure during the investigation stage. It also considered the guidance published by The Sentencing Council concerning dangerous dog offences and draft guidelines concerning credit for a guilty plea.

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Edition number 57 dealt with all of the revised amounts payable under the Victim Surcharge and a number of important cases including that of Cuns which dealt with the reasonable excuse (or not!) of arguing needle phobia for not providing a specimen of blood. Edition number 58 explored the very important case of Paul Maurice Needham and Others and the insertion of Sections 35A and 35B into the Road Traffic Offenders Act 1988 and the circumstances in which driving disqualifications must be extended and may be adjusted when custodial sentences are also imposed. It also contained a summary of the main provisions of the Psychoactive Substances Act 2016. Edition number 59 dealt with the very important case of B and Leeds Crown Court and the lawfulness of the Youth Court imposing a greater custodial sentence than could have been imposed upon an adult for the same offences. This decision changed English law. The same edition also explored the 4 civil sanctions available to the police under the Psychoactive Substances Act 2016. Edition number 60 looked at the case of Victoria Kelleher and the DPP and the circumstances in which it is a mandatory Destruction Order for the dog and the circumstances in which it is a discretionary Destruction Order for the dog. This was an incredibly useful judgement from the Court of Appeal explaining a very difficult area of legislation. Sexual Risk Orders were also examined as they were much in the news at the time! Edition number 61 concentrated mainly on the new concept of ‘Offences of particular concern’ and contained a paper updating the law in relation to dangerousness incorporating the amendments brought about by the Criminal Justice and Courts Act 2015.It is Incredibly useful stuff for anyone in the Crown Court having to assist the Judge to navigate this difficult area of legislation. Edition number 62 contained a paper on ‘fitness to plead in the Crown Court’ and ‘fitness to plead in the Magistrates’ Court’. Again, it is a very useful summary to have at hand when having to address the Court in a difficult, and not always fully understood, area of law. The edition also considered cautions at the police station and gave a list of 13 things for consideration before advising a client to accept a caution. Edition number 63 contained an analysis of the very important case of Mitchell concerning bad character. It also explored Section 38 (4) of the Youth Justice and

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Criminal Evidence Act 1999 (Court Appointments) and the costs implications of the case of Abbas v CPS. Edition number 64 analysed in some detail the ‘guidance’ published by The Sentencing Council concerning the not so new offence of driving, attempting to drive or being in charge of a motor vehicle with drugs in the system above the permissible levels. It considered the circumstances in which the community threshold was likely to be crossed and the circumstances in which the custody threshold was likely to be crossed. The paper continued with examples of 7 different defendants at Court and how they should be advised (on sentence and disqualification) following the implementation of the ‘guidance’. Although the Council say that it does not have the status of a full guideline it will, no doubt, be followed by the Magistrates’ and, to an extent, by District Judges. As a result of the ‘guidance’ there are some instances now in which custody is a distinct possibility!! Edition number 65 considered 2 very recent and interesting cases on costs – the case of Dinu in relation to evidence/unused material and the case of Mehmood and Horvathova on the remuneration applicable to Counsel concerning cracked trials and trials where warrants have been issued. It also looked at the recent Statutory Instrument which will bring into force the admissibility of the video recorded evidence of cross-examination and re-examination of certain witnesses (the examination-inchief having been in force for some while now) at the Crown Court sitting at Kingston upon Thames, Leeds and Liverpool (The Pilot Courts).New revised Codes C, D and H under PACE are due to come out in February 2017 and new guidelines from The Sentencing Council concerning community or custodial sentences are available now and operative from the 1st February 2017.

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Section 2 CrimeScribe Edition No. 54

Hello and welcome to this month’s edition of CrimeScribe. We do live in uncertain times do we not? As you all know, rumours emerged over the weekend on Twitter that the Court action concerning the procurement law challenges would cease this week. However, this rumour was not supported by a Spokesperson for the Ministry who confirmed that they were still defending the legal challenges to the procurement process. The Ministry of justice also confirmed that no decision had been made to stop dual contracting. As I write, they are continuing with plans for two-tier and will proceed to roll it out in those areas not subject to litigation on the 1st of April. By the time you read this month’s edition of CrimeScribe, things may have changed considerably! We must, as ever, watch this space…....

Better Case Management initiative We are just getting over Christmas and very little has happened this month in terms of new legislation (I couldn’t find any) and case-law. I have therefore decided to devote the bulk of this month’s edition to the Better Case Management initiative. Those of you who have been keeping an eye on this will know that it has been trialling in certain areas since last October and was rolled out nationwide on the 5th of January 2016. It is therefore a very current topic! I think it is important to say at the outset that, having read many of the documents on the subject, what follows is, I hope, an accurate assessment of the aims and expectations of the BCM initiative. Only time will tell as to whether or not this initiative brings about any radical change to that which is happening at the moment. The ‘distilled essence’ of it all from the documents that I have read is as follows:

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Better Case Management (BCM) This is the latest initiative to improve the way in which cases are processed through the criminal justice system. It forms part of the implementation of Sir Brian Levesonâ&#x20AC;&#x2122;s report â&#x20AC;&#x2DC;Review of Efficiency in Criminal Proceedings, indeed, it is based on the overarching principles or themes of the Review: Getting it Right First Time Case Ownership Duty of Direct Engagement Consistent Judicial Case Management The overarching aims of BCM are: Robust case management Reduced number of hearings Maximum participation and engagement from every participant within the system Efficient compliance with The Criminal Procedure Rules; Practice and Court Directions BCM supports Transforming Summary Justice (TSJ) BCM introduces 2 major case management initiatives: 1.

A uniform national Early Guilty Plea scheme (EGP); and

Crown Court Disclosure in document-heavy cases

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This single national approach is embodied in the Criminal Procedure Rules (CPR) 2015 and supported by the Criminal Practice Directions (Part 3 Case Management) 2015. There will be an early review and identification of those cases that are likely to plead guilty, along with an early discussion between the parties to identify the issues in contested cases, thus complementing the process adopted in TSJ.

There will be a new hearing at the Crown Court. It will be the FIRST LISTING OF THE CASE THERE and will be known as the Plea and Trial Preparation Hearing (PTPH). There will be a new PTPH form for completion by the parties prior to this first hearing of the case at the Crown Court. Apologies now for all of the acronyms! They don’t slip off the tongue easily, do they! All cases must be listed for this first hearing within 28 days of being SENT from the Magistrates’ Court. It would seem that this PTPH has replaced preliminary hearings and PCMH’s. The expectation is that 1 of 2 things only will happen at this PTPH. The defendant may enter a ‘guilty plea’, in which case the Court should proceed to sentence whenever possible using the facility of a stand-down Pre-sentence report, if required. The object of the exercise is to dispose of these guilty pleas by means of one appearance at the Crown Court only, whenever possible. The defendant may enter a ‘not guilty plea’, in which case ‘Case Management’ should then take place with the expectation that the next hearing at the Crown Court is the trial itself. An important aspect of Case Management is the effective completion of the PTPH form which should have been completed by the parties and served on the Court IN ADVANCE OF THAT FIRST HEARING at the Crown Court. The object of the exercise is to do away with all of the ‘mentions’ and ‘unnecessary Court hearings’ between that first hearing and the trial itself. In due course it will be possible to complete the PTPH form digitally. An electronic copy of the PTPH form is available on The Criminal Procedure Rules pages of the Ministry of Justice website.

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All straightforward cases should then be listed for trial. It seems to me that the expectation is that the vast majority of cases will be straightforward and will be listed for trial. There should be no need for any further hearings in straightforward cases! The expectation is that the parties should liaise with one another and resolve their difficulties and be trial ready. There may be the need for a further case management hearing (FCMH) (previously known as the PCMH) in identified complex cases or if the Judge decides that the interests of justice require a further hearing. Thereafter, the next appearance in Court on the matter should be the trial itself.

Summary Guilty plea at the Crown Court – sentence on the day – one hearing – a second hearing may be required if complex matters need to be addressed in a report. Not guilty plea at the Crown Court – Case fully managed – the second hearing to be the trial hearing. Not guilty plea at the Crown Court – Case fully managed but issues still requiring resolution/complex case – a further Case Management Hearing (FCMH) – the third hearing in the case to be the trial hearing.

Crown Court Disclosure in document-heavy cases Do remember that ‘disclosure’ is a term of art and relates solely to unused material. I tend to think of it in terms of ‘the provision of evidence’ upon which the Crown would seek to convict and ‘the disclosure of unused material’ which meets the test for disclosure or ‘the disclosure of the Schedule’ or a letter indicating that no such material exists. A bespoke Case-Management regime has been developed and is the subject of a pilot at 4 Crown Courts in order to address the problems with disclosure in documentheavy cases. This procedure is restricted to specific types of cases. The CPS will conduct a detailed review of the case, including all Case Management issues, by

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way of the NOTIFICATION FORM (this will be served in advance of the PTPH hearing). Thereafter, the CPS will regularly review disclosure by updating a DISCLOSURE MANAGEMENT DOCUMENT. It goes without saying that all defence requests or suggestions relating to disclosure must be set out in writing in accordance with the terms of the CPIA 1996 and must be served upon the prosecution and the Court. BCM supports STEAMLINED FORENSIC REPORTING (see Rule 19.3 of The Criminal Procedure rules 2015). BCM also supports the introduction of the Child Abuse Image Database (CAID) which is a computer-based image database that will streamline the grading of indecent images of children. BCM will be monitored at both a local and national level.

So what does all this mean in practice? 1 Let’s deal, first of all, with offences which we know are going to the Crown Court for one reason or another (a sending or a committal for sentence). Well the first thing to say is that the Magistrates/District Judge may require a little more from the defence advocate in matters which are purely indictable. Traditionally, the Court has only been concerned with whether or not there is to be a bail application. The lawyer has not been asked anything in relation to the actual matter in hand. Under an amended Part 3 Case Management the Court MUST ask the defendant whether he or she intends to plead guilty at the Crown Court (CrimPR 9.7 (5)). Now that’s all very well but it will be dependent upon the information which has been provided by the prosecution to the defence either before the first hearing or at the commencement of the day of the first hearing. I doubt if many lawyers are going to indicate a plea of guilt when provided with a case summary unless, of course, it’s one of those situations in which the firm represented the person at the police station stage and are therefore privy to the full admissions that were made at the interview. One wonders whether or not Guidance will be given from the Sentencing

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Council in relation to some form of ENHANCED CREDIT where an indication is given at this very early stage in the proceedings to a matter which is purely indictable. We have a number of Court of Appeal authorities (R v Caley and Others and R v Griffin come readily to mind) which say effectively that full credit is permissible where an indication of guilt is given at that first Crown Court appearance. It seems to me that defendants and lawyers are going to be that much more co-operative in the indication of plea if there is something tangible for the defendant, by way of enhanced credit, at the end of the case. If there is nothing in it for the defendant then where is the incentive to give an indication of guilt in the Magistrates’ Court? The Criminal Procedure Rules 2014 required the prosecution to provide the defence with what we called ‘Initial details of the prosecution case’ (Part 10). This duty only applied if the offence was summary only or triable either way. Part 8 (CrimPR 8.3) of The Criminal Procedure Rules 2015,which is very different to its predecessor,(These came into force on the 5th of October 2015) now requires the prosecutor to provide ‘Initial details of the prosecution case’ in ALL cases in the Magistrates’ Court, i.e. summary only, triable either way and PURELY INDICTABLE. Part 8 has been deliberately re-worded in order to impose a duty upon the prosecution to make provision to the defence in PURELY INDICTABLE ONLY matters in order that the lawyer has something to work with when taking instructions from the client as to whether or not an indication of guilt should be given at that early stage.

Initial details of the prosecution case Where, immediately before the first hearing in the Magistrates’ Court, the defendant was IN POLICE CUSTODY for the offence charged – A summary of the circumstances of the offence, and The defendant’s criminal record, if any Where, immediately before the first hearing in the Magistrates’ Court the defendant had been CHARGED AND BAILED by the police the case must be listed for the first hearing 14 days after charge, or the next available Court date thereafter when the prosecutor anticipates a ‘guilty plea’ which is likely to be sentenced in the Magistrates’ Court. In cases where there is an anticipated ‘not guilty’ plea or the case is likely to be sent to the Crown Court for either trial or sentence, then it must be listed for the first hearing 28 days after charge or the next available Court date thereafter.

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It seems to me that the prosecutor can anticipate a guilty plea at Court where full admissions were made at the interview stage. If a denial was put forward during the interview then the prosecutor should anticipate that the matter will be contested. The grey area is, of course, the ‘no comment’ interview. In such circumstances, it may well be that the representative at the police station might be asked if he or she knows what the plea will be at Court. Care must be taken in this area. The client’s instructions must be carefully taken. There would be nothing wrong with the representative at this stage of the proceedings being non-committal on the matter. At least if there is a representative at the police station then the police/CPS will have an idea of the solicitors on the record and can liaise with them (and send relevant material in the post or digitally) prior to the first listing in the Magistrates’ Court. What I suspect will probably happen in practice at the beginning is that the prosecutor will give the material to the defence on the morning of the hearing itself. This practice may well change in the future. Again, at the risk of sounding mercenary about it all, this is another issue which needs to be addressed in terms of credit. Will there be enhanced credit for someone willing to indicate a guilty plea to the police at that early stage in the police station after the interview. The more credit on offer the more the representative has something upon which to take some meaningful instructions.

Where the defendant has been bailed by the police ‘Initial disclosure of the prosecution case’ will consist of the following: A summary of the circumstances of the offence; Any account given by the defendant in interview, whether contained in that summary or in another document; Any written witness statement or exhibit that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial or sentence; A list of the defendant’s criminal record, if any; and Any available statement of the effect of the offence on a victim, a victim’s family or others. The details must include sufficient information to allow the defendant and the Court at the first hearing to take an informed view: On plea On venue for trial (if applicable; For the purposes of case management; or For the purposes of sentencing (including committal for sentence, if applicable)

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Where the matter is purely indictable/triable either way, the Court will be expected to ask for, and record, any indication of plea AND ISSUES FOR TRIAL to assist the Crown Court (Crim Proc 3A.5). So, just so that we are clear on the point, an indication as to whether or not the defendant intends to plead ‘guilty’ at the Crown Court to this purely indictable offence/triable either way offence and an indication of the issues for trial where the matter is being sent to the Crown Court because it is purely indictable or it is being sent to the Crown Court because the defendant has either elected or the Court has declined jurisdiction in the matter. In addition, the Magistrates’ Court may give directions appropriate to the needs of the case in accordance with the Rules and in accordance with any Standard Directions issued by the Presiding Judges of the circuit. These directions will be relevant for the preparation of the trial and may include: A timetable for the proceedings The attendance of the parties The service of documents The manner in which evidence is to be given And all of this can be done by a single Justice of the Peace – see CrimPR 9.1 and Section 49 of the Crime and Disorder Act 1998! I wonder to what extent the defence lawyer will be able to assist the Court with the trial issues in a matter which is going to the Crown Court at that first listing in the Magistrates’ Court. I suppose much will depend upon the information available to the defence lawyer from the prosecution at that first hearing. I’m pretty sure that any declared issues will be noted down by both the legal adviser and the prosecutor. What if those issues change at the Crown Court? Will it be permissible to comment on or, still worse, cross-examine the defendant at trial on any changes? – The current position at the moment seems to be set out in the leading case of R v Newell which is authority for the proposition that a defendant at trial may be cross-examined on admissions that were put on a PCMH form where the defendant at trial seeks to withdraw such admissions. Leaving aside admissions, the Court should be loathe to allow cross- examination at trial concerning anything else which may have been put on the PCMH form.

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Guilty plea in the Crown Court We know that the plea will be guilty because the defence have indicated such and the matter is being sent (because it is purely indictable or triable either way) or the defendant has already pleaded guilty and is being committed to the Crown Court for sentence. In such circumstances the Magistrates’ Court SHOULD request the preparation of a pre-sentence report for the Crown Court’s use if the Magistrates’ Court considers that: There is a realistic alternative to a custodial sentence; or The defendant may satisfy the criteria for classification as a Dangerous Offender; or There is some other appropriate reason for doing so. Upon sending the case to the Crown Court the Magistrates’ Court must set a date for a Plea and Trial Preparation Hearing at the Crown Court, in accordance with CrimPR 9.7 (5) (a) (i)

Case sent to the Crown Court – no indication of guilty plea The Magistrates’ Court must set a date for a Plea and Trial Preparation Hearing (PTPH) and this must be held within 28 days of the sending unless the Standard Directions of the Presiding Judges of the circuit direct otherwise.

2 Let’s deal now with those Cases where the defendant is on bail and there is an anticipated ‘not guilty’ plea (whether the trial is to take place in the Magistrates’ Court or the Crown Court) As I mentioned earlier, the new initiative will only work where the defence are being provided with a good deal more information from the prosecution at that first hearing than was formally the case with ‘Initial details of the prosecution case’. Where the defendant has been bailed by the police and there is to be an anticipated ‘not guilty’ plea it is absolutely essential that the ‘Initial details of the prosecution case’ that are provided for that first hearing are sufficient to assist the Court in order to identify the real issues and to give appropriate directions for an effective trial (regardless of whether the trial is to be in the Magistrates’ Court or the Crown Court). In these circumstances, unless there is good reason for not doing so, the prosecution should make available the following material in advance of the first hearing in the Magistrates’ Court:

A summary of the circumstances of the offence(s), including a summary of any account given by the defendant in interview Statements and exhibits that the prosecution has identified as being of importance for the purposes of plea or initial case management, including any relevant CCTV that would be relied upon at trial and any Streamlined Forensic Report Details of witness availability, as far as they are known at that hearing; Defendant’s criminal record; Victim personal statements of provided; An indication of any medical or other expert evidence that the prosecution is likely to adduce in relation to a victim, or the defendant; Any information as to special measures, bad character or hearsay, where applicable In addition to the above material there is, of course, the information required by the Preparation for Effective Trial form (PET) which must be completed by all the parties and submitted at that first hearing where there is to be a contested trial in the Magistrates’ Court.

NEW FORMS Plea and Trial Preparation Hearing form (PTPH) for (Crown Court) Preparation for Effective Trial form (PET) (Magistrates’ Court) It seems to me that the information to be given to the defence under the new Part 8 is far more than was ever given in the past under the old Part 10. Do please take on board the point that the above material should be provided to the defence whenever there is an anticipated ‘not guilty’ plea and the Rules make it clear that it doesn’t matter whether the trial is going to take place in the Magistrates’ Court or the Crown Court and so the above information is to be provided whenever there is an anticipated ‘not guilty’ plea in a case which is summary only, triable either way, or indictable only.

3 Let’s deal now with those cases which are staying in the Magistrates’ Court There will, hopefully, have been some indication of the plea and, where a ‘guilty plea’ is indicated the first hearing should be 14 days after the charge if the defendant is on bail and if it is anticipated as a ‘not guilty’ plea the first hearing should be 28 days after charge. If the plea is guilty (whether to a summary or an either way offence) the Court should proceed to sentence, wherever possible, and should consider whether a pre-sentence report – a stand-down report, if possible – is necessary in order to sentence. It is quite clear. The expectation is that ‘guilty pleas’ in the Magistrates’ Court should be disposed of on the day. This will not always be possible but it is the expectation under the initiative. It is equally clear that guilty pleas in the Crown Court should be disposed of on the day by way of sentence whenever possible, assisted by some sort of stand-down report, if necessary. Where the case is staying in the Magistrates’ Court because it is summary only or because it is triable either way and the Magistrates’ have determined it is suitable for summary trial and the defendant has consented to summary trial then robust case management should take place on the day and the parties should complete the appropriate form (The preparation for Effective Trial form). No doubt the expectation will continue to be that the next hearing in the Magistrates’ Court will be the trial itself and the parties to liaise with one another during the interim in order to resolve any issues that may arise. You know that the onus is upon the parties in the proceedings to take the matter back to the Magistrates’ if information has not by the date(s) set out at that first hearing. I just want to finish with a final few word about the timetable for all of this. Assuming bail has been granted the expectation will be an appearance in the Magistrates’ Court in 14 days time on an indication of a ‘guilty’ plea and an appearance in the Magistrates’ Court in 28 days time on an indication of a ‘not guilty’ plea. At that first hearing in the Magistrates’ Court if the matter is to be sent to the Crown Court the adjournment period will be 28 days i.e. we are looking at 56 days overall for defendants on bail between the charge and the plea at the Crown Court at the Plea and Trial Preparation Hearing (PTPH). That’s it. I think I’ve dealt with every possible scenario. As with all of these initiatives, we wait and see whether the various agencies will be provided with the resources to make the whole thing work!

The Sentencing Council The Council is proposing to issue a new definitive guideline for the imposition of community and custodial sentences. This will replace the New Sentences – Criminal Justice Act 2003 definitive guideline in due course. Feedback is sought from sentences, justices’ clerks, legal advisers, prosecutors, defence representatives and other interested parties. The consultation closes on the 25th of February 2016.

Case-law We start off with the case of R (Collins) v The Secretary of State for Justice. [2016] EWHC 33 (Admin). This was an application to the High Court involving the so-called ‘householders defence’ contained within Section 76 (5A) of the Criminal Justice and Immigration Act 2008. As you will remember, the provision was inserted by Section 43 of the Crime and Courts Act 2013 and came into force on the 25th of April 2013. It permits householders, in certain circumstances, to have the defence even though they have used disproportionate rather than reasonable force (grossly disproportionate force, in all the circumstances, would rule them out of the defence i.e. you still cannot shoot he burglar in the back when he or she is trying to leave!). The application seeks a DECLARATION (one of the Prerogative Writs) addressed to the Secretary of State for Justice to the effect that this provision is incompatible with Article 2 of the European Convention on Human Rights (this is the Article, which guarantees the right to life in the following terms: ‘Everyone’s right to life shall be protected by law.....’ The facts were as follows. Those parties bringing the application were acting on behalf of a person (X) who had been restrained by the householder (B). X had been restrained, at least in part by means of a headlock; as a result of this restraint, he suffered serious personal injury from which he is not expected to recover (hence the application being brought on his behalf by parties representing him). There followed a police investigation in which it was decided not to prosecute B. This decision was upheld following a review by a specialist prosecutor at the Appeals and Reviews unit.

Sir Brian Leveson, giving the judgement of the Court, held that Section 76 (5A) of the 2008 Act did not extend the ambit in law of the second limb of self-defence but, properly construed, provided emphasis as to the requirement to consider all of the circumstances permitting a degree of force to be used on an intruder in householder cases which is reasonable in all the circumstances (whether that degree of force was disproportionate or less than disproportionate). In particular, it did not alter the test to permit, in all circumstances, the use of disproportionate force and, to that extent the CPS review had adopted the WRONG TEST when reconsidering the facts of this case. Neither did the provision offend Article 2 of the ECHR. In other words, these cases are very facts specific and Parliament was not intending that householders be given carte blanche usage of disproportionate force in all circumstances, but rather disproportionate force might still avail them of the defence dependent upon the facts. The provision did not in any way offend against article 2, i.e. the person’s right to life is still protected in law. It’s quite a long judgement with some 74 Paragraphs, but I think Paragraph 61 neatly sums up the legal position and reads as follows: ‘In this context, Section 76 (5A) serves to exclude a householder’s grossly disproportionate use of force from being reasonable. When read with Section 76 (6), which provides that in non-householder cases all disproportionate force is excluded from being reasonable, Section 76 (5A) can be seen to offer a discretionary area of judgement to the jury as to whether if the force was disproportionate, it was nevertheless reasonable in the circumstances. The effect of Section 76 (5A) is not to give householders carte blanche in the degree of force they use against intruders in self defence. A jury must ultimately determine whether the householder’s action was reasonable in the circumstances, as he believed them to be’

R v Jagelo SCCO Ref: 96/15 (6th of January 2016) The interesting case on costs this month is that of R v Jagelo SCCO Ref: 96/15 (6th of January 2016). This was an appeal heard by Costs Judge Jason Rowley against the decision of the Determining Officer in respect of the remuneration allowed under the Litigator Graduated Fee Scheme. It was all about evidence served on CD-ROMs. The ROMs contained 11,715 pages of downloaded phone evidence making a total page

count in excess of 17,730. His Honour Judge Heath, the trial judge was clearly of the view that it should be remunerated as PPE. Had the material relied upon by the Crown been served before the coming of the digital age it would have been printed out on paper. It was evidence which was pivotal to the prosecution case. This was an important case because it considered the judgement of Mr Justice Haddon-Cave (a High Court Judge, sitting in the Crown Court) and the comments he made in the decision of Furniss. The page-count cut-off is, as you all know, 10,000 PPE. Anything above 10,000 is to be remunerated at hourly rates by way of Special Preparation (this is true for both Litigators and Advocates). The Judge having taken the view in the case of Furniss that in order to ensure that the defence teams were adequately remunerated all of the electronic evidence should form part of the PPE (this took the page count far beyond 10,000). It is important to stress that he did not order the Agency to do so. It is entirely clear that Mr Justice Haddon-Cave considered that the Agency ought to calculate the graduated fee on the entirety of the pages but he has not sought to order that the Agency must do so (see Paragraph 60 of the Jagelo judgement). Not all Costs Judges had agreed with the reasoning of Mr Justice Haddon Cave in the case of Furniss. The Senior Costs Judge had considered himself to be bound by Furniss because of the status of Mr Justice Haddon-Cave as a High Court Judge. The Judge in the current case accepted the submission that he should consider Mr Justice Haddon-Cave’s decision as a Judge of the Crown Court rather than as a High Court Judge. This makes a big difference because the decisions of Crown Court Judges are merely persuasive on Costs Judges whereas the decisions of High Court Judges are binding. The Judge took the view that even though he was not bound to follow the decision in Furniss he should nevertheless very carefully consider whether or not to follow it because Mr Justice Haddon-Cave is a High Court Judge and appeals from Costs Judges lie to the High Court (see Paragraphs 56 and 57 of the judgement). And finally at Paragraph 68 of the judgement. ‘So, whilst there may be simpler and better ways to remunerate litigators and advocates, the supplementing of the graduated fee by the Special Preparation arrangements is, in my view, compatible with the Article 6 rights of the defendant to receive representation that is adequately remunerated. As such, there is no need for me to read down the cut-off provision in whole or in part. Consequently, I do not consider that I should follow the conclusion of Paragraph 57 of Furniss.’

Accordingly, the Determining Officer’s calculation of the graduated fee is correct and this appeal fails.

Regina and David Stuart Platt [2016] EWCA Crim 4 The case of Regina and David Stuart Platt [2016] EWCA Crim 4 was an appeal on 2 grounds: The Judge wrongly admitted, on the application of his co-defendant under the bad character provisions of the Criminal Justice Act 2003, evidence of the bad character of the appellant (the Court of Appeal agreed with this ground of appeal). The Judge was wrong in refusing to admit on common law principles evidence from a psychiatrist on the mental state of his co-defendant in relation to that defendant’s credibility and propensity to violence (the Court of Appeal disagreed with this and held that the Judge had been right). The prosecution made no application to admit the convictions, either in relation to a propensity to lie or a propensity to violence, under Section 101 (1) (d) of the CJA 2003 as being relevant to an important issue between the defendant and the prosecution. We were told that one of the considerations which the prosecution took into account was the provision in Section 101 (4), which required the court to have regard to the length of time between the matters to which the evidence of bad character related and the matters which formed the subject matter of the trial. This was an application by the co-defendant on the basis that it ‘had substantial probative value in relation to an important matter in issue between the defendant and the co-defendant’. The Judge granted the application in part and admitted 3 of the appellant’s previous convictions. The Judge had given a detailed ruling on the matter, including a reference to the decision of R v Randall [2004] 1 WLR 1413, a decision of the House of Lords on the common law. The Court of Appeal took the view that such decisions based upon the common law are not relevant to the determination of the admissibility which is now governed

by the statutory provisions and has been governed by the statutory provisions since 2003. It is particularly important that the test set out in the CJA 2003 is the test solely applied for admissibility as, unlike the position between the prosecution and the defendant, the Court has no discretion to refuse the admission of the evidence where the statutory conditions for admissibility are met. The test of ‘substantial probative value’ to an important matter in issue between the defendant and a co-defendant under Section 101 (1) (e) is a higher test than that applicable under Section 101 (1) (d) of ‘relevance to an important matter in issue where the issue arises between the defendant and the prosecution’. There is therefore a different statutory regime to that which existed under the old common law. The test is that much higher and it is neither necessary nor desirable to refer to the old law bearing in mind the passage of time since the new statutory regime. This is important and perhaps it is time for all the references in the textbooks to the old pre-2003 common law position to be substantially revised. You can read the facts of the case for yourself but it didn’t render the conviction unsafe and the end result for the Court (presided over by the Lord Chief Justice himself) can be neatly summed up by Paragraph 45 of the judgement which reads as follows: ‘The Judge was, for the reasons we have set out, in error in allowing the limited evidence of the appellant’s bad character to go before the jury. Her direction to the jury, however, stressed its limited value to propensity. She emphasised the age of the convictions, the very different circumstances of the conviction for arson and the convictions for the offences under Section 20. She stressed the limited assistance that the jury would obtain from the convictions for dishonesty which had been subsequently admitted. Applying those directions, the jury would have attached little or no weight to the previous convictions. The Court of Appeal did therefore not consider the convictions to be unsafe and the appeal against conviction failed.

Armando Andrade [2015] EWCA Crim 1722 Armando Andrade [2015] EWCA Crim 1722 was a case which explored Section 41 of the Youth Justice and Criminal Evidence Act 1999.

Very briefly, the Section is to the effect that the leave of the Court is required before any evidence may be adduced or any question asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the complainant. Those of you who have battled with the Section will know that it is not the easiest to understand. Clearly the purport of the Section is to stop any cross-examination designed to merely besmirch the character of the complainant. Complainants are allowed to have previous sexual encounters without them becoming a part and parcel of the evidence in the case in the general course of events. Of course, the matter has to be handled extremely carefully where the previous sexual encounter is with the accused person himself/herself. One can well understand why sexual relations between the complainant and the accused are highly relevant where the nature of the defence is one of consent! See Paragraph 23 of the judgement which reads as follows: ‘While the judge was referred to the passage in Archbold 2014 at 8– 242, which includes the reference to R v A (No. 2) [2002] 1 AC 45, it may be that he was not fully appraised of the potential impact of that decision upon the issue in the present case. In our respectful judgement, the important question arising in cases of this type, where the previous sexual history is suggested to have been with the accused himself, is encapsulated in a passage from the speech of Lord Steyn in A (No. 2) at [45] – 46 as follows: ‘45. In my view Section 3 requires the Court to subordinate the niceties of the language of Section 41 (3) (c), and in particular the touchstone of coincidence, to broader considerations of relevance judged by logical and commonsense criteria of time and circumstances. After all, it is realistic to proceed on the basis that the legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and complete defence by advancing truly probative material. It is therefore possible under Section 3 to read Section 41, and in particular Section 41 (3) (c) as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under Article 6 of the Convention should not be treated inadmissible. The result of such a reading would be that sometimes, logically relevant sexual experiences between a complainant and an accused may be admitted under section 41 (3) (c). On the other hand, there will be cases where previous sexual experience been a complainant and an accused will be irrelevant, e.g. an isolated episode distant in time and circumstances.

Where the line is to be drawn must be left to the judgement of trial judges. On this basis a declaration of incompatibility can be avoided. If this approach is adopted, Section 41 would have achieved a major part of its objective but its excessive reach would have been attenuated in accordance with the will of Parliament, as reflected in Section 3 of the 1998 Act. That is the approach which I would adopt. IS IT JUST ME OR DO THE REST OF YOU NOT AGREE THAT THAT QUOTED PASSAGE IS JUST SHEER BRILLIANCE!! I THINK THE REST OF US MERE MORTALS WOULD HAVE SAID SOMETHING LIKE ‘DON’T THROW OUT THE BABY WITH THE BATHWATER!’ The Court said this in the current case at Paragraph 30 ‘It follows that we are not satisfied that this conviction is safe in the absence of fuller consideration of this issue at this trial. We are not confident that the true test of relevance and admissibility was properly raised before the Judge ruled as he did.

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Section 3 CrimeScribe Edition No. 55

The scrapping of the Dual Contracts proposals Hello and welcome to this monthâ&#x20AC;&#x2122;s edition of CrimeScribe. It has been a very interesting start to the year for criminal lawyers. I mentioned the rumours on Twitter in last monthâ&#x20AC;&#x2122;s Edition and the Minister has now confirmed that Dual Contracting has been scrapped. Hurrah! The news is even better in that the announcement was also to the effect that the 8.75% cut to criminal legal aid work introduced by Statutory Instrument 2015 No. 1369 for work done on or after 1st July 2015 will only now apply until 31st March 2016 and will be lifted for a period of 12 months (and who knows, possibly longer?) for work done on or after 1st April 2016. It will therefore be necessary to consult Statutory Instrument 2014 No. 415 in order to ascertain the fees for work done on or after 1st April 2016. As you know, it was this Statutory Instrument which gave us our fees for work done on or after 20th March 2014 and up until 1st July 2015. In summary, for work done on or after 1st April 2016 we go back to the position we were in prior to 1st July 2015, i.e. the second 8.75% reduction is being lifted at least temporarily. We still have to live with the first 8.75% reduction contained in Statutory Instrument 2014 No. 415 which is relevant for any work done on or after 20th March 2014. I have spoken to various people about the new concepts for payment of legal aid work mentioned in Statutory Instrument 2015 No. 1369 and everyone seems to be of the view that these concepts will not be implemented as they were tailored for Own Client and Duty Provider Contracts and the Dual Contracting system has been scrapped. We shall therefore not be getting fixed fees for Litigators on a page count of 500 or fewer; a National Police Station fixed fee and a London Police Station fixed

fee; the abolition of Designated and Un-Designated areas; the abolition of Lower Standard Fees and Higher Standard Fees and their replacement with a Fixed Fee for Magistrates’ Court work and an Escape Threshold. I’m pleased because all of these Fixed Fee concepts would have had quite a profound effect upon billing, far in excess of an 8.75% overall reduction, certainly for firms based in London and the south-east of England. Just when I thought there was no bad news in any of it I learned that those criminal legal aid firms that successfully bid for Duty Solicitor Work who had opened an office and employed staff in a particular area would be eligible to apply for Duty Slots on the relevant rota. They had to put in an application before a date in February, which has now passed. I wonder how many firms actually did this and will be given slots on the rota, from 1st April 2016, as a result.

The Criminal Courts Charge It was abolished for anyone appearing in Court on or after 24th December 2015. I wonder how vigilant they will be with enforcement of this charge. The Regulations permit the Court itself to remit the whole amount once 12 months have elapsed and also permit the offender to apply for remission of the charge after a period of 2 years from their last conviction. Odd that isn’t it?; it’s not 2 years from the imposition of the charge but rather 2 years from their last conviction, i.e. if they continue to re-offend they simply start the 2-year clock all over again.

CASE-LAW We have had not 1 but 2 really important decisions from the Supreme Court this month. We have to start off with the most important case of the 2 which is, of course, the pronouncements of the Supreme Court on the law of joint-enterprise in the case of R v Jogee; Ruddock v The Queen [2016] UKSC and [2016] UKPC 7. – These were conjoined appeals because they dealt with the same issue, namely the extent to which a secondary party had to be involved in order to be rightly convicted of murder on the basis of joint- enterprise. We all know that there have been ‘murmurings of discontent’ about the law on joint-

enterprise for many years now and the Supreme Court seemed to have ‘grasped the nettle’ in this Judgement. The legal issue concerns the mental element must be proved when a defendant is accused of being a secondary party to the crime. Prior to the Supreme Court’s Judgement, the 2 cases in this area were as follows:

Chan Wing-Siu v The Queen [1985] 1AC 168 and Regina v Powell and English [1999] 1 AC 1 The facts of the Jogee case The appellant Jogee was convicted of murder. His co-defendant Hirsi had pleaded guilty to the crime. Hirsi was in the house and there was an angry confrontation between him and the victim. There was a fatal stabbing of the victim by Hirsi with a knife taken from the kitchen and hence his plea of guilty to murder. It was quite clear that Jogee had not been factually involved in the actual knife attack because he had been outside at the time. What then was the extent of Jogee’s involvement in this murder? He was outside with a bottle shouting to Hirsi to do something to the victim and at one stage, came to the door and threatened to smash the bottle over the victim’s head. That was the extent of his involvement – was it enough to convict him of murder based upon the principle of joint-enterprise? The Judge had directed the jury that Jogee was guilty of murder if he took part in the attack on the victim and realised that it was possible that Hersi might use the knife with intent to cause serious harm.

