Crimescribe 2015 by The Solicitors Group

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CrimeScribe 2015 A review of all the essential Case Summaries, Statutory Instruments and any relevant material from the Ministry of Justice or other circulars in 2015

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Contents... A Forward to the 2015 Editions of CrimeScribe.................................................. 4 1

CrimeScribe Edition No. 46........................................................................................ 148

CrimeScribe Edition No. 41........................................................................................ 8

Criminal Justice and Courts Act 2015.................................................................................. 156

ANNEX F: Useful links............................................................................................................... 162

SECTION 1: Introduction and Background.......................................................................... 12

Statutory Instrument 2015 No. 994........................................................................................ 162

SECTION 2: Who can submit a Tender.................................................................................. 16

The current position regarding the acquisition of CPD...................................................... 164

SECTION 3: Overview of REQUIREMENTS and how to Tender............................................ 26

SECTION 4: ESSENTIAL REQUIREMENTS and SELECTION CRITERIA....................................... 34

SECTION 5: FINANCIAL ASSESSMENT..................................................................................... 39

Statutory Instrument 2015 No 1369 is the Criminal Legal Aid (Remuneration etc)

SECTION 6: AWARD CRITERIA................................................................................................. 43

(Amendment) Regulations 2015........................................................................................... 171

SECTION 7: CONTRACT AWARD AND MOBILISATION.......................................................... 47

Case-law.................................................................................................................................. 177

SECTION 8: RULES OF THIS PROCUREMENT PROCESS.......................................................... 48

ANNEX A: Procurement Area Contract information and Case Volume Data

relating to Case Experience.................................................................................................. 48

ANNEX B; Procurement Area Rules and Scheme Information.......................................... 49

LITIGATOR GRADUATED FEE SCHEME TABLES EFFECTIVE MARCH 2014.............................. 208

ANNEX C.................................................................................................................................. 49

NEW LGFS TABLES EFFECTIVE JANUARY 2016........................................................................ 222

ANNEX D: Information to support Financial Assessment.................................................... 53

ANNEX E: Defined Terms in the Mandatory Attachments.................................................. 53

Annex F: Defined Terms in the IFA......................................................................................... 53

CrimeScribe Edition No. 47........................................................................................ 166

CrimeScribe Edition No. 48........................................................................................ 178 LITIGATOR GRADUATED FEE SCHEME TABLES EFFECTIVE MARCH 2014 ............................. 194

CrimeScribe Edition No. 49........................................................................................ 232 Statutory Instruments.............................................................................................................. 232

Case-law.................................................................................................................................. 233

CrimeScribe Edition No. 42........................................................................................ 54

DPP V Bulmer [2015] EWHC 2323 (Admin)........................................................................... 234

CASE-LAW................................................................................................................................ 57

The Queen on the application of Anderson v Guildford Magistrates’ Court [2015]

CrimeScribe Edition No. 43........................................................................................ 66

EWHC 2454 (Admin)............................................................................................................... 235

In the Crown Court sitting at Luton – Regina versus AS and Others – Judgement on

Offender Rehabilitation Act 2014......................................................................................... 66

Application for Paper Copy of Telephone Billing Information (June 2015)..................... 235

The Crime and Courts Act 2013............................................................................................ 75

Director of Public Prosecutions v Whitaker [2015] EWHC 1850 (Admin)........................... 236

Tendering................................................................................................................................. 76

Legislation................................................................................................................................ 236

Case-law.................................................................................................................................. 76

Barnaby, v Director of Public Prosecutions [2015] EWHC 232 (Admin)............................ 78

Thorsby and others [2015] EWCA Crim 1.............................................................................. 78

100 things you really ought to know – July 2015................................................................. 237

10 CrimeScribe Edition No. 50........................................................................................ 258 CPD.......................................................................................................................................... 258

CrimeScribe Edition No. 44........................................................................................ 80

OWN CLIENT AND DUTY PROVIDER CONTRACTS – THE FUTURE.......................................... 259

By far and away the most important Statutory Instrument of the month was No. 664

THE CRIMINAL COURTS CHARGE........................................................................................... 265

of 2015...................................................................................................................................... 83

RECALL FOR BEING IN BREACH OF LICENCE........................................................................ 267

Statutory Instrument 2015 No. 317 is ‘The Rehabilitation of Offenders Act 1974

REHABILITATION OF OFFENDERS............................................................................................. 268

(Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015..................... 84

THE CRIMINAL PROCEDURE RULES AND CASE MANAGEMENT.......................................... 269

Statutory Instrument 2015 No.202 is the Social Security (Penalty as Alternative to

Prosecution) (Maximum Amount) Order 2015.................................................................... 85

Statutory Instrument 2015 No. 40 is The Offender Rehabilitation Act 2014

(Commencement No. 2) Order 2015................................................................................... 86

The Offender Rehabilitation Act 2014.................................................................................. 274

Transforming Summary Justice (TSJ)..................................................................................... 87

The Rehabilitation of Offenders Act 1974............................................................................ 277

Some of you may have noticed that there has been a small but important

‘2 strikes’ for knife crime offences......................................................................................... 277

amendment to the Magistrates’ Courts Trial Preparation Form....................................... 88

Section 30 of The Criminal Justice and Courts Act 2015.................................................... 278

PPE or Special Prep?.............................................................................................................. 89

Arrested Juveniles................................................................................................................... 279

ABBAS v CPS [2015] EWHC 579 (Admin).............................................................................. 90

Sentencing Guidelines – Theft Offences.............................................................................. 280

We are back on the ‘Tendering Trail’................................................................................... 92

Case-Law................................................................................................................................. 280

11 CrimeScribe Edition No. 51........................................................................................ 272 The Criminal Courts Charge.................................................................................................. 273

12 CrimeScribe Edition No. 52........................................................................................ 282

CrimeScribe Edition No. 45........................................................................................ 108

THE INVITATION TO TENDER DOCUMENT - NOVEMBER 2014............................................... 109

The Criminal Courts Charge.................................................................................................. 283

SECTION 1: INTRODUCTION AND BACKGROUND................................................................ 111

The Billing of Crown Court work............................................................................................ 283

SECTION 2: WHO CAN SUBMIT A TENDER?........................................................................... 114

Litigator forms.......................................................................................................................... 283

SECTION 3: OVERVIEW OF REQUIREMENTS AND HOW TO TENDER.................................... 119

Advocates forms.................................................................................................................... 287 CPD REGIMES.......................................................................................................................... 289

SECTION 4: ESSENTIAL REQUIREMENTS and SELECTION CRITERIA....................................... 125

SECTION 5: FINANCIAL ASSESSMENT..................................................................................... 131

Case-law.................................................................................................................................. 290

SECTION 6: AWARD CRITERIA................................................................................................. 136

Statutory Instruments.............................................................................................................. 292

SECTION 7: CONTRACT AWARD AND MOBILISATION.......................................................... 141

Sentencing Guidelines........................................................................................................... 292

SECTION 8: RULES OF THIS PROCUREMENT PROCESS.......................................................... 142

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A Forward to the 2015 Editions of CrimeScribe

Hello and welcome to this forward in relation to the 2015 editions of CrimeScribe. I do hope that you have enjoyed reading them, both for their legal content and for my comments. It was a very busy year with, as usual, important pieces of legislation affecting criminal lawyers being brought into force through Statutory Instruments and some really interesting case-law on topics across the board, including, as usual, some very interesting cases from Costs Judges and, more unusually, some very interesting cases from Crown Court Judges in relation to the service of evidence by the Crown upon the defence. It would have been really nice to say that everything was resolved and that we all knew our future but here we are at the tail end of 2015 and we are still not entirely sure whether or not Dual Contracting will ever come into force, and, if so, the commencement date! We started the year with an examination of the Invitation to Tender documents (Edition No. 41). The next edition dealt with Statutory Instrument 2014 No. 3268 which was Commencement Order No. 1 of the Crime and Courts Act 2013 and brought into force Section 56 and Schedule 22 of the Act (drugs and driving) on the 2nd of March 2015. A very important addition in this area of law as it gave us a new offence of driving, attempting to drive or being in charge of a motor vehicle with drugs in the system above the prescribed limits as set out in a Schedule. In the same edition I also considered a number of important cases, including that of R v Kerrigan; R v Walker [2014] EWCA 2348 which set out precisely those clients who were entitled to credit for time spent on remand in custody and those clients who were not entitled to credit (Edition No. 42). Edition No. 43 was perhaps the most useful edition of the whole year and, firstly, set out in great detail the new Supervision and Licence provisions under the Offender Rehabilitation Act 2014 for offences occurring on or after 1st February 2015 as a result of the implementation of Sections 1 – 9, 11 – 13, 15 – 19 and Schedules 1 – 3 and 5 – 7. (A really useful read if you missed it). The same edition also set out in some detail the new Criminal Behaviour Orders brought into force under the Anti-social Behaviour, Crime and Policing Act 2014 and available to the Court on or after the 20th of October 2014. The edition also dealt with the restructuring of the Probation Service and the creation of the 21 Community Rehabilitation Companies (CRC’s).

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Edition No. 44 contains a paper I had written concerning the new drug driving offence. It also dealt with the commencement of Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which abolished the £5000 cap on a level 5 financial penalty with effect from 12th March 2015. The fine for a level 5 fine offence is now unlimited in the Magistrates’ Court. Incidentally, the £5000 cap on compensation has also gone and this also is now an unlimited amount. The edition also contains the very important cases of R v Furniss and R v Thompson on costs and the case of Abbas v CPS on the extent of the role of the defence advocate when appointed under Section 38 (4) of the Youth Justice and Criminal Evidence Act 1999. Edition No. 45 was devoted solely to the Tendering Process. Edition No. 46 contained an examination of the wretched Criminal Courts Charge, which came into force on 13th April 2015. A useful read at the time, but, thankfully, the thing is being abolished, hurrah!! The same edition also dealt with the more important Sections of the Criminal Justice and Courts Act 2015 which came into force on 13th April 2015. Committals of youths for sentence to the Crown Court, the new law regarding disqualified drivers and the restrictions on the police cautioning of adult offenders were just 3 of the many Sections considered. Edition No. 47 contained a paper I had written in relation to the changes brought about by the Offender Rehabilitation Act 2014 and also considered the new rates of payment for criminal legal aid which came into force on 1st July 2015 and also a consideration of the new rates of payment in both the Own Client and Duty Provider Contracts – as and when they come in, if ever! Edition No. 48 dealt with an analysis of the new committal for sentence to the Crown Court from both the Adult and Youth Courts. It also dealt with the amendments to Referral Orders brought about by the Criminal Justice and Courts Act 2015. Furthermore, it considered the new concept of trial by a single Justice on the papers and also looked at the minimum sentences for 2nd strike knife possession. Edition No. 49 acknowledged that it had been a very poor month for new events and, as a result, had an additional document attached to it entitled ‘100 things you really ought to know – July 2015’. It was a series of questions and answers on topical points. It did, however, contain some useful case-law in relation to the statutory notice in driving matters (Barbara Marshall v CPS), a case on the new Criminal Behaviour Orders (DPP v Bulmer), a case on an application to vacate a trial (Guildford Magistrates’ Court) and a very important case on billing (Regina versus AS and Others).

Edition No. 50 examined the current position on the acquisition of CPD and looked at the new Competency Regime from the SRA. It also contained a paper on the new Own Client and Duty Provider Contracts. It considered the new recall provisions upon breach of licence and the current rehabilitation periods under the amended Schedule at the back of the Rehabilitation of Offenders Act 1974. The theme of breach of licence continued in Edition No. 51 with an examination of 2 very important documents issued by the National Offender Management Service (NOMS) the 1st being entitled ‘Recall Review and Re-Release of Recall Offenders’; the 2nd one being entitled ‘Licence Conditions, Licences and Licence and Supervision Notices’. The 12th and final edition (Edition No. 52) contained a useful paper setting out all of the various litigator and advocates forms and the bodies to which they should be sent, i.e. some to the National Taxing Team and some to the Legal Aid Agency. Furthermore, it dealt with the very important case of Regina and FNC on DNA evidence.

Chapter 1 CrimeScribe Edition No. 41

Hello and welcome to CrimeScribe Edition No. 41. There is only one document exercising the minds of criminal lawyers at present and it is, of course, the document published by the Legal Aid Agency entitled ‘Invitation to Tender for 2015 Duty Provider Crime Contracts – Information For applicants’. We were given Version No. 1 which was published on the 27th of November 2014. Version No. 2 of the same document was published on the 9th of December 2014. Version No. 2 contains one small amendment to version No. 1 in relation to the immediately adjacent London Procurement Areas of central London and Hammersmith and Fulham (West London) – it is an amendment to Annex B of the document. With the above in mind I am going to devote the whole of this month’s edition of CrimeScribe to an examination of this document. It consists of 150 pages and is made up of the following: Section 1: Introduction and Background Section 2: Who can submit a tender? Section 3: Overview of Requirements and How to Tender Section 4: Essential Requirements and Selection Criteria Section 5: Financial Assessment Section 6: Award Criteria Section 7: Contract Award and Mobilisation Section 8: Rules of this Procurement Process

Annexes Annex A: Procurement Area Contact Information and Case Volume Data relating to Case Experience Annex B: Procurement Area Rules and Scheme Information Annex C: ITT Questions and Assessment (without doubt the most important part of the whole document – See Pages 89 – 134) Annex D: Information to support Financial Assessment Annex E: Defined Terms in the Mandatory Attachments

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Annex F: Defined Terms in the IFA

The Timetable for all of this Procurement Process for 2015 Duty Provider Crime Contracts opens and available via the LAA’s eTendering portal – 27th of November 2014 Final date to submit questions about this procurement process (12 noon on the 15th of December 2014) Final ‘Frequently Asked Questions’ to be published (22nd of December 2014) Deadline for submission of Tenders (12 noon on the 29th of January 2015) Notification of outcome of Duty Provider Contract Tenders (June 2015) Contract execution and Contract start date (June 2015) Mobilisation period (June to September 2015) Service Commencement Date (1st of October 2015) The above timetable may be subject to variation as the Law Society has indicated an intention to challenge the process by Judicial Review in the High Court This invitation to Tender is only available to eligible Applicant Organisations (AO’s). This is the second stage of the procurement process for Duty Provider Contracts. It is restricted to those AO’s who have been notified of an intention to award them a 2015 Own Client Crime Contract (this was the first stage of the procurement process) NB some 1800 have been notified. A COMPLETE TENDER will consist of a response to: The Duty Provider Organisation ITT (including all Mandatory Attachments) – this covers requirements applying to the AO as a whole (See Annex C of the document at Pages 89 – 134) AND One or more of the Procurement Area ITT’s (A Procurement Area Bid) – this covers Selection Criteria and Award Criteria. Competition takes place at Procurement Area level (I take this to mean that you will be competing with other bids that have been put in by firms within that Procurement Area). (See Annex C of the document at Pages 89 – 134) SEE ANNEX C (See Pages 89 – 134) – I pity the poor person/people having to wade

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through the information they require in order to complete this Annex – Every I must be dotted and every T crossed – don’t wait, start working on the contents of Annex C now! SUCCESSFUL AO’s WILL BE AWARDED A SINGLE DUTY PROVIDER CONTRACT REQUIRING THEM TO PROVIDE CONTRACT WORK IN THOSE PROCUREMENT AREAS IN WHICH THEIR PROCUREMENT AREA BIDS HAVE BEEN SUCCESSFUL. I now propose to work through each Section of the document summarising the important points within it.

SECTION 1: Introduction and Background The LAA are seeking to procure a limited number of Duty Provider Contracts – 527 in total in 85 Procurement Areas across England and Wales (See Paragraph 1.2). The LAA is inviting AO’s to Tender for a Duty Provider Contract to carry out Contract Work in one or more of 85 Procurement Areas within England and Wales from the 1st of October 2015. Annex A contains a list of Procurement Areas and details of the number of AO’s that the LAA intends to award Contract Work to in each Procurement Area (See Paragraph 1.3). The LAA will enter into contracts with successful AO’s in late June 2015 (Contract Start Date) with services due to commence on the 1st of October 2015. The period between June and October will be a MOBILISATION PERIOD, during which the LAA will monitor a successful AO’s progress in ensuring that they are able to deliver Contract Work from the Service Commencement Date (See Paragraph 1.6). The deadline for submitting Tenders is 12 noon on the 29th of January 2015. All Tenders must be completed and submitted using the LAA’s eTendering system. Late submissions will not be considered under any circumstances (See Paragraph 1.9). Duty Provider Contracts will run for 4 years from the Service Commencement Date (subject to termination provisions and the LAA’s right to extend for up to a further 1 year) (See Paragraph 1.10). AO’s are tendering for a single Duty Provider Contract with authorisation to undertake Contract Work in one or more Procurement Areas. Successful AO’s will be allocated, as far as possible, an equal share of all Duty Slots in those Procurement Areas where they have been awarded Duty Provider Contract Work. Duty slots are periods of time where a provider MUST BE ON CALL to attend a Police Station or Magistrates’ Court (See Paragraph 1.14).

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AN IMPORTANT CHANGE IS THAT IT WOULD APPEAR FROM THE ABOVE THAT THE SLOTS WILL GO TO THE AO – THERE IS NOTHING IN THE DOCUMENT TO SUGGEST THAT THEY WILL BE ALLOCATED TO OR IN ANY WAY BE ‘OWNED’ BY THE INDIVIDUAL DUTY SOLICITORS. Duty Slots will be allocated by individual Duty Scheme. There will be separate schemes for Police Stations and Courts and there may be multiple Duty Schemes within a Procurement Area. Duty Provider Contract Holders will be allocated Duty Slots on a rota basis for all schemes within the Procurement Area and will be required to cover all Duty Slots allocated to them. During a Duty Slot a Duty Provider Contract holder will receive a proportion of all requests for a Duty Lawyer. If they are the only organisation on call they will receive all requests (See Paragraph 1.15). Duty Slots will be allocated exclusively to those organisations that have been awarded Duty Provider Contract Work in the Procurement Area. All Contract Work flowing from the Duty Slots will be undertaken under the Duty Provider Contract. Duty Provider Contract holders will therefore be required to provide advice and representation in any subsequent criminal proceedings in the Magistrates’ Court and where applicable in the Crown Court and Higher Courts (Court of Appeal, High Court, Supreme Court) for a case that originated via their Duty Provider Contract, even if the case subsequently moves outside the Procurement Area (See Paragraph 1.16). Details of the Duty Provider schemes for each Procurement Area including the number and length of Duty Slots on all schemes can be found in the published INDICATIVE DUTY ROTAS. Allocation will take into account busier periods to ensure, as far as possible, fair distribution (See Paragraph 1.20). Payments under the Duty Provider Contract will be set out in Legal Aid Legislation (See Paragraph 1.21). As confirmed in the ‘Transforming Legal aid: Next Steps: Government Response’ (‘Consultation Response’) published on the 27th of February 2014 some changes will be made to the current remuneration mechanisms. Details of the proposed changes to the current remuneration mechanisms and rates of payment can be found at Paragraphs 39 – 53 of the Consultation Response introduction and Paragraphs 33 – 51 of Annex C of the Consultation Response (See Paragraph 1.22). THE ABOVE PARAGRAPH IS VERY IMPORTANT AS IT TELLS US THAT THIS DOCUMENT HAS TO BE READ IN CONJUNCTION WITH THE FEBRUARY 2014 DOCUMENT WHICH INDICATES THE RATES OF PAYMENT UNDER THE NEW CONTRACT.DO FAMILIARISE YOURSELF WITH THE PROPOSED RATES OF PAYMENT!

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The Consultation Response confirmed that the Government intended to reduce crime fees by a further 8.75% in 2015 (See Paragraph 74 of the Consultation Response).However, the Ministry of Justice subsequently agreed that before implementing this reduction it will consider and take into account the outcome of the Leveson review, on-going criminal justice reforms and any impacts from previous remuneration changes (See Paragraph 1.23). SO THAT’S ALRIGHT THEN! PHEW! FOR A MOMENT THERE I THOUGHT THEY WERE GOING TO REDUCE OUR FEES! (Sorry, couldn’t resist a little irony!) Nevertheless, AO’s should plan and Tender for Duty Provider Contracts on the basis of a further 8.75% reduction, as they will be expected to demonstrate that they are capable of delivering at that level. The fee cut will be NO GREATER than this (See Paragraph 1.24). Don’t be fooled and take your eye off the ball – this reference to an 8.75% reduction is a reference to hourly rates – just have a look at page 65 of the 27th of February document which contains Table C5 – Table C5 sets out the payments for Crown court litigation fixed fees cases with less than (I know, it should be fewer than!) 500 PPE (i.e. just about everything you ever bill in terms of Crown Court preparation) compare that with the rates currently being paid to us as litigators for preparing Crown Court cases – you will note, with dismay, that the rates contained within Table C5 are a huge reduction on that which we are claiming currently – a simple calculation will tell you in a matter of seconds that you we are talking about a good deal more than a reduction of 8.75% – this is really important – make sure you do not become a victim of ‘The Winner’s Curse’ – you have a Contract but you cannot make a profit on it. NB YOU WILL HAVE TO DEMONSTRATE THAT YOU ARE CAPABLE OF SURVIVING WITH A FEE REDUCTION OF 8.75%. The provisions of the Duty Provider Contract provide that the LAA may introduce Electronic Working during the life of the contract on 3 months’ notice. By submitting a Tender you agree that such notice may be given prior to the Service Commencement date as if it were notice under the Duty Provider Contract.

SECTION 2: Who can submit a Tender IT is very important to have a working knowledge of AO’s/Delivery Partners/Agents. Only AO’S that have been notified of our intention to award them a 2015 Own Client Crime Contracts are eligible to: Tender for a Duty Provider Contract; and/or

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Carry out work under another organisation’s Duty Provider Contract as a Delivery Partner or Agent (See Paragraph 2.1). VERY IMPORTANT TO APPRECIATE THAT ALL DELIVERY PARTNERS AND AGENTS MUST THEMSELVES HAVE BEEN NOTIFIED OF AN INTENTION TO AWARD THEM AN OWN CLIENT CONTRACT (So do be careful of the organisations with whom you intend to conduct your business) Q)

So what is the difference between a Delivery Partner and an Agent?

The answer lies in the Definitions contained in Annex F of the document (See

Pages 145 – 150

Agent is defined as ‘Another organisation that holds an Own Client Contract and which is engaged by you to undertake Contract Work in accordance with the provisions of the Duty Provider Contract. Delivery Partner is defined as ‘An organisation, acting under a FORMALISED AGENCY AGREEMENT to deliver Contract Work for a Duty Provider Contract holder and which is included in a Tender for a Duty Provider Contract and assessed against the Tender criteria. YOU WILL APPRECIATE FROM THE ABOVE DEFINITIONS THAT THE NEXUS BETWEEN THE AO AND A DELIVERY PARTNER IS MUCH CLOSER THAN THAT BETWEEN AO AND AGENT. Q)

How many Delivery Partners are permissible?

A) A Delivery Partner is another organisation that an AO intends to work with to

help it deliver Contract Work IN A PARTICULAR PROCUREMENT AREA. An AO can

name up to 3 Delivery Partners in any Procurement Area Bid.

(See Paragraph 2.13).

How many Agents are permissible?

A) There are no limits to the number of Agents that an AO may use Q)

Can you have different Delivery Partners for different Procurement Areas?

I don’t see why not – there doesn’t seem to be anything in the document to say

that your Delivery Partners have to be the same Delivery Partners – the

document merely states that you can only have up to 3 Delivery Partners within

any given Procurement Area Bid – it could get very complicated couldn’t it!

3058-F

HC A5 Leafle t.indA5 3058-FHC d 1Leaflet.indd 1

18/06/2015 08:38

Is it possible for the AO to ‘farm out’ all of the work under the Contract to the

Delivery Partners and Agents?

A resounding NO! – The AO must deliver A LARGER SHARE of Contract Work

in the Procurement Area than any one of its individual Delivery Partners in that

Procurement Area and must conduct (as applicable):

In Rural Procurement Areas, at least 30% of the value of the Contract Work; and

In Urban Procurement Areas, at least 45% of the value of Contract Work (See

Paragraph 2.15). The AO may use Agents to undertake up to 25% of the value of Contract Work in a given Procurement Area. For the avoidance of doubt, where the AO is working with Delivery Partners to deliver Contract Work, it must still comply with the requirement for it to deliver a minimum share of that Contract Work itself (See Paragraph 2.24). YOU WILL KNOW WHETHER OR NOT A PARTICULAR PROCUREMENT AREA IS RURAL OR URBAN BECAUSE ANNEX A OF THE DOCUMENT (Pages 62 – 68) LISTS ALL THE PROCUREMENT AREAS AND TELLS YOU WHETHER IT IS RURAL OR URBAN OR LONDON. EXAMPLE – I am the AO in Warwickshire (a Rural area – see Annex A at page 67 of the document) – I must do at least 30% of the value of the Contract Work – let’s assume I do 35% – the remaining 65% I could split between 2 Delivery Partners each doing 20% and an Agent doing 25% – alternatively I could do 45% with the Delivery Partner doing 30% and the Agent doing 25%. EXAMPLE – I am the a AO in west Midlands (an urban area – see Annex A at page 68 of the document) – I must do at least 45% of the value of Contract Work and if I were to do my bare minimum 45% I could then split the remainder between a Delivery Partner doing 30% and an Agent doing the remaining 25%. The value of Contract Work referred to will be determined by reference to THE TOTAL VALUE OF CLAIMS for Contract Work made in each rolling period of 12 consecutive months (See Paragraph 2.17). IT IS IMPORTANT TO APPRECIATE THE FOLLOWING: You must get your LEGAL ENTITY correct when answering the questions in relation to Duty Provider Organisation ITT (See Annex C). The LAA will only contract with a SINGLE LEGAL ENTITY but AO’s may work with Delivery Partners to deliver Contract Work within a Procurement Area (See Paragraph 2.5).

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The Duty Provider Contract is contingent on holding an Own Client Contract. That means that the Organisation holding the Duty Provider Contract must be the same entity as that which holds an Own Client Contract (See Paragraph 2.6). When applying for an Own Client Contract during the first stage of this procurement process some AO’s may have submitted a number of Tenders for an Own Client Contract; both as the Organisation as constituted at the time of submission and the Organisation they intended to become (See Paragraph 2.7). Where multiple Tenders from the same AO have been successful in being awarded an Own Client Contract, AO’s must decide which of these ‘Organisations’ will Tender for a Duty Provider Contract (See Paragraph 2.8). NB – Where an AO intends to Tender as a newly constituted Organisation awarded an Own Client Contract, it must by the time it submits its Tender, have its actual or proposed name, and give this in response to question A.1. of the Duty Provider Organisation ITT (See Annex C) (‘Organisation ITT’) for the avoidance of doubt, where an AO is unable to confirm its name in response to question A.1. (e.g. it enters ‘to be confirmed’),THE TENDER WILL FAIL IN IT’S ENTIRETY (See Paragraph 2.9). AO’s must respond to this procurement opportunity via the relevant eTendering system registration. The registration used must be for the entity that intends to hold a Duty Provider Contract (See Paragraph 2.11) ........ the LAA will have a contractual relationship with the AO only. It will be the AO which will be contractually responsible for the delivery of all Contract Work including compliance with the Rules on delivery of Contract Work by Delivery Partners and the client retainer will in each case sit with the AO. Delivery Partners will act as Agents of the AO in accordance with the terms of the formal written agreement and the Duty Provider Contract (See Paragraph 2.18). The AO must have a formal written agreement in place with each of its Delivery Partners by the time it submits its tender for a Duty Provider Contract. Details of what the formal written agreement must include AS A MINIMUM are outlined at Clause 3.26 of the Duty Provider Contract Standard Terms....... (Paragraph 2.19) (2015 Duty Provider Crime Contract – The Standard Terms was published in draft format in November 2014 – you will find clause 3.26 on pages 25 – 27 – the actual draft document runs to 98 pages). Section C of the Procurement Area ITT (you will find this in Annex C at page 101 – 102 of the document) requires the AO to provide information about the identity of each Delivery Partner it intends to work with to deliver Contract Work. This includes:

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8:36 am

Page 17

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The name of each Delivery Partner The Delivery Partner’s Own Client Contract ID number (to be found on the Delivery Partner’s Own Client Contract notification letter). The office address of the Delivery Partner THERE ARE LIMITS TO THE NUMBER OF TIMES AN ORGANISATION CAN BE USED AS A DELIVERY PARTNER IN THE SAME PROCUREMENT AREA (See Paragraph 2.21). If you are going to go down the path of having Delivery Partners (and you are allowed up to 3) you must, as an AO undertake DUE DILLIGENCE with respect to any Delivery Partners you intend to work with to deliver Contract Work (not the exact wording of Paragraph 2.23 but certainly the gist of it). The AO may use Agents to undertake up to 25% of the value of contract work IN A GIVEN PROCUREMENT AREA. For the avoidance of doubt, where the AO is working with Delivery Partners to deliver Contract Work, it must still comply with the requirement for it to deliver a minimum share of that Contract Work itself. (See Paragraph 2.24). Q)

Can you have different Agents in different Procurement Areas?

I don’t see why not, the document merely states that you cannot give more

than 25% of the work out to Agents in any given Procurement Area.

VERY IMPORTANT PARAGRAPH COMING UP Delivery Partners differ from Agents in that Delivery Partners are subject to a formal agreement. In addition they can deliver a higher proportion of Contract Work, be named in order to meet SOME of the SELECTION CRITERIA, (NOT MANAGEMENT TEAM EXPERIENCE) and where they are used will be named in an AO’s Contract Schedule. (See Paragraph 2.25). AO’S may not substitute any named Delivery Partners in their Tender after the deadline. (See Paragraph 2.26). SO DO ENSURE YOU HAVE A HEALTHY RELATIONSHIP WITH ANY POTENTIAL DELIVERY PARTNER.NO ‘LIKE FOR LIKE’ SUBSTITUTIONS WILL BE ACCEPTABLE In carrying out due diligence in respect of Delivery Partners it is, therefore, extremely important that AO’s take appropriate steps to satisfy themselves that any Delivery Partners named in the Procurement Area Bid(s) will be available to them during the procurement process and, as a minimum, FOR THE FIRST YEAR from the Contract start date.

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MULTIPLE BIDS Although it is clear from the document that a bid can be made in more than one Procurement Area it is also quite clear that they are weary of what are essentially ‘tentacles of the same Organisation’ making multiple bids within the one Procurement Area (for conflict reasons, if for nothing else). In a nutshell the following seem to be the Rules: WITHIN ANY SINGLE PROCUREMENT AREA An AO may not be ‘CONNECTED’ to another AO submitting a Procurement Area Bid in that Procurement Area; An AO may only be ‘connected’ to one Delivery Partner named in a Procurement Area bid in that Procurement Area; (remember, you can have up to 3 Delivery Partners within a Procurement Area but you can only be ‘connected’ to one of them) and A Delivery Partner who is not connected to an AO submitting a Procurement Area bid in a particular Procurement Area may only be ‘connected’ to one other Delivery Partner named in a Procurement Area bid in that Procurement Area. COMPLICATED ISN’T IT! Just so that you don’t fall foul of any of this see the Rules in relation to the interpretation and definition of ‘CONNECTED’. We are essentially talking about having a legal or beneficial interest or being able to effect substantive influence or control or having powers of representation over the business affairs of the relevant Organisation (common sense if you think about it). Should you wish to know more, please read Paragraphs 2.31 – 2.37 on Pages 14 and 15 of the document.

SECTION 3: Overview of REQUIREMENTS and how to Tender This Section is essentially an OVERVIEW of the requirements that an AO will need to meet and GUIDANCE on how to actually make a Tender and precisely what is required (it is an overview and the points within it are expanded upon in later Sections). 1 We start off with – ESSENTIAL REQUIREMENTS These aim to establish wether an AO can meet the fundamental requirements for the

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award of a Duty Provider Contract. It hardly needs saying that any AO which does not meet these fundamental requirements will be excluded and their whole Tender will be unsuccessful. See SECTION 4 of this document for further details on the ESSENTIAL REQUIREMENTS 2 SELECTION CRITERIA – These will be used to shortlist AO’s in each Procurement Area who meet the ESSENTIAL REQUIREMENTS SELECTION CRITERIA ARE SET OUT IN THE PROCUREMENT AREA ITT’s QUALIFICATION ENVELOPE – Sections D – G (Pages 102 121 of Annex C) Annex C is the crucial document in all of this – (See Pages 89 – 134). See SECTION 4 of this document for further details on the SELECTION CRITERIA 3 FINANCIAL ASSESSMENT AO’s shortlisted following assessment of Selection Criteria will be subject to Financial Assessment. This consists of 2 stages:

i) Basic financial assessment; and, where appropriate

ii) Expansion capacity assessment

Annex C is the crucial document in all of this – (See Pages 89 – 134) See SECTION 5 of this document for further details of the FINANCIAL ASSESSMENT process. 4 TIEBREAK QUESTIONS You couldn’t make it up could you! – Joking apart, these tiebreak questions are really important because they will determine which AO’s are successful when it is quite apparent that more AO’s within a given Procurement Area meet all of their requirements than there are Contracts available for them (another way of putting this is that we may be in the terrible position of firms that meet all of the requirements not being granted a Duty Provider Contract) – the issue of how you make THE FINAL FINAL FINAL DETERMINATION of who is to be successful and who is to be put out of business has vexed myself and others since this whole Tendering (not on PRICE but rather on ABILITY to deliver the contract) was first mooted. The document makes it quite clear that these tiebreak questions will be applied if, after assessing responses to the Selection Criteria and undertaking the Financial Assessment, AO’s are tied to the extent that the LAA would be shortlisting more AO’s in a Procurement Area than it intends to.

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Tiebreak questions are contained in Section H of Annex C (See Pages 122 – 123). Annex C is the crucial document in all of this (See Pages 89 – 134). When you look at the tiebreak questions you will see that it is a free text box (in other words, you can write what you like but you are limited to 400 characters and remember that a space is also deemed to be a character) do take these tiebreak questions extremely seriously and put a lot of thought and effort into your answers – I was discussing these questions with a colleague the other day and it really is analogous to writing a Police Station/Magistrates’ Court portfolio! REMEMBER THAT EVERYTHING COULD HINGE ON YOUR FREE TEXT ANSWERS IN SECTION H OF ANNEX C See SECTION 4 of this document for further details 5 AWARD CRITERIA AO’s shortlisted in a Procurement Area following the above stages will have their responses to the Award Criteria assessed to determine which organisations are awarded Contract Work in each Procurement Area. The Award Criteria questions are set out in Annex C MORE PRECISELY THE AWARD CRITERIA QUESTIONS ARE SET OUT IN THE TECHNICAL ENVELOPE PART OF THE PROCUREMENT AREA ITT’s IN SECTIONS A-D OF ANNEX C ON PAGES 124-134 Annex C is the crucial document in all of this (See Pages 89 – 134). See SECTION 6 of this document for further details in relation to Award Criteria What is a Tender? A compliant Tender will consist of a response to: The organisation ITT, including all Mandatory Attachments AND One or more of the Procurement Area ITT’s (a Procurement Area Bid). Get the basics right – if you don’t submit an Organisation ITT or a Procurement Area ITT or that which you submit is incapable of assessment it will simply be rejected and you will be sifted out! Organisation ITT contents

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You guessed it – all contained within Annex C (See Pages 89 – 134). Now is not the time to go through the whole contents of Annex C but I shall ‘flag up’ the Organisation ITT Section headings:

Section A: Organisation Information

Section B: Organisation Selection Criterion

Section C: Financial Assessment, including MANDATORY ATTATCHMENTS

Section D: Declarations, including confirmation that the Essential Requirements will

be met (Paragraph 3.5 on Page 17 of the document)

THE MANDATORY ATTATCHMENTS FOR THE ORGANISATION ITT ARE AS FOLLOWS: If you are an Established Business they will require a Basic Financial Assessment and the mandatory attachment that must be completed and included in the response is described as 1 Established Business – Financial Assessment Form If you are an Established Business subject to Expansion Capacity Assessment they will require a Basic Financial Assessment and Expansion Capacity Assessment – you must provide the following documents:

1 Established Business Financial Assessment Form

2 Business Plan

3 Cash Flow Forecast Template to support Core Bid

4 Cash Flow Forecast Template to support Maximum Bid (where relevant)

If you are an ‘Other Business Type’ they will require from you a Basic Financial Assessment and Expansion Capacity Assessment which will consist of the following documents:

1 Business Plan

2 Cash Flow Forecast Template to support Core Bid

3 Cash Flow Forecast Template to support Maximum Bid (where relevant)

Those of you wanting to know more about Core Bids and Maximum Bids should read paragraphs 5.13 – 5.23 within Section 5: Financial Assessment (Pages 39 – 40). SEE ALSO ANNEX D: Information to support Financial Assessment Procurement Area ITT contents

All dealt with in Annex C of the document (See Pages 89 – 134)

There is a separate Procurement Area ITT for each of the 85 Procurement Areas in which an AO can Bid to deliver Contract Work (See Paragraph 3.7). AO’s must complete the relevant Procurement Area ITT for each of the Procurement Areas they wish to deliver contract work in. Each Procurement Area ITT is split into a QUALIFICATION ENVELOPE and a TECHNICAL ENVELOPE. The QUALIFICATION ENVELOPE deals with the following:

Section A: Procurement Area Information

Section B: Staff Information

Section C: Delivery Partner Information

Section D: Selection Criteria – Management Team Experience

Section E Selection Criteria – Delivery Experience

Section F: Selection Criteria – Staffing and Recruitment

Section G: Selection Criteria – Office

Section H: Tiebreak questions

We then have a TECHNICAL ENVELOPE dealing with the following:

Section A: Award Criteria – Management Team

Section B: Award Criteria – Delivery Team and Recruitment

Section C: Award Criteria Implementation and Delivery

Section D: Award Criteria – Flexibility

All dealt with in Annex C of the document (See Pages 89 – 134). At the risk of stating the absolute obvious an AO must ensure that its entire Tender is capable of concurrent delivery. Where it submits a response to multiple Procurement Area ITT’s it is warranting that it will be able to deliver all of those Procurement Area Bids concurrently if successful (See Paragraph 3.9). Because the LAA will be awarding a single Duty Provider Contract, AO’s are also reminded that where a Contract award is made, they may only accept the entire Contract as offered. For example, if an AO has submitted 5 Procurement Area bids and all 5 are successful, it must take up the offer across all 5 Procurement Areas or decline the offer entirely. It will not be permitted to choose which Procurement Areas it accepts. The next part of Section 3 deals with accessing the eTendering system. All Tenders must be completed and submitted using the e-Tendering system. It can either be accessed through eTendering portal links on the Tender pages of the website or directly at www.legalaid.bravosolution.co.uk 33

Technical support and guidance is available and you will probably need it! The Deadline for submitting completed Tenders is 12 noon on the 29th of January 2015. Tenders submitted after the Deadline will not be accepted. It is the AO’s absolute responsibility to ensure that its complete Tender is submitted before the deadline.

SECTION 4: ESSENTIAL REQUIREMENTS and SELECTION CRITERIA Q)

So what precisely are the Essential Requirements?

If Essential Requirements are met, the Selection Criteria will be assessed at Procurement Area level and used to shortlist AO’s to the next stage of assessment. 1 In order to Tender for a Duty Provider Crime Contract an AO must have been

notified of the LAA’s intention to award it an Own Client Contract

(See Paragraph 4.2).

2 An AO must commit to meeting certain requirements by the Contract Start

Date (anticipated to be 30th of June 2015) and others ahead of the Service

Commencement Date and these are as follows:

Meet a Relevant Quality Standard – 30th of June 2015 (expanded upon in

Paragraphs 4.5 –4.10).

Hold appropriate authorisation from a relevant Legal Sector Regulator – 30th

of June 2015 (expanded upon in Paragraphs 4.11 – 4.13)

An Office (expanded upon in Paragraphs 4.14 – 4.16 on Page 29).

A WORD OR TWO ABOUT THE OFFICE It must be situated in the Procurement Area or in London in the same or an immediately adjacent Procurement Area or in the split Procurement Areas the Split Procurement Area they are tendering in or in its linked Procurement Areas as set out in Annex B (of this document – there are 24 split Procurement Areas mentioned in Table 1 of Annex B). If it’s a Procurement Area or London (London has 32 Procurement Areas and they are listed in Table 2 of Annex B – their immediately adjacent Procurement Areas are also listed in the same Table – (Wandsworth (South London) was omitted as an adjacent Procurement Area of both Central London and Hammersmith and Fulham (West London) when the initial invitation to tender document was published in November 2014 and that’s why we had version No. 2 of the invitation to tender

document published on the 9th of December 2014) the AO must be able to identify an Office address by Contract start date – 30th of June 2015. AO’s need not have signed agreements for Offices at this stage i.e. 30th of June but must have at least identified an address in the Procurement Area from which they intend to deliver Contract Work (See Paragraph 4.14 on Page 29). Offices must be set up and operational by the Service Commencement Date (see Paragraph 4.15 on Page 29). In the split Procurement Areas must have Office set up by Service Commencement Date – 1st of October 2015. Where requirements must be met by the Service Commencement Date, the LAA will require evidence that arrangements are in place (e.g. a signed office lease agreement) one month before (i.e. by the 1st of September) – see the bottom of Page 27. (Also, see Section 7 of this document for further details). YOU NEED TO HAVE REGARD TO THE 2015 DUTY PROVIDER CRIME CONTRACT – THE SPECIFICATION (DRAFT) – (Paragraphs 2.26 – 2.28) IN RELATION TO THE REQUIREMENTS FOR THE OFFICE –FAIRLY ONOROUS

Employ an FTE Supervisor (See Paragraphs 4.13 and 4.16) in the Procurement

Area by the Service Commencement Date – 1st of October 2015 (FTE equals

Full Time Equivalent i.e. 35 hours a week and this term is defined in Annex F of

the document (See Pages145 – 150).

A WORD OR TWO ABOUT SUPERVISORS AGAIN, REFERENCE MUST BE MADE TO THE SPECIFICATION DOCUMENT REFERRED TO ABOVE (Paragraphs 2.1 – 2.17) – SUPERVISOR REQUIREMENTS ARE QUITE ONOROUS – DO YOU QUALIFY??