The facts of the Ruddock case The victim was a taxi driver and the murder was committed in the course of a robbery. The appellant had made a statement admitting that he was involved in 38

the robbery and present when the victim was killed by having his throat cut. The Judge had directed the jury that Ruddock was guilty of murder if he took part in the robbery and knew that there was a possibility that the co-defendant might intend to kill the victim. Both cases, therefore, seemed to hinge on the knowledge of a possibility/a realisation that it was possible. Both Judges had to address the jury in those terms because in each case that direction derived from those 2 earlier cases mentioned above, which were, of course, binding on the trial Judges. The Supreme Court made a unanimous decision that those 2 earlier decisions were wrong. The common law had taken a wrong turning 30 years earlier! Something more than mere foresight, i.e. knowledge of a possibility/realisation of a possibility is required – What is required is something more than a criminal venture between 2 or more people to commit Crime A when the Principal commits Crime B – the mental element of the secondary party being more than mere knowledge of a possibility/a realisation that it was possible – in order to be guilty, the secondary party must do more than merely foresee that the Principal may commit Crime B – the mental element for secondary liability is intention to assist or encourage Crime B or a range of crimes, one of which is committed; either will suffice. Foresight of Crime B is not automatic authorisation of it. Foresight of it is simply evidence of intent to assist or encourage. It is a matter for the jury in every case whether or not the secondary party assisted or encouraged the commission of the crime. Encouragement, of course, is something that may be inferred by the jury, for example, because of the number of people taking part in the attack, or from knowledge that at least one member of the group is carrying a weapon. These are matters for the jury. The jury should be left to decide whether or not the other people involved in a murder or assault intended to assist or encourage the main participant but, crucially, foresight should not be seen itself as evidence of intention or guilt. It may well be that the secondary party is guilty of manslaughter, whereas the Principal may well be guilty of murder. There may well be a number of appeals arising from the judgement, particularly

so where secondary parties have been convicted on the ‘parasitic accessory principle’. Having said this, each case will have to be judged on its own facts. I read in today’s newspaper that up to 650 people may be affected by this ruling. The second important Judgement from the Supreme Court is that of R v Taylor (Appellant) [2016] UKSC 5 This case concerned aggravated vehicle taking under Section 12A of the Theft Act 1968. There are several ways in which the basic offence can be aggravated but one of them is where the person has committed the basic offence of taking a vehicle without authority and ‘owing to the driving of the vehicle, an accident occurred by which injury was caused to any person’– Section 12A (2) (b) – if the injury proves fatal the offence carries a maximum of 14 years imprisonment on indictment. The appellant and another man took a van and without consent and, whilst driving it, the appellant collided with a scooter on a bend in a narrow country lane and the driver of the scooter was killed. The appellant was later found to be over the drink drive limit and uninsured. He was therefore charged with aggravated vehicle taking contrary to Section 12A of the Theft Act 1968 and with causing the death of the scooter driver whilst uninsured, contrary to Section 3ZB of the Road Traffic Act 1988. All parties were in agreement that there had been no actual fault in the manner of the appellant’s driving. A plea of not guilty was entered following the Supreme Court decision in R v Hughes [2013] WLR 2461 in which that Court had held that in order to be guilty of the offence of causing death (uninsured) (and the judgement must also apply to the offences of causing death (unlicensed) causing death (disqualified) – those 3 offences imported into the Road Traffic Act – there had to be some ‘causal connection’ between the driving and the death which was more than merely the vehicle being on the road – the causal connection need not be as high as careless driving but there had to be some level of fault, albeit at quite a low degree – a death might be caused because of inadequate depth of tread on the tyres which prevented stopping in time (or, my example, perhaps the tyres not having the correct inflation). The way in which this case ended up at the Supreme Court was interesting. The Crown having accepted that there was no fault in the manner of the appellant’s driving a ‘not guilty verdict’ was therefore directed on the Road Traffic Act count in accordance with the decision of R v Hughes. The Judge held that fault also had

to be proved in relation to the accident on the aggravated vehicle taking count; a decision which the Crown appealed. The Court of Appeal allowed the appeal, relying on R v Marsh [1997] 1 CR APP R 67, in which it was held that no element of fault was required in the offence of aggravated vehicle taking. It certified a question of law of general importance for consideration by the Supreme Court as follows: ‘Is an offence contrary to Section 12A (1) and 2 (b) of the Theft Act 1968 committed when, following the basic offence and before the recovery of the vehicle, the defendant drove the vehicle, and without fault in the manner of his driving, the vehicle was involved in an accident which caused injury to a person’. The Supreme Court unanimously allowed the appeal, holding that the driving must have been at fault for a person to be convicted of aggravated vehicle taking under Section 12A of the Theft Act 1968. The case is quite short by Supreme Court standards and only runs to some 33 Paragraphs (14 pages). The Judgement was given by Lord Sumption who said this at Paragraph 23: ‘This brings me to the fundamental reason why in my opinion this appeal must succeed, and why I would have taken the same view even if I had felt able to distinguish the language of Section 12A of the Theft Act or depart from the reasoning in Hughes. The Crown’s argument effectively invites the Court to treat the Section as imposing strict liability for the aggravating factors which differentiate this offence from the basic offence under Section 12 in circumstances where that course is neither necessary nor warranted by the language of the Act. The next case is that of Regina v Raymond Martin Marshall, Christopher Ramos and Saraj Mahmood Hussain [2015] [2015] EWCA Crim 1999. What can I say! A Special Court having to be convened to re-affirm and reemphasise the relevant Principles applicable where the defendant is subject to a Qualifying Curfew i.e. a curfew of 9 hours or more monitored by an electronic tag and ultimately given a custodial sentence. Such Principles having been already outlined in the 2 previous cases of R v Hoggard [2013] EWCA Crim 1024 and R v Thorsby and Others [2015] EWCA Crim 1. Consideration may even have to be given to the reporting of offenders to their 41

professional body for a failure to comply with their professional obligations and/or considering making a Costs Order. Under Section 240A of the Criminal Justice Act 2003 it has been necessary for the sentencing Court to specify the number of days that will count toward sentence in consequence of time spent on remand subject to a Qualifying Curfew. A remand in custody during the proceedings is different because this is dealt with administratively by the prison. Any Court imposing a curfew with a tagging condition should use the relevant Form and this Form should be included in the case papers and accompany them wherever the case is sent. The lawyer needs to ask the defendant whether or not he/ she has been subject to curfew and tagging and, if yes, to ascertain the details. The Crown Prosecution Service must have a system in place to assist the Court in order to go through the following steps: Step 1: Add up the days spent on qualifying curfew, including the first, but not the last, if, on the last day the defendant was taken into custody. Step 2: Deduct the days on which the defendant was at the same time also (i) being monitored with a tag for compliance with a curfew requirement and/or (ii) on temporary release from custody. Step 3: Deduct the days when the defendant has broken the curfew or the tagging condition. Step 4: Divide the result by 2. Step 5: If necessary, round up to the nearest whole number. [We know that the defendant is entitled to a half day off the custodial sentence for every day spent subject to a qualifying curfew].

The Sentencing Council Important Guidelines from the Council that we need to be aware of are as follows:

1 – Guidelines in relation to Theft operative from 1st February 2016 2 – Guidelines in relation to Health and Safety offences, Corporate Manslaughter

and Food Safety and Hygiene offences operative from 1st February 2016

3 – Guidelines on Allocation operative from 1st March 2016 4 – Guidelines on Robbery operative from 1st April 2016 5 – Draft Guidelines in relation to reduction in sentence for a guilty plea 6 – Draft Guidelines concerning the imposition of community and

custodial sentences

The Robbery Guideline applies to offenders aged 18 and over who are sentenced on or after 1st April 2016 regardless of the date of the offence. Guideline sentences are set out in relation to 3 main types of Robbery as follows: a) Robbery – Street and less sophisticated commercial – minimum high-level

community order – maximum 12 year’s custody

b) Robbery – professional planned commercial – minimum 18 months custody –

maximum 20 year’s custody

c) Robbery – dwelling – minimum 18 months custody – maximum 16

year’s custody

Those of you dealing with such matters at the Crown Court will no doubt have recourse to these Guidelines on an almost daily basis. There is relevant Guidance for sentencing young offenders within both the Sentencing Guidelines Council’s ‘Robbery Definitive Guideline’ and the ‘Overarching Principles – Sentencing Youths Definitive Guideline’. Both documents will prove useful in circumstances where the defendant was 17 at the commission date of the offence but is now 18 upon sentence. I dealt extensively with the new Guidelines on Allocation in CrimeScribe Edition No.53. We wait and see but it may mean that more cases are retained at the trial stage by the Magistrates’ with more committals for sentence upon conviction. There is also Guidance as to the venue for the trial of a youth who is jointly charged with an adult. There is a list of factors for the Court to consider when deciding whether or not it is in the interests of justice that the youth should be split from the adult and remitted to the Youth Court for trial. The thrust of the Guidance seems to be that the proper venue for the trial of any youth is the Youth Court with powers to commit for sentence to the Crown Court upon conviction. Do read the Guidance for factors that may militate against the youth being SENT to the Crown Court with the 43

adult in order for them both to be tried jointly on indictment. The Theft guidelines really are a ‘must read’ for all criminal practitioners and are now in force as they apply to anyone sentenced on or after 1st February 2016. As mentioned in Edition No. 51 of CrimeScribe, for the first time ever the Courts have been given comprehensive guidance to help them to sentence the great variety of offending and offenders that come before them. The Guidance sets out a comprehensive assessment of the harm to victims, which, as we know, may cause great distress, even where the value of the items taken may not be great. The theft of historic items, e.g. the theft of metal plaques from war memorials makes the offence more serious because of the loss to the nation’s heritage. The offence could also be made more serious because of the danger to the public when such items as cables or manhole covers are stolen.

Credit for Indications of guilt The Council has also published Draft Guidelines on reductions in sentence for guilty pleas. The consultation period ends on the 5th May 2016. The aim is to achieve a fairer and more consistent approach to managing guilty pleas that will incentivise offenders to admit their guilt as early as possible in the Court process. The earlier the guilty plea is entered the earlier victims and witnesses will know that they will be spared the stress and anxiety of a trial. It is all tied in with Better Case Management (BCM) and Transforming Summary Justice (TSJ) whereby early guilty pleas can be identified and time and resources deployed on those cases which are going to be the subject of a contest. The existing Guideline was published in April 2007. I am sure we are all aware of it. In summary, credit at the moment, pursuant to Section 144 of the Criminal Justice Act 2003 works as follows: 1 – One third if there is an early indication of guilt at Court (defined as the first

appearance in the Magistrates’ Court or the first appearance at the Crown Court

for indictable offences)

2 – 20% on an early indication of guilt at Court where the evidence is deemed to be

‘overwhelming’ such that the defendant had little or no option other than to

plead guilty

3 – 25% where a not guilty plea is entered and the trial ‘cracks’ such that the

witnesses are de-warned and have no need to attend the actual trial 44

4 – 10% on the day of trial where the witnesses have attended and the case results in

a guilty plea

5 – 30% rather than 33 1/3% where the defendant does not enter/indicate guilt at the

Magistrates’ Court stage to an offence triable either way (in practice, no one

seems to be taking much notice of this at the moment!)

6 – With summary only offences e.g. 5 offences of driving whilst disqualified, there

should be some modest reduction to reflect the guilty pleas but it need not be as

much as one third when the offences are summary only and the maximum

sentence overall under Section 133 of the Magistrates Courts Act 1980 is a term of

6 months custody (YOI or Imprisonment).

7 – Newton Hearings – We have more than one Court of Appeal decision to the

effect that if a Newton Hearing is requested by the Court and the fact-finding

exercise goes against the defendant then little or no credit for the plea may be

the result – each case will be different – it may be that the plea of guilty meant

that only 1 witness would be needed to deal with the fact-finding exercise rather

than the 5 witnesses that would have been needed had the matter been fully

contested – just exercise your common sense in this area.

8 – The case of Caley and others (Court of Appeal, December 2012), in which the

Court said that early admissions/co-operation/remorse in a police station

interview may well affect the sentence in that the Court would be entitled to start

the sentence at a lower starting point than it otherwise would have done and from

that lower starting point to deduct whatever credit is applicable for the indication

of plea at Court – examples are given in the Caley case where a lower starting

point might be appropriate for example, ‘taking the suspicion away from others’

or ‘admissions made in a case that might have been difficult to prove’, for

example where the victim’s would find it difficult to give evidence – the Court of

Appeal saying that each case would be different and that some early admissions

may be of no benefit at all in terms of the sentence, my own examples are

‘overwhelming evidence’ cases and those where the defendant’s actions are

caught fully on video/witnessed by police officers.

They also said in the case of Caley that it didn’t matter whether or not the defendant indicated guilt at the first hearing in the Magistrates’ Court on a matter that was destined for the Crown Court. An early guilty plea at the Crown Court at that first

listing would still attract the full one third whereas putting off the plea until the PCMH (in order that the defendant could be appraised of the state of the evidence against him by the lawyer) would only attract 25%, unless the circumstances were such (and we have Appeal Court decisions on this) that the defendant had little or no recollection of the actual incident and therefore required the lawyer to say in some detail what it was alleged they had done – amnesia cases, but I don’t think the principle is limited to amnesia cases. The Criminal Procedure Rules 2015 place a requirement on all parties to engage early, make the right decisions, identify the issues for the Court to resolve and provide sufficient material to facilitate that process. The Draft Guideline aims to bring forward the point at which offenders plead guilty. This is particularly so with offences triable either way. It would do this by maintaining the current level of reduction (one third) for those who plead guilty at the first stage of Court proceedings but giving a lower reduction than that available currently for a guilty plea entered any later in proceedings. The stage at which an offender can benefit from the maximum one third reduction will be much more tightly defined. Under the Council’s proposals, to qualify for the maximum reduction, an offender must plead guilty the first time they are asked for their plea in Court. For triable either way offences that will be in the Magistrates’ Court For offenders who plead guilty after that first stage the maximum reduction they can be given will be one fifth i.e. 20% compared to 25% under the current process. Reductions then drop further the closer to the trial date the plea is entered. The above is all very well but what about this small thing called EVIDENCE upon which the lawyer needs to advise in this triable either way matter! Those of you familiar with the new Rule 8 of the Criminal Procedure Rules 2015 will have appreciated that it is very different from its predecessor Rule 10. The Rule is all about ‘Initial details of the prosecution case’ and sets out the nature of the material that should be provided to the defence prior to or on the morning of the first listing of the case. The former Rule 10 only applied to offences that were summary or triable either way. It did not apply to offences that were purely indictable because there was no requirement to engage with the client about plea at the Magistrates’ Court stage in an offence that was purely indictable. This is no longer the case. Initial details apply to indictable only cases because there will be an expectation that an indication of plea to that indictable matter be given at the first hearing – the Rules actually say that the Court MUST ask the defendant, and record, any indication of

plea and issues for trial to assist the Crown Court (Crim Proc 3A.5). Having said the above, it doesn’t seem to matter much if the offence is purely indictable and he puts off his plea until that first hearing in the Crown Court. This is the first time at which he is asked to enter a plea to a purely indictable offence i.e. upon arraignment at the Crown Court. Full credit is to be given under the new Draft Guidelines. Just so that we are absolutely clear on the point, an indication as to whether or not the defendant intends to plead guilty/not guilty at the Crown Court to this purely indictable offence/triable either way offence and an indication of the issues for trial where the matter is being sent to the Crown Court because it is purely indictable or it is being sent to the Crown Court because the defendant has either elected or the Court has declined jurisdiction in the matter. In addition, the Magistrates’ may give Directions appropriate to the needs of the case in accordance with the Rules and in accordance with any Standard Directions issued by the Presiding Judges of the Circuit. You can see immediately what my concern is. It is all very well the client indicating guilt at that first hearing in the Magistrates’ Court but it would be negligent of me as a lawyer to advise him on the plea (and certainly to advise him to indicate a plea of guilt) with insufficient evidence and I am likely to have insufficient evidence at that first listing in the Magistrates’ Court. It will be very interesting to see how Crown Court Judges deal with the issue of credit (particularly on guilty pleas to either way offences at the Crown Court) where no indication of guilt had been given at the Magistrates’ Court stage. No doubt the lawyers will make the appropriate representations about the inadequacy of the evidence provided. I’m sure we have all been in the position at one stage or another of being informed by the Court ‘Well he was there and he knows whether or not he did it!’ Would that life was that simple! Advice on evidence is a complex area and cannot be reduced to the above statement!!

I hope that we never get to the stage whereby defendants feel pressurised to indicate guilt to really serious matters at a very early stage in the Magistrates’ Court in order to achieve maximum credit upon sentence. It would be a sad day for the criminal justice process. Just so that you are aware of the position in the Draft Guideline it reads as follows:

For offenders aged 18 or older the first stage of the proceedings will be: For summary offences – up to and including the first appearance at the Magistrates Court; For Either way offences – up to and including the allocation hearing at the Magistrates’ Court; For indictable only offences – up to and including the first hearing at the Crown Court It would therefore appear that an indication of guilt at the first hearing in the Crown Court on a purely indictable only offence will still attract full credit but not so with offences triable either way. The 2007 Guidelines say that a person who puts off their plea until their Crown Court appearance on an offence triable either way should receive something in the region of 30% credit rather than the full one third but the Court of Appeal have said that nothing really hangs by this and that, in practice, Crown Court Judges are giving a third at that first hearing. The Guideline is clearly designed to alter the thinking in this area. In passing, it would be great if the Sentencing Council grasped the nettle and said that a suspect who made full admissions in the police station interview/was fully cooperative/showed remorse would be entitled to credit of 50%. That would really give the police station adviser something to go on when advising clients at a very early stage in the proceedings. They would have to give very careful advice due to the lack of evidence available to them at that stage. The advice would clearly have to be along the lines of, ‘it would be a matter for you as to whether or not you chose to make early admissions at this stage in order to achieve the maximum possible credit upon sentence, your admissions would mean a plea of guilty at Court’. I do hope this view is at least ‘aired’ in the consultation process. I don’t think the above will come to pass in the foreseeable future, but it would be great if it did. During the consultation period, the Council will host a number of consultation meetings to seek views from criminal justice organisations and other groups with an interest in this area, as well as those who sentence. It will also be conducting interviews with defence advocates to explore how they might apply the Guideline when advising defendants. Once the consultation is over and the Guideline revised, a final Guideline will be published and used by all Adult Courts and Youth Courts in England and Wales.

Amendments to the 2015 Criminal Procedure Rules Having barely got to grips with the new Criminal Procedure Rules operative from 5th October 2015, we now have the amendments to the 2015 Rules which will come into force on the 4th April 2016. They are contained in Statutory Instrument 2016 No. 120 – The Criminal Procedure (Amendment) Rules 2016. I haven’t even read them yet but will do so between now and April and keep you informed.

QASA You can be forgiven for thinking that it’s all gone a little quiet on QASA. Just a reminder of what it’s all about. The Joint Advocacy Group (JAG), comprising CILEx Regulation, the Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB) is responsible for the development and implementation of the Quality Assurance Scheme for Advocates. The purpose of QASA is to ensure that all Advocates undertaking criminal advocacy are competent to do so. This is achieved by: 1. Self-evaluation by an Advocate at level I (the lowest level of advocacy); 2. Assessment of an Advocate by an assessment centre at level 2; and 3. Independent judicial evaluation of an Advocate at Level 2 Trial, Level 3, Level 4 and Level 4 QC (the highest level of advocacy) in a minimum of 2 and a maximum of 3 of their first consecutive effective trials at their selected level after registration. A Criminal Advocacy Evaluation Form is completed by the trial Judge to record their evaluation of the Advocate’s performance.

After first registration, Advocates must be re-accredited every 5 years if they remain at their registration level or, alternatively, they must seek accreditation at a higher level should they wish to undertake more complex criminal advocacy work. On the 24th June 2015, the Supreme Court ruled that the QASA Scheme was lawful. During the Judicial Review process a number of minor recommendations were made to improve the operation and understanding of the scheme. JAG put the matter out to consultation (it closed on the 24th December 2015). They were not seeking views

on any other aspect of the Scheme or its implementation beyond the proposals that were contained in that consultation document, i.e. this was not a ‘root and branch’ consultation. We are past that stage! JAG is aware of the Ministry of Justice consultation paper on a package of proposals to maintain standards of criminal advocacy. Maintaining standards is a core regulatory responsibility and JAG welcomes the focus that the Ministry of Justice is giving to this issue. It is clearly critical that JAG ensures that QASA is ready to be implemented in order to complement any panel scheme that the Legal Aid Agency or other agencies such as the Crown Prosecution Service may need to operate from the perspective of purchases of legal services. The consultation was a key part to getting QASA ready for immediate implementation. A JAG spokesperson said ‘we are committed to implementing QASA as soon as possible. The consultation is the first phase of that implementation. More detail will be provided in due course about how Advocates can register’. THIS CLEARLY ISN’T GOING AWAY!

CPD The position, as I understand it, is this. Since April 2015 Solicitors have not needed accredited CPD points. For the period April 2015 to 31st October 2015 they could have entered voluntarily the new Competency Regime as set out by the SRA. All of the details of this new Regime are on the SRA website. Again, as I understand it, Solicitors do not have to do anything formally in order to enter the new Competency Regime. This Regime has been extended and will cover this current CPD year, i.e.1st November 2015 to 31st October 2016 (i.e. this year). Solicitors have a choice. They can either decide to stay with the old CPD regime and acquire their 16 points in the normal way or they can choose to enter the new Competency Regime instead. Entering the new Competency Regime requires each individual to ask themselves what their training needs are and how those training needs can best be met during this year. It may be that a person feels that they lack relevant Court experience in which case they might want to shadow one of their colleagues at Court. It might be that a person feels that he or she really needs to know the law in relation to a particular matter and no doubt some research into that matter would make them a more competent lawyer. It might be that a person feels that he or she needs to view

a Webinar on a particular subject or listen to a particular Podcast on a particular subject or attend a Conference and acquire more knowledge in a range of criminal topics. Anyone wanting to enter the new Competency Regime should sit down and compile 2 documents as follows: A Development Plan – this plan should set out clearly what that person needs to do in order to develop and precisely that which is necessary in order to achieve that development – some thought should be given to what resources or support will be required and what the success criteria will be A Development Record/Competency Statement – this is really just a record of what the particular person did and when and for what reason and with what outcome and perhaps a thought as to whether or not it achieved the outcome or whether some further development is required in this particular area Here’s a clue, I went on a fantastic Course/Conference for these reasons and learned these things!!! I’m pretty sure that attendance on relevant courses which develop a lawyer in a particular area is clearly what they are aiming at. The SRA want to get away from Solicitors just ticking a box and attending inappropriate courses i.e. crocheting for criminal lawyers on 31st October simply in order to get useless CPD points in order to tick the relevant box when applying for the renewal of a Practising Certificate! If I may say this, they are trying to get lawyers to do that which lawyers should have done already, i.e. attend courses appropriate to their development and competence! With effect from 1st November 2016 (i.e. later this year) there really will be no CPD points and the only operative scheme will be the Competency Regime as outlined by the SRA on their website. Finally, the position is quite different with regard to Barristers who still require their 12 CPD points per year. No doubt Barristers will keep a close eye on the BarStandardsBoard website in order to familiarise themselves with any changes coming their way.

Section 4 CrimeScribe Edition No. 56

Legal aid rates Hello and welcome to this month’s edition of CrimeScribe. It has been quite a quiet month and I have therefore included, as an additional document at the end of this month’s edition, a paper I wrote concerning better case management (BCM) which may be of interest to some of you. We now have the new Statutory Instrument concerning the payment of legal aid fees. It is Statutory Instrument 2016, No. 313. In summary, this Statutory Instrument increases all fees for criminal legal aid work (with the exception of Crown Court advocacy which remains unchanged) for new work and for new representation orders on or after the 1st April 2016. The fees are all increased by 8.75%. As you know, the Minister announced that the cut of 8.75% would be lifted for 12 months (and who knows, possibly longer?) That cut was introduced by Statutory Instrument 2015, No. 1369 for work done on or after the 1st July 2015. That will now only apply until 31st March 2016. For work done on or after the 1st April 2016 we go back to the position we were in prior to the 1st July 2015. I have checked the 2016 Statutory Instrument and the rates within it mirror the rates in Statutory Instrument 2014 No. 415. I expected them to. That Statutory Instrument gave us the rates of pay for work done between the 20th March 2014 and the 1st July 2015. That Statutory Instrument introduced the first of the two 8.75% reductions. We are going to have to live with the 8.75% reduction which came in for work done on or after the 20th March 2014 but the 8.75% reduction for work done on or after the 1st July 2015 will be lifted for work done on or after the 1st April 2016. I hope that all make sense. Watch out for work that finishes on or after the 1st April 2016 but which started prior to this date. For this work the 8.75% reduction would still apply.

Statutory instruments I must confess to not knowing anything about Statutory Instrument 2016, No. 35 until a friend brought it to my attention. It is ‘The Police and Criminal Evidence Act (Codes of Practice) (Revision of Code E) Order 2016. It came into force in February 2016.

The Order brings into force a revised Code of Practice under Section 60 (1) (a) of the Police and Criminal Evidence Act 1984 which will supersede the existing Code of Practice issued under that Subsection. The amendments to Code E exempt 4 types of offences from the requirement that the interviews of individuals regarding indictable offences must be audio recorded. The amendments set out the conditions that must be met before the exemption can apply. The 4 types of offences are as follows: Possession of cannabis Possession of khat Retail theft (shoplifting) of property with a value not exceeding £100 Criminal damage to a value not exceeding £300 It would seem that there is still a requirement for an interview but no requirement any longer for the interview to be audio recorded. A quick Q and A interview would seem to suffice. A worrying development as I suspect the lack of a formal audio recorded interview may well mean the lack of legal advice on the matter.

Directives Another document brought to my attention recently was that of Directive 2012/13/ EU of the European Parliament and of the Council – 22nd of May 2012 ‘On the right to information in criminal proceedings’ I reproduce part of the Directive because it just might enable you to obtain more information from the police at an early stage of the investigation. The relevant paragraphs are as follows: Paragraph 27 – Persons accused of having committed a criminal offence should be

given all the information on the accusation necessary to enable them to prepare

their defence and to safeguard the fairness of the proceedings.

Paragraph 28 – The information provided to suspects or accused persons about the

criminal act they are suspected or accused of having committed should be

given promptly, and at the latest before their first official interview by the police

or another competent authority, and without prejudicing the course of ongoing

investigations. A description of the facts, including, where known, time and place,

relating to the criminal act that the persons are suspected or accused of having

committed and the possible legal classification of the alleged offence should

be given in sufficient detail, take into account the state of the criminal

proceedings when such a description is given, to safeguard the fairness of the

proceedings and allow for an effective exercise of the rights of the defence.

Paragraph 29 – Where, in the course of the criminal proceedings, the details of the

accusation change to the extent that the position of suspects or accused persons

is substantially affected, this should be communicated to them where necessary

to safeguard the fairness of the proceedings and in due time to allow for an

effective exercise of the rights of the defence.

Paragraph 30 – Documents and, where appropriate, photographs, audio and video

recordings, which are essential to challenging effectively the lawfulness of an

arrest or detention of suspects or accused persons in accordance with national

law, should be made available to suspects or accused persons or to their lawyers

at the latest before a competent judicial authority is called to decide upon the

lawfulness of the arrest or detention in accordance with Article 5 (4) ECHR, and

in due time to allow the effective exercise of the right to challenge the lawfulness

of the arrest or detention.

Paragraph 31 – For the purpose of this Directive, access to the material evidence, as

defined in national law, whether for or against the suspect or accused person,

which is in the possession of the competent authorities in relation to the specific

criminal case, should include access to material such as documents, and

where appropriate, photographs and audio and video recordings. Such materials

may be contained in a case file or otherwise held by competent authorities in

any appropriate way in accordance with national law.

Paragraph 32 – Access to the material evidence in the possession of the

competent authorities, whether for or against a suspect or accused person, as

provided for under this Directive, may be refused, in accordance with national

law, where such access may lead to a serious threat to the life or fundamental

rights of another person, or where refusal of such access is strictly necessary to

safeguard an important public interest. Any refusal of such access must be

weighed against the rights of the defence of the suspect or accused person,

taking into account the different stages of the criminal proceedings. Restrictions

on such access should be interpreted strictly and in accordance with the

principle of the right to a fair trial under the ECHR and as interpreted by the case-

law of the European Court of Human Rights.

And finally at Paragraph 36 – Suspects or accused persons or their lawyers should

have the right to challenge, in accordance with national law, the possible failure

or refusal of the competent authorities to provide information or to disclose

certain materials of the case in accordance with this Directive. That right does not

entail the obligations for Member States to provide for a specific appeal

procedure, a separate mechanism, or complaint procedure in which such failure

or refusal may be challenged.

The more I read of the above, the more I think that such information may also be useful in the early stages of the proceedings at Court. Not sure how well quoting the European Directive is going to go down in your local Magistrates’ Court!!!

Bail I read with interest Anthony Edward’s article ‘Easy way round new bail limits’ in the 14th of March edition of the Law Society Gazette. Apparently there is a new Policing and Criminal Justice Bill before Parliament which will place time limits on the length of police bail. There have been murmurings of discontent for some while now about the length of time that suspects can be on bail and these all came to a head with the long bail periods of certain recent high profile cases. In most cases, under the proposals, this will be 28 days with a senior police officer being able to extend that limit to 3 months. Thereafter, only the Courts will be able to allow a suspect to remain on bail. Somewhat shockingly in 2014 in the metropolitan police area over 4000 people were on bail for over 6 months! There is to be a presumption that most suspects will not be placed on bail and, even if initially arrested, will be released without bail while the investigation continues. It will, of course, be very advantageous for clients not to be arrested because these arrests do have a habit of getting onto computer records and may cause problems in obtaining positions such as that of nanny or upon applications for visas. The downside of all of this, as expressed in Anthony’s article, is that many will know that they are subject to a police enquiry but will have no idea of when it will all end and may be suffering consequences, i.e. suspension from work, during the period. One solution is the possibility of a Senior Court reviewing the matter and having power, in the absence of new evidence, to end a criminal investigation that has gone on too long. We all know how reluctant Courts have been historically to get involved pre-charge although they do become involved with the lawfulness of warrants and the necessity and proportionality of pre-charge bail conditions. It would be quite a serious step for a Court to order discontinuance of an investigation. An alternative suggestion might be for an officer,

independent of the investigation and of at least Detective Chief Superintendent rank, to conduct an internal review of the investigation and at that point, to determine whether it should continue. We must wait and see whether or not such things make it into the statutory provisions on the point.

The Sentencing Council On the 11th of February the Sentencing Council published a ‘Proposed Guideline’ concerning sentence discounts offered in return for early guilty pleas. The main change appears to be in relation to offences triable either way where the proposal is that the discount be one third, if the plea is entered at the Magistrates’ Court stage but only one fifth if entered at the first appearance at the Crown Court. There is to be no change concerning the stage at which guilt should be indicated in purely indictable matters, i.e. the first appearance at the Crown Court will suffice. There are safeguards to ensure that defendants do not feel pressurised to enter a guilty plea early on but do they go far enough? It may be that the Initial Details of the Prosecution Case are not available at that first hearing. It may be that the case is too complex for a defendant to know whether or not he or she is guilty without the need for some specialist advice on plea. What will concern many practitioners is the scenario of the IDPC simply being inadequate to fully advise on plea and venue but where the Court takes the view that ‘he was there and he knows whether or not he is guilty of the offence’ i.e. ‘socalled’ non-complex cases. This puts the lawyer in the very difficult position of not being able to advise fully on both plea and venue and yet the defendant is at risk of his credit being a fifth rather than a third for not having indicated a plea of guilty to an offence triable either way at the first hearing. This may present a huge dilemma for the defendant and a dilemma for the lawyer. The lawyer must make it clear that any guilty plea entered at that stage is not really upon advice; there being inadequate information upon which to advise.

Guidelines concerning Dangerous Dog offences – in force 1st of July 2016 The Guideline covers 4 main areas: Where a dog injures a person. Where a dog kills a person. Where were dog injures an assistance dog (guide dog). Possession of a banned breed of dog. Changes to dangerous dog’s legislation came about under the Anti-Social Behaviour, Crime and Policing Act 2014 when Sections 106 and 107 came into force. The law was extended to cover attacks that occur on private property and another new offence was created of injuring an assistance dog. Maximum prison sentences were also increased in England and Wales and are as follows: A maximum of 14 years, up from 2 years, for a fatal dog attack. A maximum of 5 years, up from 2 years, for injury. A maximum of 3 years if an assistance dog is attacked. The increases mean that a much wider range of sentence lengths are available than under the previous guidelines and sentences are therefore likely to be higher than in the past but they must always be appropriate and proportionate (as with all sentences). As you can well imagine these dog attacks range from the very minor to the very serious and these are reflected in the suggested guideline sentences. Dog owners vary enormously in their responsibility. At the worst extreme is the owner who deliberately trains the dog to be an attack dog whilst at the other end of the spectrum is the responsible owner who has a momentary lapse of control over the dog with minor or serious consequences. I think the analogy is careless driving. A momentary lapse of concentration can have the most horrendous consequences and yet one may drive carelessly (bordering on dangerous) and get away with it! I’m sure dangerous dogs are the bane of the postman’s life and this is reflected in the guidelines. The 2014 Act extended the law to cover attacks within the home and garden as well as in public places. An attack on an assistance dog may be traumatic for both the dog and its owner.

In addition to sentences for the offences themselves the guidelines emphasise the need to consider whether or not the owner should be banned from owning a dog or should have a dog taken away from them or should be made to pay compensation to the victim for the injury and distress caused by the incident. And speaking of guidelines........ Where are the guidelines in relation to the new driving, attempting to drive or being in charge of a motor vehicle on the road or public place with drugs in the system in excess of that permitted on the Schedule? This offence has now been in force a year and some guidelines would be greatly appreciated. It seems to me that at the moment the Courts are having to have recourse to their guidelines concerning alcohol or driving whilst impaired and achieve ‘a best fit’.

Amendments to the Criminal Procedure Rules 2015 Just when we have got to grips with the Criminal Procedure Rules 2015 (SI 2015 No. 1490 – in force, 5th of October 2015), we need to cast an eye over the amendments (Statutory Instrument 2016, No.120) which are due in on the 4th April 2016. Amendments of note are as follows: Time limits for starting a trial in the Crown Court – Section 77 of the Senior Courts Act 1981 requires Criminal Procedure Rules to ‘prescribe the minimum and the maximum period which may elapse between a person being sent for trial and the beginning of the trial’ (which the Act defines as taking place ‘when the defendant is arraigned’, meaning when his or her plea of guilty or not guilty is taken at the Crown Court). Rule 3.24 of the Criminal Procedure Rules is amended by Rule 4 of these Rules to set those time limits as a minimum of 2 weeks after sending unless the parties otherwise agree and a maximum of 16 weeks unless a Crown Court Judge otherwise directs. Notice to introduce evidence of a defendant’s own bad character – in the case of R v Hunter and others [2015] EWCA Crim 631 The Court of Appeal dealt with several appeals against convictions in the Crown Court on grounds relating to the trial Judge’s directions to jurors about a defendant’s character. In each case the defendant had revealed a previous conviction and then tried to minimise its significance, asking the Judge to direct the jury that they should treat the defendant as a person of good character despite that conviction. At Paragraphs 99 – 102 of the judgement the Court of Appeal said:

‘The difficulties that have arisen most commonly arise because inadequate discussion has taken place between the advocates and the Judge before the evidence has been adduced, before speeches, and before summing up, and on occasion because the Judge has not directed the jury in accordance with his/her stated intention..... We have no doubt this as a matter of good practice, if not a Rule, defendants should put the Court on notice as early as possible that character and character directions are an issue that may need to be resolved. The Judge can then decide whether or good character direction would be given and if so, the precise term. This discussion should take place before the evidence is adduced. This has advantages for the Court and for the parties: the defence will be better informed before the decision is made whether to adduce the evidence, the Crown can conduct any necessary checks and the Judge will have the fullest possible information upon which to rule. The Judge should then ensure that the directions given accord precisely with their ruling. The Criminal Procedure Rule Committee may wish to clarify the scope of the Rule’. The Rule Committee has made this amendment in response to that judgement. Rule 21.4 of the Criminal Procedure Rules is amended by Rule 8 of these Rules to require a defendant (i) to give notice of his or her intention to introduce evidence of his or her own bad character, and (ii) in the Crown Court, at the same time to give notice of any requested direction to the jury about the significance of that evidence. Identification of issues by the defence – Sir Brian Leveson, the President of the Queen’s Bench Division of the High Court, recommended that ‘the Criminal Procedure Rules be amended so as to require, immediately following the prosecution opening, a public identification by the defence of the issues in the case’. The following amendments have been made as a result: Rule 24.3 of the Criminal Procedure Rules, which is about trial in Magistrates’ Courts, and Rule 25.9, about trial in the Crown Court, are amended by Rules, 9 and 10 (a) of these Rules to provide for the identification of issues by the defence at the beginning of the trial. In the Crown Court, if the defendant declines the Judge’s invitation to identify the issues for the jury, and if the Judge thinks it necessary to help achieve a fair trial for jurors to know what the defendant had declared would be in issue before the trial began, then the Judge can require the jury to be given a copy of that declaration (known as ‘the defence statement’). Case management in appeals to the Crown Court – It was reported to the Rule Committee that Crown Court Judges were in doubt about the extent of their powers

to give case management directions on an appeal from a Magistrates’ Court to the Crown Court prior to the hearing of the appeal. To hear the appeal, the Crown Court must comprise a Crown Court Judge and Magistrates’; but the relevant statute, the Senior Courts Act 1981, is unclear about the Judge’s power to deal with pre-hearing directions on his or her own. Among Judges, the complexity of appeals to the Crown Court is perceived to be on the increase, and there is perceived to be a greater need now for case management by the Court that there has been before now. Section 74 of the 1981 Act allows the Criminal Procedure Rules to prescribe the Constitution of the Crown Court for the purposes of an appeal. The Rule Committee has used that power. Rule 34.11 of the Criminal Procedure Rules is amended by Rule 11 of these Rules to provide explicitly that a Judge alone can give case management directions and, if applicable, can allow an appeal against conviction where the respondent prosecutor does not wish to oppose it (for example, because further evidence has emerged to show that the conviction was plainly wrong – such as evidence that the defendant was in fact insured to drive, in a case of alleged driving without insurance). Rule 34.7 is also amended to include explicit provision for application for rulings during preparation for the appeal hearing. Time for costs claims and assessments of costs – In the case of Quayum v Director of Public Prosecutions [2015] EWHC 1660 (Admin) the High Court pointed out that, unlike other types of costs order, applications under Section 19 (1) and 19A of the Prosecution of Offences Act 1985, for orders for wasted legal costs to be paid by the party, or lawyer responsible for the waste, had to be made ‘during’ or ‘in’ the proceedings, not afterwards and Courts had no power to extend the time within which such costs applications could be made. In the case of Evans v The Serious Fraud Office [2015] EWHC 1525 the High Court observed that the amount of costs to be paid on an application under either of those same two sections of the Prosecution of Offences Act 1985 has to be assessed by the Court itself, and that is some exceptional cases the amount claim may be very large, and the assessment complex and time-consuming (in the Evans case itself, the Court made a costs order for £1,726,795.05p). The Court commented that,’ the jurisdiction of... Judges to seek assistance.... when required to assess Section 19 costs may well be worthy of further consideration by the Criminal Procedure Rule Committee’. Similarly complex costs assessments may be required on an application under Section 19B of the 1985 Act for wasted legal costs to be paid by a third party.

The Rule Committee has made these amendments in response to those judgements. Rules in Part 45 of the Criminal Procedure Rules are amended by Rule 14 of these Rules (i) to draw attention to the application of time limits to the Court’s powers to make some costs orders, and (ii) to supply the procedure where the Court requires assistance in assessing costs under some of its powers. NB – the Costs Practice Directions will be amended with effect from 4th April 2016 enabling Courts to require resistance (from the National Taxing Team or the Registrar of Criminal Appeals) when assessing costs. It is envisaged the power will be exercised in ‘a few, exceptional cases’ where ‘it may better meet the overriding objective to secure the assistance of an assessing authority than for the Court to embark upon a complex assessment without such assistance’.

Case-Law Crader v Director of Public Prosecutions [2015] EWHC 3553 (Admin) – a very short point – apparently there is no requirement for a certificate issued pursuant to Section 20 of the Road Traffic Offenders Act 1988 to state on its face that it is signed by either a Constable or a person who is authorised by or on behalf of the chief Constable to sign it. The Justices found that there was nothing wrong with the document and on an appeal by way of case-stated to the High Court the High Court took the same view. R (Ewing) v Cardiff Crown Court [2016] EWHC 183 (Admin) – an interested member of the public was free to take notes in Court and no prior authority was required. Furthermore, no justification for the taking of notes is required to be given. A Judge retains a common law power to prevent note taking if the Administration of Justice is being interfered with – we have a new Practice Direction on the taking of notes in Court (CPD 1 (Criminal Practice Directions) General matters 6D: Taking Notes in Court) – the new Practice Direction provides guidance on note taking in Court, in accordance with the judgement in Ewing. Every so often we get a case and I’m amazed that the issue has not been resolved earlier in English law. Such a case recently was that of Henderson v Crown Prosecution Service [2016] EWHC 464 (Admin). It got to the High Court by way of Case Stated from the decision of District Judge (Magistrates’ Court) Fanning to convict him for 3 offences of harassment contrary to Section 4A of the Public Order Act 1986 on the 1st May 2015. These convictions

followed the appellant’s convictions on the 10th April 2015 for 3 offences of racially aggravated harassment contrary to Section 31 (1) (b) of the Crime and Disorder Act 1998.Both sets of convictions were in respect of offences against the same victims and arising out of the same facts. It is the appellant’s case that it was wrong in principle to find him guilty of both the aggravated and the underlying offences and that the convictions for the underlying offences should be quashed. The present case concerns harassment, but similar issues would arise where there are charges of both an underlying offence of assault or criminal damage, and an offence which is either racially or religiously aggravated. It is important to note that the Court was envisaging two possible approaches to the issue: the first, to adjourn the alternative charge and the second to convict of the alternative charge with no further penalty. In the present case the District Judge adopted the latter course. Was this right? The District Judge doubted whether the Magistrates’ Court had power to adjourn the trial of the underlying offences sine die but the High Court said this at Paragraph 40 of the judgement: ‘In order to avoid the objectionable course of convicting for both the underlying offence and the aggravated offence, the sensible course is to adjourn the trial of the underlying offence sine die; and we do not consider that any practical difficulty involved in dealing with the files in such case is an insurmountable objection to this course. And at Paragraph 41 of the judgement ‘If the defendant wishes to plead guilty to the underlying offences but contest the aggravated offence, that offer to plead should be noted, but the plea should not be taken. And at Paragraph 43 of the judgement ‘We would wish to acknowledge the clarity and comprehensiveness of the Case Stated. We have endeavoured to answer the broader points which were raised, but our conclusion can be stated shortly: the convictions on the 1st May 2015 of the underlying offences must be quashed’ I AM QUITE CERTAIN THAT THE COMPUTER WILL NOT LIKE THE JUDGEMENT!! 62

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Section 5 CrimeScribe Edition No. 57

Hello and welcome to this month’s edition of CrimeScribe.

Statutory Instruments We start off with 2016 No. 389 which is the Criminal Justice Act 2003 (Surcharge) (Amendment) Order 2016 and came into force on the 8th April 2016. As you know, there is very little discretion in this area and the Court must ordinarily impose the charge. If the offender has insufficient resources it is the fine that should be reduced in order to accommodate payment of the surcharge rather than the surcharge not being awarded. When the issue is between that of the surcharge and compensation then compensation takes precedence and the surcharge can be reduced or not imposed (logical really when you think that compensation actually belongs to the victim and that the priority must be given to victims rather than the collection of charges). It was initially the case that a Crown Court could never impose the surcharge and impose days in lieu where a custodial sentence had been imposed. Magistrates’ retained the power to do so until the 1st June 2014 when this power was taken away from the Magistrates’ Court under Section 179 of the Anti-Social Behaviour, Crime and Policing Act 2014. There is still doubt as to whether or not it would be possible to impose the surcharge and then impose a day’s detention in default of payment under Section 136 of the Magistrates’ Court’s Act 1980. My view has changed on this and I now am firmly of the opinion that, although a Court might do it, it would be a course of action ‘frowned upon’ by the Court of Appeal. We had a case last year in which the Court of Appeal was not impressed when a Court purported to impose the Criminal Courts Charge and to dispose of it by way of a day’s detention in default. Some Courts may continue to do it. Where the issue is between the payment of the surcharge and the payment of monies due under a Confiscation Order, the surcharge takes precedence – see Section 6 of the Serious Crime Act 2015, which came into force on the 1st June 2015. Where consecutive sentences are imposed, the surcharge is based upon the totality of the sentence and where there is a ‘mixed disposal’ one must look to the disposal which attracts

the highest surcharge. There is no surcharge attaching to disposals in breach proceedings. It is Section 161A (1) of the Criminal Justice Act 2003 which requires a Court, when dealing with a person for one or more offences, to order the person to pay a surcharge. The amount of surcharge that is payable in particular circumstances is set out in the Schedule to the Criminal Justice Act 2003 (Surcharge) Order 2012 (SI 2012/1696). This Order amends that Schedule to increase those amounts. Article 3 (they refer to them as Articles, rather than paragraphs when dealing with Statutory Instruments) of this Statutory Instrument provides that the amendments this Order makes to the 2012 Order do not apply where a Court deals with a person for a single offence committed before 8th April 2016; nor do they apply where a Court deals with a person for more than one offence where at least one of those offences was committed before 8th April 2016. FOR THE AVOIDANCE OF DOUBT, ALL OF THE OFFENCES MUST HAVE BEEN COMMITTED ON OR AFTER THE 8TH OF APRIL 2016 IN ORDER FOR THE NEW INCREASED AMOUNTS MENTIONED IN THIS SI TO BE APPLICABLE. NO SURGHARGE IS APPLICABLE FOR OFFENCES COMMITTED BEFORE THE 1ST OF APRIL 2007 The new increased amounts are as follows: Offenders aged 17 or below at the date of the commission of the offence Conditional Discharge – £15 A fine – £20 Youth Rehabilitation Order – £20 Referral Order – £20 Community Order – £20 Custodial sentences – £30 Offenders aged 18 or above at the date of the commission of the offence Conditional Discharge – £20 A fine – 10% of the fine value with a minimum of £30 and a maximum of £170 (rounded up or down to the nearest pound) Community order – £85 A suspended sentence of imprisonment/YOI of 6 months or less – £115

A suspended sentence of imprisonment/YOI of more than 6 months – £140 An immediate sentence of imprisonment/YOI of 6 months or less – £115 An immediate sentence of imprisonment/YOI of more than 6 months and up to, and including, 24 months – £140 A sentence of imprisonment/YOI for a determinate period exceeding 24 months (Crown Court only) – £170 A sentence of imprisonment or custody for life (Crown Court only) – £170 Organisations Conditional Discharge – £20 A fine – 10% of the fine value with the minimum of £30 and a maximum of £170 (rounded up or down to the nearest pound) Statutory Instruments 2016 No. 10, 2016 No. 286 and 2016 No. 327 all deal with Alcohol Abstinence Monitoring Requirements For those of you who have not come across these they were created by Section 76 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which had the effect of inserting Section 212A into the Criminal Justice Act 2003.An Alcohol Abstinence and Monitoring Requirement can be imposed as part of a requirement of a Community Order or Suspended Sentence Order. Section 76 cannot be brought into force for the whole of England and Wales unless it has been piloted. Section 76 was originally brought into force for the purposes of a pilot in the South London local justice areas on the 31st July 2014 until 31st March 2016. The pilot is now extended to cover 9 local justice areas in London and Section 76 is therefore being brought into force for a period of 12 months beginning on 1st April 2016 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Alcohol Abstinence and Monitoring Requirements) Piloting Order 20160 (SI 2016/286) for this purpose. This Order prescribes that the monitoring of compliance with the obligations of an alcohol abstinence monitoring requirement will be by means of a transdermal electronic tag. This is fitted to an offender to measure the level of alcohol contained in their sweat. I am reliably informed by people who know far more about these matters than I, that the offender has a box fitted in their home and that the tag must in some way be attached to the box in order for a reading to be made at several points during the day. The tag must not be immersed in water and so no baths for these people!! The tag is a requirement (there may be other requirements) of a Community Order or a requirement as part of a Suspended Sentence of imprisonment. 66

They clearly have the backing of the government. The Ministry of Justice announced in February that it is to spend £400,000 on ankle-bracelets to combat alcohol related crime. The announcement also said that the Orders would be extended across the whole of the London Boroughs from the 1st April 2016 following an 18 month pilot in 4 areas. The Ministry reported that 9 in 10 offenders had complied with the alcohol abstinence requirements in the pilot. The tags provide round-the-clock monitoring of alcohol in an offender’s perspiration. If they drink again, breaching their alcohol abstinence order, they can be sent back to Court for further sanctions. We must keep an eye on these....... I suspect that they will be coming to a Magistrates Court near you at some point.......

CASE-LAW Every so often we get a reported decision and I wonder whether or not I have missed something? I am left with the feeling ‘surely, there must have been more to it than that!’ Such a case was R (Cuns) v Hammersmith Magistrates’ Court [2016] EWHC 748 (Admin) The matter arrived at the High Court by way of Judicial Review rather speedily as the applicant wanted an interim suspension of the disqualification that had been imposed. The proceedings were also a challenge against the lawfulness of the refusal of the Magistrates’ to State a Case. The claimant was charged with an offence under Section 7 (6) of the Road Traffic Act 1988 in that he had failed to provide a specimen of blood for a laboratory test without a reasonable excuse. He was convicted and ordered to pay a fine and disqualified for a period of a year. The claimant had stated at the police station that he had a needle phobia. It would seem from the case that that was all he had done. The High Court took the view that the Crown only have to disprove a reasonable excuse if there is some evidential basis provided by the claimant, so that the issue is ‘in play’. The evidence before the Magistrates’ consisted of the evidence of one officer who had conducted the roadside procedure. Another officer, who appears not to have

been contentious for a number of reasons, but was the procedural officer, was, it was said, desired to be called by the defendant in the course of the Magistrates’ Court proceedings, so that questions could be asked of him about the procedure, and in particular what he observed of the claimant’s demeanour and whether there had been an immediate objection to giving a specimen on the grounds of a phobia. The claimant, as defendant, specifically objected to the evidence of the doctor, who was part of the statutory procedure at the police station, being given by way of a written statement. It is clear that the claimant wished to, and indeed needed to, do more than merely put questions to her for information. Her evidence would have been hostile to the defence and she would have needed to be cross-examined. As she was not available, her evidence was not read, and did not form part of the prosecution case. What evidence was there before the Court that the claimant had a needle phobia and of a sufficient intensity whereby blood could not be provided upon request? The defendant declined to give evidence at all. No submission of ‘no case to answer’ was made. The claimant refused to give evidence about his phobia, if there was a phobia, or any of the circumstances pertaining at the police station. No medical evidence was called on his behalf. The only evidence appeared to be his statement at the police station to the effect that he had a needle phobia. The High Court took the view that that did not constitute an evidential basis that required the Crown to go through the steps of considering the medical records of the claimant and having a medical examination of him carried out. The Magistrates’, upon convicting him, had said that he had not raised the defence sufficiently. They also draw an adverse inference from his failure to testify. He provided no evidence at Court to support the allegation of needle phobia and he provided no medical evidence in support of the condition. They simply did not believe his assertion at the police station. The question they were asked initially when asked to State a Case was this: ‘On the evidence, could a reasonable bench properly directing itself have held that

the defendant failed to provide a specimen of blood, without reasonable excuse?’ The Magistrates’ concluded that they would not state a case because the question being posed of them was not a question of law. As you know, Magistrates’ can refuse to state a case if the question posed is not a question of law or if the question asked has no reasonable basis for being pursued at all, is totally without merit or hopeless (frivolous!) The High Court was satisfied that the question posed was a question of law, but, in the light of the evidence that was produced before the Magistrates’, they could only answer it one way! (Not a way at all beneficial to the claimant!) Mr JUSTICE OUSELEY said this at Paragraph 13 of the judgement: ‘Although I am satisfied that the question posed was indeed a question of law, it was on analysis a question which could only be answered one way, and could obviously only be answered one way, in the light of the evidence which was produced to the Magistrates’. The application was therefore strictly frivolous as no tenable point of law was raised. The reason is this. It is for the claimant to provide some evidential basis for the asserted reasonable excuse, in this case needle phobia. It does not begin to be enough for a claimant to say at the police station ‘I have needle phobia’ and then to cause the CPS to have to disprove that through a process of accessing his records and requiring a medical examination. It is for the defendant in the Magistrates’ Court to provide some evidence, whether from him himself or from family or from a doctor, so as to provide an evidential basis of needle phobia, and of needle phobia to such an extent that it overcomes his power to grant consent to the taking of the specimen.’ Indeterminate Sentences for Public Protection – the issue will not go away. The latest is the case of R v Roberts and others [2016] EWCA Crim 71. The Court of Appeal were dealing with 13 applications for an extension of time in which to apply for leave to appeal against sentences of imprisonment or detention for public protection imposed between 2005 and 2008. Unfortunately for the appellants, the Court held that, in each case, the Judge had correctly applied the law and, this being the case, there was nothing the Court of Appeal could do for them. We all know the problem. Defendants are still inside long after they have served the entirety of their tariff and they have no expectation of release; the sentence being of an indeterminate nature. According to the Court of Appeal, the remedy, if any, is one that the executive and Parliament must address. One day there may be an amnesty for these people. I don’t know. I always had an uneasy feeling about indeterminate

sentences for public protection. They are incredibly stressful for defendants and for anyone associated with the defendants. Bail Pending Appeal – the case of Thomas v Crown Prosecution Service [2015] EWHC 4079 (Admin) 2 very simple questions for the High Court as follows: 1. Does Section 113 of the Magistrates’ Courts Act 1980 create an entitlement to

apply for bail pending appeal in every case in which such a request is made?

2. Does Section 113 of the Magistrates’ Courts Act 1980 place an obligation

on the Magistrates’ Court (whether by sentencing tribunal or otherwise) to

hear an application for bail pending appeal in every case where such a

request is made?

Para 20 of the judgement gave the answers The answer to question 1 was that the Section does indeed create an entitlement to apply for bail pending appeal in every case in which such a properly constituted application is made. The answer to question 2 was that there was an obligation to consider an application for bail pending appeal in every case where a properly constituted application for bail in the Magistrates’ Court was made but it does not follow that in every case it would be necessary to hold an oral hearing on the application. Here’s another case in which I was left wondering –‘. How on earth did this get anywhere near the High Court?’ – Higgins v The Crown Prosecution Service [2015] EWHC 4129 (Admin) A classic of the genre! A domestic assault where the prosecution evidence was agreed under Section 9 of the Criminal Justice Act 1967 and there was no live prosecution evidence. The defendant himself gave evidence. Police officers went to the house and saw the injuries of the complainant and took a full note of what she said – the substance of it being that there had been an argument and her husband had punched her in the face, causing her nose to split. It was quite clear that she was ‘emotionally

overpowered’ by the event at the time. The phone call having been made at 1:30 a.m. and the words were used before 1:40 a.m. To make matters worse, upon arrest the reply of the defendant to caution was ‘yeah, I slapped her, I don’t fucking care what happens’. He thereafter went ‘no comment’ in his interview and relied on self- defence at trial. The complainant did not make a statement as she said she was too frightened. To my mind, the only thing in the defendant’s favour was an email from his wife referring to the incident in which she said they had been drinking heavily. They argued, which resulted in her sustaining a cut to her nose which bled excessively due to the amount of alcohol consumed. This was an isolated incident that would not have happened if they had been sober. She did not contact the police and had not pressed charges as she believed they were equally to blame’. It is true to say that she herself had not contacted the police. The telephone call about the incident had come from a member of the public. I’m sure you have all appreciated by now that this evidence at trial (as given by the police officers) was hearsay but fully covered by Section 118 (1) (4) (a) of the Criminal Justice Act 2003, the current statutory scheme with regard to hearsay evidence expressly preserved some existing rules of law, including: ‘Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if – (a)

the statement was made by a person so emotionally overpowered by an

event that the possibility of concoction or distortion can be disregarded......’

We refer to such statements as being covered by the res gestae doctrine. Section 118 of the Act has expressly preserved the important common law exceptions to the rule against the admissibility of hearsay evidence which had built up in case-law over a number of years prior to the 2003 Act. Dying Declarations are not there but I suspect we can safely assume that these have become subsumed within the res gestae doctrine. The defendant said in evidence that his wife had punched the back of his head a number of times and the appellant had then ‘clipped her’ to fend her off, accepting that he caused her injuries.

He said that he had given a â&#x20AC;&#x2DC;no commentâ&#x20AC;&#x2122; interview only on legal advice after explaining to his Solicitor what had happened. Strange that a suspect giving an account which amounted to a defence was apparently advised not to put that defence during the interview. I donâ&#x20AC;&#x2122;t wish to be unfair to the Solicitor. We know not the precise details of their consultation and that is as it should be. The District Judge convicted the defendant of assault and the High Court agreed with him!

Legal aid The Legal Aid Agency announced on the 7th April that LGFS (Litigator Graduated Fee Scheme) and AGFS (Advocates Graduated Fee Scheme) claims no longer need an LAC1 form to confirm mode of trial if the representation order is dated on or after 1st August 2015. Quite why it took them so long to make this pronouncement is a mystery. As you know the form was formally required as recognition of the fact that justices had declined jurisdiction rather than the defendant having elected on a matter triable either way. The current position is that, and always has been, both the litigator and advocate are paid on a page count if the matter is sent in circumstances where jurisdiction is declined. The position is slightly different where the defendant elects to go to the Crown Court and is sent as a result of his own election. The current position is as follows: Where he elects and pleads guilty, both the litigator and the advocate may claim a fixed fee rather than a graduated fee based on a page count Where he elects and there is a trial, both the litigator and the advocate are paid a graduated fee based on a page count Where he elects and the trial cracks, the crucial issues are precisely how it cracked and the date of the Representation Order. If the Representation Order is dated on or after 2nd October 2014 and the case cracks because the Crown offers no evidence on all of the counts and the Judge directs that a not guilty verdict be recorded, then both the litigator and the advocate may claim a graduated fee based on a page count. In all other circumstances both the litigator and the advocate may only claim a fixed fee. That fixed fee might actually be more than the page count fee. It

depends how many pages there are! Another case in which I asked myself whether or not I had missed something was that of R v Tai 2016 SCCO 4/16 8th of March 2016 This case concerned the issue of whether or not possession of a knuckleduster was sufficient to satisfy the definition of an armed robbery for graduated fee purposes even if it had not actually been used in any form. The Determining Officer had referred to the definition of an offensive weapon, as described by Master Rogers in R v Staples (1999). He had held that for a robbery to be treated as an armed robbery, one of two examples must apply; 1.

A robbery where a defendant or co-defendant to the offence was armed

with a firearm or imitation firearm or the victim thought they were so armed

A robbery where the defendant or co-defendant to the offence was in

possession of an offensive weapon, namely a weapon that had been made

or adapted for use for causing injury to or incapacitating a person, or

intended by the person having it with him for such use, should also be

classified as an armed robbery. However, where the defendant, or co-

defendant, only intimate that they are so armed, the case should not be

classified as an armed robbery.

What could be simpler? Mere possession of an offensive weapon is enough! Counselâ&#x20AC;&#x2122;s submission was that the possession of the knuckleduster was sufficient to satisfy the definition of an armed robbery for graduated fee purposes even if it had not actually been used in any form. It would have been different if he had merely intimated that he had an offensive weapon when he did not. That is not enough. The intimation only makes it an armed robbery if it relates to a firearm or imitation firearm. This is in their published guidance! (See the Crown Court Fee Guidance document which is available from the Legal Aid Agency website â&#x20AC;&#x201C; the latest version being September 2015). This was an armed robbery for payment purposes.

CPD for barristers The BarStandardsBoard is to end the requirement for barristers to complete mandatory periods of continuing professional development from January 2017. This follows a similar move by the SRA. As you know, Solicitors can stay with CPD for this year, which ends on the 31st October 2016 or could have opted to enter the SRA’s Competency Regime on a voluntary basis. There will be no CPD as from 1st November 2016 and all Solicitors will be required to enter the new Competency Regime. The new Regime will require Solicitors to create a development plan and a training programme which need to be undertaken in any given period in order to develop and become a more competent lawyer.

Criminal cases review commission If you get the chance, do read the excellent article on joint enterprise in the 11th April 2016, edition of The Gazette written by Dr Sharon Persaud and Celia Hughes who are Commissioners at the Criminal Cases Review Commission. I am sure they will not mind me referring to some important points made in their article, which are as follows: Since the decision of R v Jogee; Ruddock and R [2016] UKSC 8 and [2016] UKSC 7 the Commission has so far received more than a dozen new applications relating to joint enterprise convictions. They are also looking at Jogee’s potential effect on more than 70 current cases and around 20 previously closed cases. The judgement is more cautious about the effect on past convictions (at Paragraph 100) ‘The effect of putting the law right is not to render invalid all convictions which were arrived at over many years by faithfully applying the law as laid down in Chan Wing-Siu and in Powell and English. The error identified..... is important as a matter of legal principle, but it does not follow that it will have been important on the facts to the outcome of the trial or the safety of the conviction. Moreover, where a conviction has been arrived at by faithfully applying the laws it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That Court has power to grant such leave, and may do so if substantial injustice can be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken’.

The important case of R v Cottrell and Fletcher [2007] EWCA Crim 2016 sets out the approach that the Court of Appeal has taken in the past to ‘change of law’ cases and the same principles in this case must govern the Commission’s approach in deciding whether there is a real possibility that the Appeal Court will quash the conviction – that being the test for the Commission in deciding whether or not to refer a conviction to the Court of Appeal. There is Guidance for potential applicants as to whether or not the application should be directed to the Court of Appeal, or to the Commission on the Commission’s website. The case of Jogee has not done away with joint enterprise and it is important that ‘false hopes’ are not raised. Many of the cases reviewed by the Commission will be ‘facts sensitive’ and on whether or not Jogee is engaged and, if it is engaged, how it impacts upon the safety of the conviction. There may be circumstances where the evidence of intent by a secondary party is overwhelming and the safety of the conviction is therefore not called into question. If there is an impact on the safety of the conviction, the Commission will consider whether or not there has been a substantial injustice. The Commission is a body founded to investigate and refer potential miscarriages of justice.

Section 6 CrimeScribe Edition No. 58

Hello and welcome to this month’s edition of CrimeScribe. A fair bit has happened this month but I want to concentrate this Edition on the important case of Needham and Others and the Psychoactive Substances act 2016. I make no apologies for dealing with the Needham case in some detail. It will ‘crop up’ again and again and advocates will need to be alert to all of the points within the case.

CASE-LAW Paul Maurice Needham and Others [2016] EWCA Crim 455 This was a case that will be of relevance to all criminal practitioners advising in the area of custodial sentences and disqualifications from driving. In a rather lengthy judgement the Court got to grips with the effect of the introduction into the Road Traffic Offenders Act 1988 of Sections 35A and 35B. Those Sections were originally inserted by Section 137 and Schedule 16 of the Coroners and Justice Act 2009. However those provisions were not brought into force at that time and they were amended by Section 30 of the Criminal Justice and Courts Act 2015. The provisions as amended came into force on the 13th April 2015 and, in broad terms, do not apply to offences committed wholly or partly before that date. The purpose of the legislation is to avoid offenders who have been disqualified from driving, and who have had a custodial sentence imposed at the same time, serving part of their disqualification whilst in custody. It is the intention of Parliament that a period of disqualification should be served by an offender whilst he or she is at liberty in the community. Any period of disqualification which is concurrent with a period of incarceration was seen as having only a ‘notional’ impact. Sections 35A and 35B relate to situations where a person is to be disqualified under Section 34 RTOA (disqualification for specific offences) or Section 35 RTOA (totting

up disqualifications). There are mirror provisions inserted by the 2015 Act into the Powers of Criminal Courts (Sentencing) Act 2000 at Sections 147 (A) and 147 (B). They deal with situations where the Court has imposed disqualification under Section 146 (disqualification for any offence) and Section 147 (disqualification where vehicle used for purposes of crime). I don’t intend to set out the entire provision of Section 35A but I do want to explain its importance and effect. A clue is in the heading ‘Extension of disqualification where custodial sentence also imposed’. The Section deals with circumstances in which a custodial sentence is imposed and the offender is also ordered to be disqualified under Section 34 or 35 of the RTOA 1988. The offender must be disqualified FOR THE APPROPRIATE EXTENSION PERIOD in addition to the Discretionary Disqualification period. The word ‘discretionary’ used in this context is slightly misleading (and the Court does acknowledge this at Paragraph 19 of the judgement) as it may well be a discretionary disqualification under Section 34 (2) RTOA 1988 (this, as you know, gives the Court the power to impose a discretionary disqualification for any offence that would otherwise attract penalty points and is the Section often used where offenders repeatedly drive without insurance or drive at very high speeds). The disqualification could be a discretionary disqualification under the totting up provisions within Section 35. The disqualification could be a mandatory disqualification under Section 34 (1) of the RTOA 1988 e.g. a mandatory disqualification for dangerous driving. I suppose in a way there is an element of discretion even within a section 34 mandatory disqualification in that parliament sets the minimum term (usually, but not always, 12 months) and the Court determines the maximum period which, as you know, is life! Sounds like a discretion to me! When the judgement speaks of the Discretionary period it refers to the period of disqualification that would have been given but for the appropriate Extension period Section 35A goes on to list the various types of sentences available and the various incarceration periods and it is clear from even a cursory reading of the Section that the appropriate Extension period relates to the different periods of incarceration. 2 examples will illustrate the point: Where the offender is given a Determinate Sentence the Extension period will be equal to half the custodial sentence imposed (that being the incarceration period) Where the offender is given an extended sentence as a Dangerous Offender the Extension period will be equal to 2/3 of the custodial sentence (that being the incarceration period).

Other examples are given in the Section. The Section also gives examples of where it will not apply e.g. a suspended sentence. Two of the important words within Section 35A are MUST PROVIDE indicating that this Extension period is in no way discretionary and is a mandatory obligation imposed upon the Court by Parliament. Two examples of how Section 35A operates is as follows: The Crown Court has just imposed a term of imprisonment for 24 months for an offence of dangerous driving. The Court also wants to impose a Discretionary (yes, I know it’s a mandatory period of disqualification for dangerous driving – see the point made earlier) disqualification from driving of 24 months. The term of disqualification is 36 months. The Extension period being 12 months (the period of incarceration).This is a Determinate Sentence and the offender will serve half the sentence in custody and be released at the half-way stage. The Magistrates’ have just imposed a term of imprisonment for 4 months for an offence of driving whilst disqualified. The Court also wants to impose a Discretionary (this truly is a discretionary disqualification because the offence of driving whilst disqualified carries 6 penalty points) disqualification from driving of 12 months The term of disqualification is 14 months. The Extension period being 2 months (the period of incarceration).This is a Determinate Sentence and the offender will serve half the sentence in custody and be released at the half-way stage. THAT’S IT.I DON’T THINK THAT SECTION 35A IS PARTICULARLY TROUBLESOME OR DIFFICULT TO UNDERSTAND. Unfortunately, we cannot leave it there. What of the offender who has spent some considerable time remanded in custody prior to the imposition of the custodial sentence and is therefore to be released that much earlier? The issue is raised and dealt with at Paragraphs 34, 35 and 36 of the judgement. The Court saying this at Paragraph 36: 78

‘It seems to us that it is open to the Court to avoid such injustice (the lengthy remand) by permitting a Court to take into account a significant remand period in determining the appropriate Discretionary period under Section 35A. Many of the offences to which Section 35A applies involve obligatory minimum periods of disqualification. There can be no question of such a minimum period being reduced to take account of time spent on remand, but there may be scope for some reduction if the sentence has in mind a longer period than the statutory minimum’. I leave it with the readers to determine what may amount to ‘a significant remand period’ whereby there should be some reduction. Please bear in mind that the Extension period can never be reduced i.e. with a Determinate Sentence the Extension period is always half of the sentence even if the offender has spent time on remand. The ‘tinkering’, if there is to be any ‘tinkering’, is with the length of the Discretionary period i.e. the period that would have been the disqualification, but for the extension. This Discretionary period may be lessened to take account of time spent on remand but not so as to take it below the mandatory minimum set down by Parliament i.e. you could never take it below 12 months as that is the mandatory minimum period of disqualification (absent special reasons) set down by Parliament for a disqualification imposed under Section 34 (1) of the Road traffic Offenders Act 1988. What of the person who has spent time subject to a Qualifying Curfew i.e. a curfew of 9 hours or more per day monitored by an electronic tag? The point is covered at Paragraph 32 of the judgement where they point out that the fact that someone was subject to curfew prior to sentence does not inhibit their ability to drive so that no question of credit in respect of that arises. What of the person eligible for early release at the 25% stage of his sentence under the Home Detention Curfew Scheme? This point is covered at Paragraph 40 of the judgement where the Court confirms that the length of the custodial term imposed for calculating the appropriate Extension period under Section 35A (4) relates to the term of custody pronounced by the Court at the point of sentence and does not take account of the possibility of release earlier than the point identified in Subsection (4), for example under the Home Detention Curfew Scheme – the point identified in Section 35A (4) in the vast majority of instances will be the half-way point of a Determinate Sentence. This just means that an offender will be out sooner and the disqualification will ‘bite’ that

much sooner. Itâ&#x20AC;&#x2122;s discretionary and it is therefore not something that the Court ought to get involved in at the point of the imposition of the Discretionary disqualification and the Extension. What of the person who is already subject to a disqualification until re-test Order? Where such a person is already subject to such an Order there can be no second Order imposed. Common sense if you think about it because the imposition of the second Order adds nothing to the first Order. If you are disqualified until re-test then you are effectively put into the position of a learner driver until you have successfully taken the re-test. I know that a re-test is compulsory as part of the Order when sentencing someone for an offence of dangerous driving but the Order should not be made on any offender who is already subject to an existing Order.

Let us now consider Section 35B This Section applies where a person is convicted of an offence for which a Court proposes to order the person to be disqualified under Section 34 or 35 and the Court proposes to impose a custodial sentence (other than a suspended sentence) for another offence, or At the time of sentencing for the offence, a custodial sentence imposed on the person on an earlier occasion has not expired Subsection (2) â&#x20AC;&#x201C; In determining the period for which the person is to be disqualified under Section 34 or 35, the Court must have regard to the consideration in Subsection (3) if and to the extent that it is appropriate to do so. The consideration within Subsection (3) is the diminished effective disqualification has, as a distinct punishment, if the person who is disqualified is also detained in pursuance of a custodial sentence. If the Court proposes to order the person to be disqualified under Section 34 or 35 and to impose a custodial sentence for the same offence, the Court MAY NOT in relation to that disqualification take that custodial sentence into account for the purposes of Subsection (2) The first thing to say about this Section is that it is couched in very different term to

that of Section 35A. You will see from the wording of this Section that it does not have the same mandatory requirement that Section 35A has. The Court is merely required to have consideration to the diminished effect of a disqualification rather than having to take some positive steps to do something about it – this Section is clearly of a discretionary nature!! A simple example of how Section 35B is engaged is as follows: The Crown Court imposes a custodial sentence of 22 months in relation to an offence of dangerous driving. The Crown Court further imposes other custodial sentences for non-motoring offences which have the effect of the overall sentence being one of 52 months (this being a Determinate Sentence the offender will serve half and his incarceration period will be 26 weeks – hold onto that idea of his incarceration period being 26 weeks – it is important!) The Court considers that a period of Discretionary disqualification of 36 months is appropriate in relation to the offence of dangerous driving – (it’s not truly a Discretionary disqualification because dangerous driving carries a mandatory disqualification but the word Discretionary is used in this context to mean the actual period of the disqualification as opposed to any period of Extension or any period of Adjustment) The Court should first consider the custodial sentence of 22 months in relation to the offence of dangerous driving. The 36 months disqualification from driving should have an Extension period of 11 months in order to represent half of the incarceration period of the custodial sentence of 22 months imposed for this offence. The Judge should then consider what Adjustment is required under Section 35B if he or she wishes to ensure that the actual disqualification of 36 months does not commence until release. On the example given above the Adjustment would be one of 15 months. 15 months added to 11 months equals 26 months and 26 months is the incarceration period for an offender given a determinate sentence of 52 months (i.e., one half of the period) The Crown Court Judge in Needham had the maths right but the pronouncement of the sentence was wrong. The Judge purported to make the Extension period half of the global sentence of 52 months.