Meet a ratio of Employing 1 FTE Supervisor for every 4 Designated Fee Earners

or Caseworkers who will be Deployed on Contract Work in the Procurement

Area by the Service Commencement Date i.e. 1st of October 2015

AO’s who do not include in Section D of their Organisation ITT response a declaration that they will meet the Essential Requirements will be unsuccessful and their Tender will be rejected (See Paragraph 4.17). Having dealt with the Essential Requirements Section 4 of the document then goes on to give details of an overview of the SELECTION CRITERIA

Selection Criteria (See detailed wording of Annex C) will be used to decide which Procurement Area bids will be shortlisted (See Paragraph 4.19). In other words, this is an OVERVIEW of the information they are looking for in order to decide whether or not your Procurement Area Bid will be shortlisted or not. Obviously, the devil is in the detail and the detail is all in Annex C (which must be completed in full) this is merely an OVERVIEW but it’s something to have in mind when you are completing Annex C – I have given you the relevant Sections of Annex C alongside the area being covered (the document is not particularly user-friendly and my references will assist) You will be scored against 5 main areas and these are as follows: YOU MUST TAKE THESE VERY SERIOUSLY AND ENSURE, WHEREVER POSSIBLE, THAT YOU SCORE THE MAXIMUM NUMBER OF POINTS AVAILABLE FOR ANY PARTICULAR QUESTION. Authorisation (See Section B of Annex C on Page 89 – 90) Management Team Experience (See Section D of Annex C on Pages 102 – 108) Delivery Experience (See Section E of Annex C on Pages 109 – 118) Staffing and Recruitment (See Section F of Annex C on Pages 119 –120) Office Arrangements (See Section G of Annex C on Page 121) The relevant paragraphs are 4.22 – 4.29 – I only intend to highlight certain important Paragraphs and these are: Management Team Experience Selection criteria relating to the MANAGEMENT TEAM can only be met by the AO as it will have responsibility for operating the Contract. In response to these questions it is not permitted to use the experience of individuals employed by, or who have Signed Engagement Agreements with, Delivery Partners. The AO must also ensure that the role of the Named Individual meets the definition of Managed at Annex F of this document (See Paragraph 4.23). Delivery Experience In response to Selection Criteria relating to the DELIVERY EXPERIENCE AO’s can rely on Named individuals employed by (or with a Signed Engagement Agreement with) its Delivery Partners as well as the AO itself (See Paragraph 4.25). Staffing and Recruitment Question F1 (this is a reference to the staffing and recruitment Question within Annex

C at page 119 of the document) awards higher points to AO’s (including their Delivery Partners) who currently Employ or have a Signed Engagement Agreement (see the definition of this within Annex F at page 150) to Employ a higher proportion of FTE caseworkers who will be Deployed on Contract Work under the Duty Provider Contract in this Procurement Area, based on a capacity calculation of one FTE caseworker to every £83,000 (excluding VAT) of the Anticipated Contract Value (ACV is defined in Annex F at page 145) (See Paragraph 4.28). The above capacity threshold is also used in question F2 which gives higher points to AO’s that currently Employ or have a Signed Engagement Agreement to employ a higher percentage of Caseworkers with CLAS Accreditation (See Paragraph 4.29). Office Arrangements The selection criterion relating to Office arrangements can only be met by an AO as the requirement to have an office in the Procurement Area rests with them as Duty Provider Contract holders (See Paragraph 4.30). The criterion differs according to the type of Procurement Area. In Procurement Areas outside London (excluding Split Procurement Areas) preference is given to AO’s that currently have an Office within the Procurement Area. In London Procurement Areas preference is given to AO’s that currently have an office in the Procurement Area or in an immediately adjacent Procurement Area (as listed at Annex B) In the Split Procurement Areas preference is given to AO’s that currently have an Office in the Procurement Area in which they are bidding with next preference being given to those currently with an Office in its linked Procurement Area (as listed at Annex B) (See Paragraph 4.31). Q ) How will individual AO’s within a particular Procurement Area be assessed in

relation to the above criteria?

Selection Criteria: Assessment (pages 32 – 36) The LAA will use its assessment of the Selection Criteria to shortlist the top ranked organisations based on the numbers detailed in Annex A. The number of Organisations the LAA intends to shortlist is determined by the number of Organisations the LAA will award Contract Work to in each Procurement Area. The document tells us that where the number of Procurement Area bids meeting the Essential Requirements within a Procurement Area is equal to or less than the number of AO’s the LAA intends to contract with in that Procurement Area (as set out at

Annex A) then, subject to them all passing the Financial Assessment, the LAA will not undertake any further assessment. I wonder how often that will happen? Where there are insufficient Procurement Area bids to shortlist the planned number of AO’s but there are more AO’s than the LAA will award Contract Work to, the LAA will shortlist all AO’s meeting the Essential Requirements, subject to them all passing the Financial Assessment. Where the number of Procurement Area bids meeting the Essential Requirements within a Procurement Area is greater than the number of AO’s the LAA intends to shortlist, the LAA will assess the Selection Criteria. Selection Criteria responses will be assessed at Procurement Area level. AO’s will be ranked against other AO’s bidding in that Procurement Area. Each Selection Criteria response will be allocated points as set out at Annex C. The points are designed to give a higher number of total points to AO’s that provide the LAA with a higher level of competence that they will be able to deliver the Contract Work. NB To ensure that Named Individuals relied upon to meet each Selection Criterion will be deployed by the AO to manage or deliver Contract Work within the Procurement Area for at least 17.5 hours a week, the same individual cannot be named in more than 2 Procurement Area bids (either by the same AO or across multiple AO’s). Shortlising Where there are sufficient Procurement Area bids, the LAA will aim to shortlist twice as many AO’s as it will award Contract Work to. Tie-break questions AO’s are required to provide free text responses to 3 tie-break questions. Responses to these questions will only be considered in the event that the LAA is unable to shortlist its requisite number of AO’s following assessment of the Selection Criteria and Financial Information. Tie-break assessment This is probably the most impenetrable part of the whole document. If you have a mind for such things please have a look at paragraphs 4.56 – 4.64 on pages 34, 35 and 36. I tried to fathom it all out but I was rapidly losing the will to live!

SECTION 5: FINANCIAL ASSESSMENT Again, all dealt with in Annex C (it requires the completion of Section C of Annex C on Pages 90 â&#x20AC;&#x201C; 94) All AOâ&#x20AC;&#x2122;s who meet Essential Requirements and/or shortlisted in one or more Procurement Areas following the assessment of the Selection Criteria will be subject to Financial Assessment (See Paragraph 5.1). The Financial Assessment undertaken will depend on the nature of the AO and the total anticipated Contract Value that is being tended for. Financial assessment will consist of:

Basic Financial Assessment; and, where appropriate

Expansion Capacity Assessment

NB Financial Assessment will review the financial position of the AO only. Finances of any third parties, including any Delivery Partners, will not be assessed. This is because it is the AO which will have a contractual obligation to deliver all Contract Work bid for and they are therefore expected to have the financial capacity to do this. You will be classified as being one of 2 business types:

1 Established Business; or

2 Other Business Type.

You will be regarded as an Established Business if you have been trading for more than 2 years and you have your previous 2 years Audited or Certified accounts available (the earliest year starting no earlier than the 1st of January 2012); AND There have been no Significant or material changes to your key Personnel or structure (See Paragraph 5.6 on Page 37 of the document as regards the things that they would not regard as a significant or material change). Other Business Type You will be regarded as Other Business Type where you have not been trading for 2 years or you do not have 2 years Audited or Certified accounts available (with the earliest year being not before 2012); or

You have undergone a material or significant change to your key Personnel or Structure The purpose of the Basic Financial Assessment is to assess the general financial health of the AO and to ensure that it is appropriate for it to proceed to the next stage of the Tender assessment process. It hardly needs saying that if you fail this assessment your entire tender will be rejected. Expansion Capacity Assessment – purpose and application Where used, the purpose of the Expansion Capacity Assessment is to assess whether the AO has demonstrated it has the financial capacity to deliver the Contract Work Tended for. It tests whether any expansion appears realistic on the information provided by the AO. The Expansion Capacity Assessment will be conducted by suitably qualified finance professionals based on information provided by the AO. NB All AO’s classified as Other Business Type will automatically be subject to the Expansion Capacity Assessment. Established Businesses will be subject to the Expansion Capacity Assessment where the total anticipated Contract value bid is more than 3 times its average turnover over the last 2 years accounts (the period confirmed in the Established Business Financial Assessment Form) Established businesses will be required to confirm if this is the case in their response to the Organisation ITT For example, imagine you have provided 2 years worth of accounts – for the year ending 2012 your turnover was £200,000 – for the year ending 2013 your turnover was £250,000 – this will give you an average turnover for those 2 years of £225,000 – this puts your threshold for Expansion Capacity Assessment at £675,000 i.e. 3 times the value of your average turnover – if the total anticipated Contract value of the work you bid for is in excess of this figure you will be subject to Expansion Capacity Assessment. DESIGNATING A CORE BID THIS IS VERY IMPORTANT There is a mechanism to ‘protect’ designated Procurement Area Bids from automatic rejection if an AO’s Maximum Bid fails the Expansion Capacity Assessment. Where an AO submits multiple Procurement Area Bids it may designate one or more as forming a Core Bid. If the Core Bid passes Financial Assessment but the Maximum Bid (i.e. all Procurement Area Bids submitted) does not, the Core Bid will not be automatically rejected. 40

YOU MUST DESIGNATE WHICH OF YOUR PROCUREMENT AREA BIDS FORM YOUR CORE BID IF YOU ARE SUBJECT TO EXPANSION CAPACITY ASSESSMENT. You can if you want to designate that all the Procurement Areas for which you have Bid have formed your Core Bid (See Paragraph 5.17 on Page 39). Example AO submits Procurement Area Bids for: Cambridgeshire (Designated as part of the Core Bid); Suffolk 1 (Designated as part of the Core Bid); and Hertfordshire In the above example the Core Bid is Cambridgeshire and Suffolk 1 but the Maximum Bid is Cambridgeshire, Suffolk 1 and Hertfordshire. At the risk of stating the obvious, if your Core Bid fails the Expansion Capacity Assessment (if you are subject to one) then all of the Bids in all of the Procurement Areas will be rejected. Remember that the Core Bid would only be subject to Expansion Capacity Assessment where the AO is an Established Business and the total Anticipated Contract Value of the Procurement Area Bids is more than 3 times its average turnover over the last 2 years accounts or the AO is Other Business Type. Let’s just clarify that again – if the LAA determines that the AO does not have the financial resources to deliver the Maximum Bid but can finance the Core Bid, the Procurement Area Bids designated as forming the Core Bid will be protected. – In other words, you may not be able to deliver the ‘greater’ but that will not bar you from being allowed to deliver the ‘lesser’ – what they don’t want AO’s to do is overstretch themselves whereby they simply cannot deliver under the Contract awarded to them. Where the Core Bid has passed the Expansion Capacity Assessment any Procurement Area Bids forming the Maximum Bids will then be subject to the Expansion Capacity Assessment. Q)

What information will they require in order to be able to make the necessary

judgements? A)

The Financial Information that an AO must submit depends on which of the 2

levels of Financial Assessment will be undertaken (See Paragraph 5.24 on

Page 40)

If you are an Established Business and your Bid is not such as to render you to scrutiny under the Expansion Capacity Assessment criteria (i.e. where your Bid is not more than 3 times your average turnover over the last 2 years) they will simply require the following from you: An AO must submit the Established Business Financial Assessment Form (Mandatory Attachment) which must:

i) Be fully completed; and

ii) Contain Financial Information taken from the Certified or Audited Accounts for

2 years, the earliest year starting no earlier than the 1st of January 2012.

If you are an Other Business Type or an Established Business subject to Expansion Capacity Assessment they will require a little more information from you and the information they require from you is fully set out at Paragraph 5.27 on Page 41 of the document – in essence they will require a Business Plan, a Cash Flow Forecast Template to support your Core Bid and a Cash Flow Forecast Template to support the Maximum Bid where your Maximum Bid is different from your Core Bid. Such Templates can be accessed and downloaded from the ‘Buyer Attachments’ Section in the AO ITT. There is no Template provided for the Business Plan but details of the information that must be included in a Business Plan are contained in Annex D of the document (See pages 135 – 140). Where an Established Business indicates in its Organisation ITT response that it is not bidding for Contract Work with an anticipated contract value of more than 3 times the average Turnover over the last 2 years accounts (the period confirmed in the Established Business Financial Assessment Form) but the LAA identifies that this is not the case, the whole Tender will be REJECTED for failing to submit Financial Information to enable the LAA to undertake the requisite Financial Assessment (See Paragraph 5.31 on Page 42) – Ouch! Let’s face it, if you have a good own client base (you are by definition an Established Business) your turnover is based upon all of the work that you do (Own Client and Duty) it may well be £1 million a year or £2 million a year or £3 million a year – you would have to be Tendering for Duty Work in excess of £3 million, £6 million or £9 million in order to be subject to the Expansion Capacity Assessment if you were an Established Business – in reality, it’s never going to happen. It seems to me that it would be a very dangerous thing to seek to apply for Contracts that would put you in excess of 3 times the value of your current turnover. How on earth are you going to be able to satisfy them that you would be able to fulfil the terms of such a Contract?

In reality your Bid for Contract Work is likely to be a good deal under 3 times the value of your average turnover for the last 2 years – you will be well under. All of Section 5 seems to be based on the assumption that your Own Client work will somehow fade away – why do they think your Own Client work will fade away! – It doesn’t reflect market reality! – You will want to keep all of your Own Client work as well as your Duty work. Q)

How will they evaluate the Financial Information supplied to them?

See Paragraphs 5.32 – 5.51 on Pages 42-44 of the document in relation to who

will undertake this Financial Assessment and the criteria to be used.

In summary, for Established Businesses key ratios will be automatically calculated. These key ratios will be used to produce a RAG (Red, Amber or Green) rating relating to the level of risk identified. The Paragraphs explain in some detail what will happen dependent upon whether or not you are Red, Amber or Green. For Other Business Types the assessment shall be conducted by a qualified finance professional who will assess the level of risk of the AO not fulfilling the full Contract term or having inadequate financial resources to perform the Duty Provider Contract. This assessment will then produce a RAG rating. Further information on the content of the Business Plans and the assessment of Financial Information can be found in Annex D of the document at pages 135 – 140.

SECTION 6: AWARD CRITERIA Some guidance is given here as to what they are looking at when you complete the relevant parts of Annex C .They point to circumstances in which higher scores will be given. They also point to circumstances in which lower scores will be given. Award Criteria (see the detailed wording at Annex C) will be used to determine which shortlisted AO’s in a Procurement Area will be AWARDED Contract Work in that Procurement Area. Award Criteria will assess AO’s against 4 main areas: THIS IS REFERRED TO AS THE TECHNICAL ENVELOPE OF THE PROCUREMENT AREA ITT (It starts on Page 124 of the document Annex C) Management Team (Section A of Annex C pages 124 – 126) Delivery Team and Recruitment (Section B of Annex C pages 126 – 129)

Implementation and Delivery (Section C of Annex C pages 129 – 132) Flexibility (Section D of Annex C pages 133 – 134) A WARNING The LAA recognises that it is common for bidders in this sector to engage consultants to assist them with putting together their Tenders, particularly in drafting free text answers such as required in the Award Criteria. In the LAA’s experience this risks an Applicant Organisation’s response not being specific to its own position. In past procurement exercises a number of generic, template or substantially similar responses have been received from different AO’s (See Paragraph 6.5 on Page 45) The LAA requires AO’s to give THEIR OWN RESPONSE in their Tenders that is specific to the Procurement Area in which they are bidding. AO’s that submit generic responses risk being awarded lower scores against those responses and consequently prejudice their chances of being awarded a Duty Provider Contract. This is because a response which does not clearly demonstrate that it is specific to the AO concerned will give the LAA a lower degree of confidence in that response (See Paragraph 6.6 on Page 45) I think this warning is a reasonable one. We have all sat examinations. What they are saying is, make the answer relevant to your area in order to get the very best mark. Management team Award Criteria relating to the Management Team can only be met by the AO as it will have responsibility for Managing the Contract. It is not permitted to use the experience of individuals working for Delivery Partners (I don’t think this is the first time we’ve heard this point mentioned in this document) Delivery Team Recruitment Higher scores will be awarded where the AO is able to demonstrate that it will be in a position to commence delivery of the service in the Procurement Area as required by having the NECESSARY STAFF RESOURCES in place by the Service Commencement Date (which we all know by now is the 1st of October 2015) Implementation and delivery Higher scores will be awarded where the AO can evidence that it has clear, well developed plans that will ensure that services will be delivered effectively and sustainably in the Procurement Area from the Service Commencement Date. Conversely, fewer marks will be awarded to AO’s where the plans are lacking in detail or not yet finalised.

Flexibility This Section examines the flexibility of the AO in the context of both routine fluctuations are sustained increases in the volume of contract work. Higher scores will be awarded where the AO is able to demonstrate that, from the Service Commencement Date, it will be able to manage fluctuations and sustained increases in Contract work volumes under the Duty Provider Contract in the Procurement Area. Paragraph 6.12 on Page 46 details the scoring and weighting for each question as set out in Annex C. All questions will be given a score of 0-5 based on the scoring criteria set out in Table A – Table A is fully set out on page 47 and you must have it in front of you at the time of the completion of the relevant questions within Annex C. The analogy is the writing of a Police Station or Magistrates’ Court Portfolio – guidance has been given in relation to paragraph headings and the contents of the paragraphs and you need to have this document in front of you when you are writing up a case. Table A on page 47 gives the scoring criteria from 0-5 0 – Very poor (and we are given examples of why the answer is very poor) 1 – Poor (and we are given examples of why the answer is poor) 2 – Fair (and we are given examples of why the answer is fair) 3 – Good (and we are given examples of why the answer is good) 4 – Very good (and we are given examples of why the answer is very good) 5 – Excellent (and we are given examples of why the answer is excellent) I said there was a bit of maths and here it comes. Each relevant Section within Annex C attracts a different weighting. Section A – Management Team (20%) – See Pages 124 – 126 of Annex C (it has within it 3 Q’s that each have their own individual weightings of 40%, 20% and 40%) Section B – Delivery Team and Recruitment (30%) – See Pages 126 – 129 of Annex C (it has within it 4 Q’s that each have their own individual weightings of 20%, 27%, 33% and 20%) Section C – Implementation and Delivery (40%) – See Pages 129 – 132 of Annex C (it has within it 7 Q’s that each have their own individual weightings of 25%, 25%, 15%, 10%, 5%, 10% and 10%) Section D – Flexibility (10%) – See Pages 133 –134 of Annex C (it has within it 3 Q’s that each have their own individual weightings of 30%, 40% and 30%) 45

You will note immediately that the 4 Sections add up to 100% (there would be problems if they didn’t!) You will also note that the individual weightings within the Sections also add up to 100% (there would be problems if they didn’t!) They then give us an example of how the weightings all work in Table B on Page 48 of the document. Don’t be confused. The only purpose of Table B in the document is as an example of how the weightings apply. The Actual Section (let’s call it Section X) is weighted at 15% out of a possible 100% and there are 3 Q’s within Section X which themselves have an individual weighting. Q1

A weighting of 30%

4/5 is equivalent to 80%

a score of 4/5 (i.e. very good in Table A)

It is however 80% of 30% (because of the weighting) and 80% of 30% is 24% so the weighted score is 24% (we obtain 24% by merely multiplying 8x3) So, for Q1 we have so far a score of 24% Q2 A weighting of 50%

a score of 3/5 (i.e. good in Table A)

3/5 is equivalent to 60%

It is however 60% of 50% (because of the weighting) and 60% of 50% is 30% so the weighted score is 30% (we obtain 30% by merely multiplying 6x5) So, for Q2 we have a score of 30% Q3 A weighting of 20%

a score of 5/5 (excellent in Table A)

5/5 is equivalent to 100%

It is however 100% of 20% and is therefore 20% So, for Q3 we have a score of 20% We now add 24% to 30% to 20% and arrive at 74% HOWEVER Section X is only worth 15% of the overall total marks and we therefore have to work out what 74% of 15% is worth. Simply multiply 15 (and we got this from the 15%) by 0.74 (and we got this from the 74%) the answer is 11.1 We now know that we have achieved 11% in the first Section (not bad, remember that Section X is only worth 15% of the overall marks and we have got 11% of them – it’s a good start)

Let’s now go to page 124 in the document (Annex C) and do an example of being marked in relation to Section A – Management Team (20%) The first thing to appreciate is that this Q only carries 20% of the marks Let’s assume that for A1 (weighted at 40%) we get 3/5 – that’s 60% – it is actually 60% of 40% i.e. 6x4 equals 24% Let’s assume that for A2 (weighted at 20%) we get 4/5 – that’s 80% – it is actually 80% of 20% i.e. 8x2 = 16% Let’s assume that for A3 (weighted at 40%) we get 5/5 – that’s 100% – i.e. 40% 24% +16% +40% equals 80% but it’s 80% of something which is only worth 20% i.e. 8x2 equals 16% So, we have achieved 16% on the first Q (not bad considering the total marks available were 20% – we have effectively achieved a score of 80% – another way of putting it is to say that we have scored 12 out of a possible 15 points Ranking We will be ranked based upon our scores. Hopefully, there will be sufficient information (as a result of the marks) for the LAA to start awarding Contract Work to successful AO’s The document says this at Paragraph 6.20 on Page 49 In the event that the LAA is still unable to distinguish between tied AO’s based on these Q’s because too many remain tied, the LAA will select on a RANDOM BASIS. This process will RANDOMLY select AO’s up to the number of Contracts available within the Procurement Areas. The method of the RANDOM selection used will be capable of validation to ensure AO’s are selected on a RANDOM basis. Does this mean what I think it means!!!!!!!

SECTION 7: CONTRACT AWARD AND MOBILISATION Successful AO’s will be awarded a Duty Provider Crime Contract requiring them to deliver contract work in those Procurement Areas in which their Procurement Area Bids have been successful. AO’s awarded a Duty Provider Contract will be subject to a Verification Process. The Verification Process is set out in Paragraph 7.3 on Page 50. This Verification Process covers both the AO’s Duty Provider Contract and its Own Client Contract.

See Paragraph 7.3 of the list of things that must be verified by them by the Contract Start Date (anticipated to be 30th of June 2015) I won’t go through the list but it includes such things as hold a Relevant Quality Standard, identify an Office etc. etc. AO’s will then be required to verify the remaining Own Client and Duty Provider Contract Criteria one month before the Service Commencement Date (i.e. by the 1st of September 2015) and their Contracts will be conditional on satisfying verification – again there is a list of things that will have to be verified and they are set out on Page 52. This period between June 2015 and October 2015 will be known as the MOBILISATION PEROID. Certain things will be monitored during this period. The things that will be monitored are set out on Page 53 The LAA need to be informed when Named Individuals leave. Substitutions will be permitted, assuming they meet the correct criterion. The procurement process and the terms of the Duty Provider Contract require that agreements with Delivery Partners HAVE A MINIMUM TERM OF 1 YEAR from the Contract Start Date. However, the Duty Provider Contract Standard Terms allow for the LAA to agree to a substitution of Delivery Partners during the Contract term. This allows for some flexibility during the Contract term to allow for unanticipated events. The LAA is, however, under no obligation to agree to any changes proposed and will need to be satisfied that any amendments during the Contract term do not materially affect the service provided or, if the Tender had been submitted on this basis, it would have adversely affected the decision to award the Contract (See Paragraph 7.24) See clauses 3.2 to 23.24 of the Standard Terms for further details

SECTION 8: RULES OF THIS PROCUREMENT PROCESS A bit dry and nothing I feel I need to report. It’s a bit like the box that we all tick all the time to say that we have read the terms and conditions but how many times do we read the terms and conditions – life is too short! ANNEX A: Procurement Area Contract information and Case Volume Data relating to Case Experience (Pages 62 – 72) This is an important Annex which must be read. It gives us the Procurement Areas – informs us as to whether or not the area is URBAN, RURAL or LONDON – the number 48

of Contracts to be awarded – the number of Applicant Organisations to be shortlisted – the Estimated Number of Police Station Cases Per Contract per Annum – the Estimated Number of Magistrates’ Court Cases Per Contract Per Annum – the Estimated Number of Crown Court Cases Per Contract Per Annum – the Anticipated Contract Value. I have absolutely no comments as to the accuracy or otherwise of any of the contents of Annex A. I suppose the main interest in Annex A is in relation to the number of Contracts that are going to be awarded within any given Procurement Area. ANNEX B; Procurement Area Rules and Scheme Information (Pages 73 – 88) Table 1: Split Procurement Areas This Annex lists the Split Procurement Areas. There are 24 Split Procurement Areas and they are all mentioned in Table 1 of Annex B. An AO may Bid if it will have an Office in the Split Procurement Area or its linked Procurement Area as set out in Table 1. The Selection Criteria will give preference to AO’s that have an Office in the Split Procurement Area they are tendering in. The Table gives a list of the Split Procurement Areas and the linked Procurement Areas. Table 2: London Procurement Areas The Table lists all 32 London Procurement Areas and their immediately adjacent Procurement Areas. AO’s bidding in London Procurement Areas must have an Office either in the Procurement Area itself or in one of the immediately adjacent Procurement Areas listed. Table 3: Procurement Area Rules and Schemes covered by each Procurement Area. This Table gives information in relation to the Police Station Duty Schemes within the Procurement Area and the Magistrates’ Court Duty Schemes within the Procurement Area. ANNEX C (Pages 89-134) THE MOST IMPORTANT PART OF THE WHOLE DOCUMENT! We start with ANNEX C: ITT Questions and Assessment. Section A – Organisation Information Pretty straightforward – they want to know the details of your Organisation NB AO’s must ensure that they complete and submit at least one Procurement Area

ITT in addition to this Duty Provider Organisation ITT NB Where the AO submitted a number of tenders for an Own Client Contract, it must respond to this procurement opportunity from the relevant eTendering system registration (s). The registration (s) used must be the entity/ies that it intends to hold a Duty Provider Contract as. MAKE SURE YOU DON’T FALL AT THE FIRST HURDLE! Section B – Organisation Selection Criterion NB This Selection Criteria question appears here because it applies to the Applicant Organisation as a whole and gives preference to those Organisations that currently hold or have applied for authorisation by a relevant legal sector regulator. Other Selection Criteria questions appear in the Qualification Envelope of the Procurement Area ITT’s. Any points that an AO receives for this question will be added to its Selection Criteria score. In other words you will be scored on your answer to Section B and the score will be added to the scores achieved by your answers given in the Qualification Envelope of the Procurement Area ITT Section C – Financial Assessment Nothing to add – you just have to Wade through it – the important points have already been covered in Section 5 of this paper. Section D – Essential Requirements and Declarations Nothing to add – just a series of declarations you have to make Procurement Area ITT’s THIS PART CONSISTS OF THE COMPLETION OF A QUALIFICATION ENVELOPE AND A TECHNICAL ENVELOPE QUALIFICATION ENVELOPE (Pages 98 –123) – Selection Criteria are set out in Sections D–G Section A – Procurement Area Information N.B. Remember that you must complete the Duty Provider Organisation ITT in addition to at least one of these Procurement Areas ITT’s This part can best be summed up by saying that the Section requests information relating to the office, staff and Delivery Partners (where applicable).

Remember that Delivery Partners are not required to submit a separate Tender – any agreement a Delivery Partner has is with you as the AO – the LAA will Contract with an AO and no other entity. Section B – Staff information Section C – Delivery Partner Information We then move into the part of the QUALIFICATION ENVELOPE dealing with Selection Criteria Selection Criteria are set out in Sections D –E – F – G Remember that these are the IMPORTANT SECTIONS because you are being SCORED AGAIN (I say ‘again’ because you were scored on your answer to Section B) on your ANSWERS in this Part of Annex C so put your thinking caps on and give the best answer you can to attract the highest number of points. Section D – Management Team Experience (dealt with in Section 4 of the Invitation to tender document at Pages 27 – 36) You just have to wade through it answering each point. Please note that in this Section you may only rely on individuals employed by the AO or individuals who have a Signed Engagement Agreement with the AO – ignore anything or anyone to do with Delivery Partners – they are not involved in this – remember you will have to manage the Contract and you are solely responsible for the Contract as the AO. Section E – Delivery Experience (dealt with in Section 4 of the Invitation to tender document at Pages 27 – 36) You just have to wade through it, answering each point. Please note that in this Section you may rely on individuals employed by either the AO or your Delivery Partner or individuals who have a Signed Engagement Agreement with the AO or one of its Delivery partners. Section F – Staffing and Recruitment (dealt with in Section 4 of the invitation to tender document Pages 27 – 36) You just have to wade through it, answering each point Please note that in this Section you may rely on individuals employed by either the AO or your Delivery Partners or individuals who have a Signed Engagement Agreement with the AO or one of its Delivery Partners.

Section G – Office (dealt with in Section 4 the invitation to tender document at Pages 27 – 36) APPLICANT ORGANISATIONS ONLY –YOU MAY NOT RELY ON DELIVERY PARTNERS. Remember that your scores for D E F and G will be added to the score that you achieved in B Section H – Tie-break questions (dealt with in Section 4 of the invitation to tender document at Pages 27 – 36) In the event of a tiebreak the LAA will use the information given in the boxes below to decide between AO’s TAKE THESE TIE-BREAK QUESTIONS SERIOUSLY AND GIVE THEM A LOT OF THOUGHT-I WOULD EVEN GO SO FAR AS TO SAY THAT THIS ONE TASK SHOULD BE DELEGATED TO SOMEONE WHO SHOULD WRITE OUT FULL ANSWERS AND THEN PRESENT THEM TO THE MANAGEMENT TEAM (the tie-break questions are listed on Pages 122 and 123 of Annex C – there are 3 of them and a free text box is provided for the answer) NB – Once AO’s have responded to the Selection Criteria, they will be required to provide free text responses to the 3 tie-break questions – for each of these questions AO’s have a MAXIMUM of 4000 characters to outline their response (an additional text box is provided under each question to accommodate this) – (See Paragraph 3.45 within Section 3 of the document at Page 24) We then move to the TECHNICAL ENVELOPE (Pages 124 – 134) Award criteria are set out in Sections A – D Question weightings (See the maths explanation earlier in this paper)–DO HAVE TABLE A ON PAGE 47 OF THE DOCUMENT TO HAND WHEN YOU COMPLETE THIS SECTION AS IT GIVES GUIDANCE ON THE SCORES 0-5 Remember that 0 is 0 1 equals 20% 2 equals 40% 3 equals 60% 4 equals 80% 5 equals 100% Try to score 5/5 for each question within each Section

Section A – Management Team (worth 20% of the total marks available) – split into 3 parts (each themselves individually weighted) – A1, A2 and A3 Section B – Delivery Team and Recruitment (worth 30% of the total marks available) – split into 4 parts (each themselves individually weighted) – B1, B2, B3 and B4. Section C – Implementation and Delivery (clearly the most important Section because it is worth 40% of the total marks available) – split into 7 parts (each themselves individually weighted) – C1, C2, C3, C4, C5, C6, and C7. Section D – Flexibility (clearly the least important Section because it is only worth 10% of the total marks available – split into 3 parts (each themselves individually weighted) – D1, D2 and D3. What can I say? You just have to wade through it all! ANNEX D: Information to support Financial Assessment (Pages 135 – 140) See Section 5 of the document – mention is made of Business Plans being required from certain AO’s – this Annex details the information which must be provided in your Business Plan – you must read this Annex if you fall within the category of AO mentioned in Section 5 of the document from whom such information is required. ANNEX E: Defined Terms in the Mandatory Attachments (Pages 141 – 144) Annex F: Defined Terms in the IFA (Pages 145 – 150)

Chapter 2 CrimeScribe Edition No. 42

Hello and welcome to CrimeScribe Edition No. 42. Having devoted the whole of Edition No. 41 to the Tendering documents that were published, we now find that the whole thing is ‘on ice’ pending the outcome of the Judicial Review hearing in the High Court on the 15th and 16th of January 2015. I shall deal with the outcome of that hearing in the next edition. Let’s start off this edition with Statutory Instrument 2014 No. 3268 which is ‘The Crime and Courts Act 2013 (Commencement No. 1) (England and Wales) Order 2014. This informs us that Section 56 and Schedule 22 to The Crime and Courts Act 2013 (drugs and driving) come into force on the 2nd of March 2015. I have dealt with this topic in previous editions of CrimeScribe. The specified limits for the drugs are all contained in Statutory Instrument 2014 No. 2868 which is ‘The Drug Driving (Specified Limits) (England and Wales) Regulations 2014 – these Regulations, of course, come into force on the 2nd of March 2015. Staying with Statutory Instruments the next one of note is 2014 No. 3305 which is ‘The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) (Advocacy Exceptions) Order 2014. The order was made on the 15th of December 2014 and came into force on the day after the day on which it was made (it has therefore be with us since the 16th of December. This Order supersedes the defective draft Statutory Instrument ‘The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment to Schedule 1: injunctions to prevent gang-related violence) Order’ laid before Parliament on the 9th of June 2014. This Order amends Part 3 (advocacy: exclusion and exception) of Schedule 1 (civil legal services) to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Part 1 of Schedule 1 to the Act describes the matters for which civil legal aid is to be made available (subject to merits and Means tests). Part 3 of Schedule 1 excludes advocacy from those services, subject to the exceptions set out in Part 3 of Schedule 1 all the provisions of Part 1 of that Schedule.

Article 2 (2) of this Order amends the exceptions in Paragraph 6 of Part 3 of Schedule 1 to the Act to bring within the scope of civil legal aid advocacy in the Crown Court for 3 types of appeals; Appeals from Youth Court decisions relating to injunctions under Part 1 of the Antisocial Behaviour, Crime and Policing act 2014; Appeals under Section 40 6B of the Policing and Crime Act 2009; Appeals under Section 10 (1) (b) of the Crime and Disorder Act 1998 relating to Parenting Orders where an injunction is granted under Section 1 of the 2014 Act Article 2 (3) of the Order amends the exception in Paragraph 7 of Part 3 of Schedule 1 to the Act to bring within the scope of civil legal aid advocacy in a Magistrates’ Court in respect of injunctions to prevent gang-related violence under Part 4 of the 2009 Act and injunctions under Part 1 of the 2014 Act. Statutory Instrument 2014 No. 3279 is ‘The Police and Criminal Evidence Act 1984 (Remote Reviews of Detention) Regulations 2014 and came into force on the 8th of January 2015. These Regulations permit the review of detention of persons arrested but not charged required by Section 40 (1) (b) of the Police and Criminal Evidence Act 1984 to be carried out through the use of video-conferencing facilities by an officer who is not present at the police station where the person is detained. Video-conferencing facilities are defined in Section 45A (10) of the Act as any facilities (whether a live television link or other facilities) by means of which the officer performing the review and the arrested person and any legal representative of that person, can both see and hear each other. Section 40A of the Act permits the use of a telephone for a review of detention. However, in accordance with section 40A(2), the use of a telephone for a review of detention is not permitted if the review is of a kind authorised by Regulations under Section 45A to be carried out using video-conferencing facilities, and it is reasonably practicable to carry out the review of detention in accordance with the Regulations. Statutory Instrument 2014 No. 2590 is ‘The Anti-social Behaviour, Crime and Policing Act 2014 (Commencement No. 7, Saving and Transitional Provisions) Order 2014 I touched upon this briefly in issue No. 40. Some very important provisions came into force on the 20th of October 2014. Provisions were brought into force relating to the recovery of possession of dwelling houses on anti-social behaviour grounds in relation to England. Criminal Behaviour Orders, Dispersal Powers, Community Protection and local involvement and accountability all came in. Parenting Orders are permissible where a Criminal Behaviour Order has been made. 55

There is some excellent legal guidance on the CPS website in relation to the new Criminal Behaviour Orders. Just about everything you would want to know about them. Statutory Instrument 2014 No. 0000 is ‘The Motor Vehicles (Variation of Speed Limits) (England and Wales) Regulations 2014 Not yet in force. These Regulations will come into force on whichever is the latter of –

(a) The 21st day after the day on which they are approved by resolution of

the second House of Parliament to approve them; and

(b) 6th of April 2015.

These Regulations amend the maximum speed limit on roads which are not motorways for vehicles (known as heavy goods vehicles) which have a maximum laden weight, or, if drawing a trailer, aggregate weight, exceeding 7.5 tonnes. Regulation 2 amends Schedule 6, Part 1 of the Road Traffic Regulation Act 1984 for the above vehicles, firstly by substituting a maximum speed of 60mph for the current limit of 50 mph on dual carriageway roads and secondly by substituting a maximum speed limit of 50 mph for the current limit of 40mph on single carriageway roads. Youth Justice Board has issued some very interesting guidance for Youth Offending Teams On an entirely separate topic the Youth Justice Board has issued some very interesting guidance for Youth Offending Teams (I think we now have to call them the Youth Offending Service) in relation to the Anti-social Behaviour, Crime and Policing Act 2014 (the document runs to 21 pages and is well worth the read) Sometimes I am so astonished by something I read that I have to read it again in order to make sure that I have fully understood it. This happened recently when I chanced upon an article in relation to McKenzie friends. I’m sure we were all taught about McKenzie friends during our studies and we appreciated the limits of their involvement and usefulness but never, in my wildest imagination, did I think that they would actually be used in the way that they are being used at the moment. I now learn that there is a website setting out the details of people who are willing to act as McKenzie friends and their fees. The going rate is £50-£60 an hour in the London area. Is this the future of assistance in court? With so many people now being denied access to legal aid one can hardly blame people for wanting some form of assistance. I’m not being critical of McKenzie friends either. In certain circumstances the fees of a McKenzie friend are recoverable from the

other side in the litigation. It’s another example of something being ‘resolved’ in the ‘market-place’ I just think it’s a rather sad indictment of where we currently are. CASE-LAW R v Wynes [2014] ALL ER (D) 229 (Nov) This was a recent case on the admissibility of Bad Character evidence. In March 2014, the defendant was convicted, following a trial, of 6 counts of rape and 3 counts of assault by penetration. The complainant, A, was aged 10 years at the time of the offences. During the course of the trial, the Judge had allowed the prosecution to admit evidence of the defendant’s previous conviction for possessing an indecent image of a child, namely a single file of 49 minutes depicting girls aged 7– 11 in acts of penetration found on the defendant’s computer (the 2009 conviction). The defendant had pleaded guilty to that earlier offence on the basis of possessing an indecent image of a child and received a two-year conditional discharge. He had said in his interview that he had accidentally downloaded the file while trying to download an episode of a television programme. He said that after trying unsuccessfully trying to delete the file he hid it on his computer so that his family would not find it. The prosecution made an application to admit in evidence the previous conviction as it was relevant to an issue between the prosecution and the defence in the case namely whether or not the defendant had an inappropriate sexual interest in young girls. The Judge took the view that the whole defence case was based upon the fact that the victim was lying and therefore the fact of the defendant’s alleged inappropriate interest in young girls was a material issue and should be admitted as Bad Character pursuant to the Criminal Justice Act 2003 Section 101 (1) (d). The defence were particularly concerned that the Judge’s summing up amounted to an invitation for the jury to go behind the basis of plea in relation to the previous conviction which was prejudicial to the defendant and called into question the safety of the convictions. The defendant’s appeal was dismissed. The Court of Appeal saying the Judge had been right to allow the previous conviction as it was evidence that could show that the defendant had an inappropriate sexual interest in young girls which might support the Crown’s case that the victim had been telling the truth.

It had been open to the jury to revisit the defendant’s basis of plea in relation to the previous conviction. The fact that the defendant had agreed a basis of plea did not create an estoppel, as there was no such principle in criminal law. R v Otis Ontwain Lewis [2014] EWCA Crim 2622 An interesting read in relation to whether or not sentences should be concurrent or consecutive when dealing with ammunition and firearms found in the possession of a person at the same time. The court taking the view that as the maximum sentence for a single offence of possession of a prohibited firearm was 10 years it was wrong in principle for a Judge to impose consecutive sentences which exceeded 10 years. The court were mindful of the comments that had been made by the Lord Chief Justice in the earlier case of Ralph’s that where offences are indeed separate or distinct offences the Court is entitled to order consecutive sentences to reflect the defendant’s overall criminality but that would not apply (following Ralph’s) where the weapons had been received at one time and kept in a single place. The sentence of 11 years was reduced to 10. The Court of Appeal reached this conclusion with no enthusiasm! R v JH [2014] EWCA Crim 82 There were a couple of interesting points to note in this case. This was an appeal 4 years after the conviction and the court said this: ‘The appellant appeals to this Court by leave of the single judge. But in those circumstances we consider, with respect, that the single judge should not have granted permission to appeal against conviction on the papers. A preferable course, where an application is made for permission to appeal against conviction long out of time and the single judge thinks there is an apparently arguable point, is to refer the application for permission to the full court, with any appropriate representation order, and to give directions for the notice and grounds of appeal to be sent to trial Counsel and solicitors for their comments, with the waiver of privilege procedure being used where necessary’. The second point was that the sentences on counts 1 and 2 were unlawful because there was a statutory maximum of 2 years imprisonment, if, as here, the offences were committed before the1st of October 1997. The Court of Appeal was grateful to the Criminal Appeal Office who, with their usual vigilance, spotted the point when notice of appeal was given. The appeal was allowed in the sense of a sentence of 2 years imprisonment concurrently was substituted for counts 1 and 2 rather than the previous sentence

of 5 years. This made no overall difference to the 13 year sentence which had been imposed upon the appellant. And still on the subject of unlawful sentences, see the case of R v P (DP) [2014] EWCA Crim 2326 The appellant was convicted of 12 offences of a sexual nature, all but one occurring in the 1980s while he was a teenager. Count 5 on the indictment was rape contrary to Section 1 of the Sexual Offences Act 1956. The conviction was quashed as the particulars of the offence said that he had raped a girl of 16 when in fact he had penetrated her anally. It seems that everyone had overlooked the fact that in 1956 rape only included vaginal penetration. The Court of Appeal thought about substituting the offence of buggery but then applied R v Graham in that the words on the indictment must either expressly, or impliedly, include the allegation of the further offence which was not the case here. The offence of indecent assault was substituted instead. This offence carried 2 years on indictment. The defendant had actually been given 10 years for Count 5. The Court of Appeal altered the sentence from one of 19 years to 11 ½ years. Though recognising the difficulty in trying cases of historic sexual abuse under old legislation the Court of Appeal has again expressed disquiet that this sort of thing can still happen. I have already given my view on such matters in the past. It is absolutely crucial that when dealing with historic sexual offences that all the lawyers have an understanding of the particulars of the offences within the Sexual Offences Act 1956 and the maximum sentences available. I know that we are well used to the Sexual Offences Act 2003 but the Sexual Offences Act 1956 is alive and kicking and is the relevant piece of legislation for all sexual activity which occurred prior to the 1st of May 2004, the date upon which the Sexual Offences Act 2003 came into force. I shall say no more, I have beaten this drum more than once in the past! IPP’s and the lawfulness of post tariff detention – the problem rumbles on! R (Haney; Kaiyam and others) v Secretary of State for Justice and others [2014] UKSC 66 The appellants had all received indeterminate prison sentences comprising a fixed tariff period and an indeterminate post-tariff period. Post-tariff detention was to continue until the appellants satisfied the Parole Board that they were no longer a danger to the public.