The Court saying this at Paragraph 72 of the judgement: ‘having used Section 35B, the Judge should have pronounced an overall term of disqualification of 5 years two months (three years +26 months), and then stated that the term was reached by taking the initial Discretionary disqualification of 3 years, adding the Section 35A Extension period of 11 months, and then applying the Section 35B adjustment of 15 months to the Discretionary disqualification. Don’t get me wrong, I’m not saying the Judge is obliged to make that adjustment such that it always amounts to half of the incarceration period. The adjustment is a matter for the Judge in every case but the adjustment is there in order to give the Judge the opportunity to adjust the disqualification period to ensure that no benefit is being received by a defendant whilst he is incarcerated. The lower the adjustment though the more benefit the defendant will receive in that the disqualification period will start during his period of incarceration. Remember what I said earlier, the purport of the legislation is that disqualification periods should be imposed and served whilst at liberty in the community. A disqualification period that kicks in whilst the defendant is in custody is of no meaningful effect!!

SMARTPHONES The Lord Chief Justice (Lord Thomas) was speaking recently at an event to launch a book on sexual offences. He is particularly concerned about the trend for explicit material of people’s sexual encounters to be stored on phones and posted online. As we all know, the dissemination of the information without permission may well be illegal (for instance, by disclosing private sexual photographs and films with intent to cause distress contrary to Section 33 (1) of the Criminal Justice and Courts Act 2015). Those of you actively dealing with clients at police stations will know that an intimate picture of a child under 18, even if sent to another child under 18, will on the face of it, be an illegal indecent image of a child. Such people are completely unaware of the criminality of it all and it comes as a great shock to them to learn that this is so.

Unrepresented defendants in the Magistrates’ Court Just as we all thought, I read in my Gazette that the numbers of unrepresented

defendants in the Magistrates’ Court is increasing. The Magistrates’ and District Judges estimates of the proportion of unrepresented defendants in non-traffic cases ranged from 15% to 40%. The Law Society’s President Jonathan Smithers said the means test income threshold of £22,325 is rendering thousands ineligible for legal aid but unable to afford legal advice, ‘leaving them no option but to represent themselves’. It is ‘deeply concerning’ that people are facing serious criminal charges without the support of a Solicitor. He has called for the upper income limit for legal aid to be set at the 40% tax band. All of the changes brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 are now beginning to bite! Is it any wonder that unrepresented defendants are turning to McKenzie friends for assistance? Some family lawyers are now acting as paid McKenzie friends alongside their traditional role for clients who cannot afford to pay for their Solicitor services! The judiciary has proposed a ban on fee charging McKenzie friends as part of a consultation on the sector. I think this is just the marketplace sorting itself out. If there’s a gap, it’s going to be filled by someone!

Early guilty plea outcry! I was gratified to read that criminal defence solicitors are expected to oppose proposed guidelines on sentence reductions for early guilty pleas. I read in my Gazette that the Criminal Law Solicitors Association has ‘grave reservations’ about the replacement guidelines and will submit a strongly worded response. Those of you who have already read the draft guidelines will have appreciated that the proposal is to award credit of 30% on a matter triable either way only if the defendant pleads guilty at the Magistrates’ Court stage. Thereafter, at the Crown Court stage, the proposal is that the credit should be in the region of 20%. All very well but where is the evidence at the Magistrates’ Court hearing? ‘Well he knows whether he did it!’, probably true, much of the time, but hardly judicious! The part in the guidelines that I did like was in relation to ‘overwhelming evidence’. The Sentencing Council take the view that even in such cases the credit for an early guilty plea should still be one third rather than the 20% that has been given by Judges and upheld on appeal.

Psychoactive Substances Act 2016 ALL LEGAL HIGHS BANNED AS FROM MIDNIGHT ON THE 25TH OF MAY 2016

King Cobra, Herbal Haze, Psyclone, spice, clockwork Orange and Snow White are just a few of the names the 588 psychoactive substances identified in England thus far have been given. Many of them don’t even have names yet. A journalist from The Times described her recent visit to “the front line” namely a Home Office Centre in Hertfordshire: “…an entire laboratory is devoted to analysing new psychoactive substances, so called ‘legal highs’ the government is now trying to ban. [legal highs] …are lined up on the work surface like confectionary in a sweet shop. Some of the white powders have no name, just a yellow smiley face whilst others are decorated with a chemical helix structure. To one side is a bundle of brown herbs, wrapped in cling film: spice a synthetic cannabinoid, seized from a prison.” The problem, continues the Article, is that the UK has one of the highest uses among young people in Europe. The Act was due to be implemented in April but at the start of the month the Home Office suddenly announced its indefinite delay. Many have raised concerns about it. A very informative discussion of it can be found on Joshua Rozenberg’s Radio 4 “Law in Action” Podcast. Even the government’s own Advisory Council on the Misuse of Drugs has warned that it may “not achieve its aims and may produce serious unintended consequences”. The Times Article cites problems such as no universal testing system being in place, suggesting this will make it difficult to bring a successful prosecution. Any prosecution may stumble at the first hurdle if we are not able to say what the substance is with any certainty. The article goes on to state that the definition of a psychoactive substance is so vague as to be virtually meaningless. Jurisprudentially it is also a significant step, points out the Article. It starts by creating a blanket ban and then handing back permission on a substance-by-substance basis. At the last minute alkyl nitrates (poppers) were excluded as having only “peripheral effects” on the brain. LET ME RE-ASSURE YOU NOW THAT MY OWN FAVOURITE ‘LEGAL HIGH’ COFFEE IS COMPLETELY UNAFFECTED BY ALL OF THIS! The press will soon have to find a new phrase for “legal-highs”. They have been made “illegal-highs” thanks to the Psychoactive Substances Act 2016. Perhaps they will adopt the phrase “new psychoactive substances” (NPS) as used throughout the Explanatory Notes to the Act (somehow I doubt it!).

Both the Act and the Explanatory Notes are available on the usual website – legislation.gov.uk – I would urge you to look at the Explanatory Notes.

So what does the Act do? The Act received Royal Assent on 28th January 2016. Its intention is to outlaw many of the so-called “legal-highs”. The law has been playing ‘catch-up’ for some time with this development and this is an Act attempting to deal with the problem. A similar Act was passed in Ireland in 2010. In the first 5 years, only 4 prosecutions were brought. Only time will tell if this Act has more success than the Irish experience. Before we look at the Act itself, experts have already sounded warnings about it. Professor David Nutt, the former Chairman of the Advisory Council has described it as “the worst piece of legislation since the Dangerous Dogs Act”. (Steady on Professor, have you read the Dangerous Dogs Act!!!) The New Scientist described it as “the stupidest, most dangerous and unscientific piece of drugs legislation ever conceived.” The point being, as the Article continues, “it would have been funny except the decisions made will harm people’s lives and liberty”. According to the Explanatory Notes, the Act “creates a BLANKET BAN on the PRODUCTION, DISTRIBUTION, SALE and SUPPLY of psychoactive substances in the United Kingdom.” YOU WILL NOTE IMMEDIATELY THAT MERE POSSESSION IS ABSENT FROM THE LIST! A “psychoactive substance” is defined in Section 2 as: (1)

In this Act “psychoactive substance” means any substance which—

(a)

is capable of producing a psychoactive effect in a person who consumes it,

and (b)

is not an exempted substance (see Section 3).

(2)

For the purposes of this Act a substance produces a psychoactive effect in a

person if, by stimulating or depressing the person’s central nervous system,

it affects the person’s mental functioning or emotional state; and references

to a substance’s psychoactive effects are to be read accordingly.

(3)

For the purposes of this Act, a person consumes a substance if the person

causes or allows the substance, or fumes given off by the substance, to enter

the person’s body in any way.

Section 3 of the Act creates an exemption for certain substances. Exempted substances are listed in Schedule 1 to the Act. They are: • Caffeine-HURRAH!! •

Tobacco-not bothered!

•

Alcohol – not bothered!

•

Medicinal products – not bothered!

•

Food (so long as the substance is naturally occurring)

The Explanatory Notes also suggest that Nutmeg and CHOCOLATE would be exempted (so life is still worth living!). What offences does the Act create? Section 4 prohibits production: (1)

A person commits an offence if—

(a)

the person intentionally produces a psychoactive substance,

(b)

the person knows or suspects that the substance is a psychoactive substance,

and (c)

the person—

(i)

intends to consume the psychoactive substance for its

psychoactive effects, or

(ii)

knows, or is reckless as to whether, the psychoactive substance

is likely to be consumed by some other person for its psychoactive effects.

(2)

This Section is subject to Section 11 (exceptions to offences).

Section 5 prohibits supply:

Supplying, or offering to supply, a psychoactive substance

(1)

A person commits an offence if—

(a)

the person intentionally supplies a substance to another person,

(b)

the substance is a psychoactive substance,

(c)

the person knows or suspects, or ought to know or suspect, that the substance

is a psychoactive substance

(d)

the person knows, or is reckless as to whether the psychoactive substance is

likely to be consumed by the person to whom it is supplied, or by some other

person, for its psychoactive effects.

(2)

A person (“P”) commits an offence if—

(a)

P offers to supply a psychoactive substance to another person (“R”), and

(b)

P knows or is reckless as to whether R, or some other person, would, if P

supplied a substance to R in accordance with the offer, be likely to consume

the substance for its psychoactive effects.

(3)

For the purposes of subsection (2) (b), the reference to a substance’s

psychoactive effects includes a reference to the psychoactive effects which

the substance would have if it were the substance which P had offered to

supply to R.

(4)

This Section is subject to Section 11 (exceptions to offences).

Section 6 allows for the offence to be AGGRAVATED if one of 3 conditions is met: •

The offence was committed on or in the vicinity of school premises

•

The offender used a courier who at the time was under 18

•

The offence was committed in a custodial institution

Section 7 creates an offence of supply (1)

A person commits an offence if—

(a)

the person is in possession of a psychoactive substance,

(b)

the person knows or suspects that the substance is a psychoactive substance,

and (c)

the person intends to supply the psychoactive substance to another person

for its consumption, whether by any person to whom it is supplied or by some

other person, for its psychoactive effects.

(2)

This Section is subject to section 11 (exceptions to offences).

Section 8 creates an offence of importing or exporting a psychoactive substance. Section 9 creates an offence of possessing a psychoactive substance in a custodial institution: (1)

A person commits an offence if—

(a)

the person is in possession of a psychoactive substance in a

custodial institution,

(b)

the person knows or suspects that the substance is a psychoactive

substance, and

(c)

the person intends to consume the psychoactive substance for its

psychoactive effects.

(2)

In this Section “custodial institution” has the same meaning as in Section 6.

(3)

This Section is subject to section 11 (exceptions to offences).

N.B.

There is no offence of simple possession other than that inside a custodial

institution. The Act is intended to punish the producers and suppliers, not the final consumer. Only those in custody have anything to fear in terms of possession. Rather curiously the explanatory notes state that this offence would cover prisoners, visitors or staff. I’m struggling to understand why a visitor or member of staff would be in simple possession of a psychoactive substance in a “custodial institution”. The

appropriate charge in such a situation would almost certainly be “supply” unless prison officers and governors have taken to legal highs to help the day go faster! What’s it all worth? Section 10 creates the PENALTIES for the various offences. (1)

A person guilty of an offence under any of Sections 4 to 8 is liable—

(a)

on summary conviction in England and Wales—

(i)

to imprisonment for a term not exceeding 12 months (or 6 months, if the

offence was committed before the commencement of section 154(1) of the

Criminal Justice Act 2003), or

(ii)

to a fine, or both;

(d)

on conviction on indictment, to imprisonment for a term not exceeding 7

years or a fine, or both. (2)

A person guilty of an offence under Section 9 is liable—

(a)

on summary conviction in England and Wales—

(i)

to imprisonment for a term not exceeding 12 months (or 6 months, if the

offence was committed before the commencement of section 154(1) of the

Criminal Justice Act 2003), or

(ii)

to a fine, or both;

(d)

on conviction on indictment, to imprisonment for a term not exceeding 2

years or a fine, or both.

So when do we have to start worrying about all this? The Act received Royal assent in January with the intention of the Act coming into force on 6th April. Only days before it was due to come into force, the Home Office announced it was being indefinitely delayed. The Police have argued it is unenforceable.

The Home Office Minister stated that it would come into force “in its entirety in the spring”. Parliament requires 21 days’ notice before the law comes into effect. A Home Office spokesperson stated “the government is in the final stages of putting in place a program of testing to demonstrate a substance’s psychoactivity prior to commencement of the Act.” THOSE PARTS OF THE ACT WHICH DID NOT COME INTO FORCE WHEN THE ACT RECEIVED ROYAL ASSENT CAME INTO FORCE IN THEIR ENTIRETY AT MIDNIGHT ON THE 25TH OF MAY.

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Section 7 CrimeScribe Edition No. 59

Hello and welcome to this month’s Edition of CrimeScribe. A fairly quiet month and so I intend to concentrate this Edition on the important case of B and Leeds Crown Court and Crown Prosecution Service and the 4 new Civil Orders which may be made under the Psychoactive Substances Act 2016.

Case-law B and Leeds Crown Court and Crown Prosecution Service [2016] EWHC 1230 (Admin) This was an appeal by way of Case Stated from the Leeds Crown Court and raised a question about the implications for the sentencing of Youths on restrictions on the power of the Magistrates’ Court to sentence Adult offenders. The issue ‘in a nutshell’ was whether or not it was right and proper for a Youth to receive a more severe custodial sentence for a series of offences than could have been given to an Adult. As those of you who operate in both the Youth Court and the Adult Courts know full well, the Adult Magistrates’ are restricted to a maximum sentence of 6 months custody (Young Offender Institution if the offender is 18, 19 or 20 and imprisonment if the offender is 21 or over at the point of conviction) unless they are dealing with 2 or more triable either-way offences, in which case they can exceed 6 months but cannot exceed an overall maximum of 12 months (see Section 133 of the Magistrates’ Courts Act 1980). This is the current position but it may change if the provision (I think from memory that it is Section 154) within the Criminal Justice Act 2003 (13 years ago now!) is ever implemented. It is quite different in the Youth Court where the maximum custodial sentence there is a 24 month Detention and Training Order. CAN I JUST SAY THAT THE PARTS IN BOLD ARE MY REMARKS AND ARE NOT PART OF THE JUDGEMENT

NB – I don’t want to drift away from the topic but many pieces of legislation post 2003 give 12 months as being the maximum penalty available on summary conviction – do not believe this! – It is a reference to the Magistrates’ enhanced sentencing powers which, as yet, have never been brought in – please always read 12 months as meaning 6 – an easy mistake to make when advising clients. The appellant was sentenced by Leeds Youth Court on the 10th September 2015 for the following offences: Aggravated vehicle taking (offence date 24th of July 2015) – 4 months Detention and Training Order Driving without insurance (offence date 24th of July 2015) – No Separate Penalty Aggravated vehicle taking (offence date 18th of August 2015) – 4 months Detention and Training Order to run consecutively to the first Order Handling stolen goods (offence date 18th of August 2015) – 4 months Detention and Training Order to run concurrently A Public Order Act offence (offence date 19th of July 2015) – No Separate Penalty Criminal damage (no offence date mentioned) – No Separate Penalty Criminal damage (no offence date mentioned) – No Separate Penalty The overall period of the Detention and Training Order was therefore one of 8 months (8 months is certainly a permissible amount in terms of its length – the permissible periods being, 4, 6, 8, 10, 12, 18 or 24 months). In relation to all of the offences the appellant had pleaded guilty at the first reasonable opportunity and was therefore entitled to maximum credit. The offender was 17 years of age (n.b. – Detention and Training Orders are only available for offenders aged 12 years and over). Prior to sentence the appellant had served 3 weeks in custody on remand (equivalent to a 6 week sentence for an Adult – (NB – unlike a sentence imposed on an Adult the institution will not deduct time spent on remand as Section 240 of the Criminal Justice Act 2003 does not apply to Youths – it is therefore incumbent upon the Advocate to draw this period of the remand to the Court’s attention in order that the Court may take this period into account in determining the actual length of the Detention and Training Order to be imposed – this was all explained to us in the case of R v Eagles [2006] EWCA Crim 2368 – we also know from the case of Pye v Leeds Youth Court [2006] EWHC 2527 that a Detention and Training Order is not available for

low-value criminal damage (less than £5000) because the maximum sentence for an adult is one of 3 months custody and therefore falls below the 4 month minimum sentence available by way of a Detention and Training Order. There are many offences in English law for which an Adult offender may only be sentenced to a term of less than 4 months (usually the offence carries a term of custody of 1 or 3 months) and a Detention and Training Order is not available for such offences. The defendant appealed against sentence to the Leeds Crown Court and the appeal was heard on the 2nd of October 2015. After hearing submissions and retiring to consider them, the Court began to announce its decision. The Court indicated that all 3 Detention and Training Orders would be quashed and replaced by Detention and Training Orders of 3 months duration. It was pointed out, however, by the representative for the appellant that under Section 101 of the Powers of Criminal Courts (Sentencing) Act 2000 (the judgement gives the date of this Act as 2002 but it is clearly a typographical error) the minimum duration of a Detention and Training Order is 4 months. Having retired again to reconsider the matter, the Court concluded that in those circumstances the appeal would be dismissed. The point was made in the High Court that the principle reflected in the ‘Overarching Principles for Sentencing Youths’, issued by the Sentencing Council, was that generally a young person should be dealt with less severely than an Adult offender, albeit that the distinction diminishes as the offender approaches 18. LET US, AS ADVOCATES, NOT FORGET THAT THE YOUTH OF AN OFFENDER IS A MITIGATING FEATURE AND NOT AN AGGRAVATING ONE! The offence of taking a motor vehicle without consent can be aggravated in 1 of 4 ways and they are as follows: Where the vehicle is driven dangerously – always triable either way Where someone is injured – always triable either way Where damage is caused to the vehicle (summary only if the value of the damage is less than £5000) Where damage is caused to something other than the vehicle (summary only if the value of the damage is less than £5000) If the offender in this particular case had been 18 years of age and the aggravated vehicle taking cases had each had, as the aggravation, damage only and under £5000 then the Court would have been dealing with one triable either way

offence (handling stolen goods) and 2 summary only (aggravated vehicle taking) offences – in such circumstances the Adult Court would have been limited to an overall maximum of 6 months custody – remember, the Adult Court can only ever impose more than 6 months custody where it is dealing with 2 or more triable either way offences – the position would have been very different had the nature of the aggravation been something other than damage below £5000 (i.e. damage of £5000 or above or injury or dangerous driving) It’s a little odd that we are not provided with the details of the nature of the aggravation in the case. The point was aired in the case though and dealt with at Paragraph 13 of the judgement as follows: ‘However, after the point had been canvassed in argument Mr Douglas-Jones, on mature consideration, accepted – in my view clearly rightly – that on the facts of the present case, and in light of the way that the relevant charges of aggravated vehicle taking were framed in the Magistrates Court, those offences were triable only summarily. It follows that, had the appellant been an adult, there would indeed have been a ceiling of 6 months on the sentencing powers of the Magistrates’ Court WE MUST, THEREFORE, ASSUME THAT THE NATURE OF THE AGGRAVATION WAS DAMAGE AND THAT IT WAS FOR LESS THAN £5000. I think the Advocate for the Appellant was quite right to say that an Adult facing the same charges would probably have received something in the region of 5 ½ months custody for these offences (assuming the aggravation was damage and that it was for less than £5000) the Court would have been dealing with one offence triable either way and 2 offences deemed summary by virtue of the value of the damage. Guilty pleas had been entered but the defendant would not have been entitled to a full one third. The Definitive Guideline issued by the Sentencing Council in April 2007 ‘Reduction in Sentence for a Guilty Plea’ states as follows: ‘When the total sentence for both or all of the offences is 6 months imprisonment, a Court may determine to impose consecutive sentences which, even allowing for a reduction for a guilty plea where appropriate on each offence, would still result in the imposition of the maximum sentence available. In such circumstances, in order to achieve the purpose for which the reduction principle has been established, some MODEST allowance should normally be given against the total sentence for the entry of a guilty plea.

Counsel for the appellant submitted that it couldn’t be right in principle that the offender in this case should receive a total sentence in excess of this amount, particularly so when one considers the principle to be applied that a Youth should be treated less severely or at any rate not more severely than an adult. The case of LCC v DPP [2001] EWHC (Admin) 453 was quoted at Paragraph 14 in the Judgement. In that case it was argued that the Magistrates’ did not have power to impose consecutive Detention and Training Orders for summary only offences falling to be sentenced on the same occasion, such that the total sentence was greater than 6 months. The argument in that case focused on the correct interpretation of Section 101 of the Powers of Criminal Courts (Sentencing) Act 2000. Bell J, with whom the Lord Chief Justice Lord Woolf agreed, held that on the proper interpretation of that Section the Magistrates’ did have power to impose such sentences. [Leaving the judgement to one side for a moment, I am now looking at the 2015 Edition of Stone’s Justices’ Manual at Paragraph 5.65 and in particular the passage that reads: ‘The term of a Detention and Training Order shall be 4, 6, 8, 10, 12, 18 or 24 months. A Youth Court is empowered to make an Order for up to a maximum of 24 months. The term of the Detention and Training Order may not exceed the maximum term of imprisonment that the Crown Court could, in the case of an offender aged 21 or over, impose FOR THE OFFENCE. However, Section 133 of the Magistrates’ Courts Act 1980, which places limitations on the maximum period of Imprisonment or Detention in a Young Offender Institution that Magistrates’ may impose, does not apply directly to Detention and Training Orders; therefore, the Court may impose consecutive Detention and Training Orders for summary offences to an aggregate that exceeds 6 months – the authority for this passage in Stones is the case of C v DPP [2001) Crim LR 670, DC]. It has been my understanding since this case for the last 15 years that this permits Magistrates’ in the Youth Court to impose consecutive Detention and Training Orders up to a period of 24 months but they cannot impose more per offence than could have been given to an Adult e.g. they could, after 4 separate trials, impose 6 months +6 months +6 months +6 months for 4 offences of driving whilst disqualified in the Youth Court whereas the Adult Court would be limited to a maximum of 6 months under Section 133 of the Magistrates Courts Act 1980 – these being summary only offences.

I wonder if LCC v DPP [2001] EWHC (Admin) 453 and C v DPP [2001] Crim LR 670, DC are one and the same case? Clearly the citation is a little different but they are both 2001.I only mention this because C v DPP [2001] Crim LR 670, DC doesn’t get a mention in the current case and that would be most odd! The Court said this at Paragraph 17: ‘The observation of Bell J which was relied on to support that argument was clearly obiter, as the LCC case was concerned only with the proper construction of Section 101 of the 2000 Act and not with any argument equivalent to that which Mr De La Poer (Counsel for the Appellant) has developed in the present case. In any case, whether or not one accepts Mr De La Poer’s characterisation of modern British society, I would accept at least his submission that the approach to the sentencing of Youths has changed significantly since the LCC case was decided. In particular, that case pre-dates by some years the Definitive Guideline on Sentencing Youths which was issued by the Sentencing Guidelines Council with effect from November 2009. Paragraph 11.7 of that Guideline implicitly treats a Detention and Training Order as the Youth equivalent of an Adult custodial sentence. That approach is also reflected in the case of P v Leeds Youth Court to which I referred earlier (this is a reference to the case of Pye). And finally at Paragraph 21 of the judgement: ‘For the reasons developed by Mr De La Poer which I have outlined, it could not have been right, in my view, in sentencing this appellant, had he been an Adult, to impose a custodial sentence of any more than 4 months as an absolute maximum. It must follow that the total sentence of 8 months Detention and Training Order made up of 2 consecutive 4-month Detention and Training Orders in this case was an unlawful sentence. I would accordingly hold that the sentence should be quashed and the case remitted to the Magistrates’ Court for reconsideration’ [I think, (and these are purely my remarks) being absolutely fair to the Magistrates’, that they had not acted unlawfully in any way. They had had regard to the existing law and had not imposed more per offence than could have been given to an Adult. Low- value damage (aggravated vehicle taking) carries a sentence of 6 months custody in the case of an Adult and they had given 4 months. They had simply purported to make the sentences consecutive to one another as allowed by the passage quoted in Stones. The only mistake, if it can be described as such, is to have sentenced using a regime that went back to 2001 and which, apparently, according to this judgement, is not sustainable in 2016]. 97

Legislation The Psychoactive Substances Act 2016 I am not sure to what extent you will ever get involved in the actual offences under this new piece of legislation which has just recently come into force (26th of May 2016). I thought I would just say something about the 4 civil sanctions available under the Act. Sections 12 to 35 provide for 4 civil sanctions and they are as follows: A Prohibition Notice A Premises Notice A Prohibition Order A Premises Order These civil powers afford law enforcement agencies an alternative route to criminal proceedings as a means of tackling the production, supply etc. of psychoactive substances. The use of these powers will enable law enforcement officers to take action swiftly to ‘nip a problem in the bud’ or to adopt a more proportionate approach to low-level offending. It will be a matter for the relevant law enforcement agency to determine which approach to adopt in any given circumstances. Where there is evidence of a criminal offence under Sections 4 to 8, there is no requirement to apply the civil sanctions in the first instance as a criminal prosecution may be the appropriate action to take. Equally, if a Prohibition Notice or Premises Notice has been served and is then breached, the relevant law enforcement agency might proceed to a criminal prosecution or pursue a Prohibition Order or Premises Order, as the case may be. Section 12 defines the term ‘prohibited activity’ for the purposes of this Act. The definition essentially covers the conduct elements of the offences in Sections 4, 5 and 8 together with the secondary or inchoate offences of assisting and encouraging those offences. The definition does not include the act of possession with intent to supply a psychoactive substance given that, in practice, it would be difficult to demonstrate whether a respondent found to be still in possession of psychoactive substances had or had not stopped intending to supply them. Accordingly, it is sufficient that a Prohibition Notice or Order would prohibit the supply of a psychoactive substance. The definition also does not include the act of possession of a psychoactive substance in a custodial institution on the grounds that the civil penalties are not appropriate in a custodial context.

Section 13 enables a senior officer or local authority to issue a Prohibition Notice to a person if conditions A and B are met. The person concerned may be an individual over the age of criminal responsibility or a body such as a company. Condition A might apply, for example, in relation to a company marketing psychoactive substances through a website or selling psychoactive substances through a head shop. Condition B requires the issuing officer to be satisfied that it is necessary and proportionate to issue the Prohibition Notice in order to prevent the respondent carrying on any prohibited activity. The police or the local authority may, for example, identify evidence of prohibited activity at one head shop and use a Prohibition Notice to tackle the supply of psychoactive substances from other, or all, head shops in the same retail chain. A Prohibition Notice would require a person on whom it is served to desist from carrying out a prohibited activity. Such a Notice may be in been general terms or be specific, for example, it could direct an online company to stop offering to supply the psychoactive substances from a named website. A Prohibition Notice would be of indefinite duration unless withdrawn save in the case of a Notice given to an individual under 18 years, in which case the Notice must be for a maximum period of 3 years. Section 14 provides for Premises Notices. Premises Notices provide a further means to tackle prohibited activity taking place from premises, for example, a head shop. Where the operator of such premises is known, the relevant law enforcement agency is expected to issue a Prohibition Notice to that person. Where the operator is unclear, or where the activities of the head shop in supplying psychoactive substances is tolerated by the owner of the premises, it will be open to the relevant law enforcement agency to serve a Premises Notice on any person who owns, leases, occupies, controls or operates the premises. Once the senior officer or local authority has formed a reasonable belief that prohibited activity is being carried out on particular premises (condition A), condition B affords Latitude to the issuing officer to take into account the need to deal with prohibited activity not just at the premises to which condition A relates, but at other premises owned, leased, occupied, controlled or operated by the respondent. Given that the respondent in relation to a Premises Notice will not normally be directly involved in a prohibited activity, the terms of such an Order will be to require the respondent to take reasonable steps to prevent any, or specific, prohibited

activities taking place at premises specified in the notice. So, for example, if the respondent was the owner of premises being used by a third party as a head shop, a Premises Notice could be used to compel the owner to take action against the tenant operating the head shop. Unlike a Prohibition Notice, a Premises Notice may only be given to an individual aged 18 or over. Section 15 sets out the information that must be included in a Prohibition Notice or Premises Notice. This would include the grounds for giving the Notice e.g. evidence of the supply of psychoactive substances from particular retail premises and an explanation of the possible consequences of breaching the Notice. The consequences may be that a criminal prosecution is brought for the relevant offence under the Act or an application being made for a Prohibition Order or Premises Order, as appropriate. There are no direct consequences for breach of the Notice in that there is no criminal offence or civil sanction attached to a failure to comply with a Prohibition Notice or Premises Notice. Under Section 16 the Notice is deemed to be served where it is handed to the respondent or left at the respondentâ&#x20AC;&#x2122;s proper address and it takes effect immediately. Service of a Notice by post attracts the provisions of Section 7 of the Interpretation Act 1978 which provides that the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Where a Notice is served by electronic means (and it may only be served by such means if the respondent has consented to service by this method), it will be deemed to have been given at 9 AM on the working day (the definition of which excludes weekends and public holidays in any part of the UK) after it was sent.

Prohibition Orders Section 17 defines a Prohibition Order for the purposes of the Act. As with a

100

Prohibition Notice, a Prohibition Order will include either a general prohibition on the respondent carrying out any prohibited activity, e.g. conduct to which the offences in Sections 4 to 8 relate (or assisting or encouraging such conduct), or a prohibition on carrying out a specified prohibited activity e.g. a prohibition on an online company offering to supply psychoactive substances from a named website or on a retailer supplying psychoactive substances from a particular head shop. There are 2 routes to the making of a Prohibition Order and they are as follows: 1 – An application to the Court by a relevant law enforcement agency under Section 18 of the Act 2 – Upon conviction of a person before the criminal courts for an offence under Sections 4 to 8 (or an associated secondary offence) Section 18 enables the appropriate court to make a Prohibition Order against the Person if either condition A or B is met and also condition C is met. A person in this context may be an individual over the age of criminal responsibility or a body, such as a company. Condition A – The court is satisfied to the civil standard that the respondent has failed

to comply with a Prohibition Notice.

Condition B – This applies where no Prohibition Notice has been given or such a

Notice is no longer in force because it has been withdrawn. In such

a case the court may make an Order if satisfied, to the civil standard,

that the respondent is carrying on, or is likely to carry on, a prohibited

activity and the court considers that the respondent would fail to

comply with a Prohibition Notice.

Condition C – which must be met alongside either condition A or B, requires the court

to be satisfied that it is necessary and proportionate to issue the

Prohibition Order in order to prevent the respondent carrying on any

prohibited activity.

A Prohibition Order will be of indefinite duration unless discharged save in the case of an Order against an individual under the age of 18, in which case the Order must be for a maximum period of 3 years. This 3 year limit is absolute and cannot be extended upon any application to vary a Prohibition Order.

101

Section 19 enables a criminal court when sentencing an offender for an offence under Sections 4 to 8 (or associated secondary offences) to make a Prohibition Order in addition to any custodial or non-custodial sentence which the court may pass. The test for making an order is that the court considers it necessary and proportionate to make an Order for the purpose of preventing the offender from carrying on any prohibited activity. The court may make an Order of its own volition, but it will be open to the prosecution to make representations to the court in this regard.

Premises Orders Section 20 enables the appropriate court to make a Premises Order against the Person if either condition A or B is met and condition C is met. As with a Premises Notice, a Premises Order may only be made against an individual aged 18 or over; and an Order may also be made against a body, such as a company Condition A will be met where the court is satisfied to the civil standard that the respondent has failed to comply with a Premises Notice. Condition B applies where no Premises Notice has been given or the Notice is no longer in force because it has been withdrawn and the court is satisfied to the civil standard that a prohibited activity is taking place on particular premises. In such a case, the court may make an Order against the owner, lessee, occupier, controller or operator if the court considers that the person would fail to comply with a Premises Notice. Condition C, which must also be met alongside either condition A or B, requires the court to be satisfied that it is necessary and proportionate to make a Premises Order in order to prevent any prohibited activity being carried out on premises owned, leased, occupied, controlled or operated by the respondent. As with a Premises Notice, a Premises Order is intended to compel persons who have some responsibility for premises being used to carry on prohibited activity e.g. the owner of retail premises being used to sell psychoactive substances, to take action to stop such activity taking place on those premises. Where a Premises Order is made the relevant Premises Notice will cease to have effect. Section 21 of the Act makes provision about the persons who may apply for a Prohibition Order or a Premises Order e.g. a chief officer of police of territorial forces in the UK or the Chief Constable of the British Transport Police (others can apply and they are set out in the section). 102

Section 22 sets out the provisions that may be made by Prohibition Orders and Premises Orders in addition to a prohibition against the carrying on of prohibited activity (in the case of a Prohibition Order) or to a requirement to take reasonable steps to prevent prohibited activity taking place on relevant premises (in the case of a Premises Order) – such prohibitions, restrictions or requirements as the court considers appropriate may be imposed – e.g. a requirement on a respondent trading from retail premises or online to surrender unsold supplies of psychoactive substances or other items that have been, or are likely to be, used in carrying out a prohibited activity, for example, laboratory equipment used to produce psychoactive substances. The section also enables a Prohibition Order or a Premises Order to include an ‘access prohibition’ closing the premises in question for initially up to 3 months which may be extended for up to a further 3 months (see Section 28). Such an ‘access prohibition’ can prohibit access by anyone, including the landlord, owner or habitual residents, but the court would have the discretion to frame the Prohibition Order or Premises Order in such a way as to allow continued access to specified descriptions of persons, for example, habitual residents. Unlike breach of the Notices, breach of the Orders is a criminal offence and under Section 26 of the Act it is an either-way offence and carries a maximum penalty of 6 months imprisonment in the Magistrates’ Court or an unlimited fine or both and up to 2 years imprisonment on indictment, an unlimited fine or both Under Section 27 a failure to comply with an ‘access prohibition’ within a Prohibition Order or Premises Order without a reasonable excuse is a summary only offence carrying a maximum of 6 months imprisonment or an unlimited fine or both. Sections 28 and 29 of the Act provide the court with the power to vary or discharge a Prohibition Order or a Premises Order. Section 30 of the Act deals with appeals against the making of Prohibition Orders and Premises Orders. Section 31 provides for a right of appeal against the decision of a court to vary a Prohibition Order or Premises Order or to decline to do so. Section 32 makes it abundantly clear that proceedings under Sections 19 or 29 in respect of the making of a Prohibition Order on conviction or the variation on conviction of a Prohibition Order or Premises Order are civil proceedings to which the civil standard of proof appliance. 103

Finally under Section 35 of the Act, where the respondent is under the age of 18 years, applications for the making, variation or discharge of a Prohibition Order will be heard in the Youth Court in England and Wales. Where there are ongoing proceedings in the Youth Court and the respondent turns 18, the Section enables rules of court to determine which court continues to have jurisdiction for the case; such rules may either provide for the case to continue to be heard in the Youth Court or be transferred to a Magistrates’ Court (the rules are to be found in Statutory Instrument 2016 No. 546 – The Magistrates’ Courts (Psychoactive Substances Act 2016) (Transfer of Proceedings) Rules 2016.

Statutory instruments Statutory instrument 2016 No. 430 is The Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016. It came into force on the 14th April 2016. In short it greatly expands upon the types of prosecutor able to use the new method of instituting proceedings for the purposes of Section 29 of the Criminal Justice Act 2003. As you know Section 29 provides relevant prosecutors with the power to institute criminal proceedings by written charge. Where a relevant prosecutor issues a written charge, it must at the same time issue a requisition or a single justice notice procedure. By Section 29 (5A) of the Act an order must also specify whether relevant prosecutors are authorised to issue written charges, requisitions and single justice procedure notices or only written charges and single justice procedure notices. Article 9 authorises the relevant prosecutors specified by this Order and any person authorised by them to institute criminal proceedings only to issue written charges and single justice procedure notices. The relevant prosecutors are as follows: The Environment Agency Local Authorities (a county council; a county or county borough Council in Wales; a district council; a London Borough council; the Common Council of the City of London in its capacity as a local authority; and the Council of the Isles of Scilly) The Natural Resources Body for Wales Railway Operators Tramway Operators TV Licensing 104

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Section 8 CrimeScribe Edition No. 60

Hello and welcome to this month’s edition of CrimeScribe. It has been another fairly ‘lean month’ in terms of legal activity. The politicians are leaving us alone at the moment and it is quite easy to understand why! The only thing I should flag up for immigration lawyers is that many provisions of the Immigration Act 2016 came into force on the 12th July 2016. Do have a read if you advise in this area. I shall start with some comments in relation to dangerous dogs as the new Guidelines have just been published this month.

The Sentencing Council The Council has published Guidelines in relation to sentencing in the area of dangerous dogs. The Guidelines are operative for those aged 18 or over being sentenced on or after the 1st July 2016. No doubt you will have course to read these Guidelines as and when you have dealings in this particular area. The Guidelines cover 4 main areas: •

Where a dog injures a person

•

Where a dog kills a person

•

Where a dog injures an assistance dog (it might be an assistance dog

because the owner has sight difficulties or for some other reason)

•

Possession of a banned breed of dog

As you will recall, changes to the dangerous dog’s legislation came about under the Anti-Social Behaviour, Crime and Policing Act 2014 when Sections 106 and 107 came into force. The law was extended to cover attacks that occur on private property and another new offence was created of injuring an assistance dog. The maximum penalties for offences in England and Wales were also increased and are now as follows: 106

•

A maximum of 14 years, up from 2 years, for a fatal dog attack

•

A maximum of 5 years, up from 2 years, for injury

•

A maximum of 3 years if an assistance dog is attacked

The increases mean that a much wider range of sentence lengths are available than under previous guidance and sentences are therefore likely to be higher than in the past but they must always be appropriate and proportionate (as with all sentences). As you can well imagine these dog attacks range from the very minor to the very serious and these are reflected in the suggested Guideline sentences. Dog owners vary enormously in their responsibility. At the very worst extreme is the owner who deliberately trains the dog to be an attack dog whilst at the other end of the spectrum is the responsible owner who has a momentary lapse of control over the dog resulting in minor or serious consequences. I think the analogy is with careless driving. A momentary lapse of concentration can have the most horrendous consequences and yet one may drive extremely carelessly (bordering on dangerously) and manage to get away with it! I’m sure dangerous dogs are the bane of the postman’s life and this is reflected in the Guidelines. The 2014 Act also extended the law to cover attacks within the home and garden as well as in public places (you will no doubt recall the high profile cases where a prosecution was not possible because of the locus). An attack on an assistance dog may be traumatic for both the dog and its owner. In addition to sentences for the offences themselves the Guidelines emphasise the need to consider whether or not the owner should be banned from owning a dog or should have a dog taken away from them or should be made to pay compensation to the victim for the injury and distress caused by the incident. Whether or not the dog should receive the death penalty is another issue! I am sure I am not alone in thinking that the Dangerous Dogs Act 1991 could have been better drafted! The High Court was of a similar view in the excellent case of Victoria Kelleher v Director of Public Prosecutions [2012] EWHC 2978 (Admin).

It is a very interesting read, giving guidance on the important distinction between the Mandatory Destruction and the Discretionary Destruction of a dog. The offences are laid down under Section 3 (1) of the Dangerous Dogs Act 1991. 107

There are 2 types of an offence under Section 3. One is known as an ‘aggravating offence’, that is to say an offence where the dog has bitten and caused direct injury to a member of the public. The other type is the ‘non-aggravated offence’ where the dog has been out of control but has not caused direct injury to a member of the public. So far as Destruction Orders are concerned, they are covered by Sections 4 and 4A of the Dangerous Dogs Act 1991 (as amended). After some torturous analysis of the various Subsections, the High Court said this at Paragraph 11 of the judgement: ‘It is clear that Section 4A (4) applies to both aggravated and non-aggravated offences. The power to make a Destruction Order applies in both cases. The distinction, which is made clear by Section 4 (1A), read with Section 4A (4), is that in the case of an aggravated offence there must be a Destruction Order unless the dog would not constitute a danger to public safety, and in the case of a discretionary Order the Court has to decide whether it is appropriate, in all the circumstances, having regard to the facts, to make a Destruction Order. That is to say that in the case of an aggravated offence the burden is upon the defendant to show that the dog is not a danger to public safety, otherwise a Destruction Order is mandatory. It is, as it were, the other way round in the case of a non-aggravated offence: the Court will not make a Destruction Order unless, on the material, the Court takes the view that a Destruction Order is necessary’. The Court went on to say this at Paragraph 12: ‘The test, which, as it seems to me, should be applied in either case, essentially relates to whether the dog is a danger to the public. If it is, whichever way round, as it were, the burden lies for showing it, then the Destruction Order is appropriate. What the Court must do in the case of a non-aggravated offence is to decide whether, on the basis that the dog is a danger to the public, a Destruction Order should follow. However, Section 4A enables the Court, instead of making an immediate Destruction Order, to make what is described as a ‘Contingent Destruction Order’, that is to say a Destruction Order unless the dog is kept under proper control by whatever measures are considered to be appropriate. Although there is nothing in the Act, as I understand it, and certainly no legal decision which defines the circumstances in which a Destruction Order is to be considered appropriate, nonetheless, as it seems to me the approach that I have indicated must be the sensible one’.

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I’m sure you will agree with me that that is very sensible guidance and bring some clarity to some extremely difficult Sections of a difficult Act of Parliament.

The 2017 Criminal Legal Aid Contracts The Legal Aid Agency has just opened the tender for the 2017 criminal legal aid contracts and has published the 2017 draft contract. The Agency consulted with the Law Society, the Legal Aid Practitioners Group and the Bar Council before publishing the draft contract. The Law Society has reported that whilst some of their suggestions and concerns were listened to, much of the contract remains unchanged from the consultation draft. It will not surprise you to learn that the new contract is broadly similar to the current (extended) 2010 contract however there are a number of changes and new requirements that crime practitioners will need to be aware of, some of which have been taken from the 2015 own-client contract. Having read the synopsis published by the Law Society the following are some of the key changes: Office requirements: – these have been taken from the 2015 own-client contract and are more rigorous than the current requirements. The Agency seem to have accepted the arguments put forward by the Law Society that the requirements should only apply in full to one ‘main office’ and be less rigorous for ‘satellite offices’ from which firms may conduct less work. Apparently, there must be a ‘fixed office’ location that cannot be changed during the term of the contract. The problem really is the inflexibility of all of this. Where do we situate our office in these days of police station and court closure? It used to be so simple. We knew where the local Magistrates’ Court was and we knew where the local Police Station was and we chose the location of our office accordingly. Duty Solicitor requirements: – these are different to those contained in our current contracts and now include: •

36 court and police station attendances; to include at least 12 magistrates’

court and 12 police station attendances. The 36 may include a maximum of

12 Crown court hearings

•

At least 3 magistrates’ court or Crown court hearings and at least 3 police

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station attendances in each rolling 3-month period

•

In each rolling 12 month period, undertaking no less than 4 police station duty

slots allocated in that Duty Solicitor’s name

•

All Duty Solicitors used to obtain duty slots must undertake a minimum of

14 hours contract work per week from the office for which those duty slots

have been obtained.

Ghosts: – the contract contains new clauses which are welcomed by the Society aimed at tackling the problem of ‘ghost’ duty solicitors on the duty rotas New IT requirements: – firms will need to familiarise themselves with the new IT requirements, which include: •

All personnel must have access to a secure email account

•

When CJS online becomes operational, it must be used to access evidence

and serve documents, etc

•

The organisation must have an IT system that can manage client information

and case files, and be capable of being used to work electronically within

the CJS

‘Causing embarrassment’ to the LAA: a new clause (that the Society argued strongly against) allows the LAA to impose sanctions for any act likely to cause embarrassment for the LAA or ‘diminish the trust that the public places in us’. Such actions do not need to relate to contract terms. Instructing advocates: new requirements to record your advice to the client on the suitability of any advocate instructed, which include advising the client on: •

The name

• Status •

Experience, and

• Suitability I can see problems over this when there is a late return and the chosen advocate is replaced at the last minute! The LAA has made minimal changes to the clause as a result, but you are still expected to ‘so far as is practicable, advise the client of the merits and suitability of the proposed replacement’.

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Sexual Risk Orders Much in the news at the moment as a result of the Order (or it might be an interim Order) currently in existence whereby the offender has to notify the police 24 hours in advance of having any sexual activity! You couldn’t make it up could you! I’m sure we all read that the District Judge lifted the publicity restrictions and the person himself has been interviewed by the national media. The matter currently stands adjourned and, no doubt, we will learn even more about this case. The man in question was cleared of rape and his view is that the Order is simply ‘sour grapes’ on the part of the police. The Order seems to be very wide and includes any type of sexual activity (which could include a sexual conversation or kissing). He must tell the police within 24 hours and the police can then visit the person and give her a disclosure document and ask her to sign it. I wonder what information is contained within the disclosure document. I can only presume that it relates to information about him posing some sort of sexual risk. This is a mere presumption on my part. I read that another Order was recently made against a person who was HIV positive and was threatening to have unprotected sex with others. I cannot verify the truth of any of this. I am aware that media reports can never be trusted. There must be more to it than this because I’m not sure that that alone could be the basis for an Order. Risk of Sexual Harm Orders were introduced by the Sexual Offences Act 2003 as a simple preventative Order designed to prohibit adults engaging in inappropriate behaviour such as sexual conversations with children on-line. Under the Anti-Social Behaviour, Crime and Policing Act 2014, they were replaced by Sexual Risk Orders. These Civil Orders can be sought by the police (not the Crown Prosecution Service) against any individual who has NOT been convicted, cautioned etc of a Schedule 3 or Schedule 5 (Sexual Offences Act 2003) offence and who is nevertheless thought to pose a risk of harm. A Sexual Risk Order may be applied for on freestanding application to the Magistrates’ Court by the Chief Officer of Police or the Director General of the National Crime Agency (NCA). A Sexual Risk Order may be made in respect of an individual who has: •

Done an act of a sexual nature, and

•

As a result of which, there is reasonable cause to believe that it is necessary to

make an Order to protect the public from harm. 111

The effect of the Order, whether interim or full, is to prohibit the offender from doing anything described in it. The prohibitions must be necessary to protect the public in the UK or children or vulnerable adults abroad from harm from the offender. The Order cannot require the offender to comply with conditions requiring positive action, although it does have the effect of requiring the individual to notify the police of their name and address (this information must be updated annually and whenever the information changes) while the Order has effect. The minimum duration for a full Order is 2 years (if an SRO contains a foreign travel restriction that aspect may last for a maximum of 5 years) NB – Foreign Travel Orders as stand-alone Orders have now gone as the requirements

can be put within a Sexual Risk Order or a Sexual Harm Prevention Order

The lower age limit is 10, which is the age of criminal responsibility I may be wrong but I think the case that is in the newspapers at the moment is partly about whether or not an Order can contain something which effectively forces a person to hand over whatever information is required to access their phone (a pin number). This would seem to me to be in the nature of compliance with a condition requiring positive action. It would need to be very carefully worded in order to amount to any sort of prohibition!!! An Order can be applied for where an individual has done an act of a sexual nature which suggests that they pose a risk of harm to the public in the UK or children or vulnerable adults abroad, the police or NCA may apply to the Magistrates’ Court for a Sexual Risk Order. ‘Acts of a sexual nature’ are not defined in legislation and therefore will depend to a significant degree on the individual circumstances of the behaviour and its context. Some examples of the types of behaviour likely to be caught: •

Engaging in sexual activity involving a child or in the presence of a child

•

Causing or inciting a child to watch a person engaging in sexual activity or to

look at a moving or still image that is sexual

•

Giving a child anything that relates to sexual activity or contains a reference

to such activity

•

Communicating with a child, where any part of the communication is sexual

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•

Acts which may be suggestive of grooming suggest contacting a child via

social media or spending time with children alone under

•

Acts which may be suggestive of exploitation such as inviting young people

to social gatherings that involve predominantly older men, providing presents,

drink, and drugs to young people, persuading people to do things that they

are not comfortable with and which they had not expected.

They may be acts which do not involve children at all but may generate a risk of harm to adults. We are essentially talking about acts whereby prohibitions are necessary to protect the public in the UK, or children or vulnerable adults abroad from harm from the offender. The Sexual Offences Act 2003 makes clear that the evidential time limit under Section 127 of the Magistrates’ Courts Act 1980 does not apply to the Civil Orders found in Part 2 of the 2003 Act, which include an SRO. Variation or discharge of an order is sought by way of an application by complaint to the court. Such applications can be made by either the police, or by the defendant. An Order cannot be discharged within 2 years of it being paid without the agreement of the police and the defendant. Variation might be necessary for the deletion of unnecessary prohibitions, for example, if the individual has moved area; or the addition of supplementary prohibitions, for example, if an additional group need protection from risk identified. Any appeal by the defendant against the making of an SRO, an interim Order or an Order renewing, varying or discharging an Order or a refusal to make such an Order is to be made to the Crown Court. Breach of an SRO or an interim SRO, without a reasonable excuse, is a criminal offence. An offender convicted of such an offence on summary conviction in the Magistrates’ Court will be liable to a term of imprisonment for up to 6 months or to a fine, or both; an offender convicted on indictment in the Crown Court will be liable to a term of imprisonment for up to 5 years. Finally, for those of you who want to read more about the Civil Orders contained within Part 2 of the Sexual Offences Act 2003 there is an excellent Home Office guidance document entitled ‘Guidance on Part 2 of the Sexual Offences Act 2003’– it was published in March 2015 113

The above document very usefully sets out the legal aid position for such offenders and is well worth consulting.

Legal aid contributions I have just read in the 4th July edition of the Gazette that the Court of Appeal has just granted permission for Judicial Review of a Legal Aid Agency decision on the treatment of capital when assessing contributions towards defence costs. These, as you know, are dealt with under the Criminal Defence Service (Contribution Orders) Regulations 2009. You have to be really careful in this area when advising clients. When the matter relates to ‘a matter on indictment’ an assessment is made taking into account both income and capital. The vast majority of contributions are taken solely from income only but an additional amount may be taken from capital where the client’s assets (including equity in the home) are in excess of £30,000. The first £30,000 is protected. In appropriate cases once the case has concluded a calculation will be made as to whether or not a further sum from capital is required. A client may be asked to make a contribution of £500 per month and pay regularly and have paid £2,500 by the conclusion of the case. The defence costs (defined as solicitor’s costs, counsel’s costs and disbursements) will then be looked at to see whether or not they amount to more than that taken via the contribution from income. The balance may well be pursued from the client’s capital. In the above example, if the defence costs amounted to £10,000 then consideration would be given to pursuing a claim for a further £7,500 from capital and this would be permissible where the capital available to the client was £37,500 or more. Also in this area it is important to bear in mind ‘judicial apportionment’ of the contribution where some of the counts on the indictment do not result in a conviction. An application should be made at Court for ‘judicial apportionment’ but, if forgotten, an application can thereafter be made in writing within 14 days. I’m not aware that anything can be done for the client once 14 days has expired. Where all of the counts on the indictment are dismissed or a verdict of ‘not guilty’ is returned then my understanding is that any contributions paid will automatically be refunded and there is no need to make any application to the Court. It is not their intention to make a profit on the deal i.e. if the client’s contribution is assessed at £500 per month then this amount is payable only on the basis that the defence costs in the case amount to £2,500 or more (i.e. 5 months at £500 per month). If the actual defence costs amount to no more than £1,000 then the client’s

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contribution is capped at £1,000. I have spoken to more than one lawyer who seems to think that the client still has to pay £2,500 but he does not! The important point to realise in all of this is that if the client qualifies for a payment from income and capital then it is a ‘misnomer’ to describe it as a ‘contribution’ towards his defence costs – the reality is that he is paying the entirety of his defence costs!!

Case-Law Oh dear! The case of Regina v Arash Zaredar [2016] EWCA Crim 877 is yet another example of the Court of Appeal dealing with an appeal based on the Section 31 defence. There are clearly lawyers out there who still don’t know about the Section 31 defence!! The appellant had pleaded guilty to possession of an identity document with improper intent, contrary to Section 4 (1) of the Identity Documents Act 2010. He was sentenced to 12 months imprisonment subject to an allowance in respect of a number of days on remand. The appellant appeals against conviction upon a Reference by the Criminal Cases Review Commission under Section 9 of the Criminal Appeal Act 1995 on the basis that he was deprived of legal advice about the statutory defence and based on the evidence now available the defence could quite properly have succeeded. The legal framework may be shortly summarised as follows: Article 31 of the 1951 Convention relating to the status of refugees 189 UNTS 150 provides as follows: 1

The Contracting States shall not impose penalties, on account of their illegal

entry or presence, on refugees who, coming directly from a territory where

their life or freedom was threatened in the sense of Article 1, enter or are

present in their territory without authorisation.

Provided they present themselves without delay to the authorities and show

good cause for their illegal entry or presence

115

Article 31 is incorporated into the law of England and Wales by virtue of Section 31 of the Immigration and Asylum Act 1999. I don’t wish to go into the facts but suffice it to say that the Court said this at Paragraph 20 of the judgement: ‘We part from the case with one further and final observation. This is yet another instance when unhappily an appellant was deprived of legal advice as to the statutory defence under Section 31. As it seems to us, the Law Society should be appraised of this judgement and encouraged, as a matter of professional training and conduct to draw this issue to the attention of its members. With respect, there really is no excuse for continuing professional failures in the regard. The statutory defence should be raised and, if need be, disputed as soon as possible. It should not be left to appeals out of time or the Criminal Cases Review Commission to remedy matters after the event’. The Law Society has re-published its guidance for solicitors in this area. It is not complicated. I respectfully suggest that you go onto the Law Society website and read it. You might be surprised at the number of offences to which the defence of seeking asylum without delay applies. You might also be surprised to learn that ‘short stop-over’s’ in safe countries are not fatal to an asylum claim in this country where no asylum claim had been made in that country. Regina v Paul Nicholas Phelan [2016] EWCA Crim 727 was a simple point by way of an appeal. There was rightly no dispute that this offence merited a custodial sentence (street robbery of an 82-year-old lady). When the appellant was sentenced, both prosecuting and defence counsel were in agreement that the matter fell within category 2 of the then sentencing guidelines for robbery, with a starting point of 4 years imprisonment and a range of between 2 and 7 years. The Judge sentenced the defendant to 5 years imprisonment. The Judge gave very little indication as to how he reached the figure of 5 years which he said was the least sentence that he could have imposed. However, he did appear to indicate that full credit was given for the plea of guilty. Therefore it must be inferred that after taking into account any personal mitigation, including credit for the information leading to the recovery of the handbag, his starting point must have been at least 7 years and 6 months. There were a number of aggravating features in the case whereby the Court of Appeal took the view that the Judges’ starting point could clearly have been 8 years and would have been justified if he had explained it properly. Unfortunately the Judge had failed to do so. Instead, he took a starting point of

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at least 7 years and 6 months without affording defence counsel the opportunity to address him on the question of whether he should depart from the Guidelines, and without giving any or any adequate explanation as to how he reached the sentence of 5 years. This being so, it seemed to the Court that the sentence which he imposed, although it could have been fully justified in other circumstances, could not be allowed to stand. A sentence of 4 years and 6 months was substituted.

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Section 9 CrimeScribe Edition No. 61

Hello and welcome to this month’s edition of CrimeScribe. It’s the tail-end of summer and there is very little around in terms of new legislation. I have therefore taken the opportunity to write a paper in relation to ‘Offences of particular concern’ and to give you the checklist as set out in the recent case of R v LF and DS [2016] EWCA Crim 561. I have also written a paper in relation to the sentencing of Dangerous Offenders incorporating the amendments brought about by the Criminal Justice and Courts Act 2015. These areas of law are not an easy read but I hope my papers will be of assistance to those practitioners called upon to address Crown Court Judges in such matters. I touched upon the new Contracts for criminal legal aid in last month’s edition. The new Contracts will allow for the delivery of criminal legal aid services from the 1st April 2017 onwards. There are concerns over the Legal Aid Agency’s insistence on the provision of advice from a fixed office location that cannot be changed during the term of the Contract. There is also a new clause requiring a Solicitor to explain to the client the choice of a particular advocate for their case. This process has to be repeated if a barrister pulls out at the last minute and this would seem to be both impractical and unnecessarily bureaucratic. The procurement process closes at midday on the 15th September and is open to existing Crime Contract holders and new entrants. Criminal practitioners have effectively been given 8 weeks to prepare their tender bids.

Initial Details of the Prosecution Case I also want to touch upon the recent guidance that has been given to advocates in relation to the above and the use of statements. The guidance applies to all cases in Magistrates’ Courts. As you well know, IDPC is to be given to the defence prior to plea at the first hearing. 118

Part 8 of the Criminal Procedure Rules governs the provision and content of the IDPC. In particular, Rule 8.3 covers the requirements for custody and bail cases. Paragraph 8.3 (iii) provides that IDPC must include: – ‘Any written witness statement or exhibit that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial, or to sentence’. In any case where the prosecutor is satisfied that a statement, in the possession of the prosecutor, is material to plea, allocation or sentence it should be provided to the defence. For example, a statement of the victim in an assault case may provide important information about the background to the assault which may be relevant to the issue of self-defence or provide mitigating/aggravating features on sentence. This will be consistent with Rule 8.3 CPR 2015. If a witness statement does not come within Rule 8.3 the prosecutor should explain this to the defence and the Court and resist any application to adjourn the case. Any material that the prosecutor intends to rely on in Court in addition to what has already been served with the IDPC should be served on the defence especially if it is likely to affect the sentence the Court could pass.. If the prosecutor deems that the MG5 summary is an inadequate description of the offence and intends to rely on part of a statement to support the summary or feels it necessary to use material in open Court that hasn’t been served on the defence, for example a more detailed description of the injuries from the victim, the defendant should be advised of this by showing a copy of the statement and providing a copy if practical in advance. Statements that come within Rule 8.3 can be e-mailed to the defence or alternatively printed off or otherwise shown to the defence and if necessary the case should be stood down so the defence can take proper instructions. [I think this guidance is useful. It is very difficult for the defence to advise properly on a case summary without having access to statements that may contain valuable information necessary to plea or allocation or sentence]. I think the Rule 8 is an improvement on its predecessor Rule 10 but the position hasn’t really changed in so far as a ‘not guilty’ plea being required in order to trigger the requirement upon the Crown provide the defence with the evidence upon which

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they would seek to convict and to provide the defence with details of the nonsensitive used material which meets the test for disclosure. A ‘not guilty’ plea and an adjournment has ramifications for credit.

CASE-LAW Adult offenders who commit ‘offences of particular concern’ R v LF and DS [2016] EWCA Crim 561 A new concept created by the Criminal Justice and Courts Act 2015 Section 6 and Schedule 1 to the 2015 Act amend the default determinate custodial sentence for offenders who are convicted (on or after the 13th April 2015, regardless of the date of the offence) of an offence which is listed in the newly inserted Schedule 18A to the 2003 Act and who were over 18 years of age when the offence was committed – (I think they mean 18 or over!) As a result of Section 6, a new sentence format must now be applied to offenders who have been convicted of an offence of Particular Concern in cases where the Court decides to impose a sentence of imprisonment but does NOT impose an Extended Determinate Sentence for Dangerous Offenders, or a life sentence. Nothing in these provisions affects the Court’s discretion to impose life sentences, Extended Determinate Sentences, non-custodial sentences or other disposals. Offences of Particular Concern are set out in the new Schedule 18A to the Criminal Justice Act 2003. In summary these constitute offences deemed the most serious child sex and terrorism related offences. There is a list of 20 offences (+ inchoate forms). I doubt if you well get too involved in the terrorism related offences and, in reality, the 2 offences you will need to be aware of are as follows: 19 – An offence under Section 5 of the Sexual Offences Act 2003

(rape of a child under 13)

20 – An offence under Section 6 of that Act

(assault of a child under 13 by penetration)

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19 and 20 are both listed within Schedule 18A and Schedule 18A has been imported into the Criminal Justice Act 2003 by Schedule 1 of the Criminal Justice and Courts Act 2015. The key characteristics of the new Custodial Sentence are: It consists of a custodial term to be set by the Court, followed by a fixed 1-year period of licence (in respect of which there is no discretion). The custodial term and the year’s licence make up the appropriate sentence commensurate with the seriousness of the offence(s). The purpose of this Fixed Licence Period is to ensure that any offenders who are NOT released until the end of the custodial term receive a period of Supervision after release. When sentencing an adult to custody for one of these offences, the Court is obliged to impose an additional 12 months licence period at the end of the custodial term. The provision does not lend itself to a suspended sentence which should therefore be avoided i.e. it should be immediate custody or drop down to a community order. The offender must be referred to the Parole Board for consideration of release on licence, from the half-way point of the custodial term. You will see immediately that this is very different from the Standard Determinate Sentence in which the offender serves half and is automatically released at the half-way stage without any reference to the Parole Board whatsoever. The offender will be automatically released, if that has not already occurred, at the end of the custodial term. The new arrangements apply only to offenders who were over 18 when the offence was committed – (I think they mean 18 or over!). Sections 4 and 6 commenced on the 13th April 2015

A word or two about Section 4 NB – Section 4 is the provision that says that all offenders sentenced to an Extended Determinate Sentence after commencement of these provisions may only be released before the end of the custodial term if the Parole Board so directs. They must serve two- thirds of the sentence and then apply to the Parole Board for release. If the Parole Board say ‘no’ they will serve the entirety of the custodial element of the sentence.

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The new sentencing and release arrangements for offenders of Particular Concern (Chapter 5A: new Section 236A and Schedule 18A to the Criminal Justice Act 2003, as inserted by Schedule 1 to the 2015 Act) will apply to any offender who is convicted/sentenced after commencement of the new provisions on the 13th April 2015, regardless of the date of the offence. ‘Requisite custodial period’ is the part of a Determinate Sentence that must be served in custody before a prisoner may be released (either automatically or at the discretion of the Parole Board). It has different meanings for different types of sentence: For Standard Determinate Sentences it ends at the half-way point of the sentence; For Extended Determinate Sentences (EDS) it ends at the two-thirds point of the custodial term; For Extended Sentences under the previous regime (EPP’s) it ends at the half-way point of the custodial term; For the new Sentence introduced by Section 6 (for offenders of Particular Concern) it ends at the half-way point. The important case already referred to earlier is R v LF and DS [2016] EWCA Crim 561 which gave us the Schedule 18A sentencing checklist as follows: 1

Is the offence listed in Schedule 18A or, is it a historic sexual offence, now

repealed, that involved rape or penetration of a child under 13? If ‘yes’

Was the defendant 18 when the offence was committed? If ‘yes’

Is the Court sentencing the defendant to a Life Sentence or an Extended

Determinate Sentence for the offence or an associated offence? – If ‘no’

Is the Court imposing custody? – If ‘yes’

Each qualifying offence must be sentenced as a single custodial term with a

further 12 months licence added under Section 236A

Where concurrent 236A sentences are imposed a single additional 12 months

must be added

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Where consecutive 236A offences are imposed, each additional 12 months

licence must also be imposed to run consecutively at the end of the total of

the custodial terms

The sentencing Court should state the relevant periods when sentencing

(I suppose I could add a 9th, is the conviction/sentencing on or after the 13th April 2015?). That’s it. It’s going to cross your path very rarely but it’s a ‘need to know’ if you are Counsel or a Solicitor with Higher Rights regularly appearing as an Advocate at the Crown Court. Ibrahim v Crown Prosecution Service [May 2016] The most recent case in the area of res gestae which seems to be cropping up repeatedly in Magistrates’ Court trials at the moment. As you all know, the principle concerns statements made in a moment of anguish or distress whereby the possibility of concoction or distortion can be disregarded (i.e. people tending not to make things up when they are in extremis). [If you haven’t already done so might I suggest that you read the case of Barnaby v Director of Public Prosecutions [2015] EWHC 232 Admin] The present case was an appeal by way of case stated to the High Court under Section 111 of the Magistrates’ Courts Act 1980 against the decision of the District Judge and the question that was posed by the District Judge and which required an answer from the High Court was this? ‘Was my decision to admit the evidence of the phone call as res gestae so unreasonable that no reasonable Judge could have reached it?’ [Remember that the ‘essence’ of a case stated is the posing of a question or a series of questions requiring an answer from the High Court]. [Although res gestae is Hearsay, no notice upon the defence is required as res gestae has been specifically preserved as one of the common law exceptions to the rule against hearsay under Section 118 of the Criminal Justice Act 2003 and the

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Criminal Procedure Rules 2015 make it clear that no hearsay notice is required for any application concerning res gestae]. It was a case concerning common assault and there was an emergency 999 call from the complainant at 10:25pm; the substance of which was that she had been the victim of an assault by her partner. When the tape was played the Judge noted the hysterical tone of voice used by the complainant and inferred that her complaint was recent. The operator contacted the police at 10:35pm and the police arrived at 10:45pm and gave evidence to the effect that the complainant was very upset, distressed, shaking and crying. The police noticed bruising to her face and swelling around the right eye and cheekbone........ She initially allowed the police to take photographs of her injuries but when they were â&#x20AC;&#x2DC;coming outâ&#x20AC;&#x2122; and more apparent she refused to have any more taken. The District Judge inferred from this that the injuries must have been recent. The disturbance in the flat was evident to police and must have been so recent it had not been cleared up.. The complainant did not make a statement or give evidence. She became uncooperative with the police and the District Judge came to the conclusion that it was clear that the complainant was not willing to make a statement or give evidence against him because she was in fear of him. The District Judge listed the reasons why he considered the statement fell within the res gestae principle and the High Court agreed with him and said that it had not been unreasonable for him to admit the evidence of the phone call as res gestae. Regina v Morfitt (Crown Court at Teeside) SCCO Ref: 55/16 29th July 2016 This was a fairly interesting case on its facts. The whole issue was whether or not a Newton Hearing had taken place. Counsel contended that a Newton Hearing had taken place and the fee payable therefore should have been a trial fee. The Legal Aid Agency took the view that a Newton Hearing had not taken place and that the appropriate fee payable was a guilty plea fee. As you can imagine, the difference

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between the two fees was enough to warrant the matter being taken to a Costs Judge by way of an appeal. The relevant statutory provision is the Criminal Legal Aid (Remuneration) Regulations 2013 and in particular Schedule 1 to the Regulations which states at Paragraph 1 (1): [NB – these Regulations are still relevant for advocates and will give you all of the hourly rates and payment details for advocacy at the Crown Court – they are still highly relevant because the advocacy fees were never reduced – they also contain the litigator rates but do not trust them because the litigator rates have been reduced by 8.75% since 2013]. ‘Newton Hearing means a hearing at which evidence is heard for the purpose of determining the sentence of a convicted person in accordance with the principles of R v Newton’. [NB – do remember that the prosecution always bear the burden in a Newton Hearing and must prove their facts to the required criminal standard – the leading case is that of Navarro v The City of Westminster Magistrates’ Court]. The issue was whether or not submissions by counsel for the prosecution and defence could come within the definition of a Newton Hearing. The lawyer acting for the Legal Aid Agency at the appeal argued that where submissions only were made (rather than the receiving of evidence) that that was not a Newton hearing but rather a plea in mitigation. The case was actually listed for a Newton hearing but the Determining Officer at the Agency took the view that no Newton Hearing had actually taken place in relation to the defendant Morfitt even though an effective Newton had taken place in respect of the co-defendant Ryan. Counsel at the costs appeal who represented the counsel who considered that he should have been paid a trial fee was the same counsel who had appeared for the co-defendant Ryan and was therefore in a perfect position to tell the Costs Judge precisely what had happened at the Crown Court. Counsel representing Morfitt had made a note after the Newton hearing of the codefendant Ryan which read as follows:

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‘First, although the cases of the two defendants were linked and indeed the issues upon which they sought resolution by the Judge were in part the same’. Counsel, conducting the Newton hearing of the co-defendant Ryan, called Ryan and cross- examined the relevant police officer. The Judge gave a ruling which included the finding that Ryan not the lieutenant of Morfitt. This, according to counsel representing Morfitt was of considerable assistance to Morfitt’s case because it removed the underpinning of the Crown’s case that Morfitt was the centre pin of the North-East crime group’s activities. Counsel representing Morfitt made a note which referred to the attendance of one of the other co-defendants being present at the Court in order to give evidence in Morfitts Newton Hearing. Upon hearing the Judge’s conclusions in Ryan’s Newton Hearing, counsel for Morfitt, chose to call no evidence from Moffitt or the codefendant. By doing so, he preserved his client’s full credit for the early guilty pleas. It sensibly occurred to counsel representing Morfitt that the Newton Hearing of Ryan and, more importantly, the Judge’s ruling, had obviated the need for Morfitt or the co-defendant to be called because the point had already been resolved after Ryan’s Newton Hearing. [If I may put it in the vernacular, counsel must have thought, after the Judge’s ruling, ‘job done!!’]. Paragraph 11 really sums up what had happened at Court as follows: ‘It became clear at the hearing that the facts in this case presented an unusual circumstance. It could be said that Morfitt’s own Newton Hearing had not gone ahead because no evidence was called and submissions were made on facts that had already been ruled upon. Equally, it could be said that Ryan’s Newton Hearing in fact involved Morfitt because he had been present during the evidence being given and his counsel was able to cross-examine the witnesses. Based on the evidence produced at Ryan’s hearing, Morfitt’s basis of plea was determined by the Judge to be consistent with the facts that he had just found’. As it happened, the evidence given by Ryan and accepted by the Judge was of assistance to Morfitt. However, the evidence might have been detrimental to Morfitt’s basis of plea and in which case counsel for Morfitt would have had an opportunity to cross-examine Ryan at Ryan’s Newton Hearing. As far as Morfitt was concerned, Ryan was being called first to see if anyone else was required i.e. to see whether or not the issues were resolved without the need for a second Newton Hearing. 126

Counsel for the Legal Aid Agency accepted that if evidence had emerged from Ryan’s Newton Hearing which was helpful to Morfitt then this was ‘persuasive’ that Morfitt had had his own Newton Hearing. Nevertheless, it was clear that Morfitt had essentially had a standard sentencing hearing where his counsel had made a plea in mitigation. Therefore whilst the situation was ‘difficult’, Counsel for the Agency did not think that it was ‘quite enough’ to demonstrate that a Newton Hearing had taken place for Morfitt. I don’t really think I need to say much more. I shall finish by simply quoting paragraphs 19 and 20 of the judgement. Paragraph 19 reads as follows: ‘It seems to me that, where a defendant prepares for a Newton Hearing; turns up to that hearing; hears evidence given on matters which concern the disputed facts and then relies upon that evidence to support the submissions made by his advocate, it cannot properly be said that a Newton Hearing has not taken place. The Judge has heard evidence on which he can make findings of fact where they are disputed between the crown and the defence. The fact that the evidence was being led and cross-examined in respect of the co-defendants Newton Hearing does not seem to me to make any difference to that analysis. As is said above, if that evidence had been taken from the trial, whether or not it was subsequently challenged at a Newton Hearing, it would still be relevant evidence for the Judge to consider. And finally at paragraph 20 ‘It may be relatively rare for co-defendants to have consecutive Newton Hearings and where one clearly takes place and the other less obviously so. But if the circumstances are similar to those in this case, it seems to me that an effective Newton Hearing has taken place for both defendants if evidence relevant to the disputed facts has been given in the first hearing such as to render the need to call evidence unnecessary in the second hearing. This appeal succeeds and counsel should be paid on the basis that a Newton Hearing took place.

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The sentencing of Dangerous Offenders – August 2016 The concept was first introduced into English law by Chapter 5 of the Criminal Justice Act 2003. The relevant Sections are 224 – 236. In order to qualify for a sentence under the Dangerous Offender provisions (as originally enacted) there has to be an assessment as to whether or not the offender is dangerous. We know from the leading case of R v Lang [2005] EWCA Crim 2864 that such assessment should be incorporated into a full pre-sentence report. An offender might be deemed to be dangerous if he has been convicted of a Specified Offence (the specified violent offences and the specified sexual offences were all listed in a new Schedule 15 of the 2003 Act). Furthermore, The Court has to be of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. Sentencing under the Dangerous Offender provisions can only take place at the Crown Court. There is no power to sentence under these provisions in the Magistrates’ Court. The offender might find himself at the Crown Court because he has been ‘sent’ or because he has been ‘committed for sentence’. Either will do. Sentences under the Dangerous Offender provisions are available for both adults (18+) and Youths (10 – 17). The original sentences available as a result of the Criminal Justice Act 2003 were as follows: A Sentence of Life An Indeterminate Sentence for Public Protection (IPP) An Extended Sentence for Public Protection (EPP) I don’t propose to say anything further about these 3 types of sentence because the law in relation to Dangerous Offenders was radically altered by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

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The amendments came about as a result of Sections 122 – 128 and Schedules 18 – 22 of the Act. IPP’s and EPP’s were both scrapped (or if you prefer, abolished by Section 123) and replaced by 2 new sentences as follows: 1

Mandatory Life Sentence for a second offence listed in the new Schedule 15B

of the Criminal Justice Act 2003

Extended Determinate Sentence

The distinction between Dangerous and Non-Dangerous offenders, and the risk threshold to be applied, remains the same as under the previous scheme. Schedule 15 still governs the range of eligible offences. The definition of Dangerousness remains the same as under the previous scheme. Discretionary life sentences still remain. Dangerous offenders who meet the statutory criteria may be given the new Extended Determinate Sentence which consists of a Custodial Term and an Extended Licence Period. The offender must serve two-thirds of the Determinate part of the sentence (unlike a Standard Determinate Sentence in which an offender serves half and is automatically released at the half-way stage without any reference to the Parole Board whatsoever) i.e. the custodial term and then apply for release to the Parole Board. If released at that stage he will have served two-thirds of the sentence and will be on licence for the remaining third and will also be on licence for the Extended Period announced by the Judge when sentence was passed. This extended period can be anything up to 5 years for a violent offence and anything up to 8 years for a sexual offence. The 2012 Act also created a new Mandatory Life Sentence for offenders convicted and sentenced for a particularly serious sexual or violent offence, where a sentence of 10 years or more imprisonment was imposed for the first offence and the second offence merits a sentence of 10 or more years imprisonment (taking account of any discount for a guilty plea). The 2012 Act gave us a new Schedule 15B which is inserted into the Criminal Justice Act 2003 by virtue of Schedule 18 of the 2012 Act. Schedule 15B sets out the relevant particularly serious sexual or violent offences.