The appellants, relying upon the decision of the European Court of Human Rights in James v United Kingdom (2012) 56 EHRR 399, claimed that their post-tariff detention was unlawful because the Secretary of State had failed to provide them with a reasonable opportunity to progress their rehabilitation and release. Some of the Article 5 appeals were won and some of the Article 5 and Article 14 appeals were lost. It’s a long judgement as they always are from the Supreme Court. The successful appellants were awarded damages of £500 and £600. I’m sure they consider it to be something of a pyrrhic victory for them! R v Kerrigan; R v Walker [2014] EWCA 2348 A very simple case in which the Court of Appeal ruled that the appellants were not entitled to credit for time spent in custody awaiting sentence which coincided with time spent in custody having been recalled on licence. Parliament’s intention is quite clear. A day counts as time served in relation to only one sentence. They were detained (recalled) to serve the balance or part of the balance of an existing sentence and they were therefore detained pursuant to a custodial sentence. Section 240ZA of the Criminal Justice Act 2003 prohibits double counting. McGhee v Crown Prosecution Service [2014] EWHC 4089 (Admin) This was an interesting case on its facts. I’m sure we all aware of Section 170 of the Road Traffic Act 1988 and the need to stop at the scene of an accident and to give particulars. There is also a duty to report the accident if the particulars are not given at the time. An accident occurred as a result of the appellant reversing her car into another vehicle. Damage was caused to the other vehicle. The appellant drove off but had to give way at a Give Way junction. At that point she was told by the owner of the other vehicle that she had damaged his car. At the relevant time she was driving well over the prescribed alcohol limit. Her recollection and judgement were affected by the alcohol but she genuinely did not believe that there had been an accident. The District Judge accepted that she could not be required to provide details if she was unaware that the accident had occurred (Harding v Price), at least in circumstances where she was sober. She could not, however, in this case rely on that belief as a defence because her belief was the result of intoxication. The High Court took the view that the appellant would be under no obligation to stop and provide the details if she could satisfy the court that she was genuinely unaware that the accident had occurred, or genuinely did not believe that it had.

The court said this at Paragraph 26: ‘Even assuming that she was able to satisfy the court that she maintained that genuine belief throughout, in my view if this was as a consequence of her inebriation, she cannot rely upon her lack of knowledge or genuine belief that there was no accident as a defence to the charge’ It is well established law that intoxication cannot be asserted as a defence in crimes of Basic Intent – see the case of DPP v Majewski [1977] AC 447 THE LOSS OF TIME DIRECTION We have had 3 recent cases concerning the possible loss of time direction that can be made by the Court of Appeal (Criminal Division) where they take the view that the appeal has no real merit. As you know, it’s always a dangerous thing to do to pursue the appeal where the single Judge rules against you. You can do it, but at your peril! R v Blakeney [2014] EWCA Crim 2365 An appeal on the point of whether or not the Judge had been right to hold the defendant dangerous. The Court of Appeal, taking the view that on the facts of the case it had not been unreasonable for the Judge to rule that the defendant was dangerous, directed that 21 days spent in custody should not count towards his sentence. R v Wilson [2014] EWCA Crim 2336 This was a renewed application for an extension of time in which to apply for leave to appeal against sentence following refusal by the single Judge. The extension sought was 626 days i.e. nearly 21 months. The grounds of appeal against sentence were prepared within two or three weeks of the sentencing hearing. By oversight and error the application for leave to appeal was never lodged and processed. No satisfactory explanation had been given. The court were pleased to note that the applicant had made good progress in custody and that was greatly to his credit but it could not justify any reduction in his sentence. The court went on to say that the very clear observations of the single Judge had indicated why the application was a hopeless one. They wanted an explanation as to why time should not be added. The Court was informed that the lawyer had advised the applicant that there was merit in taking the matter further. The Court of Appeal was not impressed, saying this at paragraph 26:

‘Legal advice gets you nowhere. If you lose this sort of application you are always at peril. This application was utterly hopeless’. It was the client’s good progress whilst in prison that saved him from a loss of time direction. By far the most important recent case in this area is that of R v Gray and others [2014] EWCA Crim 2372 The Principles were all reiterated at Paragraphs 1 to 11 and ‘loss of time’ directions were made regarding these defendants of between 2 and 3 months. I think lawyers should take this as a warning that a loss of time direction is more likely to be a bite than a bark. R v Dyer [2014] EWCA Crim 2340 There were 2 issues in this case. Firstly, the sentencing Judge had intended to impose a total term of 19 years comprising a custodial term of 14 years and an extension period of 5 years for a litany of sexual offences. The problem was the Judge had not associated the 5-year extension with any particular sentence. That issue was brought to his attention after the conclusion of the 56 days available to him to vary or rescind an order pursuant to the provisions of Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. The Judge considered the authorities and concluded that he had jurisdiction to adjust the order that he had made as it was an inchoate order and that he could do so if it was equitable and did not cause any adverse consequences to a third party The Court of Appeal took the view that the Judge had no such power citing authority which made it clear that any variation of substance made after the expiration of the time limit of 56 days is to be of no effect. The second point was that the Judge had purported to make the variation in the absence of the defendant. Although the Judge had apparently communicated by email with the defence, he did not communicate with the Crown, he did not order the case to come back into court; in short, he did not comply with the requirements as set out in the authorities. It was all sorted out by the Court of Appeal who imposed a total sentence of 19 years comprising a determinate term of 14 years and an extended period of 5 years for the offence of attempted rape. It made no difference to the overall impact that the Judge had intended and therefore the defendant could not consider that he had been dealt with more harshly than he had been dealt with by the court below.

As you know, Section 11 (3) of the Criminal Appeals Act 1968 allows the Court of Appeal to alter a sentence that has been imposed by a Crown Court Judge on indictment but the defendant must not consider that he has been dealt with more harshly by the Court of Appeal that he was by the court below. R v Joy [2014] EWCA Crim 2321 This was another of those cases in which the Court of Appeal had to decide whether or not a defendant was entitled to full credit even though a not guilty plea had originally been entered and was changed to guilty at the PCMH. Judge had given 25% credit. The crux of the matter is contained in Paragraph 18 which reads as follows: ‘We come to the second ground, namely the contention that the appellant should have received full credit for his plea of guilty. In short, Mr Lindsay’s submission is that the delay in entering a guilty plea was a reflection of the appellant’s inability to comprehend that he had driven in the way described, and so in those circumstances he was entitled to rely on his legal adviser’s advice and should be afforded full credit. He simply did not remember what happened, probably, says Mr Lindsay, because of retrograde amnesia. At the stage of the preliminary hearing important witness statements had not been served, although it is right to say that it is clear from what we have heard from Mr Heptonstall, on behalf the prosecution, that an experts report and some statements had been served. However, Mr Lindsey argues that it was appropriate to wait for the results of the appellant’s own report in the light of his lack of recall’. And also at part of Paragraph 20: ‘....... however, looking at all the circumstances, and on the special facts of this case, we accept that the applicant was following the professional judgement of his legal advisers where he may have had little or no recall of critical events. Accordingly, we conclude that the appellant should have been afforded the full one third credit for his plea of guilty. R v Roberts [2014] SCCO 112/14 The very latest I could find in relation to whether or not digital evidence should be remunerated as Special Prep or PPE. I have considered this point many times before. The only thing to say about this particular case is that it is not a question of ‘all or nothing’. Both litigators and advocates will have to explain in some detail the relevance of each individual evidence component and make out a case that that particular part of the evidence should be remunerated as PPE rather than the much lower rate of Special Prep. 63

I have said in the past that justification is everything and that the argument might be that much stronger in relation to certain parts of the evidence served digitally than to others. Warwickshire Police v Young [2014] EWHC 4213 (Admin) This was an interesting case on costs following discontinuance of a civil complaint under Section 2 of the Dogs Act 1871. The court awarded costs against the Chief Constable in the sum of £5000 and the Chief Constable appealed. The original ‘complaint’ about the incident had been made by a farmer by the name of Mr Stark. However it was the Chief Constable who had taken out a complaint against the Respondent and the summons that had been sent to the Respondent clearly indicated that it had been the Chief Constable who was the complainant in the matter. By Section 3 (2) (g) of the Prosecution of Offences Act 1985, in addition to other specified obligations, it is the duty of the DPP ‘to discharge such other functions as may from time to time be assigned to him by the Attorney General.......’. Pursuant to that paragraph, on the 5th of July 1996, the Attorney General assigned to the DPP ‘the conduct of proceedings under Section 2 of the Dogs Act 1871 instituted on behalf of the police force (whether by a member of that force or by any other person)’. The conduct of the proceedings instituted against the Respondent was consequently taken over by the DPP through the Crown Prosecution Service. The important point is that the conduct of the prosecution was merely assigned to the CPS – this did not alter the fact that it was the Chief Constable who had been the complainant in the matter. There came a time when the CPS served a notice of discontinuance under Section 23 of the Prosecution of Offences Act 1985. The Respondent duly made an application for costs. The Magistrates’ were, quite properly, taken to Section 64 of the Magistrates’ Courts Act 1980 which deals with the issue of costs when dismissing a complaint. Section 64 did not apply as the complaint had not been dismissed – rather, it had been discontinued. Consideration was then given to Section 52 of the Courts Act 1971 where the appropriate words are, ‘the complaint is not proceeded with’. It was noted that the wording of Section 52 was materially identical to that in Section 64 of the 1980 Act and so they considered that the case-law under Section 64 of the 1980 Act to be highly relevant. 64

The High Court answered the 3 questions that had been proposed in the case stated as follows:

Yes: the Magistrates’ legal adviser was correct to advise them to consider

the case-law under Section 64 of the 1980 Act.

Yes: the Magistrates’ were entitled to reach the conclusion that the

evidence available to them was such that it was not reasonable for the

appellant to commence or take over the prosecution.

3. Yes: the Magistrates’ were entitled to conclude that it was just and

reasonable to order the appellant to pay the respondents costs of the

complaint in the sum of £5000.

Chapter 3 CrimeScribe Edition No. 43

Hello and welcome to this month’s edition of CrimeScribe. By far and away the most important news of the month relates to the new licence and supervision periods for offences on or after the 1st of February 2015 under the Offender Rehabilitation Act 2014. I am going to deal with all of the changes by a series of bullet points. In an earlier edition of CrimeScribe I said I would get to grips with the law in relation to Community Behaviour Orders. I have done so in this Edition and you will find the material after my notes on the Offender Rehabilitation Act.

Offender Rehabilitation Act 2014 All change with licences post-release and supervision periods as a result of the implementation of Sections 1 – 9, 11 – 13, 15 – 19 and Schedules 1 – 3 and 5 – 7 of the Offender Rehabilitation Act 2014 The crucial point is that the new regime only applies where the OFFENCES OCCURED ON OR AFTER THE 1ST OF FEBRUARY 2015 Where the offences occurred before this date the old regime applies and a defendant serving a sentence of imprisonment of less than 12 months will be released at the half-way stage but not on LICENCE – he is deemed to be ‘a short term prisoner’ Where the offences occurred before this date and a defendant is serving a sentence of imprisonment of 12 months or more, he will serve half and be released at the half-way stage subject to LICENCE conditions and may be recalled in the event of breach Nor is such a defendant ‘at risk of being returned’ by the court to prison should he commit new offences as Section 116 of the PCC(S)A 2000 has been repealed For defendant’s who are 18,19,20 (too young to go to prison) the sentence for them is Detention in a Young Offender Institution and if the offences occurred before the 1st of February and the sentence is less than 12 months – release half-way – 3 months supervision

The ONLY offenders who will be released UNCONDITIONALLY at the half-way point of the sentence, where the offences occurred on or after the 1st of February 2015 will be as follows: Those serving a custodial sentence of one day – those serving a custodial sentence of more than one day but less than 12 months who are aged UNDER 18 at the halfway point of their sentence – those serving less than 12 months for pre-1st of February offences Where the offences occurred ON OR AFTER the 1st of February 2015 offenders serving sentences of more than one day and less than 12 months will now be subject to release on LICENCE when they reach the half-way point of their sentence An offender who is sentenced to a custodial sentence of 6 months will be released at 3 months and spend 3 months on LICENCE in the community It is Section 1 of the Act which brings in these altered periods to LICENCES by amending Section 243A of the Criminal Justice Act 2003 It is Section 2 of the Act which amends Chapter 6 of Part 12 of the 2003 Act in relation to SUPERVISION periods – it inserts a new Section 256AA into the Criminal Justice Act 2003 The new Section 256AA creates a new period of SUPERVISION for offenders serving custodial sentences of more than one day but less than 2 years This period of post-sentence SUPERVISION will only apply to a sentence imposed in respect of an offence committed ON OR AFTER the 1st of February 2015 when the new provisions came into force The SUPERVISION period begins at the end of the sentence and ends on the expiry of 12 months from the date of release This means that an offender serves half of their sentence in custody – the second half under LICENCE in the community with the post-sentence SUPERVISION period then applying until the offender has spent 12 months in the community since their automatic release date These new release provisions are best illustrated by examples. The examples also illustrate the current position, i.e. for pre 1st of February offences Current system – a 6-month sentence of imprisonment (21 or over at the point of conviction) – 3 months custody and 3 months in the community but with no LICENCE conditions and no SUPERVISION

New system – a 6-month sentence of imprisonment – 3 months custodial period and 3 months on LICENCE in the community, followed by 9 months post-sentence SUPERVISION – total SUPERVISION period = 12 months Current system – a 10 month sentence of imprisonment – 5 months custody and 5 months in the community but with no LICENCE conditions and no SUPERVISION New system – a 10 month sentence of imprisonment – 5 months custodial period and 5 months on LICENCE in the community, followed by 7 months post-sentence SUPERVISION – total SUPERVISION period = 12 months Current system – an 18 month sentence of imprisonment – 9 months custodial and 9 months in the community on Licence (in this last example, the offender is not deemed to be a ‘short term prisoner’ because he has received a sentence of 12 months or more) New system – an 18 month sentence of imprisonment – 9 months custodial and 9 months in the community on LICENCE with a further 3 months post-sentence SUPERVISION – total SUPERVISION period = 12 months The SUPERVISOR will be an officer of a provider of Probation Services – this may be a public or private sector provider For a person subject to a sentence under Section 91 of the PCC(S)A 2000 (long-term detention on a youth) who is 18 or over at the date of release, the SUPERVISOR must be an officer of a provider of Probation Services or a member of the Youth Offending Team Part 1 of Schedule 1 amends the 2003 Act to insert a new Section 256AB after the new Section 256AA – this Section sets out 10 requirements of the offender that may be specified by the Secretary of State during the SUPERVISION period Drug testing and drug appointment requirements may be a part of the SUPERVISION process and may require the offender to provide samples to test whether or not he has a specified Class A or Class B drug in his body It is Section 3 of the Act which amends Chapter 6 of Part 12 of the Criminal Justice Act 2003, by inserting a new Section 256AC – this news Section deals with BREACH of SUPERVISION requirements imposed under the new Section 256AA Either a summons or a warrant may be issued in order to get the person to appear at a Magistrates’ Court in the local Justice area in which the offender resides – it is not entirely clear who brings these proceedings

It is Section 256AC(4), which sets out the sanctions where it is proved to the satisfaction of the court that the offender has, without reasonable excuse, failed to comply with a requirement during the SUPERVISION period Committal to prison for a period not exceeding 14 days A fine not exceeding level 3 on the standard scale A ‘SUPERVISION default order’ imposing either an unpaid work requirement or a curfew requirement (the court is also obliged to impose electronic monitoring of the curfew, unless it is unable to because suitable arrangements for monitoring cannot be made/or inappropriate) Where a court deals with breach of SUPERVISION requirements by either committing an offender to prison, or imposing a fine or imposing a ‘SUPERVISION default order’, it must revoke any existing ‘SUPERVISION default order’ There is a right of appeal to the Crown Court against the imposition of a sanction for an unreasonable failure to comply with a SUPERVISION requirement Section 256AC (11) There are limits on the imposition of unpaid work as part of a ‘SUPERVISION default order’ – no fewer than 20 hours and no more than 60 hours – the work must be performed by the end of the SUPERVISION period For a ‘SUPERVISION default order’ a curfew should be no less than 2 hours per day but no more than 16 hours per day. The curfew period must be at least 20 days in duration but cannot fall outside the SUPERVISION period Part 2 of Schedule 19A deals with the breach, revocation and amendment of ‘SUPERVISION default orders’ It is a 2-stage process in that where an offender’s SUPERVISOR is satisfied that the offender has failed, without reasonable excuse, to comply with the requirements of their ‘SUPERVISION default order’ the matter must be referred to an Enforcement Officer The Enforcement Officer must then consider the case and, if appropriate, cause an information’ to be laid before a Justice of the Peace – the Enforcement Officer is a public sector provider of Probation Services – it is entirely clear who brings in these proceedings! Paragraph 9 of Schedule 19A sets out the powers of magistrates’ to deal with breach of a ‘SUPERVISION default order’

If the court is satisfied that an offender has, without reasonable excuse, failed to comply with the ‘SUPERVISION default order’, the court may revoke the ‘SUPERVISION default order’ and deal with the failure in the same way it could deal with the original breach of the SUPERVISION requirements Remember that the 3 powers available to the Court on breach of the SUPERVISION requirements are – committal to prison for a period not exceeding 14 days – a level 3 fine on the standard scale – a ‘SUPERVISION default order’ Paragraph 12 of Schedule 19A requires a court to revoke a ‘SUPERVISION default order’ if the person who is subject to the order is convicted of an offence and the court dealing with that new offence imposes a sentence of immediate imprisonment or detention If the court imposes a community order or a suspended sentence order it may revoke the ‘SUPERVISION default order’ and deal with the person under Section 256AC (4) in any way in which it could have dealt with him had the ‘SUPERVISION default order’ not been made Where a court orders that a suspended sentence is to take effect in respect of someone subject to a ‘SUPERVISION default order’, the court must revoke the ‘SUPERVISION default order’ I think it is important to say at this stage that the Act draws seems to make no distinction between those offenders who are 18, 19 or 20, and therefore subject to detention in a Young Offender Institution (Section 96 of the PCC(S)A 2000) and those who are 21 or over and sent to prison for POST-COMMENCEMENT OFFENCES It would appear that there has been no change to the system for those receiving a custodial sentence of 2 years or more. Remember that any person serving 2 years or more would serve half and be on licence (and therefore subject to supervision) for 12 months anyway It would appear that there has been no change to the early release on a tag scheme – a person given a custodial sentence of between 4 months and 48 months may be eligible for early release under the tagging scheme once they have completed 25% of their sentence The Act introduces a requirement that offenders sentenced to an Extended Determinate Sentence (EDS) – ‘Dangerous Offenders’ – must have an extension period of SUPERVISION of at least 1 year – I would have thought that most of them would anyway!

It is Section 4 of the Act which deals with the SUPERVISION of certain YOUNG OFFENDERS after release from detention Section 4 deals with offenders serving sentences of LESS THAN 12 MONTHS DETENTION under Section 91 or 96 of the PCC(S) A 2000 who are UNDER 18 at the half-way point of their sentence – the new provisions DO NOT APPLY to these people If they become 18 at the half-way point of their sentence they are caught by the new regime when their offences occurred on or after the 1st of February 2015 Is important to remind ourselves again that the new regime only applies to offences committed on or after the 1st of February 2015 and will only apply to adults and those who become 18 at the half-way point of their sentence It is Section 4 which amends Section 256B of the Criminal Justice Act 2003 which relates to SUPERVISION of young offenders after release from a Section 91 or Section 96 sentence Before the commencement of the relevant provisions in this Act, Section 256B would provide for a 3 month period of SUPERVISION to be applied to an offender who is released from a sentence under Section 91 or Section 96 of less than 12 months Those offenders serving Section 91 or Section 96 sentences in relation to POSTCOMMENCEMENT offences who are 18 or over on their release day will NO LONGER be subject to SUPERVISION under Section 256B, i.e. no 3 month SUPERVISION any more They will INSTEAD be subject to the same arrangements as apply to adults sentenced to a custodial sentence of less than 12 months (see earlier examples given) Section 256B, i.e. the 3 month supervision period continues to apply in any case where the offence for which the sentence was imposed was committed before the commencement of Section 1, i.e. before 1st of February 2015 Section 4 (3) amends subsection (2)(c) of Section 256B of the 2003 Act to provide that an offender released from a Section 91 sentence can be supervised by a member of the Youth Offending Team If the offender is 18 or over on release Let us now look at the new position in relation to youths aged 12 – 17 who were given a Detention and Training Order – such orders ranging from 4,6,8,10,12,18 and 24 months Section 6 of the Act relates to offenders in respect of whom Detention and Training Orders have been made and who are 18 or over when they reach the half-way point of the Order

Further SUPERVISION applies where the offender is aged 18 or over at the half-way point of their DTO where the DTO is for less than 12 months and the DTO was imposed for an offence committed on or after the day on which Section 6 (4) came into force, i.e. 1 February 2015 The SUPERVISION period for these offenders begins at the end of their Detention and Training Order and ends 12 months after the half-way point of the Detention and Training Order (see Sub-section 3 of Section 106B of the amended PCC(S) A 2000) EXAMPLE – an offender serving a DTO of 10 months would currently spend half of the sentence, i.e. 5 months in custody and the other half, subject to SUPERVISION in the community – there would be an additional 7 months of SUPERVISION making 12 months in total That’s it, we shall have to wait and see how it all works. I now turn to an analysis of the Criminal Behaviour Orders, which replaced ASBO’s in October last year. Criminal Behaviour Orders (CBO’s) are contained within Part 2 of the Act and the provisions came into force on the 20th of October 2014 – applications can therefore be made for them on or after that date The CBO is available on conviction for any criminal offence in ANY criminal Court. The Order is aimed at tackling the most serious and persistent offenders and replaces the ASBO/DBO/ISO CBO’s include prohibitions to stop the antisocial behaviour and may also, unlike ASBO’s, include requirements to address the underlying causes of the offender’s behaviour The application must be made by the prosecution and the test must be met The test is that the court must be satisfied, beyond reasonable doubt, that the offender has engaged in behaviour that caused, or was likely to cause, harassment, alarm or distress to any person; (Section 22 (3)) and That the court considers the making of the Order will HELP in preventing the offender from engaging in such behaviour – Section 22 (4) The main differences between ASBO on conviction and the CBO are: The behaviour (first limb of the test) has no reference to ‘not of the same household’ and is therefore wider than the ASBO The ‘necessity’ test becomes a ‘HELPFUL’ test (it’s the same test as that within a Football Banning Order)

The court may impose REQUIREMENTS as well as PROHIBITIONS E.g. alcohol education The Local Authority may approach the prosecution directly with a request to consider an application for a CBO Before applying for a CBO for a youth the prosecution must find out the views of the local Youth Offending Team – in the youth court ISO’s (Individual Support Orders) have gone unless the criminal proceedings began prior to the 20th of October 2014 A CBO may be varied or discharged by the court which made the original Order on either the application of the offender or the prosecution A CBO can only be made against an offender as an ANCILLIARY ORDER to the sentence imposed in respect of the offence upon conviction or an order discharging the offender conditionally A CBO cannot be made when the matter before the court is dealt with by way of an Absolute Discharge or where sentence is deferred – remember, it is an Ancillary Order upon sentence and no doubt could be made at the deferred sentencing hearing In deciding whether to make a CBO a court may take account of conduct occurring up to one year before the commencement date. There is no requirement in the legislation for a Nexus between the criminal behaviour, which led to the conviction and the harassment, alarm or distress to be proved for the CBO Evidence to show this type of behaviour other than criminal convictions can be used but the criminal standard of proof will apply – the harassment, alarm or distress must be proved to the criminal standard The second condition of the test is that the court must consider that making the Order will HELP in preventing the offender from engaging in such behaviour, i.e. behaviour, which causes or is likely to cause harassment, alarm or distress to any person Unlike ASBO’s the court no longer needs to be satisfied that the Order is NECESSARY in order to protect persons in England and Wales There is no standard of proof in relation to the second condition – it is an exercise of ‘judicial judgement’ It will be useful for the court to receive evidence as part of the application to show that the making of the Order will be HELPFUL in preventing future harassment, alarm or distress – On occasion the offence itself may be sufficient evidence to prove that an Order will help 73

Ordinarily an Order will come into effect on the day it is made, unless the offender is already subject to a previous CBO in which case the new Order may be made so as to take effect on the day on which the previous Order ceases to have effect Where the CBO is made and the offender has not reached the age of 18 the Order must be for a fixed period of not less than 1 year and not more than 3 years Where a CBO is made and the offender is 18 or over the Order must be for a fixed period of not less than 2 years or an indefinite period (so that the Order has effect until further Order) It is not necessary for all of the prohibitions and all of the requirements to last for the whole duration of the Order – different time periods may be specified CBO’s cannot be made as stand-alone Orders – they can only be made as Ancillary Orders upon conviction It must be in the public interest for an application to be made An exclusion zone may be part of the Order in which case there should be a clear map of the exclusion zone Prosecutors should give notice to the defence of evidence on which the prosecution intends to rely under the Criminal Procedure Rules – the defendant must be given the opportunity to consider the evidence in support of the Order The defendant’s previous convictions will be admissible when applying for a CBO No reference should be made to ‘spent’ convictions without the consent of the court – the Rehabilitation of Offenders Act 1974 applies to a request for an Order upon conviction The Civil rules of evidence apply (see the Civil Evidence Act 1995) and hearsay evidence may be called – a hearsay notice should be served upon the defendant As such applications are essentially civil in nature there is no obligation to disclose unused material in CBO applications – all cases, though, should be presented in a ‘fair and balanced’ manner Section 26 of the Act sets out the powers of the court to make interim Orders – the Section will apply where a court adjourns the hearing of an application for a CBO – the court may make an interim CBO that lasts until the final hearing of the application or until further Order

An application for a RESTRAINING ORDER might be more appropriate than an application for a CBO where there is a named victim and the offence falls within the broad definition of being a domestic incident – these can also be made upon an acquittal A defendant has a right of appeal against a CBO made by a Magistrates’ Court – see Section 108 (3) of the Magistrates’ Courts Act 1980 Variation or discharge of the Order is dealt with in Section 27 of the Act Special Measures may be applied for – see Section 31 of the Act which says that Chapter 1 of Part 2 of the Youth Justice and Criminal Evidence Act 1999 applies to CBO proceedings Breach proceedings are dealt with in Section 30 of the Act and a person guilty of an offence under Section 30 is liable on summary conviction to imprisonment for a period not exceeding 6 months or to a fine, or to both; Or on conviction on indictment, to imprisonment for a period not exceeding 5 years or to a fine, or both Unlike the application for the CBO, breach proceedings are criminal in nature and the criminal rules of evidence apply – the offence does not require any mental element to be proved.

The Crime and Courts Act 2013 I have mentioned the new offence of driving with drugs over the prescribed limit in the system in a previous edition and I mention it again briefly because it is due in imminently. Section 56 and Schedule 22 create a new offence that will come into force on the 2nd of March 2015 Driving, attempting to drive or being in charge of a motor vehicle with a specified controlled drug in the blood or urine in excess of the specified limit for that drug – the new offence to become Section 5A of the Road Traffic Act 1988 Unlike the ‘impaired through drugs’ legislation that we have at the moment the new offence will require no evidence of impairment – merely evidence of drugs within the system above the permitted limits The specified limits for the drugs have been published and are all contained in Statutory Instrument 2014 No. 2868 which is ‘The Drug Driving (Specified Limits)

(England and Wales) Regulations 2014 – these come into force on the 2nd of March 2015 The procedure will be a saliva sample taken at the scene and, if appropriate, a sample of blood or urine at the police station The penalties for a refusal to provide are analogous to those in relation to refusing to provide under current drink/drugs legislation. Having mentioned the new licence and supervision periods under the Offender Rehabilitation Act 2014 I just mention, in passing, who will be responsible for supervising the offenders under the new regime. Under ‘The Offender Management Act 20O7 (Dissolution of Probation Trusts) Order 2014 – came into force on the 31st of October 2014 – the Probation Service to undergo a major re-structuring – the 35 existing Probation Trusts to be abolished and replaced by a National Probation Service 21 Community Rehabilitation Companies (CRC’s) to be established to manage 70% of the supervision for the less serious offenders by sub-contract, mostly with the private sector, charities and voluntary and independent bodies I was minding my own business the other day and chanced upon the Criminal Justice and Courts Act 2015! I had never even heard of it. If the Sections (and there are 98 of them) and the Schedules (and there are 16 of those) are ever brought into force, they are going to make significant changes in the area of criminal law. I shall keep my eyes open for the first Commencement Order and keep you fully abreast of this.

Tendering And still we wait! At the time of writing this month’s edition I have just read that Lord Justice Laws dismissed the application and refused permission to appeal but extended the stay, ordered last Friday, until 4pm this Friday, i.e. 27 February.

Case-law R v Usaceva [2015] EWCA Crim 166 A small but important point was raised as part of this appeal. The Judge had ordered that in addition to disqualification the appellant’s licence should be endorsed with 11 penalty points. The case of Kent 77 Cr App R 120 decided under the predecessor to the Road Traffic Act 1988 (The Road Traffic Act 1972, as amended by the Transport

Act 1981) is referred to in a passage in Archbold which states that if the court imposes an obligatory sentence of disqualification from driving, it cannot order penalty points to be endorsed. The point being that it is only if special reasons are found for not disqualifying in relation to certain offences that the court is obliged to consider the imposition of between 3 and 11 penalty points – see the Schedule at the back of the Road Traffic Offenders Act 1988 where this is mentioned against each of the relevant offences concerned. It’s a bit of a trap for the unwary in that your client might successfully argue special reasons for not being disqualified and yet, with the imposition of those penalty points, he is a totter and has to go back into the witness box and argue exceptional hardship as to why he ought not to be disqualified for whatever the minimum period is – it is usually 6 months but it may be more dependent upon whether or not he has previous relevant disqualifications of 56 days or more imposed on his licence within 3 years of the commission date of the latest of today’s offences. The modern statutory provision is simpler. Section 28 (1) and 99 of the Road Traffic Offenders Act 1988 provides that where a person is convicted of an offence involving obligatory endorsement the number of penalty points shown in Column 7 of Parts 1 or 2 of Schedule 2 to the Act should be ordered to be endorsed. Columns 6 and 7 of Schedule 2 show that endorsement is both obligatory and that the number of points to be endorsed is 3 to 11 for an offence under Section 1 of the Road Traffic Act 1988. On the face of it, therefore, the court has no choice but to order endorsement with 3 to 11 penalty points. Section 44 (1) of the Road Traffic Offenders Act 1988, however, provides:

‘(1) Where a person is convicted of an offence involving obligatory

endorsement, the court must order there to be endorsed on any licence held

by him particulars of the conviction and also –

(a) If the court orders him to be disqualified, particulars of the

disqualification, or,

(b) If the court does not order him to be disqualified –

(I) Particulars of the offence, including the date when it was

committed, and

(II) The penalty points to be attributed to the offence’

Section 44 (1) (a) therefore requires only that the particulars of conviction and of disqualification are to be endorsed when a person is convicted of an offence involving obligatory disqualification and is disqualified. The language is simpler

and less explicit than that used in previous legislation but from the language of the provision we cannot discern that Parliament intended to change the law and can discern no policy reason why it should have thought it right to do so. Therefore the decision in Kent should be applied to the legislation currently in force. The order for endorsement must therefore be quashed, i.e. the endorsement with penalty points.

Barnaby, v Director of Public Prosecutions [2015] EWHC 232 (Admin) A very important case for anyone involved in criminal trials in the Magistrates’ Court. The High Court has ruled that the evidence of a victim of domestic abuse was correctly admitted as res gestae hearsay despite her availability to give oral testimony. The evidence consisted of a transcript of the 999 calls and the account given by her when she saw the police officers at the premises shortly after the incident. (The police having arrived within 6 minutes of the last phone call). If the evidence was properly admissible under the res gestae principle the Crown was not obliged instead to rely on Section 114 (1) (d).As you know res gestae has been preserved as one of the common law exceptions to the rule against hearsay under Section 118 of the Criminal Justice Act 2003. The rule, quite simply, is that ‘if a statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded’ then such evidence is admissible under the res gestae principle. There is no need to serve a notice to introduce hearsay evidence that is admitted under the relevant Part of Section 118 (1) (4) pursuant to the Criminal Procedure Rules 2014 – see Rule 34.2 which sets out the categories of hearsay evidence for which a notice is necessary

Thorsby and others [2015] EWCA Crim 1 I really don’t want to end this month’s Edition on a moan but it is incumbent upon advocates to ensure that the correct information is placed before a Crown Court Judge where the defendant has been subject to a Qualifying Curfew within the meaning of Section 240A of the Criminal Justice Act 2003. This is really a repetition of the earlier case of Hoggard. We must bring to the attention of the court the following information: The number of days for which the client was subject to a Qualifying Curfew which includes the first but not the last if, on the last day, the defendant was taken into custody

Deduct the days for which the defendant was also at the same time being monitored with a tag for compliance with a curfew requirement and/or on temporary release from custody Deduct days when the client has broken the curfew or the tagging condition Divide the final number by 2 If necessary, round up to the nearest whole number As you know, the client is entitled to a half day deducted from the custodial sentence for every day that they were subject to a Qualifying Curfew. It is only a Qualifying Curfew if it was for a period of 9 hours or more per day and was monitored by a tag and the client was not tagged as part of a sentence or on temporary release from custody (the client is not to be given a double benefit from it all!). It must be a genuine Qualifying Curfew in the sense of abiding by the curfew because it is a condition of bail and nothing else. Methinks that the Court of Appeal are getting a little tired of having to sort out the appropriate number of days to be deducted because either the wrong information was placed before the court or no information was placed before the court at all! As advocates we really do need to get to grips with all of this. End of moan.

Chapter 4 CrimeScribe Edition No. 44

Hello and welcome to this monthâ&#x20AC;&#x2122;s edition of CrimeScribe. I know that I have covered the new offence of driving, attempting to drive or being in charge of a motor vehicle on a road or other public place with a specified controlled drug in the body in a previous edition of CrimeScribe but I hope, as this offence came into force this month, that you will forgive me if I just reiterate the main points to bear in mind. I can see someone having this thrust upon them as the Court Duty Solicitor sooner rather than later. The new Drugs offence Section 56 and Schedule 22 of the Crime and Courts Act 2013 The new offence came into force on the 2nd of March 2015 The drug limits are specified in Statutory Instrument 2014 No. 2868 Both Illicit and prescription drugs are mentioned Amendments to the Road Traffic Act 1988 make 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 The proportion of drug in that personâ&#x20AC;&#x2122;s blood or urine must exceed the specified limit for that drug. The new offence is inserted into the Road Traffic Act 1988 and becomes Section 5A (1) and (2) This new offence will run alongside the current Section 4 offence of driving, attempting to drive or being in charge of a vehicle whilst impaired by drugs or alcohol There need be no evidence of IMPAIRMENT in order for the offence to be made out The penalties are the same as for an ordinary Section 5 or Section 4 offence The new section 5A (2) allows for different specified limits to be set for different drugs

The drugs may be controlled drugs or they may be drugs which have been medically prescribed A new section 5A (3) provides for a defence if a specified controlled drug is prescribed or supplied in accordance with the Misuse of Drugs Act and taken in accordance with medical advice The current ‘impaired through drugs’ offence under Section 4 may be used where the drugs are not ‘specified’ for the purposes of the offence or other prescribed drugs or ‘legal high’ cases The medical defence is not available if medical advice about not driving for a certain period of time after taking the drug has not been followed If he is charged with the ‘in charge’ offence the defence of ‘no likelihood of the person driving the vehicle whilst over the specified limit’ will still be available If the officer has the relevant testing kit in his vehicle, a sample of saliva can be taken to determine whether or not there are drugs in his system – in particular, cannabis or cocaine If the officer doesn’t have the relevant testing kit it may be that other observations may be made e.g. are the pupils of his eyes dilated? Does he look under the influence? The officer may or may not have sufficient grounds for arrest. Where the suspect fails the test, this will give the officer ‘grounds’ for the arrest Back at the police station there will be a request for a sample of blood or urine in order for a proper analysis to be carried out The suspect will no doubt be bailed for a number of weeks whilst the analysis is carried out It will clearly be an offence if the suspect fails or refuses to provide a sample without a reasonable excuse/cause The same penalties in relation to failing or refusing to provide an evidential sample for alcohol will apply I suspect that the same guideline disqualification of not less than 18 months would also apply for a failure or refusal to provide a sample to test for drugs The Statutory Instrument already referred to gives the new drug limits but here are just 5 of them

•

2 µg of cannabis per litre of blood

•

10 µg of cocaine per litre of blood

•

500 µg of methadone per litre of blood

•

1 µg of LSD per litre of blood

•

20 µg of Ketamine per litre of blood

I think it’s only a matter of time before you get a client directed your way when acting as the Court Duty Solicitor I therefore think it is important that you do read Statutory Instrument 2014 No. 2868 – The Drug Driving (Specified Limits) (England and Wales) Regulations 2014 It may be that you could get the matter adjourned and apply for legal aid where a medical defence was going to be put forward It will be interesting to see how the Crown seek to prove medical advice had been supplied to the client – I assume there will be something on the packet backed up with further information on a leaflet inside Not all police areas seem to have the kits as yet, but, no doubt, this will only be a matter of time I don’t even know at the time of writing, whether or not the kits are sophisticated enough to deal with all of the drugs on the Statutory Instrument or whether or not the kit will merely detect derivatives of cocaine and cannabis As you well know, we have current guidelines in relation to the length of the disqualification based upon the alcohol reading – I wonder what guidelines will be issued in relation to drug levels? In particular, I wonder at what level a custodial sentence will be considered? Also, whether or not any rehabilitation courses will be available whereby the length of disqualification can be reduced? A word or two about ‘driving’ – a person can be said to be ‘driving a vehicle’ if he has substantial control over its movement and direction A person can be said to be ‘attempting to drive’ if he does an act ‘which is more than merely preparatory to the commission of the full offence’ – we know from caselaw that merely opening a car door is insufficient – Mason and the DPP [2009] EWHC 2198 (Admin) Whether or not a person can be said to be ‘in charge of a motor vehicle’ was considered at some length in the leading case of DPP v Watkins [1989] QB 821 in which a whole list of factors for consideration were given

The reasonable excuse for not providing the sample will no doubt be analogous to the reasonable excuse for not providing an evidential specimen to test for alcohol – Needle phobias etc – this is no doubt why urine is also in the legislation Just like the current offences under Sections 4 and 5 the offence can either be committed on a ‘road’ or other ‘public place’ Do have a look at Wilkinson on Road Traffic in relation to the definition of a road – some people seem to think that a car park is a road but the House of Lords would disagree with them! Where there is a dispute as to whether or not something is a road/public place this needs to be flagged up as a trial issue and the burden seems to be upon the prosecution – Robert Hallet and the DPP [2011] EWHC 488 (Admin) Whether or not something is a public place is a question of fact and it may be that whether or not it is a public place may change within the day A public house car park may well be a public place during the day but it might be totally different at night when there is a barrier restricting entry A public place is a place to which the general public would ordinarily have access, whether on payment of a fee or otherwise – a portion of the public is not enough – the car park of a private members club is clearly not a public place if access is restricted to members only.

By far and away the most important Statutory Instrument of the month was No. 664 of 2015 By far and away the most important Statutory Instrument of the month was No. 664 of 2015, which is The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 These Regulations came into force on the 12th of March 2015. These Regulations make provision in relation to fines and maximum fines which may be imposed on summary conviction, for the purpose of implementing Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Section 85 (1) of the Act, which is commenced alongside these Regulations, provides that a relevant offence which is, on the commencement day, punishable on summary conviction by a fine or maximum fine of £5000 or more (however expressed) becomes punishable on summary conviction by a fine of any amount.

Essentially, the £5000 level 5 fine has gone in the Magistrates’ Court and the amount is now unlimited. Where a fine is £5000 or more, however expressed, it becomes an unlimited fine. So a fine of £5000, a fine expressed as a level 5 fine or a fine of £20,000 for example, all become unlimited As mentioned in an earlier edition of CrimeScribe the £5000 cap on compensation in the Magistrates’ Court went some time ago and compensation in the Magistrates’ Court is now an unlimited amount. The Statutory Instrument essentially consists of 5 Schedules This Statutory Instrument is not an easy read and I would strongly urge any of you dealing with an unusual matter in the Magistrates’ Court to check the Schedules to find out what the current maximum permissible penalty is in the Magistrates Court. This is because the Statutory Instrument provides that some offences with fine levels in excess of £5000 will be exempt from these changes and stay the same. The Regulations disapply Section 85 (1) of the 2012 Act in relation to a number of other offences and substitute new maximum penalties. The maximum penalties are contained within Schedule 2 and the offences to which they apply are contained in Schedule 1. It seems to me that we still have levels 1 to 4 but it’s probably just as well to check with your legal adviser in court that this is still the case! I don’t think they could have made this Statutory Instrument more convoluted if they had tried!

Statutory Instrument 2015 No. 317 is ‘The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015 Statutory Instrument 2015 No. 317 is ‘The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015 and came into force on the 10th of March 2015 – the explanatory note to the Order informs us that the 1975 Order disapplies specified provisions of the Rehabilitation of Offenders Act 1974 so as to permit questions to be asked about spent convictions and cautions (except where they are protected convictions and cautions as described in article 2A of the 1975 Order) in order to assess a person’s suitability for admission to certain occupations or to hold certain types of employment, licences or permits. It also permits spent convictions and cautions, or a failure to disclose them, to be a ground for excluding a person from those occupations or for making decisions in relation to those types of employment, licences and permits.

The amendments in this Statutory Instrument concern regulated activity relating to vulnerable adults and children. Articles within this Order amend paragraphs 12A and 14A to cover any work which is regulated activity as defined in Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 Act following the 2012 Protection of Freedoms Act amendments. Further articles amend the 1975 Order covering counter fraud work and security management in the NHS. The amendment means that a person’s spent convictions and cautions may be taken into account when assessing a person’s suitability to engage in such work. In summary this Statutory Instrument simply adds to the list of circumstances in which one cannot rely upon the Rehabilitation of Offenders Act 1974 as a means of nondisclosure simply because the conviction is spent. I’m sure we would all consider it a very sensible proposition that people applying for work with children or vulnerable adults or when applying for counter fraud work and security management in the NHS that they are obliged to declare whatever they have in their past, even though their conviction/caution may well be spent in other circumstances.