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We now have 2 schedules to contend with as follows: Schedule 15 Schedule 15B Some commentators refer to Schedule 15B sentences as ‘2 ‘strikes and its life’ [Those of you who have been around for some time will know that we used to have ‘2 strikes and its life’ where the defendant was convicted of his second offence carrying life imprisonment – the Judge had to impose life The above was scrapped following the implementation of the Dangerous Offender provisions of the 2003 Criminal Justice Act.] Section 122 inserts a new section 224A into the Criminal Justice Act 2003. This requires the Court to impose a life sentence on sexual and violent offenders where the following conditions are met: The current offence is an offence listed in Schedule 15B. The current offence merits a Determinate Sentence of 10 years or more imprisonment. The offender has previously been convicted of an offence listed in Schedule 15B for which he received a sentence of 10 years or more (or a minimum term of 5 years in the context of an Indeterminate Sentence) – reductions for time served on remand are not counted in considering the length of a previous sentence. In relation to the previous offence he must have been punished with either a relevant life sentence or a relevant sentence of imprisonment/detention for a Determinate Period as defined by section 224. A relevant life sentence is one where the offender was not eligible for release during the first 5 years of the sentence. The term life sentence includes a sentence of imprisonment or detention for public protection. A relevant sentence of imprisonment/detention for a determinate period is relevant only where it was for a term of 10 years or more i.e. the offender must have served at least 5 years on that previous sentence. There is an exception to this requirement (of the need to impose a life sentence)

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where the Court finds that there are particular circumstances that would make it UNJUST to impose a life sentence. The new Mandatory Life Sentence for a second offence listed in the new Schedule 15B to the Criminal Justice Act 2003 applies where the second offence is committed on or after the 3rd December 2012 (the first offence may have been committed at any time) and at the time the second offence was committed the offender had previously been convicted of an offence mentioned in Schedule 15B. The new Mandatory Life Sentence is only available for Adult’s – 18+ The offender must be 18 or over at the point of conviction and the instant offence must have been committed on or after 3rd December 2012. The Judge, when imposing the Mandatory Life Sentence, will set a TARIFF– every day of this TARIFF will have to be served by the offender – the TARIFF may be 5 years or more (it could never be less than 5 years because the offence must merit a Determinate Sentence of at least 10 years in order for the provisions to be triggered!!) Once the TARIFF has been served then release is at the discretion of the Parole Board. Where release takes place the offender will be on LIFE LICENCE – remember, he was given a life sentence! Where release does not take place the offender will continue to serve (no doubt subject to periodic reviews by the Parole Board) – in a worst case scenario the offender could end up serving life! The other new sentence created by Section 24 of LASPO is the new Extended Determinate Sentence (EDS) It does so by inserting new Sections 226A and 226B into the Criminal Justice Act 2003. These Sections make it quite clear that the new EDS sentence is available for both Adults and Juveniles (or Youths, if you prefer). The ‘2 strikes and its life’ sentence is only available for Adult’s – 18+. As regards the EDS, different criteria apply as between Adults and youths.

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The pre-conditions which must be met before the EDS can be imposed upon an Adult are as follows: 1

The offender has been convicted of a sexual or violent offence (listed in

Schedule 15 to the Criminal Justice Act 2003)

The Court considers that the offender is Dangerous

The current offence merits a Determinate Sentence of at least 4 years (after

guilty plea discount is applied) or

The offender has previously been convicted of a particularly serious offence (i.e. one set out in the new Schedule 15B to the Criminal Justice Act 2003). The pre-conditions which must be met before the EDS can be imposed upon a Juvenile are as follows: The offender has been convicted of a sexual or violent offence (listed in Schedule 15 to the criminal Justice Act 2003). The Court considers the offender is Dangerous. The current offence merits a Determinate Sentence of at least 4 (after guilty plea discount is applied). The EDS consists of a Custodial Term which reflects the seriousness of the offending followed by an Extended Licence Period which is determined by the Court on the basis of what is requisite for risk management. The Extended Licence Period may be for up to 5 years for a Violent Offence The Extended Licence Period may be for up to 8 years for a Sexual Offence In terms of the release, LASPO created 2 different categories of offender. One category of offender was automatically released at the two-thirds point of the custodial term whilst the other category of offender had to apply to the Parole Board for release at the two-thirds point of the custodial term. Category 1: The offender will receive automatic release on licence at the two-thirds point of the custodial term, and continue (unless recalled) to remain on licence until both the custodial term and the subsequent extended licence have expired.

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Category 2: The offender will be able to apply to the Parole Board for release on licence at the two-thirds point of the custodial term, but will not receive automatic release until the end of the custodial term. Whenever released, the offender will continue (unless recalled) to remain on licence until both the custodial term and the subsequent extended licence have expired. An offender can enter the second category by 2 different criteria: 1

Either his custodial term for the current offence is 10 years or longer (after

guilty plea discount is applied);

Or 2

His current offence is one of the particularly serious offences set out in the new

Schedule 15B to the Criminal Justice Act 2003; (or both conditions are met).

This, however, was all changed by the Criminal Justice and Courts Act 2015 which made various amendments to the Dangerous Offender legislation as follows: The provisions came into force on the 13th April 2015 and the new arrangements only apply to offenders sentenced after these provisions came into force. In other words there are offenders currently serving who will be released at the two-thirds stage without any recourse to the Parole Board because they had been sentenced prior to 13th April 2015. This point is made clear in the Explanatory Notes to the Criminal Justice and Courts Act 2015. The changes made by the Act were as follows: 1

Part 1 of the Act added certain offences, including those of weapons training

for terrorist purposes and causing gunpowder or other explosive substances

to explode with intent, to the Enhanced Dangerous Offenders Sentencing

Scheme (i.e., added these new offences to Schedule 15B) – the current

Enhanced Dangerous Offender Sentencing Scheme, introduced by the

Legal Aid, Sentencing and Punishment of Offenders Act 2012, was

commenced in December 2012 and already covers some less serious

terrorism offences. The effect of the new provisions is that offenders will qualify

for an Automatic Life Sentence (‘2 strikes and its life’) where they have

previously been convicted of an offence included in the Scheme (and had a

sentence of at least 10 years imposed on both occasions)

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Offenders with previous convictions for these offences will satisfy one of the

conditions for getting an Extended Determinate Sentence. (But only for adults

– it is the exception whereby today’s offence need not warrant a Determinate

Sentence of at least 4 years) Where these offences do not already carry a life

sentence these provisions also increase the relevant maximum penalties

to life.

I didn’t mention this very important point earlier but I shall mention it now. Not all of the offences on Schedule 15B carry life imprisonment. The effect of the amendments brought about by LASPO was to increase the maximum penalty for all offences on Schedule 15B to life imprisonment where the Judge considered that it ought to be life under the ‘2 strikes rule’ i.e. the offender already has a previous conviction (committed any time) for a Schedule 15B offence for which he was given 10 years or more and the Judge today considers that today’s offence merits a Determinate Sentence of at least 10 years). 2 The 2015 Act amended the release arrangements for offenders receiving an Extended Determinate Sentence so that, in all cases, they will not be

entitled to automatic release at the two-thirds point and will only get early

release if the Parole Board directs release – offenders convicted of sexual

and/or violent offences listed in Schedule 15 to the Criminal Justice Act 2003,

who the Courts believe are dangerous, can receive an Extended Determinate

Sentence under which they must serve at least two-thirds of their custodial

term before they are released into the community on licence. Currently, some

of these offenders receive automatic release after two-thirds of their custodial

term, whilst in more serious cases release is subject to the discretion of the

Parole Board from that point to the end of the custodial term. Section 4 of this

Act amends the law so that every offender who receives an Extended

Determinate Sentence will only be released into the community on licence,

before the end of their custodial term, if the Parole Board directs their release

rather than being automatically released.

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Section 10 CrimeScribe Edition No. 62

Hello and welcome to this month’s Edition of CrimeScribe; another very quiet month in that the politicians have other things on their minds and are leaving us alone. Nothing to report insofar as legislation is concerned. Thank goodness for Case-law! As last month was also quiet I gave you my thoughts on the law concerning Dangerous Offenders and Offences of Particular Concern. Two quite difficult areas and I hope they cast some light on the subjects. This month, before embarking on the important Case-Law, I thought I would deal with another thorny issue namely Fitness to Plead. It’s not difficult at the Crown Court because it can be dealt with as a preliminary issue with reports and the Judge can make a ruling and everything flows from that. It is slightly trickier in the Magistrates’ Court as you will see from my thoughts on it.

Fitness to plead in the Crown Court and fitness to plead in the Magistrates’ Court – September 2016 Some thoughts........ Can I stress at the outset that these are merely my views having read the legislation and having read some important case-law in this area and having spoken to several practitioners.... Not really a problem at the Crown Court because there is a specific procedure laid down for a determination to be made on the issue of fitness to plead following reports...... Slightly trickier in the Magistrates’ Court...... and it seems to matter not whether it is the Adult Magistrates’ Court or the Youth Court.... The same principles would apply....... Do not confuse fitness to plead with insanity. The two issues should really be dealt with separately. If, as a defence lawyer, you take the view that your client is actually insane then you should be obtaining a report with a view to seeking to persuade the Crown that your client is insane and the proceedings ought not to go any further –

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no doubt the Crown would get their report as well and take a view – if it did go to trial do remember that insanity is a defence – let’s hope you are going to be at the Crown Court where this issue arises – I suspect it would get horribly complicated in the Magistrates’ Court – it does say this at Paragraph 1.97 in the 2015 Edition of Stone’s: ‘the common law defence of insanity may be raised as a defence to an appropriate charge being tried summarily in a Magistrates’ Court, but only where the offence charged is one in which ‘mens rea’ is an element. The burden of proving insanity is on the defence. In the absence of the defence of insanity or automatism there is no defence on the ground that the defendant’s mind was malfunctioning.’ See Paragraph 1.98 for the procedure to be adopted in the Magistrates’ Court. Fitness to plead......... We are talking here about the defendant’s ability to comprehend the course of proceedings so as to make a proper case and have effective participation (CPS v P 2007 EWHC 946 – a ‘high powered’ High Court bench sitting). This ‘ability’ may be due to a ‘Mental Disorder’ as defined by the Mental Health Act 1983 but it is not limited to such disorders. The defence may call upon the CPN (Community Psychiatric Nurse) for assistance if one happens to be available at Court. If the CPN is of the opinion that the D is not FTP then the defence and Court may quite early on take the view that D cannot consent to summary trial in an eitherway case and consequently the case inevitably ends up being ‘sent’ under Section 51 and the Crown Court process for determining FTP can kick in – (R v Metropolitan Stipendiary Magistrate Tower Bridge 144 JP 752). You may well have obtained a report in order to assess your client’s fitness to plead in the matter. I doubt that the Court itself would pay for the report. I may be wrong but I would suspect it would be a question of applying for prior authority and going down that route.... If the report indicates that the client is fit to plead then that might be the end of the matter....

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If the report indicates that the client is not fit to plead then that report will need to be served upon the Crown who may themselves obtain their own report on the issue of fitness to plead..... Understand why you have obtained the report and where the report may lead you..... It’s quite clear having read a number of cases that many defence lawyers are under the misapprehension that the report is being obtained with a view to a preliminary argument in the Magistrates’ Court as to whether the proceedings should continue ...... this is most certainly not the case....... the report is being obtained by you, as defence lawyer, with a view to possibly persuading the prosecution that it is not in the public interest that the prosecution continue or with a view to seeking to persuade the Court that your client is not fit to plead in order that no TRIAL takes place....... there may well be a HEARING that will look suspiciously like a TRIAL but it will be ‘a trial of the facts’......... DON’T OVERLOOK THE OBVIOUS POINT THAT FITNESS TO PLEAD IS NOT A DEFENCE! I have spoken with people who take the view that the report(s) themselves may not be ‘wholly determinative’ of the matter of whether or not the defendant is fit to plead i.e. the Court may not consider itself bound by the report’s findings but may ‘weigh it into the balance’ along with other factors such as, for example, was the suspect able to give full instructions at the police station stage..... Would a special measures approach achieve the desired end of having a TRIAL? CPS v P is authority for this. P is also authority for saying that the Court will usually want to start hearing evidence, put in place support for the defendant etc and keep the matter of the appropriateness/fairness of the trial constantly under review – at any point in the case it may decide that based on the report and the conduct of the trial itself, that the defendant is not fit to plead and to try him would be an abuse of process so that a stay of proceedings might be appropriate. Alongside all of this of course is the option (again confirmed in P) to switch to the consideration of whether the defendant ‘did the act or made the omission’ charged and dependent upon findings in relation to those issues potentially seek to look to the MHA provisions which allow for reports to be ordered and certain disposals considered (there are restrictions on the Court’s powers for a non-imprisonable offence and Sections 35 – 37 are of no value) Don’t be unduly alarmed if the Court enters a not guilty plea in the register at that first hearing and adjourns the case. We all know that there is pressure on all parties to 138

make progress at that first hearing. It seems to me that that adjournment may well provide the opportunity for the defence to obtain the fitness to plead report and one of 4 things may happen in the future: 1 – An application for a further adjournment because the report is not yet available 2 – The report being served upon the Crown for them to make a determination as to

whether or not to continue the prosecution on a ‘public interest’ basis

3 – A TRIAL in the proper sense of the word 4 – A ‘trial on the issues’ i.e. an ‘act or omission’ hearing with a view to a possible

disposal under the Mental Health Act 1983.

Where the matter is SUMMARY ONLY and the defence lawyer has concerns and doubts about his client’s fitness to plead, one practical solution might be for the Court itself to enter a ‘not guilty’ plea in the register (in order to protect the client’s interests) and thereafter adjourn the case for what is often referred to in many of the cases as ‘a trial on the issues’ i.e. a hearing to determine whether or not ‘the person committed the act or was guilty of the omission........’ The client may or may not be able to participate fully in the proceedings.... The client may or may not be able to give evidence..... The client may or may not be able to give instructions to the lawyer as to the nature of the defence in order for proper cross-examination to take place...... don’t get me wrong, this is not an ideal scenario but it is an attempt to strike a balance between the victim of a possible offence and the rights of the accused....... Where the Court goes down this ‘trial on the issues route’ it does so with a view to possibly making an Order, dependent upon the findings..... The 3 available disposals would appear to be: A Guardianship Order A Hospital Order Committal to the Crown Court for a Hospital Order to be made with Restrictions In order for a Hospital Order to be made there must be 2 reports from people qualified under the Mental Health Act 1983 who both take the view that he/she is suffering from some mental disability/they are treatable/a bed is available It may be that the above criteria are not satisfied, in which case your guess is as good as mine as to what the Court is supposed to do with the offender......... 139

If the Court has gone down the ‘trial on the issues’ route it is important to appreciate these things: It was not a TRIAL in the conventional sense of the word. There was no CONVICTION recorded after it..... Merely the findings of the Court. It is therefore not possible to deal with the sentencing matter by way of an Absolute Discharge or Conditional Discharge – these terms are absolutely meaningless where no CONVICTION is recorded!! IT CAN GET VERY COMPLICATED WHEN THE COURT ADJOURNS THE CASE WITHOUT HAVING MADE A DETERMINATION AS TO WHETHER OR NOT THE NEXT HEARING IS TO BE A PROPER TRIAL OR ‘A TRIAL ON THE ISSUES’ As already stated, case-law seems to suggest that this determination may actually be made at the hearing itself. Things may have changed between the fixing of the date and the actual occurrence. The accused might improve his mental state. The accused might be able to meaningfully participate in a proper TRIAL if afforded special measures. It is therefore very important from the defence perspective that everyone knows what the true position is before the hearing actually commences. The problem here is that the Court may make that determination during the hearing itself. I would say that if the defence advocate says that his client is not fit to give evidence in the proceedings then the Court is more likely to treat that hearing as ‘a trial on the issues’ rather than a Trial as we all know it unless, of course, the Court suspects that it is some ruse whereby the accused does not want to have a proper TRIAL because he or she is concerned at the penalties available upon conviction after a TRIAL i.e. a term of imprisonment – I wish I could say it was any clearer than this but it isn’t!! If the matter in hand is TRIABLE EITHER-WAY then the Magistrates’ Court may simply decline jurisdiction and the matter be dealt with using the familiar procedure at the Crown Court i.e. reports and a determination being made by the Judge. The defence lawyer may say that the matter may well be suitable for summary trial but asks that the matter be sent to the Crown Court in order for a determination to be made by the Judge following reports.

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The defence lawyer may say that his client cannot usefully participate in the allocation and sending provisions but that the matter is eminently suitable for trial in the Magistrates’ Court....the lawyer may have no instructions on the point of where the actual trial should take place..... The Court may decline jurisdiction or the Court may accept jurisdiction...... I would have thought that in the absence of the accused declaring that he wants a summary trial the matter is likely to be sent..... You may have your own views on this........ Do bear in mind that a possible worst case scenario is the Judge taking the view that he/she is unfit to plead – ‘a trial of the issues’ taking place – a Hospital Order being made with a Restriction – this is not a great outcome for the client!! Well there you have it. I do hope that it has helped.

CASE-LAW CPS v Danny Cipriani – Judge Howard Riddle, Senior District Judge (Chief Magistrate) – Westminster Magistrates’ Court – June 2016 An interesting case concerning what should have been a relatively simple offence of driving with excess alcohol (the reading here being 67 in breath). All manner of arguments were put forward as to why the case was flawed and it had an air of pre-2005 about it i.e. pre-the Criminal Procedure Rules 1 – Reliability of DNA 2 – Reliability of breath alcohol readings 3 – MGDDA procedure not correctly followed and procedure unduly delayed 4 – Whether there was a bone fide investigation into a Section 5 offence 5 – Admissibility of ‘verbals’ 6 – Sufficiency of evidence of driving The above are very difficult arguments to get home on. As we all know there is an assumption that the proportion of alcohol in the specimen of breath at the time of the offence was not less than in the specimen. That is a rebuttable presumption, as decided by the House of Lords in the case of Cracknell v Willis The Judge said this at Paragraph f. Of the judgement ‘The Criminal Procedure Rules have effected a sea change to the way cases are to be conducted. The parties are

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required to abide by the Rules. This case, where almost everything was challenged or put to proof (even the identity of the driver), has an antique air about it’. And at g. ‘In future, drink-driving cases cannot be conducted in the way that this one was. All parties, including the Court, have an obligation to ensure that only relevant and contested issues require evidence. Here, this Court acknowledges its own failings. It should have ensured that the precise nature of the challenge to the MGDDA procedure was spelt out at the Case Management stage. Similarly, the ‘reliability of breath alcohol readings’ was insufficient to identify the matter in dispute. If it was radio, then that should have been made clear. Similarly, if the question was calibration then that should be made clear. If the issue was that the operator failed to detect an error on the face of the print-out, then that should have been made clear. And at h ‘...... indeed, while it remains the case that a defendant can put the Crown to proof generally, the practice of single issue ‘putting to proof’ may well be inconsistent with the Criminal Procedure Rules. Following on from the presumption in relation to the proportion of alcohol in the specimen there is a separate presumption that the machine is reliable. It is a task of almost Herculean proportions these days to seek to persuade a Court that the machine must simply be wrong and inaccurate because it conflicts with the evidence as given about the amount of alcohol consumed. I would have thought that the evidence would have to be pretty clear and compelling that only nominal amounts of alcohol had been consumed before the Court would even begin to start querying the reliability of the machine. The District Judge holding in this particular case that the evidence fell far short of the evidence of the 2 fictional bishops in Cracknell v Willis. There was no compelling evidence put before the Court to persuade the Judge that the machine was not working as it should have done. Again, in the absence of reliable evidence that the machine was not working properly (i.e. possibly a very strange print-out from the machine) or a report from an expert who had serious doubts about the working of that particular machine, these arguments are virtually un-winnable. The final comment of the Judge was as follows:

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‘.... It is in the interests of all that summary trials concentrate on the real contested issues, and do not descend into a game of smoke and mirrors’ R v Sanghera and others [2016] EWCA Crim 94 The case involved appeals by 4 defendants against the severity of their sentences. This was all about an enterprise to import cocaine directly from Mexico aboard British Airways transatlantic flights from Mexico City to London Heathrow. The sentences imposed ranged from 13 years to 30. The Judge in the case had not explained what starting point he had taken and what reduction for the plea of guilty plea he had allowed in each case. The Court saying this at Paragraph 18 ‘It is most regrettable that the Judge did not indicate what credit he was giving for any of the pleas of guilty. Since he did not, we had to decide ourselves what reduction should have been given in each case. None of the defendants entered an unequivocal plea of guilty at the first reasonable opportunity. The trial date was set at the preliminary hearing. Even at the PCMH more than 2 months later there was no unqualified plea of guilty from anyone, although Atkar admitted the charge to the extent of the August importation’. And at Paragraph 19 ‘We begin with Atkar. The credit to which his plea of guilty at the PCMH would otherwise have entitled him is inevitably diluted by the fact that he took the issue of participation in the earlier phase of the conspiracy to a Newton Hearing at which he gave evidence and was disbelieved. But as against that, it is in our view important in a complex and multi-defendant case to give particular credit to the first defendant to break ranks and plead guilty. We consider that Atkar should have been given a discount of 20% for his plea.’ The Court of Appeal substituted 19 years for the 21 years imposed by the Judge. And speaking of credit, we await the publication by the Sentencing Council of the new Guidelines on credit (November 2016).Two things will be of particular interest in those Guidelines as follows:

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Whether or not the final Guidelines will contain the point mentioned in the Draft Guidelines concerning the diminution in credit (20% rather than a third) for a defendant who does not plead guilty at the Magistrates’ Court stage to an offence triable either-way. Whether or not the Council re-iterate the point made in the Draft Guidelines that credit for an early guilty plea should still be in the region of one third (including, ‘overwhelming evidence cases’). R (Robson) v Crown Prosecution Service [2016] EWHC 2191 (Admin) A salutary reminder that the High Court will intervene where the decision maker has improperly fettered his/her discretion in the matter. A decision not to offer a conditional caution was quashed. The decision maker believing that such a disposal could NEVER be offered in ‘domestic violence’ cases. The claimant sought Judicial Review of the decision of the CPS to prosecute her for criminal damage rather than to offer her a conditional caution as an alternative disposal. The criminal damage related to a car and a coat belonging to the complainant’s former domestic partner. The total damage was quantified at £3,406.99p. But for the fact that the CPS regarded the offence as falling within a definition of ‘domestic violence’, the claimant might otherwise have been conditionally cautioned. Four of the five requirements of Section 23 of the Criminal Justice Act 2003 either were or would have been satisfied. The final statutory requirement is that the relevant prosecutor decides that a conditional caution should be given – see Section 23 (2) (b). At Paragraph 37 of the judgement ‘It is a well-established principle of public law, not in issue before us, that a policy should not be so rigid as to amount to a fetter on the discretion of the decision maker: see, for example, R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 1 AC 245, Lord Dyson at [21]. The policy maker otherwise exceeds the discretionary powers accorded to him by statute.’

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And finally at Paragraph 49 of the judgement ‘Accordingly, we quash the decision contained in the email of 19th of August 2015, and require the CPS to reconsider its decision on the prosecution decision in the light of this judgement.’ Whilst on the subject of cautions, I should just like to clarify a few things which may assist anyone dealing with a suspect at the police station stage being ‘offered’ a caution. 1 – Please check that the person offering the caution has it within their gift. It may be

the responsibility of the Custody Sergeant or it might be the responsibility of the

Duty Inspector (certain offences triable either-way) or it might be the

responsibility of the Superintendent (purely indictable-only offences). It will not be

an abuse of process to charge where the person offering the caution did not

have it within their gift. It is therefore absolutely vital for the legal adviser to firm

this matter up long before the client goes into the interview and starts making

those admissions.

2 – The client may want to make admissions in the interview in order to receive

caution, he having denied the matter to you. In these circumstances you should

warn him against pursuing this course but, of course, the final decision must rest

with the client. Do not go into the interview with such a client. It cannot be right

for the legal adviser to sit next to someone in interview when he knows in

advance that lies are going to be told. They may be lies that the police have no

issue with but they are lies nevertheless. Remember, a denial was made to you

and therefore any admission in the interview must be a lie.

3 – In terms of rehabilitation, there is no rehabilitation period attaching to a simple

caution and the rehabilitation period attaching to a conditional caution is a

term of 3 months or less if the conditions are complied with within that period –

see Chapter 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) for the Schedule to be inserted at the end of the Rehabilitation of

Offenders Act 1974

4 – The Rehabilitation of Offenders Act 1974 may be the least of your client concerns.

Remember that the caution/conditional caution may well be recorded on the

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Disclosure and Barring Service website (DBS) (formerly the Criminal Records

Bureau) and may be particularly problematic if the client wants to work with

schoolchildren, become a nanny, go abroad, join the police force, go into the

law, go into security, go into finance.......... it’s a long list of occupations which

may involve the client having to produce an Enhanced Criminal Records

Certificate – the caution/conditional caution will inevitably appear on it.

5 – The acceptance of the caution may come back to haunt the client in the future

by way of Bad Character – also, it may be referred to in Court in certain situations

and would probably rule out a good character direction – opinions seem to vary

on this one!!

6 – The acceptance of the caution may put the client on the Sex Offender Register.

This will be a period of 12 months for a youth (17 or below) and a period of

24 months for an adult. It can get quite complicated when the acceptance of a

caution will automatically put the client on the register whereas a disposal might

be achieved at Court which would not involve the client going on the register

at all! You therefore have to see Schedule 3 of the Sexual Offences Act 2003. See

also Section 82 of the Act which gives you the Schedule in relation to the period

of notification (i.e. name on the register) as it relates to the disposal. You will see

from Schedule 3 that certain offences automatically put the client on the register.

Other offences within Schedule 3 such as indecent exposure or voyeurism may

put the client on the register dependent upon the disposal at Court. A

community penalty of less than 12 months will not require registration. Whenever

you are being offered a caution at the police station for a sex offence please

make sure that you know the precise nature of the offence for which the caution

is being offered. Only when you know this information can you consult Schedule

3 and see whether or not it is an offence that requires automatic registration or is

dependent upon the disposal at Court. Your client might want to forget the

caution and take his chances with a Court disposal that does not put him on

the register!

7 – The Final Warning Scheme has been abolished and replaced with both simple

cautions and conditional cautions for both Adults and Youths.

8 – Conditions may be put that relate to rehabilitation or reparation (or both). 9 – A financial penalty may be included within the caution.

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10 – Community Service or Specified Activities (as specified by the Youth Offending

Service) may be put within a Youth conditional caution but there can be no

Community Service or Specified Activities put within an Adult conditional caution.

11 – Non-compliance with the conditions within a conditional caution may well

see the client summonsed to Court for the offence for which he/she was given

the conditional caution.

12 – I am told that applications may be made to the police for variation of the

conditions within a conditional caution (a rare event, I would have thought and

certainly not something that I have ever done).

13 – The acceptance of a caution is treated as a Conviction for the purposes of

the retention (forever) of fingerprints and the DNA sample – see the Protection of

Freedoms Act 2012.

Regina v Lennon – SCCO Ref: 186/15 – 29th of July 2016 I have saved the best until last! I don’t want to get too excited but the above case is an absolutely ‘cracking read’! It is a really robust decision from the Costs Judge Jason Rowley who, in my humble opinion, is to be hugely congratulated for his straightforward and no-nonsense approach to the arguments that were being put forward. It was an appeal from a re-determination by the Legal Aid Agency of the decision not to pay both the litigator and the advocate PPE. The Agency were initially reluctant to pay the litigator PPE but having considered the position in R v Napper they agreed the appeal which had been brought by the solicitors and paid the solicitors on the basis of 8,171 PPE. The Agency’s position was that, having paid the solicitors for considering the PPE via the litigator’s claim, paying the solicitors again under the advocates claim would amount to duplication and therefore over payment under the regulations. They asked for some supporting evidence from the solicitors that the evidence had been considered in depth by both the litigator running the case and the advocate who represented the defendant in Court. The solicitors’ position was that there was no entitlement for the Agency to take such a stance where the litigator and the advocate were different people. The case of

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Napper was only authority for a duplication argument where the litigator and the advocate were in fact one and the same person. The solicitors’ argument was that there was no difference in principle between an in-house advocate at the solicitors firm and an external advocate such as counsel. In either situation the advocate needed to consider the papers properly in order to present the defence and as such should be remunerated under the terms of the scheme. It would have been entirely unprofessional for the trial advocate not to have prepared himself fully in respect of the electronic evidence for the trial (it had been conceded by the Agency (after the Napper decision) that because of the importance of the electronic evidence in this case it came within the definition of PPE). The litigator’s consideration of the PPE occurred at an earlier stage and was for the purpose of running the case as a solicitor. There was a discussion of the case of Murray in which the advocates had clearly benefited from the detailed analysis carried out by the appropriate fee earner and there was no evidence of the analysis that was carried out by the advocate. In that case Master Simons had decided that it would not be appropriate for the advocate to receive a higher rate of payment for duplicating work that had already been carried out by the litigator. The Costs Judge in the present case said this at Paragraph 12: ‘I am aware that the case of Murray is not the only decision in which the PPE for the litigator or advocate has been disallowed where the same firm of solicitors carried out both functions. I regret to say that I do not share the same view in these matters.’ The Costs Judge took the view that had counsel been instructed to appear on the defendant’s behalf, there is no question under the 2007 Order or the 2013 Regulations that both the solicitor and counsel are entitled to claim the appropriate number of pages of PPE within their graduated fee claims. He said this at Paragraph 13: ‘Moreover, there would be no need for either of them to demonstrate that any consideration of the work has actually been carried out. The need to carry out the work flows from the advocate or litigator’s professional obligations, not the graduated fee schemes. The PPE is simply a proxy to calculate a fee based on the likely work involved.’

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[Can I just say at this stage, hurrah, hurrah, hurrah! Someone in authority has finally had the courage to say that the whole PPE system is a complete fiction, but it is their fiction not ours!! We never invented the system. We didn’t want it. It was thrust upon us and bears little relationship to the work that we do. The fee is based upon PPE! – Any suggestion of having to evidence any work done is just nonsense! We do the work, of course we do, because we are professionally obliged to do it – not because the litigator or graduated fee scheme obliges us to do it! – Quite the opposite in fact, it obliges us to count paper!!]. And at Paragraph 15 ‘Since there is no need to demonstrate how much work has been done, there is no need to allow for any discount in the advocate’s fee owing to the efforts of the litigator in scrutinising the PPE. (In passing, I should say that this holds good insofar as the PPE does not exceed the 10,000 page cut off. Above that figure, there may be relevance of another lawyer’s work in relation to special preparation claims)’ And at Paragraph 16 ‘There is no distinction to be made under the Advocates Graduated Fee Scheme between a solicitor advocate and counsel. Indeed the Crown Court Fee Guidance issued by the Agency makes it clear that the solicitor advocate is to claim fees under the advocate scheme and not via his or her own litigator fee claim’. And at Paragraph 17 ‘In these circumstances, unless the litigator and the solicitor advocate are in fact one and the same person as occurred in Napper it is impossible, in my view, to argue that a solicitor advocate instructed by that advocate’s firm is not in principle entitled to claim PPE in the same circumstances as counsel is able to do’. And at Paragraph 19 ‘Consequently, I do not think that it can be right to require the Determining Officer to put the advocate to proof as to whether he has carried out a detailed analysis, let alone to justify why he has done so in addition to another member of the firm.’ Finally, the Judge was concerned at the clear delay in the appeal in the matter and, although willing to exercise his power to extend the time limit for submitting the appeal, reduced the sums allowable by 20%. A most excellent read!

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Section 11 CrimeScribe Edition No. 63

Hello and welcome to this month’s edition of CrimeScribe. It was another very quiet month upon which to report. I always make a point of giving you something a little extra where it is a quiet month and in the last 2 editions I have written papers in relation to ‘Dangerous Offenders and offences of particular concern’ and ‘Fitness to plead’. I hope that you find the papers useful. At the end of this month’s edition you will find a paper I have written in the last month entitled ‘Prosecuting and Defending in the Magistrates’ Court’. Essentially, it’s a list of 25 things for your consideration. I read in my 24th of October edition of the Law Society Gazette that the House of Commons Justice Committee has called on Government and the Senior Judiciary to develop an ‘overarching strategy’ for the Magistracy amid falling numbers and low morale. The Committee supports increasing Magistrates’ sentencing powers from the current 6 months to 12 months for one offence, recommending that the Ministry provide an implementation timetable for commencing Section 154 of the Criminal Justice Act 2003. I suppose that will mean an overall 24 months available to the Magistrates’ for 2 or more either-way offences. I also wonder whether or not we will see an increase in the power available for a summary offence – 26 weeks at the moment but 51 weeks has been mentioned and mooted in the past. We shall watch this with interest! I also read in the same edition that the Legal Aid Agency has agreed to revise a controversial ‘embarrassment clause’ in the terms of its new Criminal Legal Aid Contracts after solicitors threatened to issue judicial review proceedings. The fear, of course, was that the new clause would be relied upon to stifle criticism of, or challenges to, the Legal Aid Agency, the Lord Chancellor or wider government. The Agency is prepared to consider revising the clause and/or making a statement to provide greater clarity on the ambit of the clause, including but not limited to the fact that as a public body the Agency would not seek to rely on the clause to stifle criticism of, or challenges to, the Agency, the Lord Chancellor or wider government.

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I’m sure that we have all been reading in the newspapers about the acquittal of Ched Evans in his re-trial at Cardiff Crown Court. Sean Draycott, Solicitor-Advocate representing the footballer said the following ‘It was by no means certain that the Court of Appeal would accept the evidence of the two fresh witnesses but Section 41 of the Youth Justice and Criminal Evidence Act is not an absolute prohibition on the introduction of evidence relevant to a rape complainant’s sexual history; it is not an impenetrable wall. It is, however, there for a good reason. No complainant in a rape case should be gratuitously challenged about her sexual past. In this case, however, the fresh evidence was absolutely relevant to the issue of consent and offered extremely powerful support for the account that Mr Evans had given soon after the incident’.