Statutory Instrument 2015 No.202 is the Social Security (Penalty as Alternative to Prosecution) (Maximum Amount) Order 2015 Statutory Instrument 2015 No.202 is the Social Security (Penalty as Alternative to Prosecution) (Maximum Amount) Order 2015 and comes into force on the 1st of April. Article 2 of the SI increases the maximum amount of the penalty that may be offered as an alternative to prosecution, under Section 155A (3) (b) of the Social Security Administration Act 1992, from £2000 to £5000 with effect from 1st April 2015. Such a penalty may be offered where an overpayment of benefit is recoverable from a person by (or due from a person to) the Secretary of State on an authority under section 71, 71ZB, 71A, 75 or 76 of the 1992 Act, and it appears to the Secretary of State or authority that the making of the overpayment was attributable to an act or omission of that person, and that there are grounds for instituting proceedings against that person for an offence relating to the overpayment. The amount of the penalty that can be offered under Section 115A (3) of the 1992 Act is 50% of the overpayment subject to a minimum of £350, and (where this Order applies) a maximum of £5000. The amendment made by this Order applies only in relation to an act or omission referred to in paragraph (a) of Section 115A (1) of the 1992 Act which appears to the Secretary of State or authority to have occurred wholly on or after 1st of April 2015. 85

Statutory Instrument 2015 No. 40 is The Offender Rehabilitation Act 2014 (Commencement No. 2) Order 2015 Statutory Instrument 2015 No. 40 is The Offender Rehabilitation Act 2014 (Commencement No. 2) Order 2015 and came into force on the 1st of February 2015. I did mention this at some length in last month’s edition, but here it is again in a nutshell: Sections 1 to 9 and Schedules 1 to 3 of the Act are now in force and these relate to the release and supervision of offenders. These provisions introduce a licence period for offenders with a sentence of more than one day but less than 12 months; and create a new period of supervision for offenders with a sentence of more than one day but less than 2 years. A person 18 or over who is sentenced for offences on or after the 1st of February 2015 will now serve half the sentence (unless released earlier under the Home Detention Curfew Scheme) have the remaining half of their sentence on licence, followed thereafter by a supervision period – the licence and supervision period must total 12 months. Provision is made about the requirements which may be imposed during the supervision period, and breach of those requirements. Provision for certain young offenders and various consequential provisions are also made. The SI also commences Sections 11 to 13 of the Act which amend the drug testing requirements which may be imposed where an offender is released on licence, and introduces a new requirement which may be imposed that the offender attend drug appointments Sections 15 to 17 and Schedule 5 to the Act relates to requirements which may be imposed on an offender as part of a community order or suspended sentence order. These provisions introduce a new ‘rehabilitation activity requirement’ and amend the ‘program requirement’ and ‘attendance centre requirement’. Statutory Instrument 2015 No. 373 confirms that a number of provisions in the AntiSocial Behaviour, Crime and Policing Act 2014 Statutory Instrument 2015 No. 373 confirms that a number of provisions in the AntiSocial Behaviour, Crime and Policing Act 2014 came into force on the 8th of March 2015. Sexual Offences Prevention Orders (SOPO’s) have been repealed but there are transitional and saving provisions. Foreign Travel Orders and Risk of Sexual Harm Orders have also been repealed. These Orders are replaced with a new Sexual Harm Prevention Order and a Sexual Risk Order.

Magistrates’ are being asked to act more robustly when deciding to take cases at the allocation and sending stage. The expectation clearly is that more cases remain in the Magistrates’ Court. Guidance has been issued from the Senior District Judge (Magistrates’ Courts) and the Justices Clerks Society – an interesting passage from the Guidance reads as follows: ‘...... it is important to underline that, provided the option to commit for sentence is publicly identified, the decision to retain jurisdiction does not fetter the discretion to commit for sentence even after requesting a pre-sentence report’ Major parts of The Criminal Justice and Courts Act 2015 come into force on the 13th of April 2015. I shall look into this and deal with them in next month’s edition.

Transforming Summary Justice (TSJ) This is the very latest in a long line of initiatives designed to improve summary justice in the Magistrates’ Court. The central proposal is that any contested criminal trial in a Magistrates’ Court should be fully case managed at the first hearing, and take place at the next hearing. Arrangements to introduce TSG are well under way. We will have the concept of the NGAP – ‘not guilty anticipated plea’ courts for anticipated not guilty pleas. A major change to the current system will involve the Crown Prosecution Service reviewing trials before the first NGAP court, rather than shortly reviewing them before the hearing, which is the current system. In certain areas there is a considerable trial backlog in courts and a national trial blitz has been initiated which will start in London on the 13th of April and then move to Manchester, Kent and other parts of the country. One of the initiatives involves putting on additional courts over a period of time (in London. It is six weeks) in order to clear the backlog. The system will not work unless more detailed information is made available to solicitors in preparation for the trial blitz. The trial blitz will concentrate on shorter and less complicated trials. For TSG to work the defence will need to be provided with details of the evidence upon which the Crown would seek to convict and the unused material schedule at that first hearing. There can then be a negotiation between the defence and the Crown as to what, if any, material should be provided to the defence on the unused material schedule. As you know, traditionally, lawyers have had 14 days in the Magistrates’ Court from the service of the unused material schedule (MG6C) in order to file a defence statement and to notify the prosecution of the details of any witnesses who may be called to give evidence at the trial – see Statutory Instrument 2011 No. 209 – The Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011. 87

Some of you may have noticed that there has been a small but important amendment to the Magistrates’ Courts Trial Preparation Form Some of you may have noticed that there has been a small but important amendment to the Magistrates’ Courts Trial Preparation Form. The Lord Chief Justice has authorised an amendment to the list of standard trial preparation time limits at page 7 of the Magistrates’ Courts Trial Preparation Form. Time limit (d) (Application for Disclosure) has been re-written to clarify the obligation on the defendant when making an application for prosecution disclosure and now reads as follows: Application for disclosure (Criminal Procedure Rules, 22.2 and 22.5; Criminal Procedure and Investigations Act 1996, Section 8) ‘the defendant must serve an application for an order for prosecution disclosure as soon as reasonably practicable after the prosecutor complies with the initial duty of disclosure – under Section 8 of the Criminal Procedure and Investigations Act 1996, no such application may be made unless a defence statement has been served. The prosecutor must serve any representations in response within 14 days after that. Do remember that the term ‘disclosure’ is a term of art and relates solely to ‘unused material’. It is not to be confused with ‘evidence’. The defence are provided with the ‘evidence’ upon which the prosecution would seek to convict at trial; unused material is ‘disclosed’ to the defence if the relevant test is met. Own are under a duty to deal with initial disclosure and then under a further continuing duty to disclose as and when material which meets the test comes within their possession. If directions are made by the court under section 8 and further disclosure is provided. Thereafter, the term for this disclosure is secondary disclosure. There is no such thing as advance information. There is no such thing as advanced information. There is no such thing as advance disclosure. There is no such thing as advanced disclosure. These terms are ‘old hat’ and should no longer be used. The correct terms are: Initial details of the prosecution case – Rule 10 of the Criminal Procedure Rules 2014 Initial disclosure of the non-sensitive unused material schedule Disclosure of the unused material which meets the test Secondary disclosure of unused material after a Section 8 directions hearing The provision of evidence upon which the prosecution would seek the defendant’s conviction at trial

PPE or Special Prep? An interesting read in this area is the case of R v Furniss and others (2015) EW Misc B1 (Crown Court) This case was heard in the Crown Court in Nottingham and Mr Justice Haddon-Cave had to consider whether or not counsel should be paid as PPE in relation to the evidence which had been served upon them in a digital format and which the CPS had refused to include as PPE. Even a cursory reading of the case will alert you to the fact that the material was the fulcrum of their case before the jury and I can see no reason why the prosecution were so reluctant to include it in the page count. Mr Justice Haddon-Cave made the following rulings: Telephone material served in digital form should be included in the page count The same is true of evidence served in relation to proceeds of crime applications Inadequate remuneration may breach a defendant’s right to a fair trial It is not necessary to establish that the evidence is important or central to the prosecution case The PPE limit of 10,000 is arbitrary and where the PPE Exceeds 20 – 30% full payment should be made, so in the instant case some 24, 407 pages. The Lord Chancellor was not of course represented in the heaving and the Judge’s comments in the area of costs are obiter, but it does make for an interesting contribution to the debate! Defence counsel in the case, asking the Judge to consider the payment issues at the conclusion of the case. In the recent case of Regina v Thompson – SCCO Ref: 325/14, dated 10th of February 2015. The senior costs Judge Mr Andrew Gordon-Saker considered himself bound by the decision of Furniss because it was a decision of a High Court Judge sitting in the Crown Court. The Thomson case was all about an appeal by the solicitors against the refusal of the LAA to pay as PPE electronically served evidence by way of Excel spreadsheets, PDF files and photos which would not previously have existed in paper format. The decision in Furniss related to the iteration of the 2007 Funding Order that applies to cases in which the Representation Order was granted on or after the 1st of April 2012; in those cases the Determining Officer has a discretion to allow evidence served electronically as PPE ‘taking into account the nature of the document and any other relevant circumstances’. The Costs Judge taking the view that the decision is intended to give guidance only as to how to apply the discretion to include digital evidence granted in respect of cases where the Representation Order is dated on or after the 1st of April 2012. There was no reason for the judgement to 89

explore the position before April 2012. In the present case there is no such discretion. Only evidence which was served on paper and evidence which had existed on paper is included. There was no power to include that which would otherwise be excluded. Accordingly, the case of Furniss does not resolve this appeal. Given that it is not in issue that the evidence served electronically had not previously existed in paper form, the agency’s decision on the original determination was correct and the appropriate page count was 1,177 pages. The appeal is therefore dismissed. The date here was crucial. The amended Funding Order only applies where the Rep Order is granted on or after the 1st of April 2012 and, unfortunately, the Representation Order in the present case was dated 2nd of February 2012.

ABBAS v CPS [2015] EWHC 579 (Admin) At long last we have been given some guidance as to what we may or may not claim for when we are Court appointed pursuant to Section 38 (3) of the Youth Justice and Criminal Evidence Act 1999. The case is ABBAS v CPS [2015] EWHC 579 (Admin) – judgement delivered by Lady Justice Hallett The defence advocate at the trial made an application for an adjournment in order to obtain certain disclosure from the Crown. The application for the adjournment was refused. The defence advocate then made a second application without notice to adduce a non-defendant’s bad character under Section 100 of the Criminal Justice Act 2003 in respect of the complainant. It was said that certain question should be asked and enquiries made because it was relevant to the complainant’s credibility. This application was also refused. The defence advocate remained in Court after the relevant cross-examination and the prosecution objected to her presence on the basis that she had fulfilled the terms of her appointment to cross-examine the witness. The legal adviser had never come across an objection of that kind before and advised the Magistrates’ that in the absence of authority it might be thought unfair to prevent the defence advocate from continuing to act if she was prepared to do so. The bench agreed and allowed her to remain assisting the appellant. The defence solicitors asked the Magistrates’ to state a case for the opinion of the High Court on 4 questions posed, one of which being whether or not it was correct of the prosecution to have taken exception to the continued presence of the defence advocate assisting the appellant. Another was in relation to the bad character application.

The bad character issue centred around whether or not the firm should have been required to submit a written notice to adduce the character as suggested by the Magistrates’. The solicitors taking the view that, had they done so, they would not have been paid. The firm was appointed solely to conduct cross-examination and payment of fees was subject to guidance from the Justices Clerks Society, dated October 2007. The Society had offered guidance to those responsible for authorising payment to advocate’s appointed under Section 38 of the Youth Justice and Criminal Evidence Act. The guidance states: ‘Payment should not be limited to the cross-examine itself, but should allow for appropriate preparation and reading, including taking instructions and some precourt meeting time with the defendant if necessary, attendance at court for the examination in chief of the relevant witness and any other work which is strictly necessary for the purposes of the cross-examination. Claims must not include work outside the scope of the limited provision of Section 38 (4). ‘Payment should not cover any preliminary issues such as applications to admit bad character of the accused or applications for special measures to be used for the witness, as this should be done in the victim’s absence and would not involve the victim being questioned. If there is an application to admit bad character evidence of the witness and this is pursued on the day of trial as part of cross-examination this should normally be covered by the provisions’. Para 25 ‘Looking at that guidance carefully, there seems to be some room for doubt as to its meaning. The words ‘if there is an application to admit bad character evidence of the witness and this is pursued on the day of trial as part of cross-examination this should normally be covered by the provisions’ suggests an application to adduce the character of a witness will only be covered if pursued at trial. If an application to adduce bad character evidence of a witness is genuinely part of the duty of the Section 38 advocate, one might have thought it should be covered whenever made. Further, if the guidance suggests payment will not be made for written applications made in accordance with the rules that would be unfortunate. I accept that the guidance is not clear and the Society may wish to make it clearer. Para 38 ‘I turn, therefore, to the role of the advocate appointed under Section 38. Section 36 sets the backdrop to Section 38. Section 36 is designed to prevent an accused in criminal proceedings cross-examining a witness in person. It is important to bear very 91

much in mind, therefore, that the role of the advocate under Section 38 is to crossexamine the witness.’ Para 48 ‘It means also that their appointment comes to an end, under Section 38, at the conclusion of the cross-examination, save to the extent that the court otherwise determines. Technically the lawyer no longer has a role in the proceedings thereafter. However, if the lawyer is prepared to stay and assist the defendant on a pro bono basis, I see nothing in the Act and no logical reason why the Court should oblige them to leave. The advocate may well prove beneficial to the efficient and fair resolution of the proceedings. Para 50 ‘The aim of the legislation as I have said is simply to stop the accused crossexamining the witness. It is not to prevent the person appointed to cross-examine from playing any other part in the trial. I am therefore satisfied that, to the extent that the legal adviser was advising on the law in relation to this point, the advice was entirely appropriate’.

We are back on the ‘Tendering Trail’ We are back on the ‘Tendering Trail’ with the Court of Appeal having dismissed the objections to the government’s proposals for the reform of criminal legal aid this week. The Tendering window was opened again on Friday, 27th of March with the new deadline for submissions for Duty Provider Contracts being the 5th of May 2015. With this in mind, I thought it might be appropriate to do a series of Q and A’s in this month’s edition of CrimeScribe, which, I hope, will be of assistance to those of you seeking a Duty Provider Contract. This document includes the more interesting Q and A’s published in the various FAQ documents. I’m sure you will all agree that it is all very complicated and if you are unsure about a particular answer I would strongly urge you to check the source material again on the Legal Aid Agency website. Q1 Is it possible for an Applicant Organisation to be both an Applicant

Organisation and a Delivery Partner on a single Bid?

A1 No. Q2 Is it possible for an Applicant Organisation to be included in 2 Bids per

Procurement Area i.e. as an Applicant Organisation once and as a Delivery

Partner once?

A2 Yes.

Q3 Is it possible to be included in more than one Bid as a Delivery Partner within the

same Procurement Area?

A3 Yes, you can be named as a Delivery Partner in up to 2 bids per Procurement Area. Q4 What is the maximum number of Organisations that could be included within a

single Bid?

A4 4, the Applicant Organisation and up to 3 Delivery Partners. Q5 Can your Delivery Partner provide more than 40% of the total value of the

Contract Work under a single bid?

A5 No, a single Delivery Partner can deliver no more than 40% of the total value of

the Contract Work under a single bid.

Q6 What guidance have they given on the term ‘consortia’? A6 The term will not be a defined term in the Contract and/or Tender.

Organisations may come together in a number of ways to deliver the service

but will either need to form a single legal entity or by means of a Lead

Contractor (the Applicant Organisation) working with up to 3 Delivery Partners.

Q7 What guidance has been given on ‘joint ventures’? A7 A joint-venture that is appropriately regulated and intends to deliver Contract

Work, may Tender.

Q8 Does the Tender criteria inherently favour or disadvantage Bids on the grounds

of including Delivery Partners?

A8 No. Q9 Can the Applicant Organisation share overheads with the Delivery Partners? A9 Yes, the Office may be shared (subject to meeting the requirements set out in

Paragraph 2.27 of the Draft Contract) and support staff.

Q10 What if the Delivery Partner falls by the wayside? A10 The Applicant Organisation remains contractually obliged to fulfil the Duty

Provider Contract if a Delivery Partner is no longer able to deliver services. The

Applicant Organisation is responsible for drawing up the agreement with

its Delivery Partners so may include arrangements for risk sharing and liability

if the Delivery Partner is no longer able to deliver services (a very useful Delivery

Partnership, template agreement is available on the Law Society website)

Q11 What if the Applicant Organisation wishes to deliver services across some of the

Procurement Area but some towns in the Procurement Area are just too far

away from their Office?

A11 This might be a situation where other small Organisations based in these towns

would still like to continue to undertake Duty Work but do not intend to bid for

a Duty Provider Contract themselves – the Applicant Organisation may wish to

enter into arrangements with the other Organisations to cover part of the

Contract Work in those areas as Delivery Partners.

Q12 What if the Applicant Organisation does not have specific expertise in a

particular area?

A12 Some criteria will award more points to Applicant Organisations employing an

individual experienced in a particular area of criminal law. These individuals

can be employed by the Applicant Organisation or a delivery Partner and

deployed on the Contract in the Procurement Area.

Q13 What if the Applicant Organisation currently delivers a much larger volume

of work across the Procurement Area than it will be permitted under the new

Contract?(there are 9 Contracts up for grabs in the Thames Valley Area

and some firms within that area may already deliver well over a ninth of the

service). A13 In these circumstances the Applicant Organisation may well bid for the

percentage of work (the maximum allowable under the Contract with no

Delivery Partners) and then seek to be a Delivery Partner for another firm within

the same Procurement Area in order to get more work.

Q14 Will Delivery Partners have to subject themselves to an assessment by qualified

financial professionals of their finances?

A14 No, only Applicant Organisations (In relation to Established Businesses – the

financial assessment will be based on key ratios from their accounts)

Q15 What are key ratios? A15 Key ratios refer to formulae commonly used as a guide to the financial position

of a business, these include GEARING and DEBT and NET WORTH and will

provide an indication of an Applicant Organisation’s profitability, liquidity and

solvency – for new businesses, in addition to cash flow forecasts, we intend to

look at business plans and projected turnover

Q16 How will current turnover be calculated in the context of ‘Expansion Capacity Assessment? A16 For the purposes of the Expansion Capacity Test, ‘current turnover’ will include

the entire turnover of the Applicant Organisation only, excluding Delivery

Partners. This will therefore cover turnover from all areas of work carried out by

the Applicant Organisation, including all legal aid work (in whatever category

of law), and all privately funded work.

Q17 Will Applicant Organisations need to specify, as part of their Bid, the

percentage of work that they will conduct under the Contract?

A17 No, Applicant Organisations will not need to specify percentages as part

of their Bids. Maximum/minimum percentages of work which the Applicant

Organisation/Delivery Partner can conduct will be set as Contract requirements

currently referred to in clauses 3.18 and 3.19 of the Draft 2015 Duty Provider

Crime Contract Standard Terms. The percentages, based on the volume of

work as set out in the Contract Standard Terms, will be different in urban and

rural areas, but will be the same for all Contracts within a particular

Procurement Area. Compliance with these Contract requirements will be

managed as part of the management of the Contract, Applicant Organisations

will not be asked to give their own specific percentages as part of their bids.

Q18 Will there need to be a minimum number of Duty Solicitors required before an

Organisation can apply for a Duty Provider Contract?

A18 It is not a requirement of the Tender that Organisations need a minimum

number of Duty Solicitors. However, there will be requirements around the

minimum number of Supervisors and a Supervisor to caseworker ratio – See

Sections 2.1 and 2.16 of the Draft 2015 Duty Provider Crime Contract

Specification document.

Q19 Will a bare minimum number of fee earners/caseworkers be required? A19 There will be a Basic Capacity Test that Bidding Organisations (including their

Delivery Partners) employ at least one Full Time Equivalent (i.e. 35 hours a week)

fee earner/caseworker for every £83k of the indicative Contract value.

Q20 Does VHCC work fall within the Duty Provider Contract? A20 No.

Q21 Can work that is started as Duty Work thereafter be turned into Own Solicitor work? A21 The central principle is that once the case is allocated via the Duty mechanism

(at the Police Station or Court) then the provider will be required to follow it

through to completion. Therefore this ‘follow on’ work will be considered as

Contract Work which must be carried out under the terms of the Duty Provider

Contract. It would not be possible to convert this to Own Client work.

Q22 Are the requirements for Supervisors under the 2015 Crime Contracts different

from the requirements in the current Contract?

A22 Yes, requirements for Supervisors under the 2015 Crime Contracts are different

from the requirements of the current Contract – for details of the requirements

for Supervisors under the new Contract see Sections 2.9 to 2.14 of the Draft Own

Client Contract Specification and Sections 2.8 to 2.13 of the Draft 2015 Duty

Provider Crime Contract specification.

Q23 Must one have Crown Court advocacy experience in order to be a Supervisor? A23 No, 4 criteria are listed for Supervisors to meet. One of these criteria requires

Supervisors to have experience of MAGISTRATES’ COURT work. There are 2

routes to meeting this. In the previous 12 months, the Supervisor must

have undertaken either (I) a minimum of 20 Magistrates’ Court representations

and advocacy under a Representation Order; OR (II) undertaken a minimum

of 10 Magistrates’ Court representations and advocacy and 5 Crown Court

representations and advocacy.

Q24 Are Bids in each Procurement Area restricted to providers located in that

Procurement Area? – What is to stop the larger firms submitting a Bid in each

Procurement Area? – Will these firms be required to allocate Offices in each

area and show that resources have been put in place prior to submitting

their Bids?

A24 No, bids in each Procurement Area will not be restricted to providers currently

located in that Procurement Area. However, the Tender requirements will need

to be met within the Procurement Area in which an Organisation is bidding and

it must have CAPACITY to deliver all of the services Bid for concurrently. –

Information on the Office requirements is set out in Sections 2.27 to 2.29 of the

Draft 2015 Duty Provider Crime Contract Specification.

Q25 Is it possible for the Duty Provider Contract to be in a different location to the

Own Client Contract?

A25 The Own Client Contract does not restrict providers to carrying work out in a

particular location, provided that they have an Office which meets the

Contract requirements. The Duty Provider Contract will authorise a provider to

carry out work in specific Procurement Areas.

Q26 Must the Applicant Organisation be, in any way, linked as a ‘legal entity’ to the

Delivery Partner?

A26 No, a Delivery Partnership is a group of separate Organisations that have come

together to deliver a Duty Provider Contract without forming a separate ‘single

legal entity’.

Q27 Can an Applicant Organisation use non-employees to meet the Tender requirements? A27 Where Bidding Organisations are reliant on a particular individual to meet

the Selection Criteria, that individual will need to be employed by the Bidding

Organisation (or where permitted, it’s Delivery Partner) and deployed on the

Contract Bid for at least 17.5 hours per week. Where an Organisation has been

awarded a Contract on the basis of meeting particular criteria (e.g. an

individual with certain experience) this will form part of Contract

documentation and needs to be maintained throughout the life of the

Contract. The LAA may, however, permit like for like substitution of individuals.

Q28 What is the scope of the Duty Provider Contract? A28 The Duty Provider Contract will cover all criminal legal advice, litigation (except

Very High Cost Cases) and Magistrates’ Court advocacy services delivered to

clients who choose the Duty Provider at the first point of request (either at the

Police Station or Magistrates’ Court).

Q29 Is the client permitted to change representation and go to another firm? A29 Subject to applicable rules of professional conduct you must retain a Duty

Provider case until it concludes unless the client chooses to change

representation.

Q30 What will be the structure of the Duty Provider Contract? A30 The structure of the Duty Provider Contract will be very similar to the Own Client

Contract and will be made up of:

• Contract for signature • Schedule(s) • Standard terms • Specification

Q31 Will there be any difference in the payment rates and methods of payment

between the Own Client Contract and the Duty Provider Contract?

A31 No. Q32 Will the Duty Provider Contract require an Applicant Organisation to have a

formal written agreement in place between the Lead Contractor (i.e. the

Applicant Organisation) and any Delivery Partners?

A32 Yes. Q33 Will the Duty Provider Contract require an Applicant Organisation to have a

formal written agreement in place between the Lead Contractor and

any Agents?

A33 No. Q34 What would happen in the event of a Delivery Partner or Agent ceasing to hold

an Own Client Contract?

A34 The Applicant Organisation would be unable to continue to use them to do

work under the Duty Provider Contract.

Q35 Will we all continue to be subject to Peer Reviews during the life of

the Contract?

A35 All providers will be subject to Peer Review during the life of the Contract. Any

review of your crime work will be against all crime work you undertake

and therefore the sample of files reviewed may include Own Client

work and Duty Provider work. Your Peer Review may include work undertaken

by Agents or Delivery Partners as applicable. Under the Duty Provider Contract

you are responsible for all work under the Contract and conducted in your

name. Whether the work was undertaken by directly employed staff or third

parties it will be treated as your work for all Contract purposes including

Peer Review. 98

Q36 How may the Contract be brought to an end? A36 The Duty Provider Contract will have a 4-year term subject to their right to

extend the Contract for up to a further 12 months. The Contract may

be terminated on a no-fault basis on six months’ notice subject to

compensation in certain circumstances. Duty Provider Contract holders will not

have the right to terminate the Contract on a no-fault basis although common

law rights relating to termination for breach of Contract will continue to exist.

Q37 We Tended for the Own Client Contract as a limited company – there has been

a change of directors – are we still able to work under the Own Client Contract

and submit a Tender for the Duty Provider Contract?

A37 Yes, if there is no change to the business type (in this case a limited company)

there is no impact on the offer of an Own Client Contract or the ability to

submit a Tender for a Duty Provider Contract – the Organisation must, however,

inform the LAA if the change of directors has an impact on the responses to the

Own Client Contract ITT.

Q38 When I submitted my application for the Own Client Contract I was intending to

continue to operate as a sole trader but I have now decided to change this.

Will this have any impact on my ability to take up the Own Client Contract or

Tender for a Duty Provider Contract?

A38 It depends, if an AO did not intend to MERGE or change their ORGANISATIONAL

STRUCTURE other than to change their legal status there was no need to

submit more than one tender e.g. a simple change from partnership to limited

liability partnership. However where there has been A CHANGE IN THE NATURE

OF THE BIDDING ENTITY that entity will not have tended for an Own Client

Contract and, therefore, will be unable to Tender for a Duty Provider Contract.

In this case the Tender was submitted by a sole practitioner but the

Organisation is now a partnership or limited company, and, therefore,

a different entity to that which Bid for the Contract. Where a change from sole

practitioner to partnership was envisaged the Organisation could have

submitted Own Client Contract Tenders as a sole practitioner (current

Organisation); and a partnership or limited company (proposed Organisation).

Q39 I have been successful in my application for an Own Client Contract for my

current business as a sole trader. Since notification Iâ&#x20AC;&#x2122;ve agreed to change to a

partnership, with a former colleague taking part ownership of the business. Can

I still Tender for the Duty Provider Contract?

A39 As there has been a change of the ownership structure of the business the

original Organisation will no longer exist as a separate legal entity, and on this

basis it would not be possible to accept the offer to award an Own Client

Contract. Unless the new partnership also successfully tended for an Own Client

Contract it will not be able to Tender for the Duty Provider Contract.

Q40 We have been notified of the successful outcome of our Tender for an Own

Client Contract. We have since been approached by another firm with a view

to a merger which will see us becoming a part of the larger group. Can we do

this under our existing award or would this require a re-assessment of

our application?

A40 This will depend on whether the larger Organisation submitted its own

application for the Duty Provider Contract (this must surely be a mistake

and they must mean the Own Client Contract). Essentially if the merger

proceeds, the original Organisation will no longer exist as a separate legal entity

and on this basis it would not be possible to accept the offer to award an Own

Client Contract or Tender for a Duty Provider Contract.

Q41 We were successful in our Tender for an Own Client Contract but have now

gone through a merger with another local firm. Can we still apply for a Duty

Provider Contract?

A41 If the Organisation which was previously successful in the Own Client Contract

Tender no longer exists it cannot accept the Own Client Contract offer or Bid

for the Duty Provider Contract. If the other local firm did not tender for the Own

Client Contract, or was unsuccessful in that Tender, it also cannot tender for a

Duty Provider Contract.

Q42 We had been planning a merger with another firm and successfully tended for

the Own Client Contract on that basis. We have now decided to remain

separate. We only Tendered on the basis of the merged Organisation and not

in our current status. Can we now apply for either an Own Client Contract or

Duty Provider Contract?

A42 Organisations should have considered submitting Tenders in various forms

where a merger was being considered. As there was no application made in

the current form the Organisation cannot now apply for an Own Client

Contract and therefore would not be eligible to apply for a Duty

Provider Contract.

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Q43 We were successful in our Tender in our current format of a limited company.

There has been a change in that 2 shareholders in the company bought out

the remaining shareholder – will this in any way affect our Bid?

A43 The Bidding entity has not changed and, therefore, it is likely that this would not

impact on the Organisation’s ability to Tender for a Duty Provider Contract –

the LAA must be informed of the changes.

Q44 Our firm successfully submitted a number of Tenders as we were unsure of how

we would proceed (how very farsighted of them!). We have been awarded

Own Client Contracts as ‘Bloggs’ and also as ‘Smith Ltd’. Since the award

‘Bloggs’ has merged with the local firm ‘Jones’. Can ‘Smith Ltd’ and ‘Bloggs

and Jones’ all tender for the Duty Provider Contract in the same

Procurement Area?

A44 The Duty Provider Contract is contingent on the holding of an Own Client

Contract. Following the merger of the entities ‘Bloggs’ and ‘Jones’ the

entity awarded the Own client Contract no longer exists and the new trading

business may not therefore Tender for any Duty Provider Contract. The

business of Smith Ltd however has been granted an Own Client Contract

and if it is still in existence it may tender for a Duty Provider Contract. If the

business of Smith Ltd remains in existence it must consider the rules on

submitting multiple Bids. If Smith Ltd and Jones Tender in the same

Procurement Area and are CONNECTED under the rules on submitting multiple

Bids both Tenders would be rejected.

Q45 The definition of ‘Employee’ does not make specific reference to Sole Principals

– can they be counted as ‘Employees’ for the purpose of my Tender?

A45 Yes, Sole Principals will count as meeting the definition of an Employee. Q46 Can Applicant Organisations submit multiple Tenders as part of different entities

within any single Procurement Area?

A46 Within any single Procurement Area:

An Applicant Organisation may not be ‘connected’ to an another Applicant Organisation submitting a Procurement Area Bid in that

Procurement Area

An Applicant Organisation may only be ‘connected’ to one Delivery

Partner named in a Procurement Area bid in that Procurement Area

A Delivery Partner who is not connected to an Applicant Organisation

submitting a Procurement Area bid in a particular Procurement Area may

only be ‘connected’ to one other Delivery Partner named in a

Procurement Area bid in that Procurement Area. 101

Q47 Will my Organisation be able to bid for all Duty Schemes it’s currently

eligible for?

A47 The LAA is inviting Tenders on the basis of new Procurement Areas and most

Procurement Areas differ from existing arrangements. Therefore, you should be

aware that you may no longer be eligible for those schemes that you are

currently eligible for – see Table 3 of Annex B.

Q48 Does a Delivery Partner’s Office have to be in the same Procurement Area? A48 There was no requirement in the Tender documentation for a Delivery

Partner to have an Office in the same Procurement Area as the

Applicant Organisation.

Q49 What will happen if a Delivery Partner pulls out after the Tender deadline? A49 AO’s may not substitute any named Delivery Partners in their Tender after the

deadline. Should an AO find itself no longer able to use a named Delivery

Partner, it must immediately notify the LAA. Any Procurement Area bids for

which that Delivery Partner is named by the Applicant Organisation will

be rejected.

Q50 What limitations will there be on the use of ‘employees’ on zero

hours Contracts?

A50 The definition of ‘Employee’ is contained at Annex F of the FIA. In addition,

where a named individual is relied upon to meet Selection Criteria that

individual must be deployed on Contract Work in the Procurement Area for at

least 17.5 hours per week.

‘Employee’

‘An individual engaged by you who:

(a) Is a director, member or partner of your Organisation; or

(b) Who holds a Contract of employment/Contract of service with you; and

to the right to claim unfair dismissal and statutory redundancy payments

and who is fully integrated into your Organisation, is under the control of

your Organisation and mutuality of obligation is present.

For the avoidance of doubt, individuals who are self-employed, independent

contractors or hold a Contract for services do not meet this definition.

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Q51 If an AO bids in more than 2 areas with the same Management Team is it the

LAA’s position that the entire Bid is disqualified?

A51 To ensure that Named Individuals relied upon to meet each Selection Criterion

will be deployed by the Applicant Organisation to manage or deliver Contract

Work within the Procurement Area for at least 17.5 hours a week, the same

individual cannot be named in more than 2 Procurement Area Bids (either by

the same Applicant Organisation or across multiple Applicant Organisations –

(See Para 4.41 of the Invitation to Tender document).

Q52 Can a Supervisor cover more than one Procurement Area? A52 As set out at Paragraph 4.3 of the IFA Applicant Organisations must employ a

Full Time Equivalent Supervisor in the Procurement Area they are Bidding for by

the Service Commencement Date. As set out at Paragraph 4.6 a Full Time

Equivalent (FTE) is the number of working hours that represents a notional Full

Time Individual working 35 hours per week.

Q53 What is the minimum Supervisor to Caseworker ratio? A53 ‘The general position under all Classes of work is that there is a ratio of 1 Full

Time Equivalent Supervisor to 4 Designated Fee Earners or Caseworkers in

each Procurement Area you undertake Contract Work in. You must not

employ any Supervisor in respect of a Class of work who is also a Supervisor for

another Provider or any other Organisation’ – see Paragraph 2.16 of the

2015 Duty Provider Crime Contract – The Specification.

Q54 Must Applicant Organisations employ sufficient Supervisors to cover the fee

earners/caseworkers employed by their Delivery Partners?

A54 For the avoidance of doubt this does not include staff employed by

Delivery Partners

Q55 Can the same individuals who are caseworkers be used in different

Procurement Areas?

A55 Caseworkers may be named as being employed by the Applicant

Organisation in carrying out Contract Work under the Duty Provider Contract in

Section B of the Qualification Envelope in more than 2 of the relevant

Procurement Area ITT’s except where they are used as NAMED INDIVIDUALS.

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Q56 In Section E (Delivery Experience) what constitutes an ‘Entire Case’? A56 As set out in Annex F of the IFA,’ ‘Entire Case’ is a defined term with the

following meaning:

‘A case which the person in question must from initial conduct of the case

to the final hearing have had professional conduct of or had direct supervision

of, including the provision of advice and assistance at the Police Station, and

the representation of the client in at least one hearing at a Magistrates’

Court (and/or Crown Court where applicable), not including a case

management or committal hearing’

Q57 Is the definition of an ‘entire Case’ met if the advocacy in the representation of

the client in at least one hearing is undertaken by Counsel?

A57 The definition of an ‘entire Case’, provided at Annex F of the IFA includes

reference to professional conduct. A lawyer instructing a barrister would still

retain professional conduct of the case.

Q58 Is the definition of an ‘entire Case’ wide enough to cover appearing in the

Magistrates’ Court on an application for a warrant of further detention (there

was, of course, a police station aspect to the case as well)?

A58 No, representation at the Magistrates’ Court would only include those cases

under a Representation Order (or, if privately funded, those that would

notionally pass the Interests of Justice test).

Q59 Can the ‘individual’ referred to in Question E of the Selection Criteria be

included in more than one of the answers?

A59 Yes, there are no rules preventing an Applicant Organisation from relying upon

the same individual to meet more than one of the Selection Criteria within a

single Procurement Area Bid

Q60 Can Duty attendances and Court-Appointed cases and private clients be

included in the total number of Magistrates’ Cases?

A60 The detailed Selection Criteria questions are set out at Annex C of the FIA, the

types of cases required are highlighted in bold and do not necessarily need to

relate specifically to legal aid work. However, Duty attendances would not

constitute a Magistrates’ case.

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Q61 How wide is the definition of ‘homicide or wounding with intent’: is this defined

as all offences listed under Crown Court Offence Class A? Does it include death

by dangerous driving and Section 5 of the Domestic Violence, Crime and

Victims Act 2004?

A61 The definition of ‘homicide or wounding with intent is correct’. The legal

definition of homicide includes murder, manslaughter and causing accidental

death, so would include the scenarios outlined in the question

Q62 Are we required to be within 45 minutes travel time to all police stations within a

Procurement Area?

A62 Under the Duty Provider Contracts Providers must be able to undertake

Contract Work at all Police Stations within the Procurement Area but do not

need to be within 45 minutes travel time.

Q63 In relation to Question D.3 of Annex C, if we represent a client as both Litigator

and Advocate is that 1 or 2 cases?

A63 For the purposes of responding to Question D.3 where an Applicant

Organisation has represented client as both Litigator and Advocate this will be

construed as a single case as Management would have been of the case,

rather than the elements being undertaken on it.

Q64 Are there any limits on the number of Applicant Organisations an Agent is

permitted to work for in a Procurement Area?

A64 Well I couldn’t find any. The only limitation mentioned in the IFA document

appears to be that an Agent may not conduct more than 25% of the business

of an Applicant Organisation in any given Procurement Area (See Paragraph

2.24 of the IFA)

Q65 Firm A and firm B both operate in the same Procurement Area. It is rural and

each would like to help the other by way of a Delivery Partnership because of

the geographical spread of the workload across such a large area. Can firm A

Bid for a Duty Provider Contract using firm B as the Delivery Partner whilst

firm B makes a Bid for a Duty Provider Contract using firm A as its Delivery

Partner? Effectively each firm puts in place their own Bid with a reciprocal

arrangement to assist the other to manage the geographical distances and

provide effective cover?

A65 Yes, see the Rules on submitting Multiple Bids Section in the IFA document as set

out at Paragraph 2.29 – 2.37 for further information.

105

Q66 We know that we cannot have more than 3 Delivery Partners in the same

Procurement Area, however is there a limit to the number of Delivery

Partners an Applicant Organisation can use in different Procurement

Areas? Would it be possible for an Applicant Organisation to use 30 different

Delivery Partners in 30 different Procurement Areas?

A66 Yes. Q67 Are H1a and H1b (Tiebreak questions in Section H of Annex C) to be treated as

one question with an overall limit of 4000 characters for the answer?

A67 For the avoidance of doubt, questions H1a and H1b of the tiebreak questions

EACH have a limit of 4000 characters.

Q68 Will points accrued in the Short-listing process be carried forward to the Award

Criteria? or will all Bids start the Award Criteria with 0 points? I.e. in 6.17 of the

IFA, does ‘overall scores’ include scores in the whole process or only the

questions from the Technical Envelope?

A68 Award Criteria form the last part of the assessment process and are assessed

separately from Selection Criteria as such, points awarded against Selection

Criteria are not carried forward. Information on Award Criteria assessment can

be found in Paragraph 6.12 – 16 of the IFA.

Q69 In each separate Procurement Area ITT, do we have to name ALL STAFF that

the Organisation employs?

A69 As set out at Paragraph 3.36 of the IFA, an Applicant Organisation must provide

details on the staff information section of the Qualification Envelope of ALL

STAFF MEMBERS it will employ or hold a Signed Engagement Agreement for

Contract Work in the Procurement Area. Applicant organisations are also

advised to refer to the definitions of Contract Work and Management Team as

set out in Annex F: Defined Terms in the IFA.

Q70 Can you confirm that there is no set ratio of managers to caseworkers? A70 There is a ratio for Supervisors to caseworkers but no set ratio of managers to caseworkers

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Q71 What happens if the sustainability of a Bid depends on the firm winning all of

the Contracts they Bid for, yet they only win 1 or 2, thus rendering their entire Bid

unsustainable? A71 As outlined at Paragraph 7.1 of the IFA: ‘An Applicant Organisation must

accept the entire Contract offer made to it. If it decides to refuse a Contract

offer, it must refuse that offer in its entirety and cannot elect to deliver Contract

Work in only some of the Procurement Areas that it has been successful in’.

Q72 Can you please confirm that there will be no fee cut during the course of the

Contract period, other than the possible 8.75% as indicated?

A72 As outlined in the Government response to the consultation ‘Transforming

Legal Aid: Crime Duty Contracts’ we intend to implement the second

fee reduction of up to 8.75% in July 2015 subject to the further considerations

we have already said we will undertake. These are the relevant remuneration

changes proposed at present. However, the Duty Provider Contract is due to

run for 4 years (with a possible 1-year extension) and therefore there may be

future changes to policy that affect remuneration over that period.

Q73 Are all the figures quoted at Annex A of the IFA exclusive of VAT and disbursements? A73 Yes. Q74 Will greater weight to be given to an established firm Bidding only into the

Procurement Area in which it operates? Will greater weight be given to firms

who Bid into more than one Procurement Area?

A74 The approach to assessment of Tender responses is detailed in the IFA with

details of scoring for each question provided at Annex C of the IFA

Q75 What is a Compliant Tender? A75 A Compliant Tender will consist of a response to:

The Organisation ITT, including all Mandatory Attachments

And

One or more of the Procurement Area ITT’s (a Procurement Area bid).

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Chapter 5 CrimeScribe Edition No. 45

Hello and welcome to this month’s edition of CrimeScribe. It seems to me that there is only one thing taxing the minds of criminal practitioners this month and that is whether or not to apply for a Duty Provider Contract to run alongside the Own Client Contract. As you know, the window has opened again and closes at noon on the 5th of May 2015. With this in mind I have prepared a paper for CrimeScribe readers which analyses the contents of the Information For Applicants document – this document is available on the Legal Aid Agency website and I would suggest that you refer to the original documents if you have any doubt about any comment in my paper. This paper is not meant to be a substitute for reading the original documents and if you disagree with anything that I have said, please accept that it is simply my view and that your view may be different and that my view may be wrong! I still thought that this summary would be more useful to you RIGHT NOW rather than the normal digest of case-law and legislation. I shall cover the legislation and case-law for this month in next month’s edition of CrimeScribe. All the page numbers referred to in this paper relate to the original document which was published in November 2014. Page numbers may therefore differ (but they are only going to be out by 1/2 pages at the most I would have thought) as you work through the current document available on the website. I have just checked the website and another amendment to the original document was published on the 14th of April. The following 5 DOCUMENTS need to be read:

Transforming Legal Aid – Next Steps: Government Response – 27th of February

2014 (available from the Ministry of Justice website)

Invitation to Tender for 2015 Duty Provider Crime Contracts – Information for

Applicants (the original one plus the amendments to it in the document issued

in March/April 2015) (available from the Legal Aid Agency website)

2015 Duty Provider Crime Contract – The Standard Terms (Draft) – issued

November 2014 (available from the Legal Aid Agency website)

2015 Duty Provider Crime Contract – The Specification (Draft) – issued

November 2014 (available from the Legal Aid Agency website)

Duty Provider Crime Contract 2015 – Indicative Duty Rotas (there are different

Rotas for different Procurement Areas) – issued November 2014 (available from

the legal Aid Agency Website 108

THE INVITATION TO TENDER DOCUMENT - NOVEMBER 2014 ‘Invitation to Tender for 2015 Duty Provider Crime Contracts – Information for Applicants’ (Hereinafter referred to as the IFA doc). We had Version No. 1 which was published on the 27th of November 2014. Version No. 2 of the same document was published on the 9th of December 2014. Version number 3 was published in March 2015 and we have just had yet a further amendment made on the 14th of April. No’s 2 and 3 and 4 contain small amendments to version No. 1 but all of the documents need to be read as a package. Please do keep an eye on the website as these documents are being updated and if you have already put in your tender please do check that they haven’t altered any of the documents that were available to you at the time when you put in your tender. The documents make it quite clear that if you don’t use the current documents this will result in a failure of your tender and that could be a disaster. E.g. they have recently changed one of the financial documents and you are required to complete the current document (where necessary) – go onto the LAA website for further information It consisted of 150 pages (but the very latest one on the website runs to 153 pages) and is made up of the following:

Section 1: Introduction and Background

Section 2: Who can submit a tender?

Section 3: Overview of Requirements and How to Tender

Section 4: Essential Requirements and Selection Criteria

Section 5: Financial Assessment

Section 6: Award Criteria

Section 7: Contract Award and Mobilisation

Section 8: Rules of this Procurement Process

Annexes

Annex A: Procurement Area Contact Information and Case Volume Data

relating to Case Experience

Annex B: Procurement Area Rules and Scheme Information

Annex C: ITT Questions and Assessment (without doubt the most important part

of the whole document)

Annex D: Information to support Financial Assessment

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Annex E: Defined Terms in the Mandatory Attachments

Annex F: Defined Terms in the IFA

The Timetable for all of this Procurement Process for 2015 Duty Provider Crime Contracts opens and available via the LAA’s eTendering portal – 27th of November 2014 Final date to submit questions about this procurement process (12 noon on the 15th of December 2014) Final ‘Frequently Asked Questions’ to be published (22nd of December 2014) Deadline for submission of Tenders (12 noon on the 5th of May 2015) Notification of outcome of Duty Provider Contract Tenders (September 2015) Contract execution and Contract start date (Week commencing 5th of October 2015) Mobilisation period (Oct 2015 to January 2016) Service Commencement Date (11TH of January 2016) This invitation to Tender is only available to eligible Applicant Organisations (AO’s). This is the second stage of the procurement process for Duty Provider Contracts. It is restricted to those AO’s who have been notified of an intention to award them a 2015 Own Client Crime Contract (this was the first stage of the procurement process) NB some 1800 have been notified. A COMPLETE TENDER will consist of a response to: The Duty Provider Organisation ITT (including all Mandatory Attachments) – this covers requirements applying to the AO as a whole (See Annex C of the IFA doc) AND One or more of the Procurement Area ITT’s (A Procurement Area Bid) – this covers Selection Criteria and Award Criteria. Competition takes place at Procurement Area level (I take this to mean that you will be competing with other bids that have been put in by firms within that Procurement Area). (See Annex C of the IFA doc) SEE ANNEX C (of the IFA doc) – I pity the poor person/people having to wade through the information they require in order to complete this Annex – Every I must be dotted and every T crossed – don’t wait, start working on the contents of Annex C now!

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SUCCESSFUL AO’s WILL BE AWARDED A SINGLE DUTY PROVIDER CONTRACT REQUIRING THEM TO PROVIDE CONTRACT WORK IN THOSE PROCUREMENT AREAS IN WHICH THEIR PROCUREMENT AREA BIDS HAVE BEEN SUCCESSFUL. I now propose to work through each Section of the document summarising the important points within it.

SECTION 1: INTRODUCTION AND BACKGROUND THIS IS A GENERAL OVERVIEW OF WHAT THEY ARE PROPOSING The LAA are seeking to procure a limited number of Duty Provider Contracts – 527 in total in 85 Procurement Areas across England and Wales (See Paragraph 1.2 of the IFA doc). The LAA is inviting AO’s to tender for a Duty Provider Contract to carry out Contract Work in one or more of 85 Procurement Areas within England and Wales. Annex A contains a list of Procurement Areas and details of the number of AO’s that the LAA intends to award Contract Work to in each Procurement Area (See Paragraph 1.3 of the IFA doc). The LAA will enter into Contracts with successful AO’s week commencing 5th of October (Contract Start Date) with services due to commence on the 11th of January 2016. The period between October and January will be a MOBILISATION PERIOD, during which the LAA will monitor a successful AO’s progress in ensuring that they are able to deliver Contract Work from the Service Commencement Date (See Paragraph 1.6 of the IFA doc). The deadline for submitting Tenders is 12 noon on the 5TH of May 2015. All Tenders must be completed and submitted using the LAA’s eTendering system. Late submissions will not be considered under any circumstances (See Paragraph 1.9 of the IFA doc). Duty Provider Contracts will run for 4 years from the Service Commencement Date (subject to termination provisions and the LAA’s right to extend for up to a further 1 year) (See Paragraph 1.10 of the IFA doc). AO’s are tendering for a SINGLE DUTY PROVIDER CONTRACT with authorisation to undertake Contract Work in one or more Procurement Areas. Successful AO’s will be allocated, as far as possible, an equal share of all Duty Slots in those Procurement Areas where they have been awarded Duty Provider Contract Work. Duty slots are periods of time where a provider MUST BE ON CALL to attend a Police Station or Magistrates’ Court (See Paragraph 1.14 of the IFA doc).

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AN IMPORTANT CHANGE IS THAT IT WOULD APPEAR FROM THE ABOVE THAT THE SLOTS WILL GO TO THE AO – THERE IS NOTHING IN THE DOCUMENT TO SUGGEST THAT THEY WILL BE ALLOCATED TO OR IN ANY WAY BE ‘OWNED’ BY THE INDIVIDUAL DUTY SOLICITORS. Duty Slots will be allocated by individual Duty Scheme. There will be separate schemes for Police Stations and Courts and there may be multiple Duty Schemes within a Procurement Area. Duty Provider Contract Holders will be allocated Duty Slots on a rota basis for all schemes within the Procurement Area and will be required to cover all Duty Slots allocated to them. During a Duty Slot a Duty Provider Contract holder will receive a proportion of all requests for a Duty Lawyer. If they are the only organisation on call they will receive all requests (See Paragraph 1.15 of the IFA doc). Duty Slots will be allocated exclusively to those organisations that have been awarded Duty Provider Contract Work in the Procurement Area. All Contract Work flowing from the Duty Slots will be undertaken under the Duty Provider Contract. Duty Provider Contract holders will therefore be required to provide advice and representation in any subsequent criminal proceedings in the Magistrates’ Court and, where applicable, in the Crown Court and Higher Courts (Court of Appeal, High Court, Supreme Court) for a case that originated via their Duty Provider Contract, even if the case subsequently moves outside the Procurement Area (See Paragraph 1.16 of the IFA doc). Details of the Duty Provider schemes for each Procurement Area including the number and length of Duty Slots on all schemes can be found in the published INDICATIVE DUTY ROTAS. Allocation will take into account busier periods to ensure, as far as possible, fair distribution (See Paragraph 1.20 of the IFA doc). Payments under the Duty Provider Contract will be set out in Legal Aid Legislation (See Paragraph 1.21 of the IFA doc). As confirmed in the ‘Transforming Legal aid: Next Steps: Government Response’ (‘Consultation Response’) published on the 27th of February 2014 some changes will be made to the current remuneration mechanisms. Details of the proposed changes to the current remuneration mechanisms and rates of payment can be found at Paragraphs 39 – 53 of the Consultation Response introduction and Paragraphs 33 – 51 of Annex C of the Consultation Response (See Paragraph 1.22 of the IFA doc). THE ABOVE PARAGRAPH IS VERY IMPORTANT AS IT TELLS US THAT THIS DOCUMENT HAS TO BE READ IN CONJUNCTION WITH THE FEBRUARY 2014 DOCUMENT WHICH INDICATES THE RATES OF PAYMENT UNDER THE NEW CONTRACT. DO FAMILIARISE YOURSELF WITH THE PROPOSED RATES OF PAYMENT!

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The Consultation Response confirmed that the Government intended to reduce crime fees by a further 8.75% in 2015 (See Paragraph 74 of the Consultation Response).However, the Ministry of Justice subsequently agreed that before implementing this reduction it will consider and take into account the outcome of the Leveson review, on-going criminal justice reforms and any impacts from previous remuneration changes (See Paragraph 1.23 of the IFA doc). SO THAT’S ALRIGHT THEN! PHEW! FOR A MOMENT THERE I THOUGHT THEY WERE GOING TO REDUCE OUR FEES! (Sorry, couldn’t resist a little irony!) Nevertheless, AO’s should plan and Tender for Duty Provider Contracts on the basis of a further 8.75% reduction, as they will be expected to demonstrate that they are capable of delivering at that level. The fee cut will be NO GREATER than this (See Paragraph 1.24 of the IFA doc). Don’t be fooled and take your eye off the ball – this reference to an 8.75% reduction is a reference to hourly rates – just have a look at page 65 of the 27th of February document which contains Table C5 – Table C5 sets out the payments for Crown court litigation fixed fees cases with less than (I know, it should be fewer than!) 500 PPE (i.e. just about everything you ever bill in terms of Crown Court preparation) compare that with the rates currently being paid to us as litigators for preparing Crown Court cases – you will note, with dismay, that, on occasion, the rates contained within Table C5 are a huge reduction on that which we are claiming currently – a simple calculation will tell you in a matter of seconds that we are talking about a good deal more than a reduction of 8.75% – this is really important – make sure you do not become a victim of ‘The Winner’s Curse’ – you have a Contract but you cannot make a profit on it. And speaking of that dirty word ‘profit’– it seems to me that the expectation is that as criminal lawyers we can expect to receive a salary but not to make a profit on the deal. Mention is made somewhere of between 0.1% and 5%. Many firms are already running at a loss. NB YOU WILL HAVE TO DEMONSTRATE THAT YOU ARE CAPABLE OF SURVIVING WITH A FEE REDUCTION OF 8.75%. The provisions of the Duty Provider Contract provide that the LAA may introduce Electronic Working during the life of the contract on 3 months’ notice. By submitting a Tender you agree that such notice may be given prior to the Service Commencement date as if it were notice under the Duty Provider Contract.

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SECTION 2: WHO CAN SUBMIT A TENDER? THIS IS ALL ABOUT LEGAL ENTITIES DELIVERY PARTNERS AND AGENTS IT is very important to have a working knowledge of AO’s/Delivery Partners/Agents. Only AO’S that have been notified of our intention to award them a 2015 Own Client Crime Contracts are eligible to: Tender for a Duty Provider Contract; and/or Carry out work under another organisation’s Duty Provider Contract as a Delivery Partner or Agent (See Paragraph 2.1 of the IFA doc). VERY IMPORTANT TO APPRECIATE THAT ALL DELIVERY PARTNERS AND AGENTS MUST THEMSELVES HAVE BEEN NOTIFIED OF AN INTENTION TO AWARD THEM AN OWN CLIENT CONTRACT (So do be careful of the organisations with whom you intend to conduct your business) Q

So what is the difference between a Delivery Partner and an Agent?

The answer lies in the Definitions contained in Annex F of the IFA document (See

Pages 145 – 150

How many Delivery Partners are permissible?

A Delivery Partner is another organisation that an AO intends to work with to

help it deliver Contract Work in a PARTICULAR PROCUREMENT AREA. An AO can

name up to 3 Delivery Partners in any Procurement Area Bid. (See Paragraph

2.13 of the IFA doc).

How many Agents are permissible?

There are no limits to the number of Agents that an AO may use (but an Agent

may only do 25% of the work under the Duty Provider Contract)

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Can you have different Delivery Partners for different Procurement Areas?

I don’t see why not – there doesn’t seem to be anything in the document to say

that your Delivery Partners have to be the same Delivery Partners – the

document merely states that you can only have up to 3 Delivery Partners within

any given Procurement Area Bid – it could get very complicated couldn’t it!

Is it possible for the AO to ‘farm out’ all of the work under the Contract to the

Delivery Partners and Agents?

A resounding NO! – The AO must deliver A LARGER SHARE of Contract Work

in the Procurement Area than any one of its individual Delivery Partners in that

Procurement Area and must conduct (as applicable):

In Rural Procurement Areas, at least 30% of the value of the Contract

Work; and

In Urban Procurement Areas at least 45% of the value of Contract Work

(see Paragraph 2.15 of the IFA doc).

The AO may use Agents to undertake up to 25% of the value of Contract Work in a given Procurement Area. For the avoidance of doubt, where the AO is working with Delivery Partners to deliver Contract Work, it must still comply with the requirement for it to deliver a minimum share of that Contract Work itself (See Paragraph 2.24 of the IFA doc). YOU WILL KNOW WHETHER OR NOT A PARTICULAR PROCUREMENT AREA IS RURAL OR URBAN BECAUSE ANNEX A OF THE DOCUMENT (Pages 62 – 68 of the IFA doc) LISTS ALL THE PROCUREMENT AREAS AND TELLS YOU WHETHER IT IS RURAL OR URBAN OR LONDON. I think we just have to assume that London is urban because the document speaks of Rural or Urban areas without mentioning London as such. EXAMPLE – I am the AO in Warwickshire (a Rural area – see Annex A at page 67 of the IFA doc) – I must do at least 30% of the value of the Contract Work – let’s assume I do 35% – the remaining 65% I could split between 2 Delivery Partners each doing 20% and an Agent doing 25% – alternatively I could do 45% with the Delivery Partner doing 30% and the Agent doing 25%. What I couldn’t do as the AO is 35% of the work – give 25% to an Agent (or Agents) and leave the remaining 40% to the Delivery Partner – this would offend against the rule which states that the AO must do more than any one of its Delivery Partners. The fact that my 2 Delivery Partners in the previous example are doing more than me

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is okay because the rule is that I must do more than any individual Delivery Partner (the total amount delivered by 2 or more Delivery Partners may be in excess of the amount delivered by myself) EXAMPLE – I am the a AO in West Midlands (an urban area – see Annex A at page 68 of the IFA doc) – I must do at least 45% of the value of Contract Work and if I were to do my bare minimum 45% I could then split the remainder between a Delivery Partner doing 30% and an Agent doing the remaining 25%. The value of Contract Work referred to will be determined by reference to THE TOTAL VALUE OF CLAIMS for Contract Work made in each rolling period of 12 consecutive months (See Paragraph 2.17 of the IFA doc). IT IS IMPORTANT TO APPRECIATE THE FOLLOWING:

You must get your LEGAL ENTITY correct when answering the questions in

relation to Duty Provider Organisation ITT (See Annex C of the IFA doc).

The LAA will only contract with a SINGLE LEGAL ENTITY but AO’s may work

with Delivery Partners to deliver Contract Work within a Procurement Area (See

Paragraph 2.5 of the IFA doc).

The Duty Provider Contract is contingent on holding an Own Client Contract.

That means that the Organisation holding the Duty Provider Contract must be

the same entity as that which holds an Own Client Contract (See Paragraph 2.6

of the IFA doc).

When applying for an Own Client Contract during the first stage of this

procurement process some AO’s may have submitted a number of Tenders

for an Own Client Contract; both as the Organisation as constituted at the time

of submission and the Organisation they intended to become (See Paragraph

2.7 of the IFA doc).

HOW VERY FORWARD THINKING OF THEM! Where multiple Tenders from the same AO have been successful in being awarded an Own Client Contract, AO’s must decide which of these ‘Organisations’ will Tender for a Duty Provider Contract (See Paragraph 2.8 of the IFA doc). NB – Where an AO intends to Tender as a newly constituted Organisation awarded an Own Client Contract, it must, by the time it submits its Tender, have its actual or proposed name, and give this in response to question A.1. of the Duty Provider Organisation ITT (See Annex C) (‘Organisation ITT’) for the avoidance of doubt, where an AO is unable to confirm its name in response to question A.1. (e.g. it enters ‘to be confirmed’),THE TENDER WILL FAIL IN ITS ENTIRETY (See Paragraph 2.9 of the IFA doc). 116

AO’s must respond to this procurement opportunity via the relevant eTendering system registration. The registration used must be for the entity that intends to hold a Duty Provider Contract (See Paragraph 2.11 of the IFA doc) ........ the LAA will have a contractual relationship with the AO only. It will be the AO which will be contractually responsible for the delivery of all Contract Work including compliance with the Rules on delivery of Contract Work by Delivery Partners and the client retainer will in each case sit with the AO. Delivery Partners will act as Agents of the AO in accordance with the terms of the formal written agreement and the Duty Provider Contract (See Paragraph 2.18 of the IFA doc). The AO must have a formal written agreement in place with each of its Delivery Partners by the time it submits its tender for a Duty Provider Contract. Details of what the formal written agreement must include AS A MINIMUM are outlined at Clause 3.26 of the Duty Provider Contract Standard Terms....... (Paragraph 2.19) (2015 Duty Provider Crime Contract – The Standard Terms was published in draft format in November 2014 – you will find clause 3.26 on pages 25 – 27 – the actual draft document runs to 98 pages). THE DUTY PROVIDER CONTRACT STANDARD TERMS DOCUMENT MUST BE READ BEFORE YOU EMBARK UPON THE DETAILED COMPLETION OF ANNEX C IN PARTICULAR PLEASE READ:

Working with third parties (Pages 22 – 27) – the parts in relation to Delivery

Partnerships are at pages 25 – 27

Section C of the Procurement Area ITT (you will find this in Annex C at page

101 – 102 of the IFA doc) requires the AO to provide information about the

identity of each Delivery Partner it intends to work with to deliver Contract Work.

This includes:

The name of each Delivery Partner

The Delivery Partner’s Own Client Contract ID number (to be found on the

Delivery Partner’s Own Client Contract notification letter).

The Office address of the Delivery Partner

THERE ARE LIMITS TO THE NUMBER OF TIMES AN ORGANISATION CAN BE USED AS A DELIVERY PARTNER IN THE SAME PROCUREMENT AREA (See Paragraphs 2.21 and 2.29 of the IFA doc).

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If you are going to go down the path of having Delivery Partners (and you are allowed up to 3) you must, as an AO undertake DUE DILLIGENCE with respect to any Delivery Partners you intend to work with to deliver Contract Work (not the exact wording of Paragraph 2.23 of the IFA doc but certainly the gist of it). The AO may use Agents to undertake up to 25% of the value of contract work IN A GIVEN PROCUREMENT AREA. For the avoidance of doubt, where the AO is working with Delivery Partners to deliver Contract Work, it must still comply with the requirement for it to deliver a minimum share of that Contract Work itself. (See Paragraph 2.24 of the IFA doc). Q

Can you have different Agents in different Procurement Areas?

I don’t see why not, the document merely states that you cannot give more

than 25% of the work out to Agents in any given Procurement Area.

NB Delivery Partners differ from Agents in that Delivery Partners are subject to a Formal Agreement. In addition they can deliver a higher proportion of Contract Work, be named in order to meet SOME of the SELECTION CRITERIA, (NOT MANAGEMENT TEAM EXPERIENCE) and where they are used, will be named in an AO’s Contract Schedule. (See Paragraph 2.25 of the IFA doc). AO’S may not substitute any named Delivery Partners in their Tender after the deadline. (See Paragraph 2.26 of the IFA doc). SO DO ENSURE YOU HAVE A HEALTHY RELATIONSHIP WITH ANY POTENTIAL DELIVERY PARTNER. NO ‘LIKE FOR LIKE’ SUBSTITUTIONS WILL BE ACCEPTABLE In carrying out due diligence in respect of Delivery Partners it is, therefore, extremely important that AO’s take appropriate steps to satisfy themselves that any Delivery Partners named in the Procurement Area Bid(s) will be available to them during the procurement process and, as a minimum, FOR THE FIRST YEAR from the Contract start date. MULTIPLE BIDS Although it is clear from the document that a bid can be made in more than one Procurement Area it is also quite clear that they are wary of what are essentially ‘tentacles of the same Organisation’ making multiple bids within the one Procurement Area (for conflict reasons, if for nothing else).

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In a nutshell the following seem to be the Rules:

WITHIN ANY SINGLE PROCUREMENT AREA

An AO may not be ‘CONNECTED’ to another AO submitting a Procurement

Area Bid in that Procurement Area;

An AO may only be ‘connected’ to one Delivery Partner named in a

Procurement Area bid in that Procurement Area; (remember, you can have up

to 3 Delivery Partners within a Procurement Area but you can only be

‘connected’ to one of them) and

A Delivery Partner who is not connected to an AO submitting a Procurement

Area bid in a particular Procurement Area may only be ‘connected’ to one

other Delivery Partner named in a Procurement Area bid in that

Procurement Area.

COMPLICATED ISN’T IT! Just so that you don’t fall foul of any of this see the Rules in relation to the interpretation and definition of ‘CONNECTED’. We are essentially talking about having a legal or beneficial interest or being able to effect substantive influence or control or having powers of representation over the business affairs of the relevant Organisation (common sense if you think about it). Should you wish to know more, please read Paragraphs 2.31 – 2.37 on Pages 14 and 15 of the IFA doc.

SECTION 3: OVERVIEW OF REQUIREMENTS AND HOW TO TENDER THIS SECTION IS ESSENTIALLY AN OVERVIEW OF THE REQUIREMENTS THAT AN AO WILL NEED TO MEET AND GUIDANCE ON ACTUALLY HOW TO MAKE THE TENDER (it is an overview and the points within it are expanded upon in later Sections). THERE ARE 5 STAGES TO THE WHOLE PROCESS –THE WHOLE THING IS UNNECESSARILY COMPLEX IN MY VIEW AND THE DOCUMENT DOESN’T ‘HANG TOGETHER’ VERY WELL BUT IT IS WHAT IT IS AND WE MUST MAKE THE BEST OF IT! STAGE 1 We start off with – ESSENTIAL REQUIREMENTS These aim to establish whether an AO can meet the fundamental requirements for the award of a Duty Provider Contract. It hardly needs saying that any AO which does not meet these fundamental requirements will be excluded and their whole Tender will be unsuccessful. 119

See SECTION 4 of the IFA document for further details on the ESSENTIAL REQUIREMENTS STAGE 2 SELECTION CRITERIA – These will be used to shortlist AO’s in each Procurement Area who meet the ESSENTIAL REQUIREMENTS SELECTION CRITERIA ARE SET OUT IN THE PROCUREMENT AREA ITT’s QUALIFICATION ENVELOPE – Sections D – G (Pages 102 121 of Annex C) Annex C is the crucial document in all of this – (See Pages 89 – 134). See SECTION 4 of this document for further details on the SELECTION CRITERIA STAGE 3 FINANCIAL ASSESSMENT AO’s shortlisted following assessment of Selection Criteria will be subject to Financial Assessment. This consists of 2 stages:

Basic Financial Assessment; and, where appropriate

ii.

Expansion Capacity Assessment

Annex C is the crucial document in all of this See SECTION 5 of this document for further details of the FINANCIAL ASSESSMENT process. STAGE 4 TIEBREAK QUESTIONS You couldn’t make it up could you! – Joking apart, these TIEBREAK questions are really important because they will determine which AO’s are successful when it is quite apparent that more AO’s within a given Procurement Area meet all of the requirements than there are Contracts available for them (another way of putting this is that we may be in the terrible position of firms that meet all of the requirements not being granted a Duty Provider Contract) – the issue of how they would make the final determination of who is to be successful and who is to be put out of business has vexed myself and others since this whole Tendering issue (not on PRICE but rather on ABILITY to deliver the Contract) was first mooted. The document makes it quite clear that these TIEBREAK questions will be applied if, after assessing responses to the Selection Criteria and undertaking the Financial Assessment, AO’s are tied to the extent that the LAA would be short-listing more AO’s in a Procurement Area than it intends to. 120

TIEBREAK questions are contained in Section H of Annex C (See Pages 122 – 123 of the IFA doc). Annex C is the crucial document in all of this (See Pages 89 – 134). When you look at the tiebreak questions you will see that it is a free text box (in other words, you can write what you like but you are limited to 4000 characters and remember that a space is also deemed to be a character – 4000 characters isn’t very much to play with – it’s approximately between 450 and 550 words – another way of looking at it is that you have one and a quarter sides of an A4 sheet of paper) do take these tiebreak questions extremely seriously and put a lot of thought and effort into your answers – I was discussing these questions with a colleague the other day and it really is analogous to writing a Police Station/Magistrates’ Court portfolio! THERE ARE 3 TIEBREAK QUESTIONS TO ANSWER ‘Once Applicant Organisations have responded to the selection criteria, they will be required to provide free text responses to the 3 tie-break questions – for each of these questions Applicant Organisations have a maximum of 4000 characters to outline their response (an additional text box is provided under each question to accommodate this) – (See Paragraph 3.45 of the IFA doc) H1 is split into 2 Parts, and I read in one of the FAQ documents that you have 4000 words for each of the 2 parts within H1. You then have an additional 4000 characters for H2 and an additional 4000 characters for H3, making a total of 16,000 characters REMEMBER THAT EVERYTHING COULD HINGE ON YOUR FREE TEXT ANSWERS IN SECTION H OF ANNEX C See SECTION 4 of this document for further details The assessment of the answers to the tiebreak questions is mentioned in section 4 of the IFA document at Paragraph 4.56 which reads as follows: ‘Question H.1.a and H.1.b will be jointly assessed first. If Procurement Area bids are still tied following this assessment, then Question H .2 will be assessed. If Procurement Area bids are still tied, Question H.3 will be assessed.’ And at Paragraph 4.57: ‘Responses to each of the tiebreak questions will be awarded a score of 0-5 using the Award Criteria marking system in Table A at Paragraph 6.12 Although mention is made of 4000 characters I am reliably informed that you are provided with 2 boxes and each box has a limit of 2000 characters, i.e. once you reach this limit you will be cut off mid-sentence in that particular box. 121

STAGE 5 AWARD CRITERIA AO’s shortlisted in a Procurement Area following the above 4 stages will have their responses to the Award Criteria assessed to determine which organisations are awarded Contract Work in each Procurement Area. The Award Criteria questions are set out in Annex C MORE PRECISELY THE AWARD CRITERIA QUESTIONS ARE SET OUT IN THE TECHNICAL ENVELOPE PART OF THE PROCUREMENT AREA ITT’s IN SECTIONS A-D OF ANNEX C ON PAGES 124 -134 Once an Applicant Organisation has completed the Qualification Envelope (There are no limits on the characters that you can use in the Qualification Envelope save for the tiebreak questions within the Qualification Envelope – see Paragraph 3.43 of the IFA which has no reference to a limitation of characters at all – the limitation of 4000 characters appears at Paragraph 3.45 in relation to the tiebreak questions and at 3.47 in relation to the Technical Envelope – Award Criteria). Upon completion of the Qualification Envelope you must then go on to the Technical Envelope which contains questions relating to the Award Criteria. Each Award Criteria question requires a free text response covering each of the points in the question. Two response boxes are provided for each question to give Applicant Organisations a maximum of 4000 characters to respond to each question – See Paragraph 3.47 Annex C is the crucial document in all of this. See SECTION 6 of this document for further details in relation to Award Criteria WHAT IS A TENDER? A compliant Tender will consist of a response to: The Organisation ITT, including all Mandatory Attachments AND One or more of the Procurement Area ITT’s (a Procurement Area Bid). Get the basics right – if you don’t submit an Organisation ITT or a Procurement Area ITT or that which you submit is incapable of assessment it will simply be rejected and you will be sifted out! Organisation ITT contents You guessed it – all contained within Annex C.

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Now is not the time to go through the whole contents of Annex C but I shall ‘flag up’ the Organisation ITT Section headings:

Section A: Organisation Information

Section B: Organisation Selection Criterion

Section C: Financial Assessment, including MANDATORY ATTACHMENTS

Section D: Declarations, including confirmation that the Essential Requirements

will be met (Paragraph 3.5 on Page 17 of the IFA doc)

THE MANDATORY ATTACHMENTS FOR THE ORGANISATION ITT ARE AS FOLLOWS: If you are an Established Business they will require a Basic Financial Assessment and the mandatory attachment that must be completed and included in the response is described as

Established Business – Financial Assessment Form

If you are an Established Business subject to Expansion Capacity Assessment they will require a Basic Financial Assessment and Expansion Capacity Assessment – you must provide the following documents:

Established Business Financial Assessment Form

Business Plan

Cash Flow Forecast Template to support Core Bid

Cash Flow Forecast Template to support Maximum Bid (where relevant)

If you are an ‘Other Business Type’ they will require from you a Basic Financial Assessment and Expansion Capacity Assessment which will consist of the following documents:

Business Plan

Cash Flow Forecast Template to support Core Bid

Cash Flow Forecast Template to support Maximum Bid (where relevant)

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All dealt with in Annex C of the document There is a separate Procurement Area ITT for each of the 85 Procurement Areas in which an AO can Bid to deliver Contract Work (See Paragraph 3.7 of the IFA doc). AO’s must complete the relevant Procurement Area ITT for each of the Procurement Areas they wish to deliver contract work in. Each Procurement Area ITT is split into a QUALIFICATION ENVELOPE and a TECHNICAL ENVELOPE. The QUALIFICATION ENVELOPE deals with the following:

Section A: Procurement Area Information

Section B: Staff Information

Section C: Delivery Partner Information

Section D: Selection Criteria – Management Team Experience

Section E Selection Criteria – Delivery Experience

Section F: Selection Criteria – Staffing and Recruitment

Section G: Selection Criteria – Office

Section H: Tiebreak questions

We then have a TECHNICAL ENVELOPE dealing with the following:

Section A: Award Criteria – Management Team

Section B: Award Criteria – Delivery Team and Recruitment

Section C: Award Criteria Implementation and Delivery

Section D: Award Criteria – Flexibility

All dealt with in Annex C of the document. REMEMBER THAT WITH COMPLETION OF THE TECHNICAL ENVELOPE THERE IS THE LIMITATION OF 4000 CHARACTERS (Two response boxes of 2000 are provided for each question to give AO’s a maximum of 4000 characters to respond to each question – (See Paragraph 3.47 of the IFA doc) At the risk of stating the absolute obvious an AO must ensure that its entire Tender is capable of concurrent delivery. Where it submits a response to multiple Procurement Area ITT’s it is warranting that it will be able to deliver all of those Procurement Area Bids concurrently if successful (See Paragraph 3.9 of the IFA doc). 124

Because the LAA will be awarding a single Duty Provider Contract, AO’s are also reminded that where a Contract award is made, they may only accept the entire Contract as offered. For example, if an AO has submitted 5 Procurement Area bids and all 5 are successful, it must take up the offer across all 5 Procurement Areas or decline the offer entirely. It will not be permitted to choose which Procurement Areas it accepts. The next part of Section 3 deals with accessing the eTendering system. All Tenders must be completed and submitted using the e-Tendering system. It can either be accessed through eTendering portal links on the Tender pages of the website or directly at www.legalaid.bravosolution.co.uk Technical support and guidance is available and you will probably need it! The Deadline for submitting completed Tenders is 12 noon on the 5th of May 2015. Tenders submitted after the Deadline will not be accepted. It is the AO’s absolute responsibility to ensure that its complete Tender is submitted before the deadline.

SECTION 4: ESSENTIAL REQUIREMENTS and SELECTION CRITERIA THIS SECTION DEALS WITH THE BARE ESSENTIALS (IF YOU DON’T MEET THESE THEN JUST FORGET IT! IT ALSO EXPANDS UPON THE SELECTION CRITERIA MENTIONED AT STAGE 2 IN THE PREVIOUS SECTION (SECTION 3) STAGE 1 Q – WHAT ARE THE ESSENTIAL REQUIREMENTS If Essential Requirements are met, the Selection Criteria will be assessed at Procurement Area level and used to shortlist AO’s to the next stage of assessment.

In order to Tender for a Duty Provider Crime Contract an AO must have

been notified of the LAA’s intention to award it an OWN CLIENT

CONTRACT (See Paragraph 4.2 of the IFA doc).

An AO must commit to meeting certain requirements by the Contract

Start Date (week commencing 5th of October 2015) and others ahead of

the Service Commencement Date and these are as follows:

Meet a Relevant Quality Standard – week commencing 5th of October 2015 (expanded upon in Paragraphs 4.5 –4.10 of the

IFA doc).

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Hold appropriate authorisation from a relevant Legal Sector

Regulator – week commencing 5th of October 2015 (expanded

upon in Paragraphs 4.11 – 4.13 of the IFA doc).

Identify an Office by week commencing 5th of October 2015 and

have the Office set up by the service commencement date of 11th

of January 2016 (expanded upon in Paragraphs 4.14 – 4.16 on Page

29 of the IFA doc).

A WORD OR TWO ABOUT THE OFFICE It must be situated in the Procurement Area or, in London, in the same or an immediately adjacent Procurement Area, or in the split Procurement Areas the Split Procurement Area they are tendering in or in its linked Procurement Areas as set out in Annex B (of this document – there are 24 split Procurement Areas mentioned in Table 1 of Annex B). If it’s a Procurement Area or London (London has 32 Procurement Areas and they are listed in Table 2 of Annex B – their immediately adjacent Procurement Areas are also listed in the same Table – (Wandsworth (South London) was omitted as an adjacent Procurement Area of both Central London and Hammersmith and Fulham (West London) when the initial invitation to tender document was published in November 2014 and that’s why we had version No. 2 of the invitation to tender document published on the 9th of December 2014) the AO must be able to identify an Office address by Contract start date – week commencing 5th of October 2015. AO’s need not have signed agreements for Offices at this stage i.e. week commencing 5th of October 2015 but must have at least identified an address in the Procurement Area from which they intend to deliver Contract Work (See Paragraph 4.14 on Page 29 of the IFA doc). Offices must be set up and operational by the Service Commencement Date (see Paragraph 4.15 on Page 29). In the split Procurement Areas must have Office set up by Service Commencement Date – 1st of October 2015. Where requirements must be met by the Service Commencement Date, the LAA will require evidence that arrangements are in place (e.g. a signed office lease agreement) one month before (i.e. by the 11th of December 2015) – see the bottom of Page 27. (Also, see Section 7 of this document for further details). YOU NEED TO HAVE REGARD TO THE 2015 DUTY PROVIDER CRIME CONTRACT – THE SPECIFICATION (DRAFT) – (Paragraphs 2.26 – 2.28) IN RELATION TO THE REQUIREMENTS FOR THE OFFICE – FAIRLY ONOROUS 126

NB –ANOTHER IMPORTANT DOCUMENT THAT NEEDS TO BE READ BEFORE YOU EMBARK UPON THE COMPLETION OF ANNEX C IS THE DUTY PROVIDER CRIME CONTRACT –THE SPECIFICATION (DRAFT)

Employ an FTE Supervisor (See Paragraphs 4.13 and 4.16 of the

IFA doc) in the Procurement Area by the Service Commencement

Date – 11th of January 2016 (FTE equals Full Time Equivalent i.e. 35

hours a week and this term is defined in Annex F of the document

(See Pages145 – 150 of the IFA doc).

Meet a ratio of Employing 1 FTE Supervisor for every 4 Designated Fee

Earners or Caseworkers who will be deployed on Contract Work

in the Procurement Area by the Service Commencement Date, i.e.

11th of January 2016

AO’s who do not include in Section D of their Organisation ITT response a declaration that they will meet the ESSENTIAL REQUIREMENTS will be unsuccessful and their Tender will be rejected (See Paragraph 4.17 of the IFA doc). Having dealt with the ESSENTIAL CRITERIA Section 4 of the document then goes on to give details of an overview of the SELECTION CRITERIA STAGE 2 SELECTION CRITERIA (See detailed wording of Annex C) will be used to decide which Procurement Area bids will be shortlisted (See Paragraph 4.19 of the IFA doc). In other words, this is an OVERVIEW of the information they are looking for in order to decide whether or not your Procurement Area Bid will be shortlisted or not. Obviously, the devil is in the detail and the detail is all in Annex C (which must be completed in full) this is merely an OVERVIEW but it’s something to have in mind when you are completing Annex C – I have given you the relevant Sections of Annex C alongside the area being covered (the document is not particularly user-friendly and my references will assist)

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You will be scored against 5 main areas and these are as follows: YOU MUST TAKE THESE VERY SERIOUSLY AND ENSURE, WHEREVER POSSIBLE, THAT YOU SCORE THE MAXIMUM NUMBER OF POINTS AVAILABLE FOR ANY PARTICULAR QUESTION.

Authorisation (See Section B of Annex C)

Management Team Experience (See Section D of Annex C)

Delivery Experience (See Section E of Annex C)

Staffing and Recruitment (See Section F of Annex C)

Office Arrangements (See Section G of Annex C)

The relevant paragraphs are 4.22 – 4.29 of the IFA doc – I only intend to highlight certain important Paragraphs and these are: Management Team Experience Selection criteria relating to the MANAGEMENT TEAM can only be met by the AO as it will have responsibility for operating the Contract. In response to these questions it is not permitted to use the experience of individuals employed by, or who have Signed Engagement Agreements with, Delivery Partners. The AO must also ensure that the role of the Named Individual meets the definition of Managed at Annex F of this document (See Paragraph 4.23 of the IFA doc). Delivery Experience In response to Selection Criteria relating to the DELIVERY EXPERIENCE AO’s can rely on Named individuals employed by (or with a Signed Engagement Agreement with) its Delivery Partners as well as the AO itself (See Paragraph 4.25 of the IFA doc). Staffing and Recruitment Question F1 (this is a reference to the staffing and recruitment Question within Annex C of the IFA doc) awards higher points to AO’s (including their Delivery Partners) who currently Employ or have a Signed Engagement Agreement (see the definition of this within Annex F) to Employ a higher proportion of FTE caseworkers who will be Deployed on Contract Work under the Duty Provider Contract in this Procurement Area, based on a capacity calculation of one FTE caseworker to every £83,000 (excluding VAT) of the Anticipated Contract Value (ACV is defined in Annex F ).

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The above capacity threshold is also used in Question F2 which gives higher points to AO’s that currently Employ or have a Signed Engagement Agreement to employ a higher percentage of Caseworkers with CLAS Accreditation (See Paragraph 4.29 of the IFA doc). Office Arrangements The selection criterion relating to Office arrangements can only be met by an AO as the requirement to have an Office in the Procurement Area rests with them as Duty Provider Contract holders (See Paragraph 4.30 of the IFA doc). The criterion differs according to the type of Procurement Area. In Procurement Areas outside London (excluding Split Procurement Areas) preference is given to AO’s that currently have an Office within the Procurement Area. In London Procurement Areas preference is given to AO’s that currently have an office in the Procurement Area or in an immediately adjacent Procurement Area (as listed at Annex B of the IFA doc) In the Split Procurement Areas preference is given to AO’s that currently have an Office in the Procurement Area in which they are bidding with next preference being given to those currently with an Office in its linked Procurement Area (as listed at Annex B) (See Paragraph 4.31 of the IFA doc). Q – How will individual AO’s within a particular Procurement Area be assessed in relation to the above criteria? Selection Criteria: Assessment The LAA will use its assessment of the Selection Criteria to shortlist the top ranked organisations based on the numbers detailed in Annex A. The number of Organisations the LAA intends to shortlist is determined by the number of Organisations the LAA will award Contract Work to in each Procurement Area. The document tells us that where the number of Procurement Area bids meeting the Essential Requirements within a Procurement Area is equal to or less than the number of AO’s the LAA intends to contract with in that Procurement Area (as set out at Annex A) then, subject to them all passing the Financial Assessment, the LAA will not undertake any further assessment. I wonder how often that will happen? Where there are insufficient Procurement Area bids to shortlist the planned number of AO’s but there are more AO’s than the LAA will award Contract Work to, the LAA will shortlist all AO’s meeting the Essential Requirements, subject to them all passing the Financial Assessment. 129

Where the number of Procurement Area bids meeting the Essential Requirements within a Procurement Area is greater than the number of AO’s the LAA intends to shortlist, the LAA will assess the SELECTION CRITERIA. Selection Criteria responses will be assessed at Procurement Area level. AO’s will be ranked against other AO’s bidding in that Procurement Area. Each Selection Criteria response will be allocated points as set out at Annex C. The points are designed to give a higher number of total points to AO’s that provide the LAA with a higher level of competence that they will be able to deliver the Contract Work. NB To ensure that Named Individuals relied upon to meet each Selection Criterion will be deployed by the AO to manage or deliver Contract Work within the Procurement Area for at least 17.5 hours a week, the same individual cannot be named in more than 2 Procurement Area bids (either by the same AO or across multiple AO’s). Shortlisting Where there are sufficient Procurement Area bids, the LAA will aim to shortlist just over twice as many AO’s as it will award Contract Work to. Tie-break questions AO’s are required to provide free text responses to 3 tie-break questions. Responses to these questions will only be considered in the event that the LAA is unable to shortlist its requisite number of AO’s following assessment of the Selection Criteria and Financial Information. You are scored on your answers to the tiebreak questions – Paragraph 4.57 of the IFA document informs us that responses to each of the tiebreak questions will be awarded a score of 0-5 using the Award Criteria marking system in Table A at Paragraph 6.12 Tie-break assessment This is probably the most impenetrable part of the whole document. If you have a mind for such things please have a look at paragraphs 4.56 – 4.64 on pages 34, 35 and 36. I tried to fathom it all out but I was rapidly losing the will to live!

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SECTION 5: FINANCIAL ASSESSMENT THIS SECTION DEALS WITH AN ANALYSIS OF YOUR ORGANISATION (NOT THE FINANCES OF AGENTS AND THIRD PARTIES) AND THE DOCUMENTARY EVIDENCE YOU WILL BE REQUIRED TO PRODUCE DEPENDANT UPON THE TYPE OF ORGANISATION YOU ALREADY ARE AND THE NATURE OF THE BID YOU ARE MAKING Again, all dealt with in Annex C (it requires the completion of Section C of Annex C) All AOâ&#x20AC;&#x2122;s who meet Essential Requirements and are shortlisted in one or more Procurement Areas following the assessment of the Selection Criteria will be subject to Financial Assessment (See Paragraph 5.1). The Financial Assessment undertaken will depend on the nature of the AO and the total anticipated Contract Value that is being tended for. Financial assessment will consist of:

Basic Financial Assessment; and, where appropriate

Expansion Capacity Assessment

ESTABLISHED BUSINESS; or

OTHER BUSINESS TYPE.