CASE-LAW Let’s start this month’s edition with an examination of the case of R v Mitchell (Respondent) (Northern Ireland) [2016] UK SC 55 This was a case concerning bad character. We haven’t had a decent case on a bad character issue for quite some time. The respondent Ms Mitchell was convicted of the murder on the 11th May 2009 of her former partner Anthony Robin. At trial she did not dispute that she had stabbed Mr Robin but said that he had acted in selfdefence. She also claimed that she had been provoked and that she did not have the intention to kill him or cause him really serious harm. Before the trial began, the prosecution had intimated an intention to apply to the Judge for permission to lead evidence on Ms Mitchell’s previous bad character. This was said to be for the purpose of showing that she had a propensity to use knives in order to threaten and attack others. None of the episodes to which the proposed evidence related had resulted in a conviction. In relation to 2 of the incidents, it was agreed between the prosecution and the defence that statements settled between them should be read to the jury. As well as allowing the agreed statements to be read to the jury, the trial Judge permitted the prosecution to adduce evidence of 5 other incidents involving Ms Mitchell. 2 of these related to attempts to attack Michael McGeown with a knife, 2 concerned the concealment of knives to prevent possible use of them by her. Evidence was also given about a conversation between Ms Mitchell and Mr McGleown in which she was alleged to have told him that she was going to stab Mr

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Robin and that before she did so, she would stab Mr McGeown because she knew that he would try to intervene and go to Mr Robbins aid. Despite having authorised her legal advisers to agree that the statements be read to the jury, in the course of giving evidence, Ms Mitchell did not accept that events had occurred in the way described in the statements. The Judge dealt with this part of her evidence in the following passage from his charge to the jury: ‘Now, when the accused was in the witness box she appeared to renege on [the statements] and didn’t agree that these things had happened or had happened in that way, or that she had stabbed these people. And she refused to accept any fault on her part in connection with these....’ On the question of how the jury should treat the bad character evidence, it is agreed that the Judge did not direct them on whether they were required to be satisfied of the truth of the evidence. Nor did he indicate to the jury that they had to be satisfied that the bad character evidence had established the particular propensity on the part of Ms Mitchell which the prosecution had alleged. It appears that counsel who appeared for the prosecution and the defence at the trial did not invite the Judge to give any particular form of direction on these topics. Perhaps understandably, therefore, his charge contained no reference to these matters. This is what he said to the jury about the evidence: ‘....... that [evidence] may or may not help you. Take it into account or leave it out of account as you consider appropriate. But do not make an assumption because a person behaves that way that that means that she is guilty of murder and had the necessary intent just because of those events’. The Court of Appeal was asked by the Crown to give permission to appeal to the Supreme Court and to certify a question for the Supreme Court’s opinion. Permission to appeal was refused but the following question was certified: ‘Is it necessary for the prosecution relying on non-conviction bad character evidence on the issue of propensity to prove the allegations beyond a reasonable doubt before the jury could take them into account in determining whether the defendant is guilty or not?’. The way in which this question is framed reinforces the impression that the Court of Appeal considered that the facts of each individual incident said to establish

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propensity had to be proved to the criminal standard before the jury could have regard to it. The Supreme Court saying this at paragraph 39 of the judgement: ‘A distinction must be recognised between, on the one hand, proof of a propensity and, on the other, the individual underlying facts said to establish that a propensity exists. In a case where there are several incidents which are relied on by the prosecution to show a propensity on the part of the defendant, is it necessary to prove beyond reasonable doubt that each incident happened in precisely the way that it is alleged to have occurred? Must the facts of each individual incident be considered by the jury in isolation from each other? In my view, the answer to both these questions is ‘No’. And this at paragraph 43: ‘The proper issue for the jury on the question of propensity in a case such as Ngyuen and the present appeal is whether they are sure that the propensity has been proved. In Ngyuen the only way in which they could be sure was by being convinced that the sole incident said to show propensity had been proved to the criminal standard. That does not mean that in cases where there are several incidents of misconduct, all tending to show a propensity, the jury has to be convinced of the truth and accuracy of all aspects of each of those. The jury is entitled to – and should – consider the evidence about propensity in the round. There are two interrelated reasons for this. First the improbability of a number of similar incidents alleged against a defendant being false is a consideration which should naturally inform the jury’s deliberations on whether propensity has been proved. Secondly, obvious similarities in various incidents may constitute mutual corroboration of those incidents. Each incident may thus inform another. The question impelled by the Order is whether, overall, propensity has been proved. And at paragraph 43: ...........Propensity must be proved to the conventional criminal standard And at paragraph 44 .... This does not require that each individual item of evidence said to show propensity must be proved beyond reasonable doubt. It means that all the material

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touching on the issue should be considered with a view to reaching a conclusion as to whether they are sure that the existence of a propensity has been established. KK and Director of Public Prosecutions [2016] EWHC 1976 (Admin) It is often said that ‘there is always something new!’ and the above case was wonderfully illustrative of this. It was an appeal by way of Case Stated from the Youth Court and the decision of the District Judge to hear at the same time and to give a single judgement where: (a)

there was a trial of one of two co-defendants who had pleaded not guilty to

robbery and

(b)

there was a Newton hearing of the other defendant who had pleaded guilty

to the robbery on a basis of plea which was not acceptable.

The main question for the consideration of the High Court was whether the evidence of the co-defendant in the Newton hearing was admissible in the trial of the other defendant and, if not, was the conviction safe? In the light of the correct concession by the respondent Director of Public Prosecutions that the evidence was inadmissible, we determined at the hearing that the conviction should be quashed and directed that the defendant be re-tried before a different Judge as soon as possible. The District Judge had decided that a Newton hearing would be necessary in respect of MGS and a trial in respect of KK. Representations were made from the lawyers on the morning of the actual hearing that there was a conflict between MGS’s case and that of KK and that the evidence of MGS might prejudice KK’s trial. The Judge determined that all evidence should be heard and, if it was relevant, taken into account in respect of KK and MGS. The District Judge concluded that if MGS gave evidence against KK, then that was no different to the situation they would have been in had they both been facing a joint trial. No- one seems to have pointed out that they were not facing a joint trial or raised any issue as to the status of the evidence of MGS in relation to the trial of KK. KK did not give evidence. MGS was then called to give evidence. In the course of his evidence MGS gave an account that was different to that that had been set out in his basis of plea. On the evidence he gave there was no evidence of any robbery, merely a theft. It then appears that the Judge and the advocates all appreciated that a problem had arisen; the advocate for MGS was concerned as

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to his professional position. It appears that it was decided that the matter should nonetheless continue. MGS was cross-examined first by the prosecution and then on behalf of KK. It is clear that during the entirety of his evidence MGS identified KK as the person who had been with him when the mobile phone was taken and he had been with KK when arrested. The advocates for KK and MGS then addressed the Court. The District Judge gave a single reasoned judgement in the trial of KK and the Newton hearing of MGS. It is clear from the reasons of the Judge that the Judge relied on the evidence of MGS in her conclusion that KK had been the person who had robbed SH using a knife. It is conceded on behalf of the Director that the Judge was not entitled to rely on the evidence of MGS in the trial of the appellant. The reason for that is entirely straightforward. MGS was not a witness who was called by the Crown as part of the prosecution case. Nor was he called by KK. There is no suggestion that he was called by the Judge. He therefore was not a witness in the trial of KK and the evidence he gave should not have been admitted or taken into account in any way by the Judge in determining the guilt of KK. Regina v Ian Edward Tucker [2016] EWCA Crim 13 I am grateful to Anthony Edwards for making reference to this case in his 10th of October update in the Gazette. I hadnâ&#x20AC;&#x2122;t heard of the case. It is a useful read and a reminder to us that a conviction for the possession of an offensive weapon is not appropriate where a person is in lawful possession of an item which is not an offensive weapon per se and uses the weapon in an attack. Other crimes come immediately to mind but not possession of an offensive weapon! The purport of Section 1 of the Prevention of Crime Act 1953 is to capture those who carry around offensive weapons which are offensive per se or who carry around items (such as cricket bats) with the requisite intent of using them offensively i.e. with intent to injure. It seems to me, having read the facts of the particular case, that the submissions that were made by the lawyer did not fit the facts of this particular case. The Court saying this at paragraph 16 of the judgement: â&#x20AC;&#x2DC;It seems to us that the situation in this case is different from the examples cited to us. In the cases cited the defendant was in possession of the article quite lawfully in a public place before it was suddenly used in the heat of an altercation. In the present case the appellant must have formed an intention to take hold of the cricket bat whilst within his flat. By the time he entered the street, a public place, there was

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ample evidence to infer that at that stage he had formed an intention to injure. His actions, therefore, are highly consistent with that intention’. And at paragraph 17 of the judgement: ‘This, therefore, is a case of a person introducing an article, with an intent to injure, into a public place prior to using it offensively there. It seems to us that this is an important distinction, and on the facts, it cannot be said that bringing a bat into a public place with the requisite intent was part and parcel of the incident involving its use upon Mr Jaworski. Unlike the cases cited earlier, the cricket bat was not to hand in the heat of an altercation’. Again, I’m indebted to Anthony Edwards for drawing to our attention the case of R v Andrews [2016] 4 Costs LO 705 in which the Costs Judge held that cross-examination of a witness continues until such time as any such witness might be recalled, noting that trials involving defendants who self-represent tend to be chaotic. Thus attendance until at least after the completion of the defendant’s evidence seems to be ‘authorised’. ‘Authorised’ in the sense of, ‘authorised’ when one is Court-Appointed under Section 38 (4) of the Youth Justice and Criminal Evidence Act 1999. I’m sure you would agree with me that there are increasing numbers of Court Appointments to cross-examine under the Section. Anthony made the point in his article in the 10th October edition of The Gazette that there were concerns that the costs involved, paid from central funds at private client rates, would be reduced by a change in Part 23 (4) of the Criminal Procedure Rules 2015, which provides that: (4)

Where an advocate is appointed by the Court –

(b)

The appointment terminates at the conclusion of the cross-examination

of the witness.

This is clearly not the case!! We had the very important case of Abbas v CPS [2015] EWHC 579 (Admin) in which Lady Justice Hallett gave a very clear judgement holding that to allow for effective cross- examination there was a need for a pre-trial conference and also for presence at pre-trial applications such as bad character or disclosure. Thus firms could be paid for all preparation and preparatory meetings.

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Insofar as the hourly rates are concerned, my understanding is that the following 2010 rates are claimable: London 1 –1 Band A A– –£409 – Band B – £296 C ––£226 Band C – £226 – Band D – £138 London – Band £409 – Band B – £296 – Band – Band D – £138 London 2 –2 Band AA – –£317 – Band B – £242 C ––£196 Band C – £196 – Band D – £126 London – Band £317 – Band B – £242 – Band – Band D – £126 London 3 –3 Band AA – –(229 BandDD––£121 £121 London – Band (229– –267) 267)– –Band BandBB– –(172 (172– –229) 229)– –Band BandCC– –165 165 ––Band National 1 – 1Band A – – Band – Band B – £192 C –– £161 Band–CBand – £161 Band D – £118 National – Band A £217 – £217 B – £192 – Band D – –£118 National 2 – 2Band A – – Band – Band B – £177 C –– £146 Band–CBand – £146 Band D – £111 National – Band A £201 – £201 B – £177 – Band D – –£111 I have spoken to various people who have always claimed their own client private rates rather than the rates quoted above (and have been paid!).Their own client private rates may be more than the rates quoted above. No doubt the reasonableness of their rates will be judged against the above rates. I’m sure many of you would have had the experience of claiming the Band A fee (Solicitor of 8 years or more admission) only to be ‘knocked back’ to a Band B fee. I’m not sure there’s much we can do about this, short of judicial review. We perhaps don’t want to go there!! The rates being far more generous than those claimable under a normal representation order. I’ve also spoken to various people who have told me that, on occasion, the Justices’ Clerk has attempted to limit the amounts to the hourly legal aid rates payable for work on Magistrates’ Court cases. This surely cannot be right and proper. Those rates quoted above are the appropriate ones payable and they go back to 2010. If memory serves me well, there was an application before the Master of the Rolls (Lord Dyson) that the rates be reduced but the application was not successful. Rightly so, the rates are 6 years old!! Regina v Aqib Aslam [2016] EWCA Crim 845 The case concerned an appeal against the imposition of an 18 month sentence of Imprisonment for an offence of robbery. The sentence was imposed following the breach of an earlier Community Order which had been imposed by the same Judge. On imposing the original Community Order the Recorder stated: ‘But please be under no doubt, I will reserve this sentence, any breaches in relation to the sentence I am going to (reserve) to myself. I am going to impose a Community Order. That means the powers would not be restricted if you breach them. If it comes back to me, you will go to prison for 3 years. Right?’

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The reference to powers not being restricted appears to be a reference to the fact that had a Suspended Sentence been imposed (rather than a Community Order), there would have been a maximum of 2 years custody hanging over the appellant. The original offence was street robbery which like any robbery carries a maximum of life on conviction. The Court of Appeal had concerns with the Recorder being quite as definite as to the outcome of any possible future hearing. This is because the Court is obliged to consider the compliance with an Order and the nature of the breach in determining the appropriate sentence in the event of a breach. On the14th December 2015 the appellant fell to be dealt with for a single admitted breach. The curfew part of the Order had been complied with for over 40 weeks without incident. 113.15 hours of unpaid work (the order contained 275) had been completed. The request from the Probation Service was that the Order be allowed to continue. The relevant Definitive Guideline applicable to breaches of Community Orders is to the effect that having decided that a Community Order is commensurate with the seriousness of the offence, the primary objective when sentencing for breach of requirements is to ensure that those requirements are completed;..... Where available, custody should be the last resort, reserved for those cases of deliberate and repeated breach where all reasonable efforts to ensure that the offender complies have failed. The sentence passed by the Recorder departed from the approach set out in the Guideline. A considerable amount of resources had been invested in working with the appellant. The appellant had not re-offended. Whilst the report did not make good reading it was most important that the Probation Service still felt able to work with the appellant and there had been progress. The sentence of 18 months Imprisonment was technically incorrect in the sense of the offender was aged under 21 at the date of conviction and original sentencing and upon re-sentencing the appellant could only have been dealt with in a way he might have been dealt with at original sentencing: see Schedule 8, Paragraph 10 (1) (b) to the Criminal Justice Act 2003. A custodial sentence, since the appellant was aged 20 when originally sentenced, ought therefore to have been expressed as Detention in a Young Offender Institution (the sentence available for 18, 19 or 20-year-olds upon conviction) rather than as a sentence of imprisonment (the sentence available for those aged 21 or over on the date of conviction). 158

The Victim Surcharge had been imposed in error at re-sentencing and was removed under the slip-rule. The Recorder seems not to have announced the revocation of the Community Order and the re-sentencing of the original offence under it. The sentence was quashed and the Court substituted a sentence of 7 days custody in a Young Offender Institution. A sentence designed to meet the appellant’s immediate release; he having been in custody some while pending the hearing of the appeal.

Statutory Instruments SI 2016 No 962 concerns electronic monitoring Part 4 of Schedule 16 to the Crime and Courts Act 2013 amends the framework for the electronic monitoring of offenders set out in the Criminal Justice Act 2003. In particular, it amends the definition of ‘electronic monitoring’ requirements (as contained in the 2003 Act) which can be imposed as part of a community order or suspended sentence order. Section 61 of the 2013 Act provides that Section 44 of, and Part 4 of Schedule 16 to, the 2003 Act can be brought into force for specified periods in specified areas. This Order commences Part 4 of Schedule 16 to the Act in the specified local justice areas set out in article 2. Article 3 provides those provisions will remain in force until 13th October 2017, subject to the saving and transitional provisions in article 4. The provisions came into force on the 17th of October 2016 in the following areas: Birmingham and Solihull; Black Country; Central and South West Staffordshire; Coventry and Warwickshire; Leicestershire and Rutland; North Staffordshire; Nottinghamshire, and South East Staffordshire SI 2016 No. 803 is an amendment of the Criminal Justice Act (Offensive Weapons) Order 1988. The schedule to the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 (which specifies offensive weapons for the purposes of Section 141 of the Criminal 159

Justice Act 1988) is amended as follows: In Paragraph 1, insert the weapon sometimes known as a ‘zombie knife’, ‘zombie killer knife’ or ‘zombie slayer knife’, being a blade with a cutting edge; a serrated edge; and images or words (whether on the blade or handle) that suggest that it is to be used for the purpose of violence. Section 141 of the Criminal Justice Act 1988 provides that any person who manufactures, sells or hires or offers for sale or hire, exposes or has in his possession for the purpose of sale or hire, or lends or gives to any other person, a weapon to which that Section applies shall be guilty of an offence and liable on summary conviction to a term of imprisonment for a period not exceeding 6 months or to a fine or both. The importation of any such weapon is prohibited. The Criminal Justice Act 1988 (Offensive Weapons) Order 1988 specifies descriptions of weapons to which Section 141 applies. This Order adds the weapon known as a zombie knife, zombie killer knife or zombie slayer knife to the list of specified weapons contained in the 1988 Order. SI 2016 No. 896 is the Criminal Justice and Courts Act 2015 (Commencement No. 5) Order 2016 and came into force on the 9th September 2016. It raised the upper age limit for jury service from 70 to 75. I must confess to not knowing anything about this until my monthly trawl through the statutory instruments. I wonder whether or not that will mean they will raise the age limit of the Magistracy from 70 to 75. It would seem rather old that one could sit on a jury at the Crown Court and yet not be a Magistrate.

Prosecuting and Defending in the Magistrates’ Court – October 2016 1 – The Criminal Procedure Rules have been with us now in one form or another

since 2005. Both the prosecution and the defence are obliged to participate in

active Case Management once a ‘not guilty’ plea has been entered. Active

Case Management essentially requires both parties to be quite candid with each

other as to what the trial issues are and to agree as much evidence as possible in

order to obviate the need, wherever possible, for witnesses to have to come to

court to give live oral testimony from the witness box.

2 – The defence should be specific as to the exact nature of the trial issues – it will

not be enough, for example, in an excess alcohol matter, for the defence simply

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to put ‘the print-out is not accepted’– they will need to be specific as to why

the print-out is not accepted i.e. are they saying that the machine was not

working properly; are they saying that the officer was not trained to operate

the machine; are they saying that the print-out must be wrong because the

defendant hadn’t consumed anywhere near the amount of alcohol sufficient

to give that type of reading – the Cracknell v Willis point. The prosecutor should

therefore always be alert to the requirement to be specific otherwise it’s all going

to go horribly wrong at trial.

3 – All parties should complete the preparation for an effective trial (PET) form

and the issues should be clearly spelt out – there should not be cross-examination

generally at trial on the contents of the form but if admissions have been made

on the form and the defendant chooses to put forward a defence which is in

conflict with those earlier admissions on the form then cross-examination on that

aspect of the form is permissible – the leading case in this area is R v Newell

cross-examination on the form generally should not be permitted and the court

should use its powers under Section 78 of PACE to exclude such an application in

order to ensure that there is a fair trial.

4 – Where new issues are raised at trial the prosecution may have to reconsider their

case and an adjournment may be required in order to counter the evidence

being put forward regarding the new issues – it would seem permissible for the

defence to be able to do this at the moment (I’m not sure for how much

longer!!!!!) but if an adjournment is required then the prosecutor may consider

applying for wasted costs against either the defendant in person or against the

legal party – see Section 19 and 19A of the Prosecution of Offences Act 1985.

5 – The test for a successful application under Section 19 or 19A is that one of

the parties has been guilty of ‘an improper or unreasonable or negligent ‘act

or omission’.

6 – Such wasted costs have to be quantified in court and ordered against the

other party – it may be that the actual application is only heard at the conclusion

of the case – it may be that it will be impossible to quantify the wasted costs until

the conclusion of the actual case – the wasted costs may amount to the total

sum of the adjourned hearing in circumstances where there would not have

been an adjourned hearing had the defence been frank with the prosecution

concerning all of the trial issues.

7 – It is not within the spirit of the Criminal Procedure Rules for the defence to simply say ‘We put the prosecution to proof of its case’– R v Penner. 161

8 – What the defence are entitled to do though is to put on the form ‘We put the

prosecution to proof of its case – we advance no positive case ourselves’– R v

Gavin Rochford – the defence may be putting this on the form for any number of

reasons, such as:

a) – The defendant has no defence but will not plead guilty until he/she has seen the

state of the evidence against them and the defendant has been advised

that a not guilty plea must be entered before the defence become entitled to

the evidence upon which the Crown would seek to convict at trial (no doubt the

defendant has been warned about the diminution in credit – a 3rd on an early

guilty plea going down to 25% on a cracked trial and 10% on the day of the

actual trial).

b) – The defendant may be saying that he doubts that the prosecution witnesses

will attend the trial – this is NOT something that the defence are going to write

on the form!! – The defendant is entitled to have the witnesses come to court in

order for their evidence to be tested by way of cross-examination to see whether

or not the witness comes up to proof – at trial the defence can only cross-

examine the witnesses to see whether or not they come up to proof – they

cannot advance a positive case because they have earlier stated that they

have no positive case to advance – they cannot cross-examine the witnesses

so as to suggest a defence – they cannot put the defendant in the witness box

to advance a defence – they cannot call defence witnesses in support of any

defence – they have no defence and have already said so!!!!!! – the defence

may wish to make a half-time submission at the close of the prosecution case

and, if this fails, would be perfectly entitled to make a closing speech – please

appreciate what the defence can and cannot do when they are putting the

prosecution to proof – nor is it permissible under the Criminal Procedure Rules for

the statements to be foisted upon the defence and read pursuant to Section 9 of

the Criminal Justice Act 1967 – remember, it is for the party receiving the

statement to decide whether or not he or she is content for the statement to be

read or wants the witness to be called to give live oral testimony – the duty upon

the party receiving the statement is to make this decision and to notify the other

party within 7 days and weekends do count!! – Rule 3.5 of the Criminal Procedure

Rules makes it quite clear that Directions cannot be made under the Rules which

are in conflict with Primary Legislation – this is because the Criminal Procedure

Rules are a piece of Secondary Legislation (they are made pursuant to an Act

but are the creation by the Executive through a Statutory Instrument) whereas

Section 9 is Primary Legislation contained in an Act of Parliament.

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c) – The defendant will simply not give his lawyer any instructions, by way of a

defence, in the matter – in such circumstances it would seem to be to be

perfectly permissible to advise the client of his right to put the prosecution to

proof, whilst advancing no positive case by way of a defence.

9 – Where new issues are raised at trial that were not notified to the prosecution in

advance the defendant may be putting his application for a Defendant’s Costs

Order (DCO) at risk – as you know a defendant paying privately is usually

entitled to a Defendant’s Costs Order where they are successful in any one of the

circumstance as set out in Section 16 of the Prosecution of Offences Act 1985 –

they may also apply for a Defendant’s Costs Order where the proceedings have

been ‘stayed as an abuse of process’ – this is the case of R E Williams and Son –

the High Court, however, said in the case of Rees that a Defendants Costs Order

may be refused in 1 of 3 circumstances:

a) – Where the defendant had brought suspicion upon himself and had misled the

prosecution into believing that the case against him was stronger than it was.

b) – Where, although acquitted, the court was satisfied that the defendant had

perjured himself whilst giving evidence.

c) – Where the defence had sprung new issues at trial upon the prosecution without

giving notification.

We also have that European decision of Ashendon and Jones in which the court said that a ‘no comment’ interview in certain circumstances might meet the test for the refusal of a Defendant’s Costs Order – the suspect in such circumstances having ‘misled the prosecution into believing that the case against him was stronger that it was!’ 10 – The Court of Appeal has said, following the spirit of the Criminal Procedure Rules, that ‘a trial is not a game in which the defendant should be afforded a sporting

chance of an acquittal! – A prosecutor may simply have forgotten to place a

crucial piece of evidence before the court before closing their case – a

prosecutor may have made an error of law and considered that a particular

piece of evidence was not required before closing their case – in such

circumstances a fair trial (which must be fair to both the prosecution and the

defence) might necessitate a successful application by the prosecution under

the Magistrates’ Courts Act 1980 Section 142 for their case to be re-opened in

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order to place before the court that crucial piece of missing evidence – cases

should not be won or lost on the basis of simple human error.

11 – Where the defence, in their closing speech, make reference to points that were

not covered during the trial then it is perfectly permissible for the prosecution to

apply to re-open their case under the Magistrates’ Courts Act 1980 Section 142

in order to re-call a witness and have the matter canvassed by way of evidence

– it is extremely ‘bad form’ say the Court of Appeal for the defence to seek

to raise any points in a closing speech that were not covered evidentially during

the trial – in such circumstances, such an application by the prosecution should

invariably be granted – R v Cox.

12 – Under the amended Criminal Procedure Rules (published in April 2016) the

defence should be invited, at the close of the prosecution opening, to either

agree that the prosecutor has correctly identified all of the trial issues or to say,

where this is not the case, precisely what the trial issues are – it may be that the

defence would be seeking to put forward a new trial issue during the actual trial

– if this is the case then that issue should be identified from the outset – this

may be something that a prosecutor would wish to consider – they may wish

to prompt the defence to agree the issues upon completion of their opening

speech or to indicate what, if any, new issues may be identified during the trial –

this is a completely new aspect of the procedure in a Magistrates’ Court trial and

has only been with us since April 2016 in a Rule format.

13 – Under the Criminal Procedure Rules the court may refuse to allow a party to

adduce evidence during the trial where there has been non-compliance with

the Rules – the 3 circumstances we have at the moment are as follows: a) – Expert evidence where the report and the statement has not been served upon

the other side.

b) – Bad character where there has been non-compliance with the notice

requirements under the Rules and no good reason proffered for non-compliance.

c) – Hearsay where there has been non-compliance with the notice requirements

under the Rules and no good reason proffered for non-compliance.

14 – Where the witness is hostile, in the sense of sharing a ‘personal animus’ to the

party calling them, it might be more appropriate to have the earlier statement

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put to the witness whilst they are in the witness box in order for them to refresh

their memory whilst giving live oral testimony– the test is that the recollection at

the time when the statement was made is likely to have been ‘significantly

better’ than it is now – it is Section 139 of the Criminal Justice Act 2003. 15 – Where the witness starts giving evidence at variance with that contained in the

earlier statement then Section 119 of the Criminal Justice Act 2003 will prove

very useful in that it will enable the prosecutor to put those statements to the

witness as previous inconsistent statements and the Section permits those

statements to be adduced in evidence as evidence of the truth of the contents

– this is much better than was the case before Section 119 because the

prosecutor was limited to cross-examining the witness on the earlier statement so

as to affect credibility but no more than this.

16 – Section 120 of the Criminal Justice Act 2003 may also prove useful at times

in that it allows the prosecutor to get in evidence of earlier statements to show

Consistency in the evidence that is being given.

17 – A prosecutor always has a right of response to a submission by the defence

of ‘no case to answer’– the Court of Appeal has said that submissions would not

ordinarily be made save for 2 circumstances as follows:

a) – Where the prosecution have failed to establish evidentially all of the facts of the

offence (remember what I said earlier about being permitted to re-open in order

to remedy simple errors e.g. a failure to show the disqualification in a driving whilst

disqualified matter or perhaps a failure to adduce the certificate of the speed in

a speeding matter).

b) – Where there is some evidence but ‘it is of a weak and tenuous nature’ – it may

be ‘mutually contradictory’ or ‘manifestly unreliable’ – evidence upon which a

reasonable tribunal, properly directed, could not safely conflict.

18 – The prosecutor now has a right to a closing speech as well as an opening

speech. The closing speech of the prosecutor must always come before the

closing speech of the defence. The defence must always have the last word. This

closing speech may be very useful in that things can be mentioned in it that

could not have formed part of the opening speech such as:

a) – Commenting upon the facts that have been relied upon by the defence

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that were known to the suspect in the interview and which were not

mentioned – remember, you will not know whether or not there has been a

reliance upon facts until the conclusion of the case – the defendant may

choose not to give evidence – the defendant may choose not to call witnesses

in support to put forward facts – the prosecution witnesses may not have

been cross-examined so as to suggest alternative facts – the case of R v Chenia

is authority for the proposition that the defendant need not give evidence in

order to rely on facts – there may be a reliance on facts in the way in which the

prosecution witnesses were cross-examined.

b) – Commenting upon the fact that there has still been no explanation – by way of

facts to address the Section 34 inference or facts to address the Section 36

inference (objects substances or marks) or facts to address the Section 37

inference (a failure to account for presence at or near the scene of the crime) –

the Act of course is the Criminal Justice and Public Order Act 1994.

c) – Commenting upon the fact that the defendant has chosen not to give

evidence or, whilst giving evidence, failed to answer certain questions – adverse

inferences may be drawn under Section 35 of the Criminal Justice and Public

Order Act 1994 – a defendant may be too ill to give evidence but, short of this,

it seems to me that there is an obligation to give evidence with the risk of adverse

inferences being drawn if the defendant fails or refuses to do so.

19 – Do be aware of your precise duties under Rule 8 of the Criminal Procedure

Rules 2015 – Rule 8 relates to Initial Details of the Prosecution Case (IDPC) and

covers the material that should be provided to the defence at the first hearing

– it would seem that the material that should be provided to the defence at the

first hearing is dependent upon whether or not the matter is an overnight custody

case or there has been a charge and bail to court – the duties under Rule 8 now

extend to purely indictable only cases as well – this is because, under the

Criminal Procedure Rules 2015, the defence should be invited to indicate a plea

to this purely indictable only offence and, where the plea is not guilty, to assist

the court with the trial issues.

20 – Such things as CCTV footage and DNA evidence will rarely, if ever, be

appropriate at the IDPC stage – these things may be highly relevant once a

not guilty plea has been entered and the matter is moving towards trial – the

defence do become entitled to the evidence upon which the Crown would

seek to convict once a not guilty plea has been entered – I have always taken

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the view that the not guilty plea being entered is also the trigger for disclosure

of those items on the Unused Material Schedule which meet the test in that

the item might undermine the case of the prosecution or assist the case for

the defence.

21 – Don’t forget the usefulness of the res gestae principle, particularly relevant

in domestic violence cases – essentially, ‘something said in a moment of anguish

whereby the possibility of concoction or distortion can be disregarded’– the

case of R v Barnaby is very useful in this area (and there have been other recent

cases) – the police were on the scene within 6 minutes and the court decided

that the 999 call and everything that the complainant had said to the police in

her home fell within the res gestae principle – the complainant not having made

a formal statement admissible in criminal proceedings because she was fearful

– res gestae is, of course, hearsay evidence because it is evidence being given

by a police officer of something that was said to him by the complainant in her

home (the complainant not being called to give live oral testimony herself) – it

is therefore classic hearsay within Section 115 of the Criminal Justice Act 2003 but

is admissible as an exception to the rule against hearsay evidence – such

common law exceptions being retained by Section 118 of the Criminal Justice

Act 2003 – the Criminal Procedure Rules 2015 also state that no notice of hearsay

is required when relying upon statements under Section 118.

22 – The non-appearance of the defendant at trial – there is a legal presumption

within the Criminal Justice and Immigration Act 2008 that the trial shall take place

in absence, assuming the defendant was on bail to attend the trial and therefore

knew of the hearing date – reasons should be given in open court if the court

decide that the trial will not take place in the absence of the defendant – it

being a matter for the defence as to whether or not they stay for the trial

and the extent to which they choose to participate in the trial – do remember

the very important point that the trial should not proceed in absence where

the defence are in possession of a medical certificate clearly indicating that

the defendant is unfit to attend court (unfit to attend work is something

completely different!!!) – The leading case on this is still R v Jones, House of

Lords, 2002 – there have been various cases since then in which the High Court

has quashed convictions because the trial should not have proceeded in

absence – R v Drinkwater being but one example.

23 – Section 114 (1) (d) of the Criminal Justice Act 2003 may be useful on occasion

as it permits the court to receive any hearsay evidence ‘in the interests of

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justice’– such an application may be made where, for example, a witness

has not attended and there is good reason for their non-attendance and you

are in possession of their statement – the defence may well object to the

statement being read and the court is to have regard to all of the factors

mentioned in Section 114 (2) before allowing the hearsay evidence to be

received – it will be hearsay of course – every time a statement is read, it’s

hearsay! – See Section 115 of the Criminal Justice Act 2003.

24 – The general rule is that the defendant should give evidence first where the

defence are calling evidence in the case – this is set out in PACE – it would

be rare for a defence witness to give evidence prior to the defendant lest the

defendant tailor his evidence based upon that which he has heard – there is

no bar to a witness being called before the defendant but the leave of the court

is required and there must be a good reason – where a witness has inadvertently

sat in on the proceedings (perhaps in the public gallery) and heard evidence

that should not have been heard then the witness should still be entitled to give

evidence but it will go to the weight of the evidence that the witness had sat in

and heard things that they should not have heard.

25 – Bail Act offences under Section 6 of the Bail Act 1976 – it is a matter for the

prosecutor to decide whether or not Bail Act charges should be laid where

the defendant has been bailed by the police and fails to attend that first court

appearance – if the charges are not laid at that first court appearance and

the defendant appears in court more than 6 months later on the warrant

then no Bail Act charges may be laid at that hearing because of the 6-month

limitation in relation to the charging of summary only offences – quite different

considerations apply where the court has granted bail and the defendant fails

to answer court bail – in these circumstances it is a matter for the court to lay the

charges and to invite the prosecutor to prosecute the matters in the event of

there being a not guilty plea – the usual rule in relation to the charges having to

be laid within 6 months does not apply where the defendant has failed to

surrender to court bail and the charges could be laid albeit the defendant did

not appear until a year later on the warrant

– see the case of Schiavo v Anderton.

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169

Section 12 CrimeScribe Edition No. 64

Hello and welcome to this month’s edition of CrimeScribe. So little has happened this month in terms of legislation and relevant case-law that I propose to devote the larger part of this month’s edition to the ‘guidance’ published in the last few days by the Sentencing Council in relation to drug driving. This is such an important document that I feel it warrants reproduction (in large measure) and an analysis of some of the important points within it. It will be highly relevant to criminal practitioners on an almost daily/weekly basis and a ‘must read’ for anyone acting as Court Duty Solicitor. Although not said, I suspect it will be applied to anyone being sentenced as from its publication, regardless of the offence or conviction date. I suspect that although it does not have the status of formal Guidance issued by The Sentencing Council it will still become a highly relevant document in the Magistrates’ Court. Near the conclusion I give examples of 7 different defendants looking at 7 different sentences arising from the ‘guidance’.

The Sentencing Council The first page of the new ‘guidance’ reads as follows: Drug driving Introduction Since the new offence came into force in March 2015 the Sentencing Council has received a large number of requests for a sentencing guideline. It has been brought to our attention that there are concerns with sentencing in this area and a risk of inconsistent practices developing. The new offence is a strict liability offence, which is committed once the specified limit for any of 17 specified controlled drugs is exceeded. The 17 drugs include both illegal drugs and drugs that may be medically prescribed.