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Other Business Type You will be regarded as Other Business Type where you have not been trading for 2 years or you do not have 2 years Audited or Certified accounts available (with the earliest year being not before 2012); or You have undergone a material or significant change to your key Personnel or Structure The purpose of the Basic Financial Assessment is to assess the general financial health of the AO and to ensure that it is appropriate for it to proceed to the next stage of the Tender assessment process. It hardly needs saying that if you fail this assessment your entire tender will be rejected. EXPANSION CAPACITY ASSESSMENT – purpose and application Where used, the purpose of the Expansion Capacity Assessment is to assess whether the AO has demonstrated it has the financial capacity to deliver the Contract Work Tended for. It tests whether any expansion appears realistic on the information provided by the AO. The Expansion Capacity Assessment will be conducted by suitably qualified finance professionals based on information provided by the AO. NB All AO’s classified as ‘Other Business Type’ will automatically be subject to the Expansion Capacity Assessment. Established Businesses will be subject to the Expansion Capacity Assessment where the total anticipated Contract value bid is more than 3 times its average turnover over the last 2 years accounts (the period confirmed in the Established Business Financial Assessment Form) Established businesses will be required to confirm if this is the case in their response to the Organisation ITT For example, imagine you have provided 2 years’ worth of accounts – for the year ending 2012 your turnover was £200,000 – for the year ending 2013 your turnover was £250,000 – this will give you an average turnover for those 2 years of £225,000 – this puts your threshold for Expansion Capacity Assessment at £675,000 i.e. 3 times the value of your average turnover – if the total anticipated Contract value of the work you bid for is in excess of this figure you will be subject to Expansion Capacity Assessment.

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DESIGNATING A CORE BID THIS IS VERY IMPORTANT There is a mechanism to ‘protect’ designated Procurement Area Bids from automatic rejection if an AO’s Maximum Bid fails the Expansion Capacity Assessment. Where an AO submits multiple Procurement Area Bids it may designate one or more as forming a Core Bid. If the Core Bid passes Financial Assessment but the Maximum Bid (i.e. all Procurement Area Bids submitted) does not, the Core Bid will not be automatically rejected. YOU MUST DESIGNATE WHICH OF YOUR PROCUREMENT AREA BIDS FORM YOUR CORE BID IF YOU ARE SUBJECT TO EXPANSION CAPACITY ASSESSMENT. You can, if you want to, designate that all the Procurement Areas for which you have Bid have formed your Core Bid (See Paragraph 5.17 on Page 39 of the IFA doc). Example AO submits Procurement Area Bids for:

Cambridgeshire (Designated as part of the Core Bid);

Suffolk 1 (Designated as part of the Core Bid); and

Hertfordshire In the above example the Core Bid is Cambridgeshire and Suffolk 1 but the Maximum Bid is Cambridgeshire, Suffolk 1 and Hertfordshire. At the risk of stating the obvious, if your Core Bid fails the Expansion Capacity Assessment (if you are subject to one) then all of the Bids in all of the Procurement Areas will be rejected. Remember that the Core Bid would only be subject to Expansion Capacity Assessment where the AO is an Established Business and the total Anticipated Contract Value of the Procurement Area Bids is more than 3 times its average turnover over the last 2 years accounts or the AO is Other Business Type. Let’s just clarify that again – if the LAA determines that the AO does not have the financial resources to deliver the Maximum Bid but can finance the Core Bid, the Procurement Area Bids designated as forming the Core Bid will be protected. – In other words, you may not be able to deliver the ‘greater’ but that will not bar you from being allowed to deliver the ‘lesser’ – what they don’t want AO’s to do is overstretch themselves whereby they simply cannot deliver under the Contract awarded to them. 133

Where the Core Bid has passed the Expansion Capacity Assessment any Procurement Area Bids forming the Maximum Bids will then be subject to the Expansion Capacity Assessment. Q

What information will they require in order to be able to make the necessary

judgements? A

The Financial Information that an AO must submit depends on which of the 2

levels of Financial Assessment will be undertaken (See Paragraph 5.24 of the

IFA doc)

Be fully completed; and

ii)

Contain Financial Information taken from the Certified or Audited

Accounts for 2 years, the earliest year starting no earlier than the 1st

of January 2012.

If you are an’ Other Business Type’ or an ‘Established Business subject to Expansion Capacity Assessment’ they will require a little more information from you and the information they require from you is fully set out at Paragraph 5.27 on Page 41 of the IFA document – in essence they will require a Business Plan, a Cash Flow Forecast Template to support your Core Bid and a Cash Flow Forecast Template to support the Maximum Bid where your Maximum Bid is different from your Core Bid. Such Templates can be accessed and downloaded from the ‘Buyer Attachments’ Section in the AO ITT. There is no Template provided for the Business Plan but details of the information that must be included in a Business Plan are contained in Annex D of the document (See Pages 135 – 140 of the IFA doc). Where an Established Business indicates in its Organisation ITT response that it is not bidding for Contract Work with an anticipated contract value of more than 3 times the average Turnover over the last 2 years accounts (the period confirmed in the Established Business Financial Assessment Form) but the LAA identifies that this is not the case, the whole Tender will be REJECTED for failing to submit Financial Information to enable the LAA to undertake the requisite Financial Assessment (See Paragraph 5.31 on Page 42 of the IFA doc) – Ouch!

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Let’s face it, if you have a good own client base (you are by definition an Established Business) your turnover is based upon all of the work that you do (Own Client and Duty) it may well be £1 million a year or £2 million a year or £3 million a year – you would have to be Tendering for Duty Work in excess of £3 million, £6 million or £9 million in order to be subject to the Expansion Capacity Assessment if you are an Established Business – in reality, it’s never going to happen. It seems to me that it would be a very dangerous thing to seek to apply for Contracts that would put you in excess of 3 times the value of your current turnover. How on earth are you going to be able to satisfy them that you would be able to fulfil the terms of such a Contract? In reality your Bid for Contract Work is likely to be a good deal under 3 times the value of your average turnover for the last 2 years – you will be well under. All of Section 5 seems to be based on the assumption that your Own Client work will somehow fade away – why do they think your Own Client work will fade away! – It doesn’t reflect market reality! – You will want to keep all of your Own Client work as well as your Duty work. Q

How will they evaluate the Financial Information supplied to them?

See Paragraphs 5.32 – 5.51 on Pages 42-44 of the IFA document in relation to

who will undertake this Financial Assessment and the criteria to be used.

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SECTION 6: AWARD CRITERIA THIS SECTION IS ALL ABOUT HOW THEY WILL DRAW UP THEIR SHORTLIST WITHIN ANY GIVEN PROCUREMENT AREA NOT TO BE CONFUSED WITH SELECTION CRITERIA. IF YOUR AO PASSES THE 4 STAGES REFERRED TO EARLIER, AND JUST TO RE-CAP THEY ARE:

ESSENTIAL REQUIREMENT’S

SELECTION CRITERIA (The questions are at Section B of the Organisation ITT

and in Sections D to G of the Qualification Envelope in each Procurement

Area ITT – you will find all of this in Annex C

FINANCIAL ASSESSMENT

THE TIE-BREAK QUESTIONS

THIS PUTS YOU ON THE SHORTLIST! HURRAH! YOU ARE NOW IN WITH A CHANCE OF A CONTRACT! THE AO NOW MOVES TO STAGE 5

AWARD CRITERIA

AWARD CRITERIA (SEE DETAILED WORDING AT ANNEX C) WILL BE USED TO DETERMINE WHICH SHORTLISTED AO’s IN A PROCUREMENT AREA WILL BE AWARDED CONTRACT WORK IN THAT AREA The questions are contained in the Technical Envelope in each Procurement Area ITT – Award Criteria are set in Sections A – D of Annex C Some guidance is given here as to what they are looking for when you complete the relevant parts of Annex C .They point to circumstances in which higher scores will be given. They also point to circumstances in which lower scores will be given. Award Criteria will assess AO’s against 4 main areas: THIS IS REFERRED TO AS THE TECHNICAL ENVELOPE OF THE PROCUREMENT AREA ITT (Pages 124-134 of the IFA doc – Annex C) Management Team (Section A of Annex C Pages 124 – 126) Delivery Team and Recruitment (Section B of Annex C Pages 126 – 129) Implementation and Delivery (Section C of Annex C Pages 129 – 132) Flexibility (Section D of Annex C Pages 133 – 134) 136

A WARNING The LAA recognises that it is common for bidders in this sector to engage consultants to assist them with putting together their Tenders, particularly in drafting FREE TEXT answers such as required in the Award Criteria. In the LAA’s experience this risks an Applicant Organisation’s response not being specific to its own position. In past procurement exercises a number of generic, template or substantially similar responses have been received from different AO’s (See Paragraph 6.5 on Page 45 of the IFA doc) The LAA requires AO’s to give THEIR OWN RESPONSE in their Tenders that is specific to the Procurement Area in which they are bidding. AO’s that submit generic responses risk being awarded lower scores against those responses and consequently prejudice their chances of being awarded a Duty Provider Contract. This is because a response which does not clearly demonstrate that it is specific to the AO concerned will give the LAA a lower degree of confidence in that response (See Paragraph 6.6 on Page 45 of the IFA doc) I think this warning is a reasonable one. We have all sat examinations. What they are saying is, make the answer relevant to your area in order to get the very best mark. Management team Award Criteria relating to the Management Team can ONLY be met by the AO as it will have responsibility for Managing the Contract. It is NOT permitted to use the experience of individuals working for Delivery Partners (I don’t think this is the first time we’ve heard this point mentioned in this document) Delivery Team Recruitment Higher scores will be awarded where the AO is able to demonstrate that it will be in a position to commence delivery of the service in the Procurement Area as required by having the NECESSARY STAFF RESOURCES in place by the Service Commencement Date (which we all know by now is the 11th of January 2016) Implementation and delivery Higher scores will be awarded where the AO can evidence that it has clear, well developed plans that will ensure that services will be delivered effectively and sustainably in the Procurement Area from the Service Commencement Date. Conversely, fewer marks will be awarded to AO’s where the plans are lacking in detail or not yet finalised.

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Flexibility This Section examines the flexibility of the AO in the context of both routine fluctuations and sustained increases in the volume of contract work. Higher scores will be awarded where the AO is able to demonstrate that, from the Service Commencement Date, it will be able to manage fluctuations and sustained increases in Contract work volumes under the Duty Provider Contract in the Procurement Area. HOW WILL YOU BE SCORED WHEN COMPLETING THE TECHNICAL ENVELOPE PART? Paragraph 6.12 on Page 46 of the IFA details the scoring and weighting for each question as set out in Annex C. All questions will be given a score of 0-5 based on the scoring criteria set out in Table A – Table A is fully set out on page 47 of the IFA doc and you must have it in front of you at the time of the completion of the relevant questions within Annex C. It is the same scoring processes as mentioned earlier in the paper in relation to your answers to the tiebreak questions. The analogy is the writing of a Police Station or Magistrates’ Court Portfolio – guidance has been given in relation to paragraph headings and the contents of the paragraphs and you need to have this document in front of you when you are writing up a case. Table A on page 47 of the IFA doc gives the SCORING CRITERIA from 0-5

0 – Very poor (and we are given examples of why the answer is very poor)

1 – Poor (and we are given examples of why the answer is poor)

2 – Fair (and we are given examples of why the answer is fair)

3 – Good (and we are given examples of why the answer is good)

4 – Very good (and we are given examples of why the answer is very good)

5 – Excellent (and we are given examples of why the answer is excellent)

NOW FOR THE MATHS! TO MAKE IT EASY

0 = 0%

1 = 20%

2 = 40%

3 = 60%

4 = 80%

5 = 100%

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Each relevant Section within Annex C attracts a different weighting. Section A – Management Team (20%) – See Pages 124 – 126 of Annex C (it has within it 3 Q’s that each have their own individual weightings of 40%, 20% and 40%) Section B – Delivery Team and Recruitment (30%) – See Pages 126 – 129 of Annex C (it has within it 4 Q’s that each have their own individual weightings of 20%, 27%, 33% and 20%) Section C – Implementation and Delivery (40%) – See Pages 129 – 132 of Annex C (it has within it 7 Q’s that each have their own individual weightings of 25%, 25%, 15%, 10%, 5%, 10% and 10%) Section D – Flexibility (10%) – See Pages 133 –134 of Annex C (it has within it 3 Q’s that each have their own individual weightings of 30%, 40% and 30%) You will note immediately that the 4 Sections add up to 100% (there would be problems if they didn’t!) You will also note that the individual weightings within the Sections also add up to 100% (there would be problems if they didn’t!) They then give us an example of how the weightings all work in Table B on Page 48 of the IFA doc. Don’t be confused. The only purpose of Table B in the document is as an example of how the weightings apply. Let’s do a hypothetical example just to get us in the mood before doing the actual management team on pages 124-126 In our hypothetical example (Section X) is weighted at 15% out of a possible 100% (in other words, it’s only worth 15% of the total marks) There are 3 Q’s within Section X which themselves have an individual weighting.

Q1. Has a weighting of 30% – we achieve a score of 4/5 (i.e. very good in

Table A) 4/5 is equivalent to 80%

It is however 80% of 30% (because of the weighting) and 80% of 30% is 24% so the weighted score is 24% (we obtain 24% by merely multiplying 8x3) So, for Q1 we have so far a score of 24%

Q2. Has a weighting of 50% – we achieve a score of 3/5 (i.e. good in Table A)

3/5 is equivalent to 60%

It is however 60% of 50% (because of the weighting) and 60% of 50% is 30% so the weighted score is 30% (we obtain 30% by merely multiplying 6x5) So, for Q2 we have a score of 30% 139

Q3. Has a weighting of 20% – we achieve a score of 5/5 (excellent in Table A)

5/5 is equivalent to 100%

It is however 100% of 20% (because of the weighting) and 100% of 20% is 20% So, for Q3 we have a score of 20% We now add 24% to 30% to 20% and arrive at 74% HOWEVER Section X is only worth 15% of the overall total marks and we therefore have to work out what 74% of 15% is worth. Simply multiply 15 (and we get this from the 15%) by 0.74 (and we get this from the 74%) the answer is 11.1 We now know that we have achieved 11% in the first Section (not bad, remember that Section X is only worth 15% of the overall marks and we have got 11% of them – it’s a good start) Let’s now go to page 124 in the IFA document (Annex C) and do an example of being marked in relation to Section A – Management Team (20%) The first thing to appreciate is that this Q only carries 20% of the marks Let’s assume that for A1 (weighted at 40%) we get 3/5 – that’s 60% – it is actually 60% of 40% i.e. 6x4 equals 24% Let’s assume that for A2 (weighted at 20%) we get 4/5 – that’s 80% – it is actually 80% of 20% i.e. 8x2 = 16% Let’s assume that for A3 (weighted at 40%) we get 5/5 – that’s 100% – i.e. 40% 24% +16% +40% = 80% but it’s 80% of something which is only worth 20% i.e. 8x2 = 16% So, we have achieved 16% for Management Team (not bad considering the total marks available were 20% – we have effectively achieved a score of 80% – another way of putting it is to say that we have scored 12 out of a possible 15 points – another way of putting it would be to say that we have achieved 4 5th’s of the total marks available for Management Team Ranking We will be ranked based upon our scores. Hopefully, there will be sufficient information (as a result of the marks) for the LAA to start awarding Contract Work to successful AO’s The IFA document says this at Paragraph 6.20 on Page 49

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‘In the event that the LAA is still unable to distinguish between tied AO’s based on these Q’s because too many remain tied, the LAA will select on a RANDOM BASIS. This process will RANDOMLY select AO’s up to the number of Contracts available within the Procurement Areas. The method of the RANDOM selection used will be capable of validation to ensure AO’s are selected on a RANDOM basis’. Does this mean what I think it means!!!!!!! Does anyone have any Premium Bonds!!!

SECTION 7: CONTRACT AWARD AND MOBILISATION THIS SECTION IS ALL ABOUT THE HOOPS TO JUMP THROUGH BETWEEN BEING AWARDED THE CONTRACT IN JUNE AND ITS IMPLEMENTATION DATE IN OCTOBER.I SHOULDN’T WORRY ABOUT IT TOO MUCH.YOU ARE HARDLY LIKELY TO SLIP UP AT THIS STAGE BUT JUST BE AWARE OF THE TIMETABLE AND THE THINGS WHICH MUST BE DONE. CERTAIN THINGS MUST SIMPLY BE VERIFIED DURING THIS PERIOD Successful AO’s will be awarded a Duty Provider Crime Contract requiring them to deliver Contract Work in those Procurement Areas in which their Procurement Area Bids have been successful. AO’s awarded a Duty Provider Contract will be subject to a Verification Process. The Verification Process is set out in Paragraph 7.3 on Page 50. This Verification Process covers both the AO’s Duty Provider Contract and its Own Client Contract. See Paragraph 7.3 of the list of things that must be verified by them by the Contract Start Date (week commencing 5th of October 2015) I won’t go through the list but it includes such things as hold a Relevant Quality Standard, identify an Office etc. etc. AO’s will then be required to verify the remaining Own Client and Duty Provider Contract Criteria one month before the Service Commencement Date (i.e. by the 11th of December 2015) and their Contracts will be conditional on satisfying verification – again there is a list of things that will have to be verified and they are set out on Page 52 of the IFA doc This period between October 2015 and January 2016 will be known as the MOBILISATION PERIOD. Certain things will be monitored during this period. The things that will be monitored are set out on Page 53 of the IFA doc

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The LAA need to be informed when Named Individuals leave. Substitutions will be permitted, assuming they meet the correct criterion. The procurement process and the terms of the Duty Provider Contract require that agreements with Delivery Partners HAVE A MINIMUM TERM OF 1 YEAR from the Contract Start Date. However, the Duty Provider Contract Standard Terms allow for the LAA to agree to a substitution of Delivery Partners during the Contract term. This allows for some flexibility during the Contract term to allow for unanticipated events. The LAA is, however, under no obligation to agree to any changes proposed and will need to be satisfied that any amendments during the Contract term do not materially affect the service provided or, if the Tender had been submitted on this basis, it would have adversely affected the decision to award the Contract (See Paragraph 7.24 of the IFA doc) See clauses 3.22 to 3.24 of the 2015 Duty Provider Crime Contract – The Standard Terms at Pages 25 for further details

SECTION 8: RULES OF THIS PROCUREMENT PROCESS A bit dry and nothing I feel I need to report. It’s a bit like the box that we all tick all the time to say that we have read the terms and conditions but how many times do we read the terms and conditions – life is too short! After the Sections we then have a series of Annexes within the IFA doc ANNEX A: Procurement Area Contract information and Case Volume Data relating to Case Experience (Pages 62 – 72 of the IFA doc) Table 1: Procurement Area Contract Information This is an important Annex which must be read. It gives us the Procurement Areas – informs us as to whether or not the area is URBAN, RURAL or LONDON – the number of Contracts to be awarded – the number of Applicant Organisations to be shortlisted – the Estimated Number of Police Station Cases Per Contract per Annum – the Estimated Number of Magistrates’ Court Cases Per Contract Per Annum – the Estimated Number of Crown Court Cases Per Contract Per Annum – the Anticipated Contract Value. PLEASE NOTE THE IMPORTANT POINT THAT THE %’s WITHIN SECTION D OF ANNEX C (MANAGEMENT TEAM EXPERIENCE) RELATE TO THESE ESTIMATED NUMBERS WITHIN ANNEX A

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POLICE STATIONS (see Page 103 of the IFA document) MAGISTRATES’ COURTS (see Page 104 of the IFA document Crown Court’s (see Page 105 of the IFA document) I have absolutely no comments as to the accuracy or otherwise of any of the contents of Annex A. I suppose the main interest in Annex A is in relation to the number of Contracts that are going to be awarded within any given Procurement Area. Table 2: Average volumes by Procurement Area for case types which relate to Selection Criteria questions E.3 – E.5 Again, very important in relation to the completion of Section E of annex C – Delivery Experience (Pages 109 – 16)

E.3 = offences of dishonesty

E.4 = drug offences

E.5 = offences against the Person

ANNEX B; Procurement Area Rules and Scheme Information (Pages 73 – 88 of the IFA doc) Table 1: Split Procurement Areas This Annex lists the Split Procurement Areas. There are 24 Split Procurement Areas and they are all mentioned in Table 1 of Annex B. An AO may Bid if it will have an Office in the Split Procurement Area or its linked Procurement Area as set out in Table 1. The Selection Criteria will give preference to AO’s that have an Office in the Split Procurement Area they are tendering in. The Table gives a list of the Split Procurement Areas and the linked Procurement Areas. Table 2: London Procurement Areas The Table lists all 32 London Procurement Areas and their immediately adjacent Procurement Areas. AO’s bidding in London Procurement Areas must have an Office either in the Procurement Area itself or in one of the immediately adjacent Procurement Areas listed. Table 3: Procurement Area Rules and Schemes covered by each Procurement Area. This Table gives information in relation to the Police Station Duty Schemes within the Procurement Area and the Magistrates’ Court Duty Schemes within the Procurement Area.

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ANNEX C THE MOST IMPORTANT PART OF THE WHOLE DOCUMENT! We start with ANNEX C: ITT Questions and Assessment. Section A – Organisation Information Pretty straightforward – they want to know the details of your Organisation N.B. AO’s must ensure that they complete and submit at least one Procurement Area ITT in addition to this Duty Provider Organisation ITT N.B. Where the AO submitted a number of tenders for an Own Client Contract, it must respond to this procurement opportunity from the relevant eTendering system registration (s). The registration(s) used must be the entity/ies that it intends to hold a Duty Provider Contract as. MAKE SURE YOU DON’T FALL AT THE FIRST HURDLE! Section B – Organisation Selection Criterion YOU WILL BE SCORED ON SECTION B – IT IS WORTH 5 POINTS TO YOU N.B. This Selection Criteria question appears here because it applies to the Applicant Organisation as a whole and gives preference to those Organisations that currently hold or have applied for authorisation by a RELEVANT LEGAL SECTOR REGULATOR Other Selection Criteria questions appear in the Qualification Envelope of the Procurement Area ITT’s. Any points that an AO receives for this question will be added to its Selection Criteria score. In other words you will be scored on your answer to Section B and the score will be added to the scores achieved by your answers given in Sections D, E, F and G of the Qualification Envelope of the Procurement Area ITT Section C – Financial Assessment Nothing to add – you just have to Wade through it – the important points have already been covered in Section 5 of this paper. Section D – Essential Requirements and Declarations Nothing to add – just a series of declarations you have to make Procurement Area ITT’s THIS PART CONSISTS OF THE COMPLETION OF A QUALIFICATION ENVELOPE AND A TECHNICAL ENVELOPE

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QUALIFICATION ENVELOPE (of the IFA doc) – Selection Criteria are set out in Sections D–G Section A – Procurement Area Information N.B. Remember that you must complete the Duty Provider Organisation ITT in addition to at least one of these Procurement Areas ITT’s This part can best be summed up by saying that the Section requests information relating to the office, staff and Delivery Partners (where applicable). Remember that Delivery Partners are not required to submit a separate Tender – any agreement a Delivery Partner has is with you as the AO – the LAA will Contract with an AO and no other entity. Section B – Staff information Section C – Delivery Partner Information We then move into the part of the QUALIFICATION ENVELOPE dealing with Selection Criteria Selection Criteria are set out in Sections D – E – F – G Remember that these are the IMPORTANT SECTIONS because you are being SCORED AGAIN (I say ‘again’ because you were scored on your answer to Section B) on your ANSWERS in this Part of Annex C so put your thinking caps on and give the best answer you can to attract the highest number of points. Section D – Management Team Experience (dealt with in Section 4 of the Invitation to Tender document) You just have to wade through it answering each point. Please note that in this Section you may only rely on individuals employed by the AO or individuals who have a Signed Engagement Agreement with the AO – ignore anything or anyone to do with Delivery Partners – they are not involved in this – remember you will have to manage the Contract and you are solely responsible for the Contract as the AO. Section E – Delivery Experience (dealt with in Section 4 of the Invitation to Tender document) You just have to wade through it, answering each point. Please note that in this Section you may rely on individuals employed by either the AO or your Delivery Partner or individuals who have a Signed Engagement Agreement with the AO or one of its Delivery partners. 145

Section F – Staffing and Recruitment (dealt with in Section 4 of the Invitation to Tender document Pages) You just have to wade through it, answering each point Please note that in this Section you may rely on individuals employed by either the AO or your Delivery Partners or individuals who have a Signed Engagement Agreement with the AO or one of its Delivery Partners. Section G – Office (dealt with in Section 4 the Invitation to Tender document) APPLICANT ORGANISATIONS ONLY –YOU MAY NOT RELY ON DELIVERY PARTNERS. Remember that your scores for D E F and G will be added to the score that you achieved in B Section H – Tie-break questions (dealt with in Section 4 of the Invitation to Tender document at Pages 27 – 36) In the event of a tiebreak the LAA will use the information given in the boxes below to decide between AO’s TAKE THESE TIE-BREAK QUESTIONS SERIOUSLY AND GIVE THEM A LOT OF THOUGHT - I WOULD EVEN GO SO FAR AS TO SAY THAT THIS ONE TASK SHOULD BE DELEGATED TO SOMEONE WHO SHOULD WRITE OUT FULL ANSWERS AND THEN PRESENT THEM TO THE MANAGEMENT TEAM (the tie-break questions are listed in Annex C – there are 3 of them and a free text box is provided for the answer. NB – Once AO’s have responded to the Selection Criteria, they will be required to provide free text responses to the 3 tie-break questions – for each of these questions AO’s have a MAXIMUM of 4000 characters to outline their response (an additional text box is provided under each question to accommodate this) – (See Paragraph 3.45 within Section 3 of the IFA doc) We then move to the TECHNICAL ENVELOPE (of the IFA doc) Remember what I said earlier – ‘Once an Applicant Organisation has completed the Qualification Envelope it must go on to the Technical Envelope which contains questions relating to the Award Criteria. Each Award Criteria question requires a free text response covering each of the points in question. Two response boxes are provided for each question to give Applicant Organisations a maximum of 4000 characters to respond to each question (see paragraph 3.47 of the IFA doc) Award criteria are set out in Sections A – D

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Question weightings (See the maths explanation earlier in this paper) – DO HAVE TABLE A ON PAGE 47 OF THE DOCUMENT TO HAND WHEN YOU COMPLETE THIS SECTION AS IT GIVES GUIDANCE ON THE SCORES 0-5 Remember that 0 is 0

1 Equals 20%

2 Equals 40%

3 Equals 60%

4 Equals 80%

5 Equals 100%

Try to score 5/5 for each question within each Section Section A – Management Team (worth 20% of the total marks available) – split into 3 parts (each themselves individually weighted) – A1, A2 and A3 Section B – Delivery Team and Recruitment (worth 30% of the total marks available) – split into 4 parts (each themselves individually weighted) – B1, B2, B3 and B4. Section C – Implementation and Delivery (clearly the most important Section because it is worth 40% of the total marks available) – split into 7 parts (each themselves individually weighted) – C1, C2, C3, C4, C5, C6, and C7. Section D – Flexibility (clearly the least important Section because it is only worth 10% of the total marks available – split into 3 parts (each themselves individually weighted) – D1, D2 and D3. In the Management Team part mention is made of KPI’s (see page 124) – as you know, KPI’s are Key Performance Indicators – those of you wanting to know more about Key Performance Indicators should read the document entitled ‘2015 Duty Provider Crime Contract – The Specification’(Draft) The Key Performance Indicators are set out for you on Pages 18 and 19. What can I say? You just have to wade through it all! ANNEX D: Information to support Financial Assessment (of the IFA doc) See Section 5 of the document – mention is made of Business Plans being required from certain AO’s – this Annex details the information which must be provided in your Business Plan – you must read this Annex if you fall within the category of AO mentioned in Section 5 of the document from whom such information is required. ANNEX E: Defined Terms in the Mandatory Attachments (of the IFA doc) Annex F: Defined Terms in the IFA 147

Chapter 6 CrimeScribe Edition No. 46

Hello and welcome to this month’s edition of CrimeScribe. A fair bit happened in April by way of new and important legislation and I shall endeavour to tackle the most important parts in this month’s edition. We must kick off with something that I regard as truly iniquitous, the Criminal Courts Charge. The Charge was brought into force on the 13th of April 2015 by virtue of Sections 54 and 55 of the Criminal Justice and Courts Act 2015 and the Prosecution of Offences Act 2015 (Criminal Courts Charge) Regulations 2015 Section 54, of the Act inserts S.21A to S.21F into the Prosecution of Offences Act 1985 The Criminal Court Charge is intended to offset some of the cost of running the criminal Courts. The Act does not allow the Court any DISCRETION regarding whether or not to impose the Charge or the amount to impose. S. 20 1A (4) of the Prosecution of Offences Act 1985 specifically says that the Court must not take into account the duty to impose the Criminal Court Charge when dealing with a person for an offence or with failure to comply with a requirement of an Order. The requirement to impose the Charge is separate from the determination of the appropriate sentence. It is also not means tested! The Charge must be imposed for offences committed on or after the 13th April 2015. The Charge is also payable when dealing with breaches of community orders, suspended sentence orders and post-sentence supervision. It is important to note that the new Section 21A of the Prosecution of Offences Act 1985 applies only to a person ‘convicted of an offence committed after the Section comes into force’. When dealing with breaches or appeals, the original conviction must relate to an offence committed on or after the 13th of April 2015. Following previous analogous guidance in this area, where an offence is alleged to have taken place between 2 dates on either side of the 13th of April 2015 the Charge would not, in my view, apply unless it is admitted or proved that the offence took place on or after the 13th of April 2015.

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Similarly, a continuing offence should not attract the Criminal Court Charge where any part of it occurred before the 13th of April 2015. Similar considerations apply to whether or not the Victim Surcharge should be imposed. The age of the offender The Charge cannot be made against a youth. S.21A and S.21B create the power for the Court to impose the Charge on all ADULT offenders. If the defendant is 18 or over when he breaches the order, but was under 18 when the OFFENCE was committed, the Charge does not apply. APPEALS The Charge will also be imposed where an offender has been unsuccessful in an appeal against conviction or sentence and for certain breaches of a community order, suspended sentence order or a post sentence supervision requirement. AMOUNTS PAYABLE The Prosecution of Offences Act 1985 (Criminal Court Charge) Regulations 2015 specify the Charge level to be imposed as follows:

Conviction by Magistrates’ Court

(Single Justice Procedure)

Magistrates’ Court – summary offence

Guilty Plea

Magistrates’ Court – summary offence

Proof in absence

Magistrates’ Court – either way offence

Guilty plea

Magistrates’ Court – summary offence

Convicted after trial

Magistrates’ Court – either way offence

Convicted after trial

Magistrates’ Court – dealing with

Breach of CO, SSO, or

Post-Sentence Supervision

£150

£180

£520

£1000

£100

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Crown Court – Guilty plea

£900

Crown Court – Convicted after trial

£1200

Crown Court – Committal for sentence

£180

(Following a guilty plea)

Crown Court – Committal for sentence

(Following conviction after a summary trial)

£520

NB – Where an offender changes their plea from not guilty to guilty after the start of a trial (the start of a trial is defined as ‘after the prosecution opens its case’), the appropriate Criminal Court Charge is the amount which would be paid following conviction, i.e. £520 (summary offence) or £1000 (either way offence) Some ‘What if’ situations I have had an opportunity to read some Guidance published by the Justices’ Clerk’s Society in this area and I hope they will not mind my making reference to the advice which the legal adviser is likely to give to the Magistrates’. As all advice from legal advisers should be given in open court in any event it is as well that we all appreciate the advice that is being given in this area and that there should be consistency throughout the whole criminal justice system. What if the offence being dealt with is criminal damage which is being tried summarily because the value is low or aggravated vehicle taking where the only aggravation is damage and the value of the damage is low or theft by way of shoplifting where the case is being dealt with summarily (as you know, the defendant does have a right of election in the latter example)? The advice by the legal adviser is likely to be that interpreting the statute in favour of the defendant, the relevant Criminal Court Charge would be the one applicable to a summary offence unless the defendant elects on a low value shoplifting offence, in which case the applicable charge for the Crown Court would apply, i.e. £900 following a guilty plea or £1200 following a conviction after a trial. Remember that there is no right of election in low value criminal damage or low value aggravated vehicle taking – if the Court makes a determination under Section 22 of the Magistrates’ Courts Act 1980, then it becomes summary only with no right to elect. What if the defendant pleads guilty and the Court determines that a Newton hearing is required as the factual difference between the parties would make a material difference to the sentence?

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The advice by the legal adviser is likely to be that the Charge applicable to the guilty plea should apply. What if the defendant pleads guilty and wants to advance Special Reasons as to why he or she should not have his licence endorsed with penalty points or a disqualification from driving? The advice by the legal adviser is likely to be that the Charge applicable to the guilty plea should apply. What if the defendant purports to plead guilty but the Court does not accept the guilty plea on the basis that it is equivocal and a ‘not guilty’ plea is entered on the Court register and a trial takes place? The advice by the legal adviser is likely to be that the Charge applicable will be that which applies to ‘conviction after trial’ What if the defendant had originally entered a not guilty plea, but changes his plea to guilty before the prosecution open their case? Regulation 3 (6) and (7) of the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015 states that in a Magistrates’ Court where the defendant changes his plea before the prosecution opens its case, the relevant Charge would be for a guilty plea. The JCS takes the view that the plea can be changed at any time before the prosecutor opens the case at the start of the trial to attract the lower amount. What if there are multiple disposals in the case? If dealing with an offender for more than one offence in the same proceedings (e.g., some summary, some either way, or some convicted after a trial, and some guilty) – the amount of the Criminal Court Charge to be imposed is the HIGHEST RELEVANT AMOUNT. What if the Court is dealing with multiple offences and some of those offences occurred before 13 April 2015 and some of those offences occurred on or after 13 April 2015? In these circumstances the Regulations require that the highest relevant guilty or not guilty plea Charge applicable to the offences committed on or after the 13th of April 2015 should be imposed. What if the Court is dealing with offences and breaches in the same proceedings? In these circumstances, only the relevant charge in relation to the offences should be imposed and no separate Charge is imposed in respect of the breaches 151

What if the defendant fails to surrender to bail during the proceedings and pleads guilty to the offence? The Criminal Practice Direction on bail makes it clear that such an offence ‘stands apart from the proceedings in respect of which bail was granted’. Therefore, if the defendant has other substantive matters pending trial, in accordance with the Criminal Practice Direction, the Bail Act offence should be sentenced and not adjourned pending the outcome of the substantive matters. This will attract a separate Criminal Court Charge for the Bail Act offence. If the defendant is subsequently convicted of the substantive offences, the appropriate Criminal Court Charge should be imposed and there is no provision to adjust the charge. The Bail Act offences were separate proceedings and attracted their own charge. What if the defendant fails to surrender to bail during the proceedings and pleads not guilty to the offence and is convicted? I don’t know the answer to this question and it is not covered by any Guidance issued by the JCS. I suppose you could argue that it is not a ‘trial’ in the true sense of the word and so the conviction after trial amount would seem rather steep! It is more in the sense of being a hearing to see whether or not the court is satisfied, albeit on the balance of probabilities, that the defendant has a reasonable excuse for being late or for not having attended. I concede that the alternative argument that this is a criminal charge (the offence carries 3 months imprisonment in the Magistrates’ Court and 12 months imprisonment on indictment!) and any not guilty plea is dealt with by way of a trial, has equal validity. What if the offender denied being in breach of his bail conditions and there was a hearing? I think this one is slightly easier to answer in that this is not an ‘offence’ and, to my mind, the Charge should not even be engaged. What if the Court is dealing with an offender for multiple breaches of Orders? The advice from the legal adviser is likely to be that only one Order for the Criminal Court Charge of £100 is imposed. What if the defendant simply cannot pay all of the monetary orders within 12 months? Given the fact that the Criminal Court Charge is not part of the sentence, it may be that it will take a defendant longer than the guideline 12 months to pay the sum imposed.

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Section 41 of the Administration of Justice Act 1970 The above Section provides that any sum mentioned in Schedule 9 of that Act (and the Criminal Court Charge is mentioned in Schedule 9) shall be treated for the purposes of collection and enforcement as if it had been adjudged to be paid on conviction in the Magistrates’ Court and can therefore be subject to a Collection Order. The hierarchy for recovery is now: Compensation

Victim surcharge

Costs Fines

Criminal Court Charge

Can a period of custody be imposed in default of payment of the Criminal Court Charge on the occasion of the conviction? Section 82 of the Magistrates’ Courts Act 1980 applies in its entirety to the charge, save for Section 82 (1) (c) (the power to issue a warrant of commitment for nonpayment on the same occasion as it imposes imprisonment or detention for an offence), which is dis-applied by Paragraph 3 of Schedule 12 of the Criminal Justice and Courts Act 2015 to the Criminal Court Charge (as it has been to the surcharge) In simple language, there is no power to order the Charge and then to order imprisonment in lieu of payment of the Charge in order to wipe out the Charge where an immediate term of imprisonment or detention has been imposed. Section 82 of the Magistrates’ Courts Act 1980 does allow for immediate commitment in relation to the Criminal Court Charge if the offence is punishable with imprisonment and the defendant appears to have sufficient means to pay forthwith; or it appears unlikely that he will remain long enough at a place of abode in the UK to allow enforcement by other means. In practice, it is rare for immediate commitment to be made in default of payment of a sum adjudged to be paid upon conviction. What tends to happen is that the Court will still give a short period of time in which the sum should be paid but if the offender blatantly refuses to pay, the Court could take the view that this is clear culpability and order an immediate term of custody consecutive to any other term ordered.

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Where someone has been sentenced to an immediate custodial sentence and the defendant is unable to pay immediately the Court should still make a Collection Order upon imposition of the Criminal Court Charge and also set a time to pay by the end date of the sentence imposed. Exactly the same guidance was issued in relation to payment of the Victim Surcharge, i.e. if the defendant is sentenced to a term of 10 weeks imprisonment the time period under the Collection Order should be set at 10 weeks. R v Holden [2013] EWCA Crim 2017 was an interesting case in which a Recorder at Birmingham Crown Court imposed the victim surcharge, and then exercised his powers to sit as a District Judge and used Section 135 of the Magistrates’ Courts Act 1980 to impose 1 day’s detention in default. The Court of Appeal held that Section 135 only applied to fines and had not been amended to include the Victim Surcharge and therefore could not be used. With the greatest of respect to the members of the Court of Appeal who made this decision I do not necessarily agree with it. Sections 135 and 136 and Sections 82 – 88 of the Magistrates’ Courts Act 1980 are concerned with the ‘payment of sums adjudged to be paid by a summary conviction’– there is nothing in these Sections limiting the monetary orders to fines only. However, lowly lawyer that I am, and a pragmatist at that, I take the view that the point is now virtually unarguable. As an advocate, you may wish to try it and see what advice is given by the legal adviser in open court! It will be interesting to see whether or not the Justices/District Judge is willing to make an interpretation at odds with that of the Court of Appeal. I would also wish to point out that Section 150 of the Magistrates’ Courts Act 1980 precludes ‘split enforcement’, i.e. if Section 135 (or Section and 36 for that matter) of the Magistrates’ Courts Act 1980 is used at any stage in relation to the Criminal Court Charge then it will apply to all financial impositions imposed for the same conviction. It is a question of ‘all orders or none of them’. Enforcement of the Charge There is no prohibition on imposing a default sentence on a subsequent occasion or for one of the other grounds mentioned in Section 82 (1) of the Magistrates’ Courts Act 1980. REMMITTAL Section 21E of the Prosecution of Offences Act provides the Magistrates’ Court with the power to remit the charge after a SPECIFIED period where the offender has taken all reasonable steps to pay the charge, having regard to the offender’s personal circumstances. 154

The charge can also be remitted after a SPECIFIED period where the Court is satisfied that the collection and enforcement of the charge is impracticable. The period specified for a remittal is 2 years for an application by the offender or 12 months where it is an application by the fines officer or the Court acting of its own motion. The Criminal Court Charge cannot be remitted while an offender is serving a custodial sentence. It would appear that the charge is not payable if the matter is dealt with at Court by way of an absolute discharge. I believe this is true in relation to the payment of the victim surcharge as well. Certainly there is no reference to the victim surcharge in the Schedule of amounts and disposals applicable to the surcharge It would most certainly not be payable if the offender were bound over to keep the peace as this is not an ‘offence’ – no doubt the CPS would have withdrawn the offence or offered no evidence on the basis that the offender would agree to be bound over. It would appear that the charge is payable even where the defendant enters a written plea of guilty by post. I think this will need to be confirmed but it certainly looks that way from the table of amounts. Time will tell but it may well be that the ‘trial’ fee is payable where a client denies being in breach of their community order and there is a ‘hearing’ at which he is convicted. Is this ‘hearing’ a ‘trial’ for the purposes of the Criminal Court Charge? We know from the table that it is £100 where the court is dealing with the breach of a CEO, SSO, or post-sentence supervision – we know that the sum is £100 but is it £100 regardless of whether or not there is an admission or denial to the breach? I Hope that the view is taken that the charge is not applicable where the person objects to the making of a Domestic Violence Protection Order and there is a hearing on the matter – similarly, where there is a hearing as to whether or not the client should be made subject to a Community Behaviour Order. Breaches of the above Orders may well attract the Criminal Courts Charge. Again, I am not being definitive about this. I turn now to the important parts of the Criminal Justice and Courts Act 2015, which came into force in April.

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Criminal Justice and Courts Act 2015 When? Much of the Act came into force on 13th April 2015. The circular accompanying the Act sets out 92 new sections and an annex spanning from A-G. What? Amongst other things, it creates new offences, amends sentencing provisions, supplements the rules regarding parole and introduces the new courts charge. SENTENCE Terrorism

•

Further terrorism offences are added to schedule 15

•

Maximum penalties are increased to life imprisonment

Murder

•

Section 27 amends Schedule 21 of the CJA 2003.

•

It provides for a starting point of whole life order for the murder of a police

or prison officer in the course of his or her duty.

Previously the starting point for this type of case was a 30-year minimum

•

term. Committal of youths to the Crown Court

•

Section 53 of the Act amends section 3B(1) of the Powers of Criminal

Courts (Sentencing) Act (the 2000 Act), which provides for the committal

for sentence to the Crown Court of children and young people convicted

on summary trial of certain serious offences.

The effect of the amendment is to make the power to commit to the

•

Crown Court for sentence available to the Youth Court whenever

a child or young person is convicted on summary trial of an offence

mentioned in section 91(1) of the 2000 Act, and the court is of the opinion

that the offence, or the combination of the offence and one or more

offences associated with it, is such that the Crown Court should have the

power to sentence the child or young person to long-term detention

under section 91 of the 2000 Act.

156

•

Hitherto the power to commit for sentence under section 3B(1) has been

available only where the child or young person was convicted of such an

offence following a guilty plea at the outset; it was not available if the

defendant pleaded not guilty, even though it might subsequently

transpire that the offending was more serious than it first appeared when

the Youth Court accepted the case.

The purpose of extending the power to commit for sentence is to

•

encourage the Youth Court to deal with cases involving serious crimes

committed by children and young people wherever appropriate.

Jurors

•

Section 69 of the Act inserts a new section 15A into the Juries Act 1974

and provides for a discretionary power for a judge to order jurors to

surrender their electronic communications device for a period of time

while on jury service.

Section 70 inserts a new section 54A into the Courts Act 2003 which

•

provides the court with powers to enforce an order made under section

15A of the Juries Act 1974.

Section 71 of the Act inserts a new section 20A into the Juries Act 1974

•

which makes it an offence for a member of a jury to research information

relevant to the case he or she is trying. Subsections (3) to (5) of new

section 20A set out more detail about the circumstances in which the

offence will apply.

The offence is indictable only and the maximum penalty is 2 years

•

imprisonment and/or a fine.

Section 72 of the Act inserts a new section 20B into the Juries Act 1974

•

which makes it an offence for a member of a jury intentionally to disclose

information to another member of the jury that had been obtained by

research in contravention of the new section 20A, and the information has

not been provided by the court.

The offence is indictable only and the maximum penalty is 2 years

•

imprisonment and/or a fine.

Section 73 of the Act inserts a new section 20C into the Juries Act 1974

•

which makes it an offence for a member of a jury, trying an issue before

a court, intentionally to engage in conduct from which it may be

reasonably concluded that the person intends to try the issue otherwise

than on the basis of the evidence presented in the proceedings on

the issue.

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•

The offence is indictable only and the maximum penalty is 2 years

imprisonment and/or a fine.

Section 74 of the Act introduces new sections 20D, 20E, 20F and 20G to

•

the Juries Act 1974 which makes it an offence for a person intentionally

to disclose information about statements made, opinions expressed,

arguments advanced or votes cast by members of a jury in the

course of their deliberations in proceedings before a court, or to solicit or

obtain such information.

This covers the same conduct as section 8 of the Contempt of Court Act

•

1981, which is no longer to have effect in England and Wales.

However, there will be occasions when disclosure may be in the interests

•

of justice. The provisions therefore create exceptions so that a juror with

real concerns about specific issues affecting the fairness of the

deliberation process, such as the commission of offences or contempt,

can make disclosure in certain situations.

The offence is indictable only and the maximum penalty is 2 years

•

imprisonment and/or a fine.

Section 77 of the Act amends Schedule 1 to the Juries Act 1974 and adds

•

conviction for a juror misconduct offence to the list of criteria for

disqualification of a person from jury service.

•

The period of disqualification would be for ten years.

•

Section 77 also makes clear that creation of the new offences, as

detailed, does not affect what constitutes contempt of court at

common law.

•

It is envisaged that the new offences will be used to prosecute jurors

where their misconduct falls within the proscribed behaviour previously

outlined. However, as the law of contempt will remain extant, it could be

used to deal with juror misconduct where this arises.

Commencement

•

The offences created by these provisions can be committed on or after 13

April 2015.

•

However, the new offences in section 71-73 will not apply to a juror during a trial where that juror was sworn in before 13 April.

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•

These offences can only be committed during a trial.

•

The new offence in section 74 can be committed both during a trial and

after the conclusion of a trial.

This offence will not apply to a juror during a trial where the juror was sworn

•

in before 13 April, but will apply to such a person after discharge.

A non-juror can commit the new section 74 offence at any time after

•

13 April. Ill treatment/willful neglect by care-workers

•

Sections 20-25 of and Schedule 4 to the Act create two new criminal

offences of ill-treatment or willful neglect applying to individual care

workers and care provider organisations.

Prior to the introduction of these offences, prosecutions for a statutory

•

offence of ill-treatment or willful neglect can only occur in respect of

persons receiving treatment for mental disorder, persons who lack mental

capacity or, in certain circumstances, children.

Section 20 makes it an offence for an individual to ill-treat or willfully

•

neglect another individual of whom he has the care by virtue of being a

care worker. (Care worker is defined in the Act – must be “paid work”)

Schools, academies and child-care providers are expressly excluded from

•

the definition.

Offences relating to police and prison officers

•

Section 26 makes it an offence for a police constable to exercise the

powers and privileges of a constable where the constable knows or ought

to know that the exercise is improper.

The exercise of a constables powers and privileges is defined as being

•

improper where it is for the purpose of achieving a benefit for the officer

or another person or a detriment to another person and a reasonable

person would not expect the power or privilege to be exercised for the

purpose of achieving that benefit or detriment.

The section also covers the situation where a constable fails to exercise a

•

power or threatens to exercise a power.

The offence is triable only on indictment and carries a maximum sentence

•

of 14 years imprisonment.

159

•

The offence supplements rather than replaces the common law offence of misconduct in public office.

Disqualified drivers

•

Section 29 of the Act creates two new offences of causing death by

driving while disqualified and causing serious injury by driving

while disqualified.

The former is an indictable only offence and carries a maximum penalty of

•

10 years’ imprisonment and/or a fine.

The latter is an either way offence and carries a maximum penalty of 4

•

years’ imprisonment and/or a fine.

Annex A explains the elements of the two offences in more detail.

•

Sending letters with intent to cause distress or anxiety

•

Section 32 of the Act amends section 1 of the Malicious Communications

Act 1988, which makes it an offence if a person, with the intention of

causing distress or anxiety, sends certain items to another person which

convey an indecent or grossly offensive message or are themselves of an

indecent or grossly offensive nature, or which convey a threat or

information which is false and known or believed to be false by

the sender.

•

This offence is currently a summary-only offence punishable by a

maximum term of imprisonment of 6 months or a fine not exceeding level

5 on the standard scale, or both.

Section 32 makes the offence an either-way offence and increases the

•

maximum penalty to 2 years’ imprisonment and/or a fine4. This allows

more time for investigation and increases the punishment available in

appropriate cases. “Revenge porn” •

Sections 33-35 of, and Schedule 8 to, the Act create a new criminal offence of

disclosing private sexual photographs and films without the consent of an

individual who appears in them and with intent to cause that individual distress.

•

The offence is an either way offence which carries a maximum penalty of 2

years imprisonment and/or a fine.

160

•

These changes will mean that the disclosure of private sexual photographs

and films without the consent of the individual who appears in them and

with intent to cause that individual distress will become a criminal offence.

This offence can be committed only where the disclosure in question takes

•

place on or after 13 April 2015.

Sexual offences

Grooming

•

Section 36 of the Act amends section 15 of the Sexual Offences Act 2003

(the offence of meeting a child following sexual grooming etc) so that the

number of initial occasions on which the defendant must meet or

communicate with the child in question in order to commit the offence is

reduced from two to one.

As now, following any initial communication or meeting, the defendant

•

must intentionally meet, arrange to meet or travel with the intention

of meeting the child, or the child must travel with the intention of meeting

the defendant; and the defendant must intend to do something to or in

respect of the child during or after any meeting which would, if done in

England and Wales, amount to an offence under Part 1 of the Sexual

Offences Act 2003.

The reform follows concerns raised by the cross-party inquiry supported

•

by children’s charity Barnado’s into the effectiveness of legislation for

tackling child sexual exploitation and trafficking within the UK.

Pornography

•

Section 37 of the Act amends the offence of possession of extreme

pornographic images in section 63 of the Criminal Justice and Immigration

Act 2008 so that, in England and Wales, the offence can be committed

by the possession of extreme pornographic images depicting non-

consensual penetration and rape.

MISCELLANEOUS Cautions

•

Section 17 of the Act places restrictions on the circumstances in which

simple cautions may be used. In essence, the more serious the offence,

the greater the restrictions. It also places restrictions on the use of simple

cautions for repeat offending.

161

•

Police will not be able to give a simple caution for an indictable-only

offence or an either-way offence (specified by an order of the Secretary

of State) unless exceptional circumstances exist. The consent of the DPP

will also be required.

Furthermore, if in the last two years the offender has been convicted or

•

cautioned for a similar offence, the police will not be able to give a simple

caution for a non-specified either-way offence or a summary offence,

unless there are exceptional circumstances.

ANNEX F: Useful links The Criminal Justice and Courts Act 2015 is available at: http://www.legislation.gov.uk/ukpga/2015/2/contents/enacted Fact Sheets for provisions in the Criminal Justice and Courts Act 2015 can be found at: https://www.gov.uk/government/publications/criminal-justice-and-courts-bill- fact-sheets Explanatory Notes for the Criminal Justice and Courts Act can be found at: http://www.legislation.gov.uk/ukpga/2015/2/contents/enacted

Statutory Instrument 2015 No. 994 Statutory Instrument 2015 No. 994 is the Deregulation Act (Commencement No. 1 and Transitional and Saving Provisions) Order 2015. You may never even have heard of this Act and who can blame you! Article 4 of this SI brought into force Section 52 (a), together with Part 1 of Schedule 11 to make changes to legislation relating to drink and drug driving offences. These provisions amend the alcohol and drugs provisions relating to road transport in Part 1 of the Road Traffic Act 1988 and in Section 15 of the Road Traffic Offenders Act 1988. They also amend the alcohol and drugs provisions relating to rail transport in Chapter 1 of Part 2 of the Transport and Works Act 1992. In both the road and rail regimes, they provide for the REMOVAL of the ‘STATUTORY OPTION’ to have a breath specimen replaced, the removal of the need for a preliminary breath test before an evidential breath test may be taken and the extension of the role of health care professionals.

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These provisions came into force on the 10th of April 2015, which is the earliest date upon which the police will be able to implement their provisions. As you can see, no longer any need for a preliminary breath test before an evidential breath test may be taken and, perhaps more importantly, where the suspect gives a specimen of 50 or below at the police station there is no longer any requirement to offer that person the option of having that specimen of breath and replaced by either a specimen of blood or a specimen of urine – this statutory option was with us for many years and was contained in Section 8 of the Road Traffic Act 1988 A police officer can now proceed directly to evidential breath testing at the roadside in those instances where a portable evidential breath test device is available. The officer could still require a preliminary test but there is no longer any need for a preliminary breath test before an evidential breath test may be taken at the police station. I didn’t know that there was such a device whereby the ‘kit ‘at the roadside can now be used for evidential purposes in court. Clearly there are such devices available in certain areas! Healthcare professionals may make an assessment of a suspect’s condition (i.e. possible impairment through a drug), formerly the section mentioned ‘medical practitioner’. Where a specimen of blood is taken from a person who may be incapable of consenting to the specimen being taken this may now be taken by a registered healthcare professional – formally, it could only be taken by a medical practitioner.

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The current position regarding the acquisition of CPD Speaking to solicitors, there still seems to be a little confusion as to what the new regime actually is and the operational period for all this. Let me attempt to clarify the current position. For the years 2014/2015 and 2015/ 2016 you are able to choose between 1 of 2 regimes. You can continue to complete your 16 hours of CPD if you wish. The one significant change is that you no longer need to acquire at least 4 of those hours from what used to be called ‘accredited CPD activity’ i.e. face-to-face. Although there is no longer the requirement to obtain 25% of your CPD through face-to-face activity, speaking entirely personally, I think it’s a good idea to get out of the office for a day and to mix with other lawyers. Attending a course is more than simply acquiring CPD hours. I would hope, though, that the course/conference you have chosen is both informative and entertaining! Whilst I have nothing against the acquisition of CPD from other mediums, there is no substitute for input through questions being raised in the room. The above method will not be allowed for the year 2016/2017. In that year, there will only be one regime and it is the regime that you can currently opt into if you wish. It is called the COMPETENCY REGIME and you will find the full details of this regime on the SRA website. You don’t have to do anything over and above starting to comply with the new regime. You must identify your own training needs each year and make sure that you carry out the training and knowledge updating that is required to ensure that you carry out your work to a competent level. This does not mean simply doing nothing! It may be that you would want to have a word with your Supervisor in order that some sort of training regime could be devised and implemented. I have no doubt that ‘they’ might put in place some form of random checking to ensure that the training needs of individuals within a firm are being met. If I’m wrong on this, it will most certainly be the case that if there is any intervention, for any reason, in the firm, then the training records will be pored over!

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Chapter 7 CrimeScribe Edition No. 47

Hello and welcome to this monthâ&#x20AC;&#x2122;s edition of CrimeScribe. I think it is fair to say that not an awful lot happened in May. The government had other things on its mind like winning the General Election! In Edition No 43 I dealt with the changes brought about by the Offender Rehabilitation Act 2014. I therefore do not propose to rehearse all of the changes here again safe to say, in summary, that the position upon release now for anyone aged 18 or over, where the offence occurred on or after the 1st of February 2015 is that, whatever sentence they are given, they serve half and are on licence for half and thereafter subject to a Supervision period (the licence period and the Supervision period, adding up to 12 months). This will be true of all custodial sentences of 2 years or less. Youths (those who are 17 or below) are only caught by this new regime if they received a custodial sentence of less than 12 months under Section 91 or Section 96 of the PCC(S) A 2000 and they become 18 at the halfway point of their sentence i.e. upon release. If they are 17 or under upon release the new regime does not apply to them. Re-cap over. Q.Who deals with the licence and Supervision? A. If a person breaches the licence (and they are asked to sign the licence papers upon release to acknowledge the fact that they are subject to these licence conditions) they are at risk of being administratively re-called by the Secretary of State. If they breach the period of their Supervision they run the risk of being brought back to Court and given a sentence for the breach, the Court having the following 3 powers:

A custodial sentence not exceeding 14 days

A fine not exceeding level 3 on the standard scale

A Supervision Default Order imposing either an unpaid work requirement or a

curfew requirement.

Breaches are dealt with by the NPS (National Probation Service) but the Supervision aspect is now dealt with by 1 of 21 different CRCâ&#x20AC;&#x2122;s (Community Rehabilitation Companies). These are private companies set up to deal with 70% of offenders that

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were formerly dealt with by the probation service. They are private concerns. The probation service now deals with only 30% of its former workload. The probation service has been left with the most serious offenders and those at high risk of reoffending. The probation service also deals with breaches before the court. Q. What is the period of recall if a person breaches the terms of their licence? A. In order to answer that rather simple question I have been greatly assisted by a document published by the National Offender Management Service entitled ‘Recall review and re- release of recall offenders’– this document was revised on the 1st of June 2014 as a result of the amendments to recall made by the Offender Rehabilitation Act 2014. The document runs to 112 pages. I would strongly urge all of you to use whatever search engine you use and to get hold of this document and store it. It contains a lot of valuable information. I am going to spend some time taking important extracts from this document (and I make no apologies for this because, for many lawyers, the whole area of recall is unknown territory!) and referring you to the relevant page number. For the sake of clarity, you will know when I have extracted a section from the document because it will be in brackets and followed by the page number of the document. If it is not in brackets, then it is my comment and nothing to do with the document. [The recall process will apply to those offenders who commit an offence on or after the date of commencement of the Offender Rehabilitation Act 2014. These offenders will be subject to licensed supervision for a proportion of their sentence and liable for recall by the Secretary of State during that time. It should be noted that any breach action during the post-sentence supervision period can only be dealt with by the courts and is not covered in recall – Page 1] The relevant commencement date of the Offender Rehabilitation Act 2014 – offences committed on or after the 1st of February 2015 NB – this changes everything as the position prior to the amendments brought about by the Offender Rehabilitation Act 2014 was that anyone sent to prison for a period of less than 12 months was released at the halfway stage and not subject to any licence requirements. We referred to them as ‘short term prisoners’. (A person has to be 21 or over at the point of conviction in order to be sent to prison) – a person given a custodial sentence and aged 18, 19 or 20 (too young to go to prison) is made the subject of detention in a Young Offender Institution – prior to the changes brought about by the Offender Rehabilitation Act these offenders served half of their period in custody and were released subject to a 3 month YOI supervision licence and upon breach they could be sent back by the court for a period not exceeding 30 days.

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– there is no longer any distinction between a person given a custodial sentence, aged 18, 19 or 20, and a person given a prison sentence who is 21 or over – the Act states that half of the sentence shall be served with a licence period for half and then a period of supervision (the licence and supervision, adding up to 12 months from the date of release) [CRC’s must be aware that the ARO 2014 will also introduce a new 14 day fixed term recall for those offenders serving sentences of less than 12 months as opposed to 28 days for those serving a sentence of 12 months and longer – Page 3] The above is important because it has been the case for years that anyone recalled and subject to a fixed term recall was recalled for a period of 28 days – this has been reduced to a period of 14 days for those serving a sentence of less than 12 months. [The Legal Aid, Sentencing and Punishment of Offenders Act 2012 amended the recall provisions in the Criminal Justice Act 2003. The changes included: Wider application of the fixed term recall provisions whereby ALL recalled DETERMINATE sentence offenders except those serving an extended sentence, extended sentences for public protection or an extended determinate sentence MUST BE RISK ASSESSED as to their suitability for a fixed term recall (previously, some offenders were ineligible for a fixed term recall, but those exclusions were lifted by the LASPO Act). If the offender is assessed as not presenting a risk of serious harm to the public at the point at which they are recalled they will be eligible to be considered for a fixed term recall for a fixed period of 28 days following which they must be released automatically by the Secretary of State. This eligibility for a fixed term recall would apply to each and every recall during the licence period. LASPO also gave an extension to the Secretary of State’s power to re -release recalled determinate sentence offenders TO INCLUDE those serving an extended sentence, extended sentences for public protection or an extended determinate sentence. This power may only be used if the Secretary of State is satisfied that the risk of serious harm presented by the offender can be safely managed in the community – Pages 3 and 4] [The Offender Rehabilitation Act 2014 further amended these provisions. Sections 1 to 9 of the ORA 2014 set out provisions for offenders sentenced to a custodial term of more than one day but less than 12 months who will be subject to licensed supervision and liable to be recalled by the Secretary of State at any point during the custodial licence period. This new provision only applies to those offenders who committed an offence on or after the commencement of the ORA 2014 provisions on 1 February 2015 – Page 4]

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[Included in these provisions are offenders sentenced for an offence committed on or after 1 February 2015 to a custodial term of more than one day but less than 2 years. They will be subject to an additional period of statutory supervision in the community after their licence period ends. This post sentence supervision period tops up the licence period to make a period of 12 months supervision after release – Page 4] [It is important to note that recall by the Secretary of State will only apply during the period the offender is on licence and within the custodial sentence. Any sanctions (including breach action) during the Post-Sentence Supervision Period can only be dealt with by the courts – Page 4) [The NPS and CRC’s have a statutory duty to supervise offenders released from prison on licence and, when appropriate, to initiate the process of recall speedily in order to protect the public and/or prevent any further offending – Page 8] [The police are responsible for apprehending offenders whose licences have been revoked and who are unlawfully at large – Page 8] [There is a separate home detention curfew (HDC) recall team that deals with recalls for breach of the HDC scheme – Page 9] (Ensure that recalled offenders are released on licence, where appropriate, a soon as is practicable, where directed by the Parole Board or the Secretary of State, no later than 14 days where offender is serving a sentence of under 12 months and has been recalled under fixed term provisions or 28 days where the offender is serving a sentence of 12 months or over and has been recalled under fixed term provisions, at the automatic/conditional release date, where the prisoner was recalled following a breach of HDC conditions, and in all other cases, no longer than sentence expiry – Page 10] [Determinate sentence offenders serving sentences of 12 months or more who have been released on licence are liable to be recalled by the Secretary of State at any point during the licence period – Page 11] [From 1 February 2015, the date on which Sections 1 – 9 of the ORA 2014 are commenced, any determinate sentence offenders whose index offence was committed on or after 1 February 2015 and who are serving a custodial sentence of less than 12 months and who have been released on licence are also liable to be recalled by the Secretary of State at any point during the licence period – Page 11]

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[ORA 2014 introduces: A 14 day Fixed Term Recall (FTR) for offenders sentenced to custodial sentences of less than 12 months and whose index offence was committed on or after 1 February 2015. Standard Recall for this group of offenders should they not be considered suitable for FTR. – Page 11] [All determinate sentence offenders who are not assessed as suitable for FTR will automatically be given a Standard Recall, including offenders sentenced to custodial periods of less than 12 months. Offenders who are given a standard recall are liable to remain in custody until the end of their licence period. They may be rereleased earlier if the Secretary of State or the Parole Board is satisfied that the risks presented by the offender can be safely managed within the community –Page 15] [Offenders on life licence can have their licence revoked and be recalled to custody at any time, since their licence remains in force for the whole of their life – even where supervision and conditions may be lifted. Offenders serving sentences of imprisonment/detention for public protection (IPP/DPP) who are released on licence may, on application to the Parole Board, have their licence terminated, and where that application is successful, they are no longer liable to recall to custody. Where the NPS (National Probation Service) considers that an offender on life/IPP/ DPP licence presents a danger to the public it should request that the offender be recalled – Page 19] Young Offenders Serving Determinate Sentences [Young offenders serving determinate sentences of 12 months or more who have been released on licence are liable to be recalled by the Secretary of State at any point during the licence period – Page 21] [From 1 February 2015, the date on which Sections 1 – 9 of the ORA 2014 are commenced, any young offenders serving determinate sentences whose index offence was committed on or after 1 February 2015, who are 18 years old or over on the last day of the custodial period and who are serving a custodial sentence of less than 12 months and who have been released on licence, are also liable to be recalled by the Secretary of State at any point during the licence period. An offender who falls into this category cannot be held in custody beyond the sentence and licence expiry date (SLED) of the custodial sentence. Therefore, they must be rereleased on the SLED to serve the Post-Sentence Supervision Period. Any enforcement during the Post-Sentence Supervision Period falls to the courts – Page 21] 170

Home Detention Curfew (HDC) [Offenders released early on HDC may be recalled under Section 255 of the Criminal Justice Act 2003 where it appears to the Secretary of State that:

(i)

there is a failure to comply with a curfew condition or;

(ii)

the offender’s whereabouts can no longer be electronically monitored at

the place for the time being specified in the curfew conditions.

Those recalled under (i) become statutorily ineligible for a future release on HDC. This does not, however, prevent them appealing against the recall decision and being re-released on HDC if successful (and if successful the exclusion on future HDC no longer applies). Those recalled under (ii) will not forfeit their future eligibility for release on HDC and can also be considered for re-release on HDC by the Prison Governor/ Director of Contracted Prison without the need to appeal against the recall – Page 22] [Barring a successful appeal and/or re-release by the prison following an inability to monitor recall, where an offender on HDC has been recalled under Section 255 CJA 2003, they will remain in custody until the automatic conditional release date (CRD) – Page 23] I’m not sure what the automatic conditional release date means. It may mean the date upon which they would have been eligible for release on licence, but for their early release on HDC. [Where an offender on HDC is given a standard recall under Section 254 CJA 2003 they will be treated like any other offender given a standard recall. Such an offender may not be re-released during the remainder of that HDC period unless satisfactory curfew arrangements are in place. Where an offender on HDC is given a 14 day FTR, re-release will be on the 14th day or the CRD, whichever is later. With a 28 day FTR, re-release will be on the 28th day or CRD, whichever is later – see Page 23] There, I hope that helps to bring some clarity to a very difficult area of law. Don’t you find that the clients know more about this area than we do! I suspect it’s the talk of the wing!

Statutory Instrument 2015 No 1369 is the Criminal Legal Aid (Remuneration etc) (Amendment) Regulations 2015 This Statutory Instrument does 2 things in relation to the fees payable for publicly funded criminal legal aid work. The first important Part of the Regulations is contained in Part 2 and comes into force on the 1st of July 2015 171

The second important Part of the Regulations is contained in Part 3 and comes into force on the 11th of January 2016 to coincide with the implementation of the new Own Client and Duty Provider Contracts Part 2 applies to matters in which a relevant determination is made on or after the 1st of July 2015 Part 3 applies to matters in which a relevant determination is made on or after the 11th of January 2016 In summary, the Part 2 amendments are contained in Schedule 1 (litigators graduated fee scheme), Schedule 2 (proceedings in the Court of Appeal) and Schedule 3 (rates payable for the claims specified in Regulation 8) Schedule 1 effectively reduces the litigators graduated fee payments (i.e. the work we do by way of preparation on our Crown Court cases) by 8.75% where the representation order is granted on or after the 1st of July. We were expecting this. They said that they would reduce all of our fees by 17.5% and the first reduction of 8.75% was introduced for representation orders granted on or after the 20th of March 2014 (see the earlier Statutory Instrument – 2014 No. 415) Schedule 2 merely amends the litigator fees for proceedings in the Court of Appeal – as you probably know, we are paid hourly rates for the work that we do as litigator in the Court of Appeal and the rates have simply been reduced by 8.75% Schedule 3 reduces by 8.75% the hourly rates for police station work/fixed fees at the police station/Magistrates’ Court fees/CRM 1 and 2 and 3 work (it also reduces the limits on this type of work, i.e. the new limit on the CRM 3 is now £1237.50p if the work is done on or after the 1st of July 2015 – the new limit on CRM 1 and 2 work is now £247.50p where the work is done on or after the 1st of July 2015 You will also note that the lower standard fee and higher standard fees have been reduced accordingly – as have the lower standard and higher standard fee limits Having dealt with Schedules 1,2 and 3 (in Part 2) which very clearly come into force on the 1st of July, we are then left with the Schedules relating to Part 3 which come into force on the 11th of January 2016. It could be a little clearer but I suspect this means that Schedules 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 are the Schedules relating to the new Contracts and that the figures within these Schedules will only be appropriate for the Own Client and Duty Provider Contracts coming into force on or after the 11th of January 2016 and will apply where a relevant determination is made on or after the 11th of January 2016. The important point to bear in mind when dealing with Schedules 4 and beyond is that new concepts will be introduced into the new contracts 172

DEALING FIRSTLY WITH AMENDMENTS TO LITIGATOR FEES Schedule 4 makes amendment to INTERIM fee payments dependent upon whether or not our page count is less than or equal to 500 and circumstances in which the page count is 501 or more Schedules 5, 6, 7, and 8 give us the new fees in the new Contracts together with the relevant PPE cut-off figure for trials [we need this table because PPE cut-off figures for trials will still be relevant where the page count 501 or more] The first new concept is in relation to payment of the litigator fee for Crown Court preparation. Where the page count is 500 or fewer (i.e. about 95% of our Crown Court billing) the litigator will be paid according to 3 criteria and only 3 criteria and these are as follows: 1

Fixed fees for Guilty Pleas

Fixed fees for Cracked Trials

Fixed fees for Trials

Classification of offence – offences are still classified A – K

What band does the page count fall within?

We will be paid a fixed fee for PPE 0 – 100

We will be paid a fixed fee for PPE 101 – 200

We will be paid a fixed fee for PPE 201 – 300

We will be paid a fixed fee for PPE 301 – 400

We will be paid a fixed fee for PPE 401 – 500

TRIAL LENGTH BECOMES IRRELEVANT WHERE THE PAGE COUNT IS 0 – 500 Trials length will still be relevant where the page count is 501 or more (would you agree with me that this is probably less than 5% of the Crown Court work we bill) With a page count of 501 or more we will continue to use the existing litigator tables that were reduced by 8.75% in value where a determination was made on or after the 1st of July 2015.

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Our fee in these circumstances will be graduated in that it will be dependent upon how many pages we actually have up to 10,000 I say 10,000 because the Regulations say that any page count above 10,000 is payable as Special Prep and not as PPE Schedule 9 sets out the new fees payable on discontinuance before the evidence has been served. It’s a very simple table and simply pays us a fixed fee dependent upon the classification of offence A – K. This is an amendment to the current position in that where the case is discontinued before evidence is served the fee under the current contracts is 50% of the guilty plea fee. It is currently 100% of the guilty plea fee if prosecution evidence has been served. Schedule 10 sets out how we bill a case as litigator if it is a case on indictment where a warrant is issued and is not executed with 3 months of the date on which it was issued – again, a wholly different payment regime from that which we currently have Schedule 11 deals with determining the fee where an assisted person is unfit to plead or stand trial Schedule 12 deals with the new regime in so far as Police Station fixed fees are concerned Rather than having an individual fee per Police Station we will move to a new system of only 2 fixed fees. If the place of attendance is at a Police Station in London the fixed fee is £200.93p If the place of attendance is at the Police Station outside London the fixed fee is £156.19p The escape fee case threshold has been retained at 3 times the value of the fixed fee, i.e. £602.79p or £468.57p Where the place of attendance is not a Police Station, the place of attendance is deemed to be – Where an interviewing Constable is present –

(i)

If the interviewing Constable is normally based at a Police Station, that

Police Station, or

Where a Services Person is assisting with an investigation by Services

(ii)

Police, the Police Station nearest to the location of the interview.

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Another new concept is that of ‘excess travel time ’which may be claimed in addition to the fixed fee –‘excess travel time’ means reasonable travel time in excess of 90 minutes for a ONE-WAY JOURNEY undertaken for the purposes of the Police Station attendance in accordance with the 2015 Duty Provider Crime Contract. I may be wrong but I take this to mean that we can claim a fixed fee in circumstances where the one way journey takes longer than 90 minutes and we are undertaking work in accordance with the Duty Provider Crime Contract (not the Own Client Contract) The fixed fees are as follows:

Duty Provider – London Procurement Area – £46.37p

Duty Provider (Unsocial) – London Procurement Area £56.97p

Duty Provider – Non-London Procurement Area £42.90

Duty Provider (Unsocial) Non-London Procurement Area – £56.97p

Time will tell if I am right on these points! The last Schedule in the Statutory Instrument is No. 13 and deals with the new payment system for representation in a Magistrates’ Court. The new system alters things quite radically in that there is no Lower Standard Fee or Higher Standard Fee. The concept of the Designated and Undesignated areas also goes. We are left with the following:

Category 1A – Standard Fee – £235.56p – Standard Fee Limit – £426.61p

Category 1B – Standard Fee – £196.28p – Standard Fee Limit – £426.61p

Category 2 – Standard Fee – £449.45p – Standard Fee Limit – £704.88p

Category 3 – Standard Fee – £336.01p – Standard Fee Limit – £651.34p

As the Undesignated area concept no longer exists this means that there will be no hourly rate for ALL travel and waiting in these cases. We have a new concept of an hourly rate for ‘excess travel time’ at £21.70p. ‘Excess travel time’ means reasonable travel time in excess of 90 minutes for a ONE-WAY journey undertaken for the purpose of representation in the Magistrates’ Court in accordance with the 2015 Duty Provider Crime Contract. It would therefore seem that there is no concept of ‘Excess travel time’ for Own Client work and, unlike the ‘excess travel time’ for Police Station cases mention is made of it being an hourly rate, rather than a fixed amount.

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The Standard Fee system seems fairly straightforward. Category 1A relates to guilty pleas for either way offences and Category 1B relates to guilty pleas for summary only offences. You know from looking at your 2010 Standard Crime Contract the other circumstances in which a Category 1 fee is payable. In order to claim more than the Standard Fee we would have to get over the Standard Fee Limit of £426.61p. I’m sure you would agree with me that this isn’t going to happen very often with a Category 1 case because there just isn’t the work to do at hourly rates which would take us above and beyond £426.61p The Category 2 fee of £449.45p is a little concerning. With the hourly rates for the work that we do being reduced yet again by 8.75% for rep orders on or after the 1st of July it will become increasingly difficult to get over the Standard Fee Limit of £704.88p on a contested matter. Maths is not my strongest subject but if we take an average of £40 per hour this is going to require more than 17 hours’ worth of work on a Magistrates’ Court file in order to get over the Standard Fee limit of £704.88p. Once over that limit then everything is claimable at hourly rates on the CRM 7. It is quite difficult to do 17 hours’ worth of work on the average Magistrates’ Court trial case and therefore the fee will be £449.45p. It may be that we have to radically alter our working practices based upon this new reduced fee. It may be that we see the client at the first hearing and take his instructions and take a proof of evidence from him and that the next time we actually see him is the trial date. It’s just a thought. You really wouldn’t want to be in the position of doing lots of work on the file but not achieving the required 17 hours. 16 hours on the file gives you a fee of £449.45p. It’s not a king’s ransom is it and it includes all of the advocacy in the trial! I’m not sure why the Category 3 fee is there as it relates to committals for trial and these were abolished sometime back. Someone did tell me once that if a defendant was arrested on an old warrant then he or she would be entitled to committal proceedings but I suspect, in practice, it’s never going to happen! Well that’s all I can really say on the subject. Do please get hold of Statutory Instrument 2015 No. 1369 and check whether or not you agree with my interpretation of the various Articles within it. As usual, I have done my best in a somewhat murky area!

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Case-law Only 2 cases that I want to mention this month. The first is that of the Crown Prosecution Service v Croydon Crown Court [2015] EWHC 1739 (admin) A refusal by a Crown Court Judge to make a confiscation order under the Proceeds of Crime Act 2002 was a matter ‘relating to trial on indictment’ and was therefore not amenable to Judicial Review. I have mentioned this in past editions of CrimeScribe – It is Section is 29 (3) of the Senior Courts Act 1981. Always have a look in Archbold to see whether or not it is a matter ‘relating to trial on indictment’ before you go anywhere near the High Court by way of Judicial Review all Case Stated for that matter. The other case I want to mention is DPP V South Tyneside Youth Court [2015] EWHC 1455 (Admin) As you probably know it is all change with practice and procedure in the Youth Court in that that court can now take a guilty plea on a serious and grave crime and still commit for sentence. Section 3B of the PCC( S) A 2000 (as amended) means that a Youth Court can commit the defendant for sentence after the conviction in that court if it is of the opinion that the Crown Court should have the power to impose detention under Section 91 (3) of the 2000 Act. However, the question of whether it ‘ought to be possible’ to impose (or weather, in Southampton Youth Court terms there is a real prospect of) such a sentence, will already have been considered at the point of allocation when the plea was taken. If the prosecution case is taken at its highest it is difficult to see the circumstances in which the case could be accepted as fit for trial in the Youth Court and then require committal for sentence. I think it will be a rare occurrence for a court to accept a matter by way of trial and thereafter to commit for sentence. It may well be that the matter turns out to be a good deal more serious as the evidence comes out during the trial, but, short of this, the Youth Court would probably keep the matter by way of sentencing. The other scenario might be that the reports indicate that the youth is dangerous and falls to be sentenced under the dangerous offender provisions. In these circumstances, there must be a committal for sentence under Section 3C of the PCC (S)A 2000, as the Youth Court has no power to impose a sentence under the dangerous offenders legislation. This again will be a fairly rare occurrence because of what we call the ‘4 year rule’, i.e. unless the offence merits a determinate sentence of at least 4 years there should be no sentence under the dangerous offender provisions.

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Chapter 8 CrimeScribe Edition No. 48

Hello and welcome to this month’s edition of CrimeScribe. In last month’s edition I mentioned in some detail Statutory Instrument 2015 No 1369 – The Criminal Legal Aid (Remuneration etc) (Amendment) Regulations 2015. I mentioned the reductions in litigator fees for representation orders granted on or after 1 July 2015 and the changes in the payment of litigator fees under the new own client and duty provider contracts where a determination is made on or after 11 January 2016. I went on to the Legal Aid Agency website to see whether or not there was a calculator to assist in working out the fee for the litigator for representation orders granted on or after the 1st of July 2015 and could not find one. With this in mind at the end of this month’s edition of CrimeScribe you will find the following 3 documents: Litigator Graduated Fee Scheme Tables effective where the Representation Order is dated on or after the 20th of March 2014 Litigator Graduated Fee Scheme Tables where the Representation Order is granted on or after the 1st of July 2015 Litigator Graduated Fee Scheme Tables where the Representation Order is granted on or after the 11th of January 2016 The Tables are in a much more user-friendly format then those to be found in the Funding Orders and you know which Funding Orders to which they relate because the particular Statutory Instrument is mentioned on the front page of each of the Tables. If you doubt me, go to the Funding Orders and see the Tables they produce. Now that you are in possession of these Tables you might care to do a ‘compare and contrast’ between the fees in our current Tables and those Tables coming our way under the new Contracts.

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Here are just 3 examples:

The Basic Trial Fee for murder goes from £1326.86p to £1696.67p – a

27% increase

The Basic Trial Fee for burglary goes from £318.90p to £690.59p – an increase of

116% (even Lord Carter only gave us £490.80p back in 2007!)

The Basic Trial Fee for serious sexual offences (J) goes from £1326.86p to

£2080.59p – an increase of 56% (more than it’s ever been)

On the other hand, it’s not all good news. If you are stuck with a 10 day murder trial with very little paperwork we are well down – current fee £4649.72p to maybe as little as £1697.67p – a maximum 63% decrease! As with all of these things page count is everything and only time will tell whether or not we are up or down in the long run insofar as payment of litigator fees are concerned under the new Contracts. As I say, you have all the Tables and so you can do the maths! I don’t mean this to sound like a moan but a lot of lawyers speak in very general terms about fees without crunching numbers. You now have all of the information at your fingertips in order to crunch some numbers! I turn now to an analysis of the more important Sections (important in the sense of being relevant to our everyday practice) of the Criminal Justice and Courts Act 2015 which came into force on the 13th of April 2015. Committals for sentence to the Crown Court from both the Adult and Youth Court As you know, Magistrates’ have no power whatsoever to sentence anyone under the Dangerous Offender provisions, as amended, of the Criminal Justice Act 2003. With adults It is almost a non issue because they are likely to have been charged with a purely indictable matter and are sent to the Crown Court at the 1st hearing under Section 51 of the Crime and Disorder Act 1998 where they enter their plea on indictment. In theory, an adult could be committed for sentence to the Crown Court following a guilty plea to a triable either way Schedule 15 offence, e.g. assault occasioning actual bodily harm in order for a sentence under the Dangerousness provisions to be imposed, but in reality such an adult is likely to be committed for sentence pursuant to Section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 on the basis that the Magistrates’ consider their sentencing powers to be inadequate. Whether or not the adult is ultimately sentenced under the Dangerous Offender provisions

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then becomes entirely a matter for the Judge at the Crown Court following reports (reports should always be prepared following conviction and the Probation Service called upon to canvas the issue of Dangerousness in the report – the case of Lang and Others) Things can get a little bit murkier in the Youth Court, however, and there have been changes in this area. The ultimate sentencing power of the Youth Court is a 2 year Detention and Training Order. This came into being in April 2000 and the power of the Magistrates’ to commit to the Crown Court for a higher sentence was abolished. That power was contained in Section 37 of the Magistrates’ Courts Act 1980 and, upon committal, the Judge at the Crown Court was limited to a maximum sentence of 2 years. With the advent of the new 2 year Detention and Training Order in the Youth Court it was considered that the power of committal was no longer necessary and so it was abolished. It meant that following conviction (either by way of a guilty plea or a conviction after a trial) all offenders had to be sentenced in the Youth Court. And there the matter stood until the Criminal Justice Act 2003 and the creation of this ‘being’ known as the Dangerous Offender. On the 4th of April 2005 Section 3C of the Powers of Criminal Courts (Sentencing) Act 2000 came into force. This reintroduced a limited power of committal for sentence in the Youth Court following conviction where the Magistrates’ took the view that the defendant might fall to be sentenced under the Dangerous Offender provisions of the 2003 Act. The Section is not without its pitfalls, though, as was wonderfully illustrated in the case of R (BW) v Caernarfon Youth Court and Crown Prosecution Service [2013] EWHC 1466 (Admin). This was a good example of a successful Judicial Review in the High Court against an erroneous committal for sentence under Section 3C. When considering a committal for sentence using this Section one needs to bear in mind what we call ‘the 4 year rule’. This rule, simply stated, is that there cannot be a sentence under the Dangerous Offender provisions unless today’s offence merits a determinate sentence of at least 4 years. If there has been a guilty plea entered, that effectively rules out a sentence under the provisions unless the offence merits a determinate sentence of at least 6 years (a 3rd off to reflect the timely guilty plea brings a 6-year sentence down to 4). The High Court took the view that there should not have been a committal for sentence under Section 3C because the test on the facts of this particular case was simply not met and the case had to be remitted back to the very experienced District Judge in the Youth Court for sentencing to take place. One cannot help but feel a little sorry for the District Judge. I suspect that the advocates appearing before him did not bring to his attention the ‘4 year rule’. I may be wrong and doing those advocates a disservice.