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The limits for illegal drugs are set in line with a zero tolerance approach but ruling out accidental exposure. The limits for drugs that may be medically prescribed are set in line with a road safety risk-based approach, at levels above the normal concentrations found with therapeutic use. This is different from the approach taken when setting the limit for alcohol, where the limit was set at a level where the effect of the alcohol would be expected to have impaired a person’s driving ability. For these reasons it would be wrong to rely on the Driving with Excess Alcohol guideline when sentencing an offender under this legislation. Guidance only At present there is insufficient reliable data available from the Department for Transport upon which the Sentencing Council can devise a full guideline. For that reason, and given the number of requests for guidance that have been received, the Sentencing Council has devised the attached ‘guidance’ to assist sentencers. It is important to note that this guidance does not carry the same authority as a Sentencing Guideline, and sentencers are not obliged to follow it. However, it is hoped that the majority of sentencers will find it useful in assisting them to deal with these cases. The Sentencing Council will, in due course produce a guideline with the assistance of evidence and data gathered by the Department for Transport. Any new guideline will be made subject to public consultation before it is finalised. We all know that the new offence came into force on the 2nd March 2015. A new Section 5A was inserted into the Road Traffic Act 1988 as a result of the implementation of Section 56 (1) of the Crime and Courts Act 2013. The new offence is as follows: Section 5A (1) and (2) makes it an offence for a person to drive, attempt to drive, or be in charge of a motor vehicle on a road or other public place with a specified controlled drug in the body, if the proportion of the drug in that person’s blood or urine exceeds the specified limit for that drug. Statutory Instrument 2014 No. 2868 – The Drug Driving (Specified Limits) (England and Wales) Regulations 2014 which came into force on the 2nd March 2015 gave us the details of 16 controlled drugs and the limit permissible expressed in terms of

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micrograms per litre of blood. 2 mcg/L of blood of cannabis, 10 mcg/L of blood of cocaine etc. The drug they were obviously not sure about was amphetamine and so we were given Statutory Instrument 2015 No. 911 – The Drug Driving (Specified Limits) (England and Wales) (Amendment) Regulations 2015 which came into force on the 14th April 2015 and set the permissible limit for amphetamine at 250 mcg/L of blood. The ‘guidance’ goes on as follows:

Driving or attempting to drive Triable only summarily: Maximum: Unlimited fine and/or 6 months Must endorse and disqualify for at least 12 months Must disqualify for at least 2 years if an offender has had 2 or more disqualifications for periods of 56 days or more in preceding 3 years – refer to disqualification guidance and consult your legal adviser for further guidance (I shall analyse the meaning of this later – I wonder if the guidance is correct in this regard?). Must disqualify for at least 3 years if the offender has been convicted of a relevant offence in preceding 10 years – consult your legal adviser for further guidance. If there is a delay in sentencing after conviction, consider interim disqualification. As a guide, where an offence of driving or attempting to drive has been committed and there are no factors that increase seriousness the Court should consider a starting point of a B and C fine, and a disqualification in the region of 12 – 22 months. The list of factors that increase seriousness appears in this guidance. Please note that this is an exhaustive list and only factors that appear in the list should be considered. Where there are factors that increase seriousness the court should consider increasing the sentence on the basis of the level of seriousness. The Community Order threshold is likely to be crossed where there is evidence of one

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or more factors that increase seriousness. The court should also consider imposing a disqualification in the region of 23 â&#x20AC;&#x201C; 28 months. The Custody threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness AND one or more aggravating factors. The court should also consider imposing a disqualification in the region of 29 â&#x20AC;&#x201C; 36 months Having determined a starting point, the court should consider additional factors that may make the offence more or less serious. A non-exhaustive list of aggravating and mitigating factors is set out in the guidance. Factors that increase seriousness (this is an exhaustive list) Evidence of another specified drug or of alcohol in the body Evidence of an unacceptable standard of driving Driving (or in charge of) an LGV, HGV or PSV Driving (or in charge of) a vehicle driven for hire or reward Aggravating and mitigating factors (these are non-exhaustive lists) Aggravating factors Previous convictions having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction. Location e.g. near school Carrying passengers High level of traffic or pedestrians in the vicinity Poor road or weather conditions Mitigating factors No previous convictions or no relevant/recent convictions Remorse Good character and/or exemplary conduct Age and/or lack of maturity where it affects the responsibility of the offender Mental disorder or learning disability Sole or primary carer for dependent relatives Very short distance driven Genuine emergency established 173

In charge Triable only summarily: Maximum: level 4 fine and/or 3 months Must endorse and may disqualify. If no disqualification, impose 10 points As a guide, where an offence of being in charge has been committed but there are no factors that increase seriousness the court should consider a starting point of a Band B fine, and endorsing the licence with 10 penalty points. The list of factors that increase seriousness appears in this guidance. Please note this is an exhaustive list and only factors that appear in the list should be considered. Where there are factors that increase seriousness the court should consider increasing the sentence on the basis of the level of seriousness. The Community Order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and one or more aggravating factors (see later in the guidance). The court should also consider imposing a disqualification. Where there is evidence of one or more factors that increase seriousness and a greater number of aggravating factors (see later in the guidance) the court may consider it appropriate to impose a short custodial sentence of up to 12 weeks. The court should also consider imposing a disqualification. Having determined a starting point, the court should consider additional factors that may make the offence more or less serious. A non-exhaustive list of aggravating and mitigating factors is set out in this guidance Factors that increase seriousness â&#x20AC;&#x201C; (this is an exhaustive list) Evidence of another specified drug or alcohol in the body Evidence of an unacceptable standard of driving Driving (or in charge of) an LGV, HGV or PSV Driving (or in charge of) a vehicle driven for hire or reward

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Aggravating and mitigating factors (these are non-exhaustive lists) Aggravating factors Previous convictions having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction Location e.g. near school Carrying passengers High level of traffic or pedestrians in the vicinity Poor road or weather conditions Mitigating factors No previous convictions or no relevant/recent convictions Remorse Good character and/or exemplary conduct Age and/or lack of maturity where it affects the responsibility of the offender Mental disorder or learning disability Sole or primary carer for dependent relatives Very short distance driven Genuine emergency established Analysis of the guidance The first thing that strikes one upon reading the ‘guidance’ is that the level of drugs within the system does not even get a mention. Is the defendant with 2 µg of cannabis per litre of blood in his system more culpable, and therefore deserving of a harsher punishment, than the defendant with 26 µg of cannabis per litre of blood in his system? I may be wrong but it seems to me that the Sentencing Council were probably wary of being too specific/definitive in relation to culpability arising from the level of drugs until further research has been done establishing with a greater degree of certainty the differing effects, in terms of impairment or otherwise, of the differing drug levels. Be careful in relation to ‘evidence of another specified drug or alcohol in the body’ as a factor increasing seriousness – the ‘guidance’ says the following:

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For these purposes, cocaine and benzoylecgonine (BZE) shall be treated as one drug as they both occur in the body as a result of cocaine use rather than polydrug use. Similarly 6-Monoacteylmorphine and Morphine shall be treated as one drug as they both occur in the body as a result of heroin use. Finally, Diazepam and Temazepam shall be treated as one drug as they both occur in the body as a result of Temazepam use. Let’s imagine that you are the Court Duty Solicitor dealing with the road traffic list. Defendant No. 1 appears before the Court and pleads guilty to a drug offence (driving or attempting to drive) – there are no factors that increase seriousness – the starting point is a Band C fine i.e. 150% of relevant weekly income with a range of between 125% and 175% – in addition a disqualification in the region of 12 – 22 months (query – would it be permissible for the Magistrates’/District Judge to take into account the reading in deciding the appropriate length of the disqualification? – Would it be permissible for the Magistrates’/District Judge to take into account the reading in deciding where the offence fell within the range? – are these decisions i.e. ‘range’ and ‘period of disqualification’ only to be decided, dependent upon aggravating and mitigating factors? (My view, for what it’s worth, is that the latter proposition is correct in that the reading ought not to be taken into consideration in deciding issues such as ‘range’ and ‘period of disqualification’). Defendant No. 2 appears before the Court and pleads guilty to a drug offence (in charge) – there are no factors that increase seriousness – the starting point is a Band B fine i.e. 100% of relevant weekly income with a range of between 75% and 125% – in addition 10 penalty points (query – the same questions as posed above). NB – remember that there are only 4 factors that increase seriousness and that the list is a definitive one! 1

Evidence of another specified drug or alcohol in the body

Evidence of an unacceptable standard of driving

Driving (or in charge of) an LGV, HGV or PSV

Driving (or in charge of) a vehicle driven for hire or reward

Defendant No. 3 appears before the Court and pleads guilty to a drugs offence (driving or attempting to drive) –the only factor that increases seriousness is that there is evidence of another specified drug or of alcohol in the body – such a defendant might be at risk of a Community Order and a disqualification in the region of 23 – 28 months. 176

Still dealing with defendant No. 3, exactly the same would apply if the only factor that increased the seriousness was 2, 3 or 4 in the above list. Defendant No. 4 appears before the Court and pleads guilty to a drugs offence (driving or attempting to drive) – this defendant has more than one factor increasing seriousness – it would appear from the ‘guidance’ that he is still only at risk of a Community Order. Defendant No. 5 appears before the Court and pleads guilty to a drugs offence (driving or attempting to drive) – this defendant has one or more than one factor that increases seriousness (let’s say, evidence of an unacceptable standard of driving) and IN ADDITION he has one or more than one of the aggravating factors (let’s say, he was near a school, or carrying passengers, or there was a high level of traffic or pedestrians in the vicinity or the road or weather conditions were poor – these are just examples of a non-exhaustive list of aggravating factors) – this defendant is likely to have crossed the Custody threshold – the court should also consider imposing a disqualification in the region of 29 – 36 months. Defendant No. 6 appears before the Court and pleads guilty to a drugs offence (in charge) – there is evidence of one or more factors that increase seriousness and one or more aggravating factors – in these circumstances the Community Order threshold is likely to be crossed – the Court should also consider imposing a disqualification – this, of course, will be a discretionary disqualification under Section 34 (2) of the Road Traffic Offenders Act 1988 in lieu of the 10 penalty points – it is one or the other – there can never be a discretionary disqualification and penalty points for the same offence – R v Martin – it is a discretionary disqualification and the minimum period is one day and the maximum period is, presumably, life – I only say this to indicate that Parliament hasn’t set any mandatory minimum period – the period is entirely at the Court’s discretion. NB – where the offence is ‘in charge’ as opposed to ‘driving or attempting to drive’

you will have noticed that in order for the Community Order threshold to be

crossed there must be evidence of one or more factors that increase

seriousness AND one or more aggravating factors.

This is not the case where the offence is ‘driving or attempting to drive’ where the Community Order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness – no mention here of one or more aggravating factors.

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This seems entirely logical to me as the offence of being ‘in charge’ is regarded as a lesser offence than ‘driving or attempting to drive’– the offence of ‘in charge’ being punishable by a level 4 fine and/or 3 months imprisonment and 10 penalty points rather than an unlimited fine and/or 6 months imprisonment and a mandatory minimum period of disqualification (absent special reasons) of 12 months which is applicable in relation to ‘driving or attempting to drive’. Where the Community Order threshold has been crossed in relation to an ‘in charge’ offence than the court should also consider a discretionary disqualification as opposed to 10 penalty points. Defendant No. 7 appears before the Court and pleads guilty to a drugs offence (in charge) and there is evidence of one or more factors that increase seriousness and a greater number of aggravating factors – in these circumstances the Court may consider that the Custody threshold has been crossed and that a short custodial sentence of up to 12 weeks might be appropriate – the Court should also consider imposing a disqualification. Defendant No. 7 is problematic and the ‘guidance’ could be clearer – apparently, the Community Order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and one or more aggravating factors – the Custody threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and a greater number of aggravating factors – what is meant by ‘a greater number of aggravating factors?’ – how are those words to be differentiated from the words ‘one or more aggravating factors?’– it would have been far simpler to say that the Community Order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and one aggravating factor whilst the Custody threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and more than one aggravating factor – there will be arguments in Court as to whether or not the Community Order threshold or the Custody threshold has been passed. Driving A person can be said to be ‘driving’ where they have substantial control over both the movement and the direction of a vehicle.

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Attempting to drive A person can be said to be ‘attempting to drive’ where they have done an act which is more than merely preparatory to the commission of the full offence – we know from case-law that the mere opening of a car door is not sufficiently preparatory to be regarded as an attempt – Mason and the DPP [2009] EWHC 2198 (Admin) (it seems to me that there must be something more e.g. putting the keys into the ignition barrel or activating the start of the vehicle in some way – the words in brackets are my comments and not part of the judgement). In charge There is no hard and fast all embracing test as to the meaning of ‘in charge’. If the defendant is the owner or lawful possessor of the vehicle or has recently driven it, he is prima facie ‘in charge’ unless he has put the vehicle in someone else’s charge; if he is not the owner, lawful possessor or recent driver, but is sitting in the vehicle or is otherwise involved with it, the question is whether he has assumed being ‘in charge’ of it. The following circumstances will be relevant: 1

Whether and where he is in the vehicle or how far he is from it;

What he is doing at the relevant time;

Whether he is in possession of a key that fits the ignition;

Whether there is evidence of an intention to take or assert control of the car

by driving or otherwise;

Whether any other person is in, at, or near the vehicle and if so the like

particulars in respect of that person.

It will be for the court to consider all of the above factors with any others which may be relevant and reach its decision as a question of fact and degree (DPP v Watkins [1989] QB 821, [1989] 1 ALL ER 1126). Let us now return to the part of the ‘guidance’ which reads ‘Must disqualify for at least 2 years if an offender has had 2 or more disqualifications for periods of 56 days or more in preceding 3 years’ and see where the statutory basis for this contention comes from. I might add, in passing, that exactly the same words appear in the Magistrates’ Court Guidelines concerning alcohol and driving offences, and always have done.

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The statutory basis for the above is Section 34 (4) of the Road Traffic Offenders Act 1988 which reads as follows: Subject to subsection (3) above, (and this, as you know, is the subsection that states that the ban is 3 years rather than 12 months if the offender has been convicted of a relevant offence in the preceding 10 years), subsection (1) above shall apply as if the reference to 12 months were a reference to 2 years – (a)

In relation to a person convicted of –

(i)

Manslaughter, or in Scotland culpable homicide, or

(ii)

An offence under Section 1 of the Road Traffic Act 1988 (causing death by

dangerous driving), or

(iia)

An offence under Section 1A of that Act (causing serious injury by dangerous

driving), or

(iii)

An offence under section 3A of that Act (causing death by careless driving

while under the influence of drink or drugs), and

(b)

In relation to a person on whom more than one disqualification for a fixed

period of 56 days or more has been imposed within the 3 years immediately

preceding the commission of the offence.

Q – Does an offender only fall within the potential 2-year ban if he or she meets the

criteria in both (a) and (b)? – In my view the answer is ‘NO’ – I can see nothing

in the wording of the above which requires the offender to fall into both

categories – the wording suggests to me that (a) and (b) are entirely separate

and distinct from one another and falling into either category would do.

Q – If I am right in my answer to the first question, then why does the ‘guidance’ only

refer to Part (b) rather than Parts (a) and (b) – an offender may well fall within

(a) because of a previous conviction either acquired at the Magistrates’ Court

or the Crown Court within the requisite period – I say Magistrates’ Court or Crown

Court because the offence of ‘causing serious injury by dangerous driving is

triable either way – the others being clearly indictable only.

Q – If I am right in my answer to the first question, then why does it never happen in

practice? – When was the last time you saw a defendant disqualified for 2 years

or more on their first drink drive conviction because they fell within (a) or (b)? –

I have never seen it happen and yet, apparently, it’s been in the legislation

since 1988!

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If you read the relevant passage in Wilkinson on Road Traffic, whilst it could be clearer, it does seem to support my contention that falling within either (a) or (b) will suffice. We know where it does happen in practice and the scenario is as follows: A defendant appears in court and ‘tots’ i.e. accumulates 12 or more penalty points and thus falls within Section 35 of the Road Traffic Offenders Act 1988. The disqualification within Section 35 (1) is referred to as ‘the minimum period’. Section 35 (2) reads as follows: The minimum period referred to in subsection (1) above is – (a)

6 months if no previous disqualification imposed on an offender is to be taken

into account, and

(b)

one year if one, and two years if more than one, such disqualification is to be

taken into account;

And a previous disqualification imposed on an offender is to be taken into account if it was for a fixed period of 56 days or more and was imposed within the three years immediately preceding the commission of the latest offence in respect of which penalty points are taking into account under Section 29 of this Act. WE HAVE ALL HAD EXPERIENCE OF SUCH DEFENDANTS! Still dealing with The Sentencing Council I mention, in passing, that new Guidelines have been issued concerning the ‘Imposition of Community and Custodial Sentences – Definitive Guideline’. The Guideline will apply to all offenders aged 18 and over, who are sentenced on or after 1st February 2017, regardless of the date of the offence (subject to requirement (s) being applicable). I don’t propose to say anything further at this point. I may return to them in January.

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CASE-LAW Director of Public Prosecutions v SK [2016] EWHC 837 (Admin) This was an unusual case on its facts. The matter came before the Youth Court sitting at Willesden where SK faced trial charged by way of information with the offence of conspiracy to pervert the course of public justice contrary to Section 1 (1) of the Criminal Law Act 1967. The subject of the conspiracy was that he should do the community service purporting to be somebody else. The facts were essentially agreed and at the conclusion of the prosecution case a submission was made that no offence known to law was disclosed on the basis that the material act did not take place ‘within the course of justice’. There was thus no case to answer. No doubt attractively advanced, the justices acceded to that submission and dismissed the information. The DPP appealed to the High Court by way of case stated and a number of questions were posed for the consideration of the Court. At Paragraph 24 of the judgement the Court said this: ‘It is certainly open to the Court to infer, and at the close of the prosecution case a possible inference on which the Crown was entitled to rely, that Mr D and SK would have been well aware that the former was not performing the obligation placed upon him by the Court so would be liable to criminal sanction and furthermore that the effect of SK performing the work would be to pervert the course of justice by delaying and potentially undermining the investigation of that failure’ The case was remitted back to the Youth Court for the hearing to continue. Regina v John Coleman [2016] EWCA Crim 1665 This was another very interesting case resolving a point for all of us. The introduction of the case reads as follows: ‘This appeal, brought on a reference by the Criminal Cases Review Commission, raises a point of principle concerning costs of criminal proceedings. The point comes to this. Where a convicted defendant has been ordered in the Crown Court to pay

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an amount towards the prosecution costs at a time when it is properly assessed that he has the assets to meet such a liability, can, or at all events should, he thereafter be permitted to appeal to the Court of Appeal (Criminal Division) seeking a quashing or reduction of the costs order on the ground of a subsequent change in financial circumstances? The appellant says that he can and should and seeks to rely on a previous decided case to that effect. The respondent Crown says that he cannot, or at all events should not, and the appropriate application should be made to the Magistrates’ Court as the collecting and enforcing Court. It is a long judgement but Paragraph 33 sums up the Court’s view: ‘At all events, the fact remains that the Magistrates’ Court is empowered to take into account a subsequent change of circumstances in deciding what collection and enforcement measures to take’ And further at Paragraph 40: ‘In conclusion, therefore, we consider that it is not for this Court to interfere with the costs order originally made or with its enforcement: it is for the Magistrates’ Court. Any further proceedings in this case should continue there and the magistrates can assess the evidence adduced. It can be expected that the magistrates, as well as the prosecution, will realistically appraise the position of the appellant as advanced before that Court, subject if necessary to any cross-examination that may be called for.

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Section 13 CrimeScribe Edition No. 65

Hello and welcome to this month’s edition of CrimeScribe. Although still a bit ‘light’ on legislation, as the politicians clearly have their minds on other things, we have had one interesting Statutory Instrument this month and a number of interesting cases to examine.

Statutory Instruments SI 2016 No. 1201 is the Youth Justice and Criminal Evidence Act 1999 (Commencement No. 15) Order 2016 and the provisions will come into force on the 2nd January 2017. Section 28 of the Act provides that where a witness’s video recorded evidence in chief has been admitted under Section 27 of the Act the court may direct that the video recorded cross-examination and re-examination of that witness might also be admitted as evidence. Article 2 makes provision for the coming into force of Section 28 of the Act on the 2nd January 2017, but only for the purposes of proceedings before the Crown Court sitting at Kingston upon Thames, Leeds or Liverpool, where the witness is aged 16 or 17 at the time of the hearing. Section 28 was previously brought into force by Statutory Instrument 2013/3236 in relation to these courts, where the witness was eligible by virtue of Section 16 (1) (a) and was under the age of 16 at the time of the hearing, or by virtue of Section 16 (1) (b) of the Act, owing to an incapacity. The effect of this Order is therefore to expand the availability of Section 28 Directions in these courts, so that they may also be made in relation to witnesses’ who are aged 16 or 17 at the time of the hearing.

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I think I did mention in an earlier article on this matter that the hearings are deemed to be part of the trial process and therefore a trial has commenced. This also has an impact upon credit as, if the defendant thereafter chooses to amend his plea to one of guilty, this will be seen as a very late guilty plea.

Codes of Practice under PACE Revised Codes C, D and H were laid before Parliament on the 22nd November 2016. The revised Codes are expected to come into force by the end of February 2017. I shall cover the revisions nearer the time.

The Sentencing Council There’s always something new to read on their website. They have published an updated definitive guideline for Courts about the process that should be followed when deciding whether offenders should be given Community or Custodial sentences. The new guideline will come into effect on the 1st February 2017. They are also proposing to publish new guidelines concerning breach of Court Orders. We do have some guidelines concerning some breaches but the new guidelines will be much wider in their scope. The matter is still out to consultation and will close on the 25th January 2017.

Case-Law Regina v Dinu SCCO ref: 146/16 – 28th of November 2016 An interesting case on whether or not material which had been served upon the defence fell into the category of being ‘evidence’ or ‘unused material’. As evidence it would be remunerated and as unused material it would not. The point in issue related to ‘disclosed’ telephone evidence on disc. This evidence was served on the solicitors by way of a letter from the Crown Prosecution Service. The letter referred to the client and her co-defendants, referred to the Court and hearing date, and stated:

185

‘Please find enclosed a disc containing ongoing disclosure in relation to your client. The disc is encrypted and the password remains the same’. The solicitors accept that this letter is ambiguous as it does not state whether the disclosure is deemed to be served evidence or unused material. The solicitors submit that the evidence on the disc was central to the case. It showed the roles of each defendant and the extent of their individual involvement. The client was the only defendant who was acquitted at trial and it was upon the evidential basis contained on the disc that the defence were able to make submissions at trial consistent with her innocence. It showed that she had no contact with the other Defendants. The material constituted the evidential basis upon which the Crown was able to prepare and put together the telephone Schedules used at trial. Consequently the solicitors submit that it was clear that this evidence was served evidence. In written reasons the Senior Case Worker at the Litigator Fee Team confirmed the Determining Officer’s original decision that the disc was not formally served as evidence by the prosecution and consequently falls into the category of unused material. Unused material does not meet the PPE criteria. As the solicitors had been unable to provide any Notice of Additional Evidence or exhibit list to confirm that the disc was formally served, the material could only be deemed to be unused material. PPE is defined in the Criminal Legal Aid (Remuneration) Regulations 2013 Schedule 2 1. Interpretation (3)

The number of pages of prosecution evidence includes all –

(a)

Witness statements;

(b)

Documentary and pictorial exhibits;

(c)

Records of interviews with the assisted person; and

(d)

Records of interviews with other defendants,

Which form part of the served prosecution documents or which are included in any Notice of Additional Evidence. (4)

Subject to sub-paragraph (5), a document served by the prosecution in

electronic form is included in the number of pages of prosecution evidence.

(5)

A documentary or pictorial exhibit which –

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(a)

Has been served by the prosecution in electronic form; and

(b)

Has never existed in paper form,

is not included within the number of pages of prosecution evidence unless the appropriate officer decides that it would be appropriate to include it in the pages of prosecution evidence, taking into account the nature of the document and any other relevant circumstances. The Costs Judge said this at Paragraph 8: ‘In my judgement the Regulations are sufficiently flexible to include documentation which are not included in a Notice of Additional Evidence as PPE. The Regulations state that PPE includes those documents which form part of the served prosecution documents OR which are included in any Notice of Additional Evidence’. And at Paragraph 9: ‘In my judgement the letter of the 2nd February served the relevant disc. The Regulations do not state that the documentation has to be formally served. The PPE forms part of the served prosecution documents or documents which are included in any Notice of Additional Evidence. The disc in this case was a served prosecution document. And at Paragraph 10: ‘If the prosecution document has been served, the Determining Officer is required to look in detail as to what the document consists of. There may be many instances where documentation or discs served under cover of a letter similar to that of the 2nd February are clearly unused material, or is material that is only peripheral to the case or the defence. In such a case the Determining Officer would be correct in determining that this material was not PPE. And at Paragraph 11: ‘However, there are cases such as this where it is quite clear that the content of the disc was central to the case (as opposed to just central to the defence) as it constituted the evidential basis upon which the Crown were able to prepare and put together the telephone schedules used at trial.

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R v Darkwa (2015) EWCA Crim 260 This case resolved an issue for me which had absolutely nothing to do with the appeal itself. I always wondered whether it would be possible for a Crown Court Judge to give a sentence on an offence triable either-way and then to give a consecutive sentence for a summary only offence. Clearly it is possible because this is exactly what the Judge did in this case and it did not even form the basis of the appeal! The appellant was sentenced to a total of 4 years imprisonment in respect of 2 counts of causing serious injury by dangerous driving. The sentence was made up of 3 Â˝ yearsâ&#x20AC;&#x2122; imprisonment running concurrently on the 2 dangerous driving offences with 6-months consecutively for driving with excess alcohol. The Judge was entitled in principle to pass a consecutive sentence, because, as he made clear in his sentencing remarks, the excess alcohol was not taken into account as an aggravating feature in the sentence for the dangerous driving offences. The appeal was on the sole ground that the Judge should have given her credit of around 20% for her guilty plea in relation to the excess alcohol offence even though the evidence against her was said to be overwhelming and, as the Judge said, it was her third drink-driving offence. The Judge said that he was not going to give any credit for the guilty plea at all in relation to the excess alcohol offence. He gave two reasons for that: the first was that the matter was one to which the appellant really had no defence, it being obvious that she was driving with excess alcohol, and secondly he said it was her third drinkrelated driving offence. The Court of Appeal saying this at Paragraph 9 of the judgement: â&#x20AC;&#x2DC;In our judgement, it was inappropriate for the Judge to consider that the number of previous drink related offences had anything to do with the question whether credit should be given for a guilty plea. Whilst that fact would have been relevant to the appropriate sentence before credit was given, it was inappropriate to take into account in determining whether, and if so what, credit should be given for the plea of guilty. As for the fact that she had no conceivable defence, as the guidelines make clear, in principle that was no reason for not affording her some credit for her guilty plea which, whilst it was not tended at the first available opportunity, was

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tended at a fairly early stage. There would have been a margin of discretion as to how much the credit should be, but nevertheless the Judge should have given her some credit. The Sentencing Council Guidelines on credit indicate that the purpose of giving credit is to encourage those who are guilty to plead at the earliest opportunity. Even where the evidence is overwhelming there should still be some reduction. The appeal was allowed to the extent that the 6-month consecutive sentence was reduced by a period of 4 weeks to give credit for the plea of guilty. R v Beech and Others [2016] EWCA Crim 1746 This was a very serious case concerning conspiracy to commit robbery and conspiracy to steal cash from a cash machine. The attempt to steal cash from the machine resulted in a police chase. The defendants made their getaway in a stolen Audi. The speed of the car as it sped away from the police was such that they lost track of it using a conventional land surface pursuit. A helicopter was brought in and the vehicle was eventually traced. Speeds of up to 150 miles an hour were recorded in the pursuit. Long terms of imprisonment were imposed upon the defendants. The driver of the car (Beech) and the two passengers were each disqualified from driving for set periods of time and also until an extended driving test was passed under Section 36 of the Road Traffic Offenders Act 1988. I don’t wish to deal with the aspect of the case concerning the appeals against the severity of their sentences. I do wish to deal with whether or not it was appropriate in law for the Judge to order the passengers in this vehicle to take an extended driving test. It was accepted that even though they were both passengers in the car, under the provisions of the 1988 Road Traffic Offenders Act the Judge was entitled to disqualify them. It was accepted that, under the legislation, the Judge did have the power to impose a disqualification until an extended test was taken. Submissions were made that the Court should have taken into account the decision of this Court in R v Wiggins [2001] RTR 3 and the earlier decision of R v Bradshaw [2000] RTR 41. [nb – there has been, for many years, a footnote in Stone’s Justices’ Manual to Section 36 of the Road Traffic Offenders Act 1988 which reads as follows – ‘it is inappropriate to order the passenger convicted of an offence of aggravated vehicle taking to take an extended test – R v Bradshaw (1994) – R v Waters (2001)]

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The question for the Court of Appeal was whether the indications given in those cases were such that the Court would invariably exercise its discretion never to disqualify until re-test someone who is simply a passenger. The Court of Appeal was firmly persuaded that those cases turned on their particular facts and were properly decided on those facts. The facts of the present case were quite different. The Court said this at Paragraph 25 of the judgement: ‘We have set out the egregious nature of the driving in this case and the fact that those in the car were speeding away from a jointly-planned serious professional criminal attempt on a cash machine. The speeds at which they were driving and the manner of their driving plainly put the public at risk. Although they may not have quite the level of culpability of the actual driver, nonetheless the level of their culpability was extremely high. There is every reason to believe that they fully participated in the escape at speeds that self-evidently would put the public at significant risk of serious injury, if not loss of life.’ And at Paragraph 26 of the judgement: ‘In those circumstances we consider that the learned Judge was correct in the view that he took, and that it was right to order a disqualification until an extended driving test is taken. The purpose of an extended driving test is for the authorities to be satisfied that those who have been disqualified from driving are fully competent to be allowed to drive again. Both appellants had previous convictions for dangerous driving. They have been disqualified before. But, above all, they had participated in dangerous driving of the utmost gravity, when escaping from the scene of a crime. In the way in which it is administered, the extended driving test will bring home to the appellants the importance of having regard to the safety of others, and in particular not driving at excessive speeds. It is essential that that is brought home to both appellants. The Judge exercised his discretion correctly. In all the circumstances he was absolutely right to impose the requirement of an extended driving test.’ Regina v Gratland – SCCO Ref: 139/16 – 21st of November 2016 A small but important point was decided in the above costs case. This was an appeal by Counsel against the decision of the Determining Officer under the Advocates Graduated Fee Scheme. Counsel had been involved in a ground rules hearing in order to determine what questions could be asked of the two child witnesses.

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It was common ground that the Criminal Legal Aid (Remuneration) Regulations 2013 do not expressly deal with the appropriate fee to be paid for a ground rules hearing. It is a new procedural requirement where a vulnerable witness requires an intermediary. It is said to be good practice in any other case where the witness is vulnerable. Notwithstanding that the Regulations have been revised since ground rules hearings came about, the Regulations have not been amended to deal specifically with the appropriate fee to be paid. In this case, the Determining Officer has concluded that the appropriate fee is a Standard Appearance Fee of £87. Counsel says that the fee should be assessed on the basis that it relates to the admissibility of evidence and for which the half-day fee would be £130. The Costs Judge took the view that it should be remunerated as an admissibility of evidence hearing. R v Thelwall [2016] EWCA Crim 1755 3 short, but important, points arising from this case and they are as follows: 1 – The citation of decisions of the Court of Appeal (Criminal Division) in the

application and interpretation of Guidelines is generally of no assistance. It is

important that practitioners appreciate that our system now proceeds on the

basis of Guidelines, not case-law.

2 – The Judge was referred to numerous online articles and summaries by the

defence (in the defence bundles). They were not reports of the cases. They

were not full transcripts of Court proceedings. Such a course of action was

open to inaccuracies. They were first instance decisions. These cases are very

facts specific. – It is impermissible to adduce reports of that kind before the judge.

3 – The third and, to my mind, most important point was in reference to costs.

This was a Health and Safety Executive matter. The Courts often make substantial

orders against defendants for the recovery of investigation costs and the costs

that might have had to be incurred to ensure equality of arms before the trial

Judge. However, the Health and Safety Executive should bear in mind that in this

Court in particular the position of the respondent is generally no different to

that of the Crown Prosecution Service when an appeal is brought by an offender.

We were asked in this case to make an order for costs that included: first, the

attendance of a solicitor (which is generally unnecessary for any sentence

appeal); and secondly, for an award to Counsel that was vastly in excess of what

would be paid to counsel instructed by the CPS.

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There may be rare occasions upon which such amounts are sought to be recovered from appellants, but those cases will be rare. Regina v Christopher Henderson [2016] EWCA Crim 965 The appellant was convicted of having an article with a blade, contrary to Section 139 (1) of the Criminal Justice Act 1988. The issue was whether or not the defendant had a lock knife ‘with him’ in a public place (the lock knife being the bladed article). The appellant was in a flat. The police searched the premises and found some car keys. The appellant’s car was parked in a communal car park at the rear of the flats which was agreed to be a public place. The boot was searched and the lock knife was found. The appellant had a ‘no comment’ interview. The prosecution case quite simply was that the appellant had the lock knife with him in a public place. The appellant gave evidence at trial that he was not in occupation of the flat. He said that he did own a knife but that he had not put it in the car. The Court decided the following at Paragraph 18 of the judgement: 1 – The appellant was not near his car, as the defendant was in Smith v Vannet. He

was in a second-floor flat a considerable distance away.

2 – There was no evidence that the appellant had shortly left or was shortly to return

to the car, as was the case in R v Pawlicki.

3 – There was no evidence that the knife in the car was linked in any way to his

presence in the flat on that day or at all, unlike in R v Pawlicki

4 – There was no evidence linking the knife to any ongoing or indeed any criminal

enterprise, unlike in R v Pawlicki

5 – The facts are comparable to the case of McVey v Friel in which the appeal

was allowed.

They also said this at Paragraph 19 of the judgement: ‘In this case there was no close geographical, temporal or purposive link between the knife which was in a public place and the appellant who was in a private flat. Nor do we consider that it can be said that the knife was immediately available or readily accessible to the appellant.’

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The Court concluded that as a matter of law the appellant did not have the knife ‘with him’ and the Judge should have accepted the defence submission of ‘no case to answer’. The conviction being unsafe, it was quashed. Regina and Lewis Johnson and others [2016] EWCA Crim 1613. This judgement was delivered on the 31st October 2016. The group of cases went to the Court of Appeal in order that the Court could consider individually, for each case, the impact on the decision as a result of the Supreme Court decision in February 2016 of R v Jogee, Ruddock v the Queen [2016] UK SC 8. You will remember that the Supreme Court ruled that the common law had taken a wrong turning some 30 years earlier in relation to joint enterprise – the two earlier decisions being Chan Wing-Siu v The Queen [1985] AC 168 and R v Powell, R v English [1999] 1 AC 1. The Supreme Court made a unanimous decision that those two earlier decisions were wrong. The common law had taken a wrong turning 30 years earlier. Something more than mere foresight, i.e. knowledge of the possibility/realisation of a possibility is required – what is required is something more than a criminal venture between 2 or more people to commit crime A when the Principal commits crime B – the mental element of the secondary party being more than mere knowledge of a possibility/a realisation that it was possible – in order to be guilty, the secondary party must do more than merely foresee that the Principal may commit crime B – the mental element for secondary liability is intention to assist or encourage crime B or a range of crimes, one of which is committed; either will suffice. Foresight of crime B is not automatic authorisation of it. Foresight of it is simply evidence of intention to assist or encourage. It is a matter for the jury in every case whether or not the secondary party assisted or encouraged the commission of the crime. The Supreme Court identifies the law both prospectively and retrospectively and therefore a review is required of those previous decisions. Many of the appeal decisions will not have been brought in time and so it is necessary to identify the considerations of the Court will take into account in determining whether there has been a substantial injustice. Bearing in mind that high threshold test the Court would have to have regard to the strength of the case advanced and whether or not the change in the law would, in fact, have made any difference.

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I don’t propose to analyse the individual cases considered but the judgement is well worth a read. Regina v Mehmood and Horvathova SCCO Ref: 76/16 and 194/16 – 8th of December 2016 The Appellants (both Counsel) appealed from the decisions of the Determining Officer in respect of payments allowed under the Advocate Graduated Fees Scheme (AGFS) the appeals raised a common issue, namely whether the Appellants were entitled to claim receive and/or retain two fees, namely a cracked trial fee and a trial fee. Each Counsel had represented a defendant who failed to attend for trial. Bench warrants were issued. The trial was listed to start on the 24th September 2012. It was then adjourned for the trial to take place on the 8th October 2012 when neither defendant attended. In July 2013 the first Appellant submitted a fee claim for a cracked trial but, as the defendants had not absconded for at least a year, only standard appearances and ineffective trial fees were paid. Subsequently, the prosecution indicated that it did not intend to proceed to trial in the defendant’s absence and a cracked trial fee was allowed. The second Appellant, whose fee claim was submitted at a later date, was allowed similarly a cracked trial fee. The defendants were eventually arrested and the trial itself was heard on two days, 24th and 25th of August 2015, when it concluded with the defendants entering guilty pleas to the satisfaction of the prosecution. After the conclusion of the trial, the Appellants submitted fee claims for a two-day trial. Ultimately, after (it would appear) some varied consideration by the respondent, the claims for a trial fee were allowed. The Respondent however, held that as the Appellants should not be entitled to retain both the cracked trial fee and a trial fee, the former would be set-off (effectively as an interim payment) against the latter. It is this decision to set off the cracked trial fee (s) against the trial fee (s) which now forms the issue in these appeals. It was the common ground of the parties at the appeal hearing on the 25th November 2016 that the Criminal Defence Service (Funding) Order 2007 did not envisage or provide specifically for the circumstances now in dispute. The Court said this at Paragraph 11 of the judgement: ‘The appellants, in distilled summary, acknowledge that the Respondent has a right

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of set-off in certain circumstances outlined specifically in both the 2007 Order and the subsequent Criminal Legal Aid (Remuneration) Regulations 2013. Their case is that such a right does not – and, indeed, should not – exist in these circumstances. Insofar as the 2007 Order and the 2013 Regulations recognise that the effluxion of time is (or can be) of relevance to set-off, they submit that a period of 15 months is regarded usually as a watershed, after which time the Advocate/Litigator is entitled to claim, receive and retain two fees. A good example of this, outlined by the first Appellant, is the provision under the 2013 Regulations applicable to fees payable after the execution of a warrant for arrest, outlined at Paragraph 23 (4) of Schedule 2 of the 2013 Regulations and discussed at Paragraph 3.23 (6) of the Crown Court Fee Guidance (26th of April 2013)’. It seems that both parties were asking the Judge to determine the issue by reference to an Overriding Principle applied by reference to the facts of each particular case adopting analogous reference to other provisions in the 2007 Order and/or 2013 Regulations where it may be appropriate to do so. The Costs Judge seems to have had regard to the following points: 1 – The defendants were tried on charges that were relatively complex

and significant

2 – Originally there were up to 20 defendants and ultimately the PPE exceeded 8500 3 – The first trial was listed in early October 2012 so the Appellants substantive

preparation would have been completed by then

4 – The time-lapse was something in the region of almost 3 years – when 15 months is

cited as a watershed in other provisions within the 2007 Order

and/or 2013 Regulations 5 – The Advocates representing the defendants at the trial in August 2015 would

have effectively approached and prepared the case afresh

Having made reference to all of the above points the Costs Judge said this at Paragraph 15 of the judgement: .......’ it seems to me, on the particular facts of these appeals, that the Appellants should be entitled to receive and retain two fees, a cracked trial fee and a trial fee. It would be wrong, in my conclusion, for the Respondent to set the former off against the latter, in circumstances where the delay is such that the second effective trial would require inevitably as much work in preparation as the original, aborted trial. For these reasons I allow the appeals of the First and Second Appellants’.

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