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And so this was the ‘state of play’ until large parts of Schedule 3 of the Criminal Justice Act 2003 came into force in May 2013. Schedule 3 is quite a read and runs to some 41 sides! Schedule 3, Paragraph 10 has inserted a new Section 24A into the Magistrates’ Courts Act 1980. Section 24A (1) and (2) requires that, unless the charge is homicide or a minimum sentence charge relating either to firearms or the minding of Violent Crime Act Weapons the youth MUST BE ASKED TO ENTER A PLEA. This would appear to be the case whether the youth is appearing alone in the Youth Court or jointly with an adult in the Adult Court. If the plea is guilty than the youth is either sentenced in the Adult Court (with its limited sentencing powers) or remitted to the Youth Court for sentence or committed to the Crown Court for sentence under Section 3B (potential sentence under section 91 ‘Grave Crimes’) or Section 3C. (Dangerousness) Powers of Criminal Courts (Sentencing) Act 2000 THIS WAS A REALLY IMPORTANT AMENDMENT TO THE LAW. It enables the Court to take a plea of guilty from a youth in a Serious and Grave crime matter and thereafter to commit for sentence to the Crown Court for sentencing if it considers its sentencing powers are insufficient (we have almost returned to the situation we had prior to 2000 when Section 37 of the Magistrates’ Courts Act 1980 was in force but the position nowadays is that the Judge is not limited in the sentence that can be imposed on indictment and his/her powers are what we call ‘at large’. The amendments as brought about by Schedule 3 were not without their pitfalls, though, as was wonderfully illustrated in the recent case of The Queen (on the application of The Director of Public Prosecutions) and South Tyneside Youth Court and B [2015] EWHC 1455 (Admin). In this case a District Judge’s decision to retain jurisdiction, based on the erroneous belief that he had, due to recent changes in the law, the power to commit for sentence, was quashed. The District Judge thought, wrongly, that the implementation of Section 3B of the Powers of Criminal Courts (Sentencing) Act 2000, gave him the power to commit for sentence following conviction on a Serious and Grave crime after a trial in the Youth Court. It did not. It only gave the court the power to commit for sentence following the taking of a guilty plea from the youth. I am not sure that Parliament intended that this gap should exist and it was ‘plugged’ by the implementation of Section 53 of the Criminal Justice and Courts Act 2015 which came into force on the 13th of April 2015. This section amends Section 3B of the PCC (S) A 2000 (committal for sentence on indication of guilty plea by child or young person), and the Section now reads:

‘(1) This section applies where on the summary trial of an offence mentioned in

Section 91 (1 ) of this Act, a person aged under 18 is convicted of the offence’

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The effect is that the Court may now commit for sentence in any case where it is of the opinion that the defendant is aged under 18 and has been convicted summarily of a serious offence listed in Section 91 (1) of the PCC (S) A 2000 and should be sentenced by the Crown Court. It is important to note that the legislation is not retrospective and the 1st hearing must be on or after the 13th of April 2015 in order for the recent amendment to apply. Whilst I appreciate that the intention of Parliament was clearly to give the Youth Court complete discretion as to whether or not a committal for sentence should take place, even after trial; the possibility of their sentencing powers being inadequate will no doubt already have been considered at the point of allocation. If the prosecution case is taken at its highest, and given the mandatory nature of the requirement to commit for trial in such circumstances, it is difficult to see the circumstances in which a case could be accepted as fit for trial in the Youth Court and then require committal for sentence after conviction. We know, however, that the prosecution case need not be taken at its highest any longer. There is an argument for saying that the Court will only know whether or not there is a ‘real prospect’ of the imposition of a custodial sentence in excess of 2 years (the test taken from the Southampton Youth Court decision) once the Court has determined the full circumstances of the offence and has a far greater understanding of the position of the offender. Meanwhile, back to the amendments brought about by Schedule 3 of the Criminal Justice Act 2003. If the youth is jointly charged with an adult and appearing in the Adult Court and pleads not guilty then Section 24A falls by the wayside (Section 24A (8) says so) and the Court is thrown back to the provisions of the Crime and Disorder Act 1998. This means that where the youth is jointly charged with the adult, that if the adult is to be sent for trial under Section 51 (it might be purely indictable or it might be either way and an election or jurisdiction declined) then the youth is sent for trial to if it is ‘in the interests of justice to do so’, which is the test within section 51 (7) of the Crime and Disorder Act 1998. Presumably, if that test is not satisfied then the youth will be remitted for trial in the Youth Court and then there is the potential for 2 separate trials (a Crown Court one for the adult and Youth Court, one for the youth) – I doubt the Magistrates’ are going to go along with the argument that it is not in the interests of justice for them both to be sent for trial at the Crown Court. Where the youth is appearing alone in the Youth Court and enters a not guilty plea to a Serious and Grave crime it is at this point that the Court should call for ‘representations on venue’ and decide whether or not it is suitable for trial in their Court bearing in mind the Southampton Youth Court test of ‘whether or not there is the real prospect of the imposition of a custodial sentence in excess of 2 years’. 182

Do remember that where the offence is a Serious and Grave crime and also a Schedule 15 offence (Schedule 15 of the Criminal Justice Act 2003 – Dangerous Offenders) – a grievous bodily harm with intent under Section 18 would be a good example – the Youth Court may decide, as a preliminary issue to SEND the youth to the Crown Court pursuant to Section 51A of the Crime and Disorder Act 1998. I suspect that this will not happen very often and that the Youth Court will often be encouraged to take the case and to obtain reports and to commit for sentence thereafter, if required. The overall purpose of all of these amendments, according to Ministry of Justice guidance, is to encourage the Youth Court to keep matters in their Court and to sentence, where appropriate, rather than sending/committing cases to the Crown Court at an initial stage of the proceedings. (See Ministry of Justice Circular No. 2015/01) Referral Orders As you know, these were a creation of the amended Sections 16 – 28 of the Powers of Criminal Courts (Sentencing) Act 2000. Some people seem to think that RO’s cannot be made in the Adult Magistrates’ Court but they are wrong to think this. A Referral Order can be made upon a youth in the Adult Magistrates’ Court. A Referral Order cannot be made where the person has attained the age of 18. A Referral Order cannot be made in the Crown Court – see Section 16 (1) of the PCC (S) 2000 (but I see no reason why a Crown Court Judge could not put on the hat of being a District Judge (Magistrates’ Courts) under Section 66 of the Courts Act 2003 and then give a youth a Referral Order!) A Referral Order requires a youth to enter into a Contract with a Youth Offender Panel. The Order will last for a period of between 3 and 12 months which will be determined by the Court. A Referral Order is mandatory if:

The youth has no previous convictions; and

The youth pleads guilty to all imprisonable offences with which he is charged;

and The Court does not consider that a Detention and Training Order, absolute discharge, conditional discharge, (the new option introduced by LASPO) or hospital order is appropriate.

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A Referral Order is discretionary if:

The youth has no previous convictions and pleads guilty to non-imprisonable

offences; or

Does not plead guilty to all imprisonable offences

Sections 43 – 45 of the Criminal Justice and Courts Act 2015 amend the PCC (S) A 2000. Section 92 (2) of LASPO removed the existing restrictions set out in sections 17 (2) of the 2000 Act on the repeated use of the Referral Order with the aim of promoting its use for the delivery of restorative justice conferencing. However, as a result of removing these restrictions, when a Referral Order Contract is breached or further offences committed, the Court MUST revoke the Order, which can result in important programs under the Youth Offender Contract being curtailed and the restorative justice process being undermined or left incomplete. Section 43 of the Act amends Schedule 1 to the 2000 Act to provide for alternatives to revocation for a breach of a Youth Offender Contract. This includes imposing a fine of up to a maximum of £2500 or extending the Youth Offender Contract up to a maximum of 12 months. Section 44 of the Act amends provisions in Part 2 of Schedule 1 to the 2000 Act to give the Court the power to extend a 2nd or subsequent Referral Order in respect of additional or further offences in the same way as is currently available for a 1st Referral Order. Section 45 of the Act amends provisions in Paragraph 14 of Schedule 1 to the 2000 Act, providing the Court with a discretionary power to be exercised in the interests of justice over whether to revoke an existing Referral Order for further or additional offences. The changes to breaches of Referral Order Contracts in Section 43 will apply to Referral Order Contracts that were in place before the 13th of April 2015 but are only applicable, in relation to failure to comply with the Referral Order Contract that occurs on or after the 13th of April 2015. The changes to the extension or revocation of Referral Orders as a result of further convictions in Sections 44 and 45 apply to offences that were committed before or after the 13th of April 2015. Just to re-cap very briefly: There have been some recent changes to Referral Orders that came into effect on the 13th of April 2015 as a result of the Criminal Justice and Courts Act 2015. Section 43 offers the alternatives to revocation for breach of a Youth Offender Contract. A fine up to a maximum of £2500 or the extension of the Youth Offender Contract up to a maximum overall length of 12 months, providing that the Contract has not expired and the offender must be present in Court in order for this to occur. 184

Section 44 of the Act allows for the extension of a Referral Order on a further conviction. Essentially, the Court could extend the compliance period under the Contract, but it may not extend beyond a period of 12 months – see the new Paragraphs 10 – 12 of Schedule 1 to the PCC (S) A 2000, as inserted by Section 44 of the Criminal Justice and Courts Act 2015. Under section 45 of the Act, the Court is no longer obliged to revoke a Referral Order if the defendant is sentenced to either an absolute discharge or a conditional discharge for new offences. The Court may revoke a Referral Order (or any one or more of a number of Referral Orders) if it appears to the Court to be the interests of justice to do so. Essentially, the duty to revoke has become a mere power to do so. Recent amendments to the law concerning Disqualified Drivers 3 very brief things to say about the offence of driving whilst disqualified: It does not carry a mandatory disqualification – the Schedule at the back of the Road Traffic Offenders Act 1988 informs us that the offence carries 6 penalty points The offence cannot be committed in a public place but only on a ROAD – see Section 103 of the Road Traffic Act 1988 Whether the client has one or 20 offences the maximum penalty is 6 months – see Section 133 of the Magistrates’ Courts Act 1980 – nearer 4 months on a guilty plea and, with it, the possibility of being tagged after a month! The Road Safety Act 2006 created new driving offences and they were as follows: Section 20 (1) of the Road Safety Act 2006 inserted a new Section 2B into the Road Traffic Act 1988. This provided that a person who caused the death by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, was guilty of an offence. Section 20 (4), provided that the offence of causing death by careless or inconsiderate driving was triable either way and on indictment the maximum penalty was 5 years imprisonment and/or an unlimited fine. On summary conviction, the maximum penalty was 6 months imprisonment and/or a fine of up to the statutory maximum Section 21 of the same Act created a new offence of causing death when driving when unlicensed, disqualified or without insurance. The offence was triable either way and had a maximum penalty of 2 years imprisonment on indictment – it became Section 3ZB of the Road Traffic Act 1988

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And there the matter rested until the 13th of April 2015 when Section 29 and Schedule 6 of the Criminal Justice and Courts Act 2015 came into force. Section 29 of the Act creates 2 new offences of causing death by driving whilst disqualified and causing serious injury by driving whilst disqualified. The offence of causing death by driving whilst disqualified is now indictable only and carries a maximum penalty of 10 years – the new offence is Section 3ZC of the Road Traffic Act 1988 The offence of causing serious injury by driving whilst disqualified is triable either way and carries 4 years on indictment – this new offence is Section 3ZD of the Road Traffic Act 1988 You can see immediately that these offenders are now to be distinguished from those who cause death whilst unlicensed or uninsured. ‘Serious injury’ effectively means ‘grievous bodily harm’ so I cannot see the Magistrates’ Court keeping the matter for sentence following a guilty plea or a conviction after a trial. CAUSATION Both new offences in Sections 3ZC and 3ZD of the Road Traffic Act 1988 are committed when a driver ‘causes death/serious injury..... by driving whilst disqualified’. This means that for a person to be convicted of these offences a causative link between the driving and the death must be proved. The Supreme Court has held that causation can be proved if there is something open to proper criticism in the way the offender was driving which contributed more than minimally to the death. This need not amount to an error which was grave enough to constitute ‘careless’ or ‘dangerous driving’ and it need not be the principal cause of death. It could include relatively minor indiscretions such as driving with a tyre that has fallen below the prescribed tread limit if this caused the driver not to stop in time and therefore contributed more than minimally to the death – see the very important case of R v Hughes [2013] UK SC 5 A conviction for an offence under Section 3ZC or 3ZD will also lead to a mandatory period of 2 years disqualification (unless the court for special reasons thinks it should be less) and the driver would be required to sit an extended re-test before his licence could be re-instated. Alternative verdicts would be available, i.e. a driver could still be convicted of driving whilst disqualified if the new offences of causing death or serious injury by driving whilst disqualified could not be proved.

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The offence of causing death by driving whilst disqualified under Section 3ZC is also added to Part 1 of Schedule 15 to the Criminal Justice Act 2003 (specified violent offences for the purposes of the sentencing of Dangerous Offenders) Whilst in the area of disqualification, Section 30 of the Criminal Justice and Courts Act 2015 amended Section 35A of the Road Traffic Offenders Act 1988 and Section 147A of the Powers of Criminal Courts (Sentencing) Act 2000, which require a Court, when sentencing an offender to immediate custody and imposing a driving ban, to extend the driving ban to take account of the period the offender will spend in custody. The provisions were inserted by the Coroners and Justice Act 2009 and were designed to avoid a driving ban expiring, or being significantly diminished, during the period the offender is in custody. The amendments made by Section 30 do not substantially alter the duty of Courts to extend a driving ban. Rather, they make some technical changes to the process that applies only in England and Wales for calculating the appropriate length of driving bans where an offender has been remanded in custody in order to allow for the commencement of the provisions inserted by the 2009 Act Section 30 was commenced on the 13th of April 2015. The provisions in this Act extend to England and Wales only. My understanding of all of this is that although a disqualification starts on the date of its pronouncement a Court SHOULD TAKE INTO ACCOUNT, in deciding the length of the ban, the fact that a custodial sentence has been imposed and that part of the ban therefore will be of no effect. E.g. a defendant might be sentenced to a term of imprisonment for 6 months and the Court wants to impose a meaningful disqualification from driving upon the offender for 6 months. The way to do this is to impose a disqualification from driving of 9 months; this will take into account the fact that for 3 of those 6 months the defendant will be serving a custodial sentence. The new part is that the fact that the defendant has been remanded in custody and will therefore be released that much earlier is not to be taken into consideration. Such a person will simply end up serving a longer ban upon their early release. If you think about it, this is all tied in with Section 108 of LASPO, which amended Section 240 of the Criminal Justice Act 2003 and put the matter back into the hands of the prison Governor to decide the earliest release date rather than the Court deducting days spent in custody from immediate custodial sentences imposed. Quite simply, because the Court no longer concerns itself with the earliest release date, the Court should not concern itself with, in fixing the term of any driving disqualification, the earliest release date of the offender concerned.

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The new concept of trial by a single Justice on the papers A Court consists of not less than 2 Justices. Traditionally, a single Justice has been invested with a number of powers and those powers were enhanced by Sections 46 â&#x20AC;&#x201C; 50, and Schedule 11 of the Criminal Justice and Courts Act 2015. These introduce the single Justice procedure whereby a trial can now take place before a single Justice on the papers. The procedure only applies to cases involving adults (18 or over) charged (or more likely, summonsed or requisitioned) with summary only nonimprisonable offences. The object of the exercise is to enable such cases to be dealt with by a single Magistrate sitting with the legal adviser and dealing with the matter on the papers without the attendance of either the prosecutor or the defendant. The defendant will instead be able to engage with the Court in writing and there is no need for the case to be heard in a traditional courtroom. I therefore suspect that these cases will be dealt with in the retiring room. The purpose of this new procedure is to deal more proportionately with straightforward, uncontested cases currently administered under the written charge and requisition procedure, which almost exclusively results in a financial penalty. Examples of the type of cases are TV licence evasion, failure to register a new vehicle keeper, driving without insurance, depositing litter, etc, et cetera. In many cases, the defendant chooses not to engage with the procedure and the hearing takes place in an empty courtroom with only Magistrates, prosecutors and court staff present. This procedure offers an alternative form of proceedings which will enable these cases to be brought before the court at the earliest opportunity and dealt with more efficiently. It will be for prosecutors to identify cases which might be suitable for the single Justice procedure. These will be commenced by a Written Charge and a new type of document called a â&#x20AC;&#x2DC;Single Justice Procedure Noticeâ&#x20AC;&#x2122;. The Single Justice Procedure Notice will be sent to the defendant explaining the offence which has given rise to the proceedings, the options available to the defendant and the consequences of not responding to the notice. It will be accompanied by the evidence upon which the prosecutor will be relying to prove the case. The notice will give the defendant a date to respond in writing to the allegation rather than a date to attend Court. However, the defendant will have the right to request a traditional hearing in open Court at this point, or indeed at any point before the case is considered by the single Justice. If he wishes to plead not guilty, or otherwise wants to have a hearing in a traditional court room, the defendant can

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indicate these wishes in the response to the Single Justice Procedure Notice. In such circumstances, the case will be referred to a traditional Court and their case will be managed in the normal way. In cases where defendant pleads guilty and indicates that he would like to have the matter dealt with in his absence, or fails to respond to the notice at all, a single Magistrate will be able to consider the case on the basis of the evidence submitted in writing by the prosecutor, and any written mitigation from the defendant. The single Magistrate can convict and sentenced, or DISMISS the charge as appropriate. If the single Justice considers at any point that it would be inappropriate to conduct the case under the single Justice procedure, the Justice can refer it to a traditional Magistrates’ Court at any time. Sections 46 – 50 and Schedule 11 were commenced on the 13th of April 2015. I assume that the defendant will be sent some form of notice indicating that costs will be applied for in the case. Under a new Section 16C of the Magistrates’ Courts Act 1980 the defendant would need to be sent some form of adjournment notice indicating a possible disqualification from driving and the matter then being heard on the adjourned hearing before a full Magistrates’ Court. Under a new Section 16E of the Magistrates’ Courts Act 1980 there is a new Statutory Declaration procedure for where the defendant did not know of the proceedings by way of trial before a single Justice. A successful declaration renders the proceedings avoid. The person has 21 days to make the declaration and must enter a plea to the single Justice procedure as well. Section 52 of the Criminal Justice and Courts Act 2015 This Section clarifies Section 22A of the Magistrates’ Courts Act 1980, as inserted by Section 176 of the Anti-Social Behaviour, Crime and Policing Act 2014, which made theft from a shop of property valued at £200 or less a summary offence, but retained the defendant’s right to elect Crown Court trial. Section 52 makes clear that a lowvalue shoplifting case in which the defendant elects is to be treated in the same manner as an either way offence in which the defendant has elected. This means that the same sentencing powers are available to a Judge on indictment as for any theft, i.e. a maximum of 7 years.

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It also may become relevant in terms of an application for bail – remember that in order to be remanded in custody on the basis of fear of further offending with summary only imprisonable offences, those offences must have been committed whilst on bail. Presumably, if he doesn’t indicate an election the matter is to be treated as summary only for all intents and purposes. Alcohol abstinence and monitoring requirements Statutory Instrument 2015 No. 1482 is the Criminal Justice Act 2003 (Alcohol Abstinence and Monitoring Requirement) (Prescription of Arrangements for monitoring) (Amendment) Order 2015 and came into force on the 30th of July 2015. This Order amends the existing Order, which has been in force for a period of 12 months beginning the 31st of July 2014 and this period has now been extended for a further 6 months – see Statutory Instrument 2015/1480. Section 76 of LASPO had the effect of inserting Section 212A into the Criminal Justice Act 2003. This provides that an alcohol abstinence and monitoring requirement can be imposed as part of a requirement of a Community Order or Suspended Sentence Order. This Order keeps in place for that extended period the specification that monitoring of compliance with the obligations of an alcohol abstinence and monitoring requirement that has been imposed as part of the pilot scheme provided for by the 2014 Order will be through a Transdermal Electronic Tag. This is a tag fitted to an offender to measure the level of alcohol contained in their sweat. It is being piloted in the South London local justice area. We await the outcome of the extended pilot period to see whether or not this new requirement within a Community Order or Suspended Sentence Order will be rolled out nationally. I suspect that it will be. Gang injunctions The Home Office has published guidance (June 2015) in relation to injunctions to prevent gang related violence and gang related drug dealing. It is 86 pages long. Gang injunctions for youths are now to be heard in the Youth Court and the proceedings fall within the ‘Prescribed Class’ meaning that assistance can be sought from the Court Duty Solicitor. Might I therefore suggest that you have a look at the document available on the Home Office Website. Minimum sentences for 2nd strike knife possession The Ministry of Justice has issued Circular 2015/03 in relation to this issue. The Criminal Justice and Courts Act 2015 (Commencement No. 2) Order 2015 brought into force Section 28 and Schedule 5 to the Criminal Justice and Courts Act 2015 in England and Wales on the 17th of July 2015. 190

Section 28 and Schedule 5 create a minimum custodial sentence for those aged 16 and over convicted of a 2nd or subsequent offence of possession of a knife or offensive weapon, contrary to Section 1 of the Prevention of Crime act 1953, or Sections 139 and 139A of the Criminal Justice Act 1988. A previous conviction for threatening with a knife or offensive weapon, contrary to Section 1A of the Prevention of Crime Act 1953 or Section 139AA of the Criminal Justice Act 1988, counts as a 1st strike (these offences carry the same minimum sentence provided for here) Please forgive the short history lesson! NB â&#x20AC;&#x201C; you will no doubt recall that on the 3rd of December 2012 Section 142 of LASPO created the new offences of threatening someone with an article with a blade or point or offensive weapon in public or on school premises. The new offences that were created by Section 142 are triable either way and subject to a maximum penalty of 4 years imprisonment on indictment (or, where the offender is under 18, a 24 months Detention and Training Order (by virtue of the Sentencing Act 2000, Section 101 (1)). This is the same maximum penalty as exists for the basic possession offences. However, the new offences also carry minimum sentence requirements for offenders aged 16 or over. In the case of offenders aged 16 or 17 on the date on which they are convicted, the Court must impose a Detention and Training Order of at least 4 months duration. For those offenders who are 18 or over, the Court must impose a minimum sentence of imprisonment (or detention in a Young Offender Institution where the offender is aged 18 to 20), of 6 months. In each instance, the Court may depart for the minimum sentence requirement if there are particular circumstances relating to the offence or the offender which would make it unjust to comply with the requirement. It will be a matter for the Court to decide on a case-by-case basis whether to depart from the minimum sentence requirement. However, the discretion only applies where there are particular circumstances relating to the offence or the offender that make the minimum sentence requirement unjust in all the circumstances Guilty plea discounts apply to the new offences. In relation to an offender who is 18 or over, a guilty plea cannot lead to a sentence which is lower than 80% of the minimum sentence requirement of 6 months. (This is the same as applies to minimum sentences for 3 strikes domestic burglary and drug trafficking provisions).

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In relation to an offender who is 16 or 17, the usual position on a guilty plea (that the Court is to have regard to it, and must follow any relevant sentencing guideline) applies. The Detention and Training Order is only available for the fixed period, the shortest of which is 4 months. It follows that the guilty plea will (if the starting point is 4 months and credit is given for the plea) have the result that a period of detention is not imposed. History lesson over! Returning to Section 28 and Schedule 5 of the Criminal Justice and Courts Act 2015, the minimum custodial sentence under the ‘2 strikes rule’ is at least 6 months imprisonment for an offender aged 18 or over when convicted and least a 4 month Detention and Training Order for 16 and 17-year-olds. The Judge/Magistrates’ must impose a minimum sentence unless the Court is of the opinion that the particular circumstances which relate to the offence, the previous offence(s) or the offender which would make it unjust in all the circumstances. THE SECTION AND THE SCHEDULE COMMENCED ON THE 17TH OF JULY 2015-07-23 A minimum custodial sentence can only be given on conviction of a 2nd or subsequent offence where that offence is committed after the date of the commencement of these provisions. A relevant previous conviction for possession of a knife or offensive weapon, or threatening with a knife or offensive weapon, will satisfy the ‘previous conviction’ condition for the imposition of the minimum sentence, regardless of when that prior offence was committed. The minimum sentences (6 months imprisonment for adults and a 4 month Detention and Training Order for 16 and 17-year-olds) provide the starting points for sentencing. Aggravating and mitigating factors are applied subsequently. This new law will apply across the whole of England and Wales. Other things of note by way of practice and procedural alterations ASBO’S DBO’s and ISO’s are no more and the new ANCILLIARY ORDER for proceedings in Court on or after the 20th of October 2014 is the Criminal Behaviour Order for those offenders whose behaviour has caused (or was likely to cause) harassment, alarm or distress to others. The individual right of election for trial in the Crown Court has gone. This means that even though the Magistrates’ may well have determined that the case is suitable for summary trial, where one or more of a number of co-defendants (or defendants

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charged with offences arising out of the same circumstances) elects trial by jury, then all defendants must be SENT to the Crown Court – the case of Nicholls v Brentwood Justices [1991] 3 all ER 359 is no more! – The case has not survived the amendments to the Magistrates’ courts Act 1980 (Sections 17 – 24A) and (50A, 51 and 51A) of the Crime and Disorder Act 1998 – these amendments, having been made by Schedule 3 of the Criminal Justice Act 2003 The only exception to the above is where other co-defendants indicate guilty pleas. They can then stay in the Magistrates’ Court and either be sentenced by the Magistrates’ or committed to the Crown Court for sentence if the Magistrates’ consider their sentencing powers are insufficient. Domestic Violence Protection Orders in the Magistrates’ Court – applied for by the police and can last for between 14 and 28 days. The person will initially have been served with a Domestic Violence Protection notice. The hearing will be in the Magistrates’ Court and the person will be given an opportunity to have their say as to whether or not an Order should be made. Breach of an Order is punishable by means of a period of imprisonment not exceeding 2 months or a £50 fine for every day of default – see Section 63 of the Magistrates’ Courts Act 1980. New guidance issued by the Justices’ Clerks’ Society in relation to when a defendant surrender to bail – it is entitled ‘Adopting a Consistent Approach to Surrendering to Bail – Guidance’ and is available on the JCS website. The level 5 £5000 cap on fines in the Magistrates’ Court has been removed and a level 5 is now an unlimited amount – see Section 85 of LASPO The £5000 cap on Compensation Orders in the Magistrates’ Court has been removed and Magistrates’ can now make compensation orders of an unlimited amount see Schedule 16 of the Crime and Courts Act 2013 Amendments to the law as regards the Victim Surcharge mean that it is no longer possible for the Magistrates’ to impose a term of custody in lieu of payment of the Victim Surcharge if they are sending someone into custody. Whether or not they would be able to discharge the charge by ordering a day’s detention in default under Section 135 of the Magistrates’ Courts Act 1980 is a moot point!!! One might advance the same argument in order to discharge payment of the Criminal Courts Charge.

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LITIGATOR GRADUATED FEE SCHEME TABLES EFFECTIVE

S.I. 415/2014 Schedule 1

Trials, Cracked Trials, Guilty Pleas Representation Orders on or after 20/3/2015

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MARCH 2014

Class

Description (Stat Instrument 855)

Homicide and related grave offences

Offences involving serious violence or damage, and serious drug offences

Lesser offences involving violence or damage, and less serious drug offences

Sexual offences and offences against children

Burglary, etc

Offences of dishonesty (less than £30,000)

Other offences of dishonesty (greater than £30,000)

Miscellaneous other offences

Offences aginst public justice

Serious sexual offences

Other offences of dishonesty (over £100,000)

195

Fixed Fees

Appeal against Conviction

£349.47

Appeal against Sentence

£155.32

Committal for Sentence

£232.98

Contempt

£116.49

Alleged breach of a Crown Court Order

£77.66

Hearing subsequent to sentence

£155.32

Cracked trial or guilty plea at the election of the defendant

£330.33 per case

196

Table 1 Final Fees for Guilty pleas Offence Class A A A A A A A A A B B B B B B B B B C C C C C C C C C D D D D D D D D D E E E E E E E E E F F F F

PPE Range 0-79 80-399 400-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-69 70-399 400-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-39 40-399 400-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-79 80-399 400-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-39 40-399 400-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-49 50-399 400-999 1000-2799

Initial Fee

Incremental fee per page of prosecution evidence (£)

£680.39 £680.39 £2,478.29 £4,256.09 £7,666.89 £11,077.68 £13,090.60 £15,103.53 £17,115.33 £556.11 £556.11 £2,046.59 £3,411.75 £6,025.92 £8,640.11 £10,555.35 £12,470.60 £14,384.78 £442.91 £442.91 £1,401.88 £2,276.27 £3,699.93 £5,123.61 £6,547.28 £7,970.95 £9,393.82 £646.36 £646.36 £2,320.66 £3,968.37 £7,046.20 £10,124.03 £12,036.98 £13,949.91 £15,861.79 £184.70 £184.70 £1,237.24 £1,989.07 £2,819.70 £3,650.33 £4,480.96 £5,311.59 £6,141.75 £195.81 £195.81 £1,187.73 £1,781.21

0.00 5.62 2.96 1.89 1.89 1.12 1.12 1.12 0.00 0.00 4.52 2.28 1.45 1.45 1.06 1.06 1.06 0.00 0.00 2.66 1.46 0.79 0.79 0.79 0.79 0.79 0.00 0.00 5.23 2.75 1.71 1.71 1.06 1.06 1.06 0.00 0.00 2.92 1.25 0.46 0.46 0.46 0.46 0.46 0.00 0.00 2.83 0.99 0.32

197

Table 1 Final Fees for Guilty pleas Offence Class F F F F F G G G G G G G G G H H H H H H H H H I I I I I I I I I J J J J J J J J J K K K K K K K K K

PPE Range 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-49 50-399 400-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-39 40-399 400-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-39 40-399 400-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-79 80-399 400-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-119 120-399 400-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000

Initial Fee

Incremental fee per page of prosecution evidence (£)

£2,354.07 £2,926.93 £3,499.78 £4,072.64 £4,645.18 £195.81 £195.81 £1,187.73 £1,781.21 £2,354.07 £2,926.93 £3,499.78 £4,072.64 £4,645.18 £190.97 £190.97 £1,196.59 £1,790.74 £2,359.85 £2,928.98 £3,498.10 £4,067.22 £4,636.00 £174.60 £174.60 £1,298.52 £2,116.29 £3,033.02 £3,949.75 £4,866.48 £5,783.22 £6,699.45 £680.39 £680.39 £2,478.29 £4,256.09 £7,666.89 £11,077.68 £13,090.60 £15,103.53 £17,115.33 £640.84 £640.84 £2,113.13 £3,869.24 £8,775.55 £13,681.86 £17,423.28 £21,164.71 £24,904.04

0.32 0.32 0.32 0.32 0.00 0.00 2.83 0.99 0.32 0.32 0.32 0.32 0.32 0.00 0.00 2.79 0.99 0.32 0.32 0.32 0.32 0.32 0.00 0.00 3.12 1.36 0.51 0.51 0.51 0.51 0.51 0.00 0.00 5.62 2.96 1.89 1.89 1.12 1.12 1.12 0.00 0.00 5.26 2.93 2.73 2.73 2.08 2.08 2.08 0.00

198

Table 2 Final Fees for Cracked Trials Offence Class A A A A A A A A A B B B B B B B B B C C C C C C C C C D D D D D D D D D E E E E E E E E E F F F F

PPE Range 0-79 80-249 250-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-69 70-249 250-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-39 40-249 250-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-79 80-249 250-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-39 40-249 250-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-49 50-249 250-999 1000-2799

Initial Fee

Incremental fee per page of prosecution evidence (£)

£904.58 £904.58 £2,722.89 £7,757.90 £14,820.75 £21,883.61 £27,490.35 £33,097.09 £38,700.71 £709.15 £709.15 £2,117.67 £4,864.56 £9,255.51 £13,646.46 £17,338.49 £21,030.50 £24,720.46 £524.84 £524.84 £1,348.77 £3,033.06 £5,607.48 £8,181.89 £10,756.31 £13,330.74 £15,903.73 £859.35 £859.35 £2,582.50 £7,163.76 £13,655.74 £20,147.71 £25,474.79 £30,801.87 £36,125.98 £233.03 £233.03 £1,199.43 £2,291.54 £3,390.26 £4,488.97 £5,587.69 £6,686.41 £7,784.51 £224.22 £224.22 £1,107.53 £2,450.39

0.00 10.70 6.71 3.92 3.92 3.11 3.11 3.11 0.00 0.00 7.83 3.66 2.44 2.44 2.05 2.05 2.05 0.00 0.00 3.92 2.25 1.43 1.43 1.43 1.43 1.43 0.00 0.00 10.14 6.11 3.61 3.61 2.96 2.96 2.96 0.00 0.00 4.60 1.46 0.61 0.61 0.61 0.61 0.61 0.00 0.00 4.42 1.79 0.70

199

Table 2 Final Fees for Cracked Trials Offence Class F F F F F G G G G G G G G G H H H H H H H H H I I I I I I I I I J J J J J J J J J K K K K K K K K K

PPE Range 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-49 50-249 250-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-39 40-249 250-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-39 40-249 250-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-79 80-249 250-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 0-119 120-249 250-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000

Initial Fee

Incremental fee per page of prosecution evidence (£)

£3,704.67 £4,958.94 £6,213.21 £7,467.49 £8,721.06 £224.22 £224.22 £1,107.53 £2,450.39 £3,704.67 £4,958.94 £6,213.21 £7,467.49 £8,721.06 £237.00 £237.00 £1,131.61 £2,298.20 £3,550.79 £4,803.37 £6,055.96 £7,308.55 £8,560.44 £253.68 £253.68 £1,496.80 £3,231.91 £4,847.36 £6,462.79 £8,078.23 £9,693.67 £11,308.20 £904.58 £904.58 £2,722.89 £7,757.90 £14,820.75 £21,883.61 £27,490.35 £33,097.09 £38,700.71 £773.86 £773.86 £1,624.85 £5,388.98 £13,299.04 £21,209.12 £27,954.29 £34,669.46 £41,440.89

0.70 0.70 0.70 0.70 0.00 0.00 4.42 1.79 0.70 0.70 0.70 0.70 0.70 0.00 0.00 4.26 1.56 0.70 0.70 0.70 0.70 0.70 0.00 0.00 5.92 2.31 0.90 0.90 0.90 0.90 0.90 0.00 0.00 10.70 6.71 3.92 3.92 3.11 3.11 3.11 0.00 0.00 6.55 5.02 4.39 4.39 3.75 3.75 3.75 0.00

200

Table 3. PPE Cut off point for Trial cases Trial length in days

PPE cut off A

PPE cut off B

PPE cut off C

PPE cut off D

PPE cut off E

PPE cut off F

PPE cut off G

PPE cut off H

PPE cut off I

PPE cut off J

PPE cut off K

120

105

120

138

122

134

186

126

139

120

126

158

173

157

185

126

252

156

170

157

156

195

206

191

232

156

314

186

203

193

186

229

240

225

281

186

372

218

238

230

218

265

276

260

329

218

433

257

274

267

257

301

310

301

376

257

495

293

306

301

293

333

342

338

420

293

550

330

338

339

330

365

373

374

464

330

606

367

370

378

367

399

405

412

509

367

663

404

402

417

404

433

437

449

554

404

721

440

434

455

440

467

470

486

598

440

779

477

465

493

477

500

501

523

642

477

836

514

497

531

514

532

533

559

686

514

894

551

535

569

551

565

564

596

730

551

951

587

573

607

587

598

596

637

774

587

1,007

624

611

646

624

646

627

687

818

624

1,063

661

649

684

661

696

659

736

862

661

1,119

697

687

722

697

746

690

786

907

697

1,174

742

722

753

742

787

720

826

943

742

1,230

786

757

785

786

828

752

867

980

786

1,286

830

792

819

830

868

784

908

1,017

830

1,341

874

826

857

874

908

816

948

1,053

874

1,396

917

860

894

917

948

848

988

1,088

917

1,451

961

895

931

961

988

880

1,028

1,124

961

1,505

1,005

935

967

1,005

1,028

912

1,068

1,160

1,005

1,560

1,049

975

1,004

1,049

1,068

944

1,107

1,196

1,049

1,615

1,099

1,016

1,041

1,099

1,108

976

1,147

1,231

1,099

1,670

1,150

1,057

1,077

1,150

1,148

1,007

1,187

1,267

1,150

1,725

1,200

1,098

1,114

1,200

1,188

1,039

1,226

1,303

1,200

1,780

1,251

1,138

1,151

1,251

1,228

1,070

1,266

1,349

1,251

1,835

1,301

1,179

1,187

1,301

1,268

1,102

1,307

1,394

1,301

1,889

1,352

1,220

1,224

1,352

1,308

1,133

1,357

1,439

1,352

1,944

1,402

1,261

1,262

1,402

1,347

1,165

1,407

1,485

1,402

1,999

1,453

1,302

1,303

1,453

1,435

1,196

1,457

1,530

1,453

2,054

1,503

1,348

1,345

1,503

1,526

1,228

1,507

1,575

1,503

2,109

1,554

1,395

1,386

1,554

1,617

1,259

1,557

1,621

1,554

2,164

1,604

1,441

1,428

1,604

1,708

1,291

1,607

1,666

1,604

2,219

1,652

1,484

1,444

1,652

1,745

1,314

1,629

1,704

1,652

2,271

201

Table 4 Basic Fees for non-complex trials Trial length in days

1467.58

1097.66

739.59

1394.20

352.72

357.60

357.75

357.44

1467.58

1031.82

1467.58

1097.66

739.59

1394.20

352.72

357.60

357.75

357.44

1467.58

1031.82

1720.12

1550.54

1172.10

1634.12

1069.30

1002.54

1061.44

1219.83

1720.12

1605.95

2237.37

1977.31

1582.92

2125.50

1386.37

1256.37

1367.58

1678.37

2237.37

2172.45

2728.74

2382.74

1973.20

2592.30

1687.58

1497.50

1658.39

2113.98

2728.74

2710.63

3228.75

2793.64

2360.79

3067.32

1969.83

1744.03

1946.80

2558.03

3228.75

3212.86

3721.45

3199.88

2750.62

3535.38

2268.17

1990.43

2237.26

2995.09

3721.45

3745.08

4214.14

3606.10

3140.46

4003.44

2566.51

2232.85

2527.72

3432.14

4214.14

4277.30

4678.50

3971.70

3491.30

4444.58

2835.01

2451.05

2789.13

3830.87

4678.50

4756.31

5142.87

4337.31

3842.15

4885.72

3103.53

2669.24

3050.54

4229.61

5142.87

5235.30

5610.68

4703.40

4202.52

5330.14

3384.38

2893.66

3319.13

4636.46

5610.68

5735.81

6075.32

5069.04

4563.06

5771.55

3665.31

3118.07

3587.39

5043.66

6075.32

6236.62

6539.97

5434.68

4915.39

6212.97

3945.87

3341.58

3849.82

5443.72

6539.97

6737.45

7004.61

5800.33

5267.72

6654.39

4217.79

3560.94

4112.26

5843.76

7004.61

7238.25

7469.26

6165.97

5620.05

7095.79

4488.87

3780.29

4374.70

6243.81

7469.26

7739.03

7933.90

6531.62

5972.38

7537.20

4759.98

3999.65

4637.14

6643.86

7933.90

8239.02

8398.54

6897.26

6324.71

7978.62

5031.07

4219.01

4899.57

7043.91

8398.54

8725.68

8863.18

7262.90

6677.04

8420.03

5302.17

4438.36

5162.01

7443.96

8863.18

9212.34

9327.83

7628.54

7029.36

8861.44

5573.26

4657.72

5424.44

7844.01

9327.83

9698.99

9792.47

7994.19

7381.70

9302.86

5844.35

4877.08

5686.88

8244.07

9792.47

10185.66

10265.98

8331.93

7671.20

9752.67

6068.38

5056.54

5902.71

8572.81

10265.98

10672.32

10739.39

8669.65

7960.78

10202.42

6292.42

5236.08

6118.65

8901.56

10739.39

11158.98

11204.79

9007.35

8250.38

10644.56

6509.78

5415.62

6334.58

9230.34

11204.79

11645.64

11670.20

9337.38

8539.98

11086.69

6727.15

5595.17

6550.51

9555.51

11670.20

12132.30

12135.62

9667.40

8828.07

11528.83

6944.52

5774.70

6762.96

9876.59

12135.62

12618.96

12601.02

9997.43

9111.12

11970.98

7161.89

5954.25

6973.74

10197.68

12601.02

13105.63

13066.42

10327.46

9394.19

12413.10

7379.25

6133.79

7184.51

10518.77

13066.42

13592.28

13,531.83 10,657.49

9,677.24

12,855.25

7,596.63

6,313.33

7,395.29

10,839.85 13,531.83 14,078.95

13,997.25 10,987.52

9,960.29

13,297.38

7,813.99

6,490.78

7,606.05

11,160.95 13,997.25 14,565.60

14,462.65 11,317.54 10,243.34 13,739.51

8,031.35

6,667.19

7,816.82

11,482.03 14,462.65 15,052.26

14,928.06 11,647.57 10,526.40 14,181.66

8,248.73

6,843.61

8,027.60

11,803.11 14,928.06 15,538.93

15,393.46 11,977.61 10,809.46 14,623.79

8,466.10

7,020.03

8,238.36

12,124.20 15,393.46 16,025.58

15,858.88 12,307.63 11,092.51 15,065.93

8,683.46

7,196.44

8,449.14

12,445.28 15,858.88 16,512.25

16,324.28 12,637.66 11,375.56 15,508.07

8,900.83

7,372.86

8,659.91

12,766.37 16,324.28 16,998.91

16,789.69 12,967.69 11,658.62 15,950.21

9,118.20

7,549.28

8,870.68

13,087.46 16,789.69 17,485.57

17,255.10 13,297.71 11,941.68 16,392.34

9,335.56

7,725.70

9,081.45

13,408.54 17,255.10 17,972.23

17,720.51 13,627.75 12,224.73 16,834.48

9,552.94

7,902.11

9,292.23

13,729.63 17,720.51 18,458.89

18,185.91 13,957.77 12,507.79 17,276.62

9,770.30

8,078.53

9,503.00

14,050.72 18,185.91 18,945.55

18,651.32 14,287.79 12,790.84 17,718.75

9,987.66

8,254.95

9,713.77

14,371.80 18,651.32 19,432.22

19,089.96 14,589.79 12,903.16 18,135.46 10,074.81

8,385.36

9,804.91

14,639.44 19,089.96 19,897.71

202

Table 5 Final Fees for Trials Offence Class A A A A A A A A A A A B B B B B B B B B B B B B C C C C C C C C C C C C D D D D D D D D D D D E E

PPE Range 0-79 80-209 210-699 700-1049 1050-1999 2000-3599 3600-5199 5200-6799 6800-8399 8400-9999 10,000 0-69 70-199 200-499 500-899 900-1299 1300-1999 2000-3299 3300-4999 5000-5999 6000-7999 8000-8999 9000-9999 10,000 0-39 40-299 300-799 800-1249 1250-1999 2000-3199 3200-4559 4560-5919 5920-7279 7280-8639 8640-9999 10,000 0-79 80-209 210-699 700-1049 1050-1999 2000-3599 3600-5199 5200-6799 6800-8399 8400-9999 10,000 0-39 40-69

Initial Fee

Incremental fee per page of prosecution evidence (£)

£1,467.58 £1,467.58 £3,622.54 £9,824.91 £13,543.42 £22,295.42 £35,767.03 £49,238.64 £62,710.26 £76,181.87 £89,645.06 £1,097.66 £1,097.66 £2,762.60 £6,195.38 £10,048.21 £13,285.03 £18,249.51 £27,469.24 £39,525.82 £46,617.93 £60,802.14 £67,894.24 £74,979.26 £739.59 £739.59 £3,486.54 £8,101.74 £11,578.09 £16,700.93 £22,368.79 £28,792.38 £35,215.96 £41,639.54 £48,063.12 £54,482.00 £1,394.20 £1,394.20 £3,441.41 £9,333.67 £12,866.25 £21,180.65 £33,978.67 £46,776.70 £59,574.74 £72,372.77 £85,162.80 £352.72 £352.72

0.00 16.58 12.66 10.62 9.21 8.42 8.42 8.42 8.42 8.42 0.00 0.00 12.81 11.44 9.63 8.09 7.09 7.09 7.09 7.09 7.09 7.09 7.09 0.00 0.00 10.57 9.23 7.73 6.83 4.72 4.72 4.72 4.72 4.72 4.72 0.00 0.00 15.75 12.03 10.09 8.75 8.00 8.00 8.00 8.00 8.00 0.00 0.00 9.52

203

Table 5 Final Fees for Trials Offence Class E E E E E E E E E F F F F F F F F F F F G G G G G G G G G G G H H H H H H H H H H H H I I I I I I I

PPE Range 70-129 130-599 600-1349 1350-2999 3000-4749 4750-6499 6500-8249 8250-9999 10,000 0-49 50-229 230-699 700-1399 1400-1949 1950-3549 3550-5149 5150-6749 6750-8349 8350-9999 10,000 0-49 50-229 230-699 700-1399 1400-1949 1950-3549 3550-5149 5150-6749 6750-8349 8350-9999 10,000 0-39 40-249 250-619 620-1299 1300-2999 3000-4999 5000-5999 6000-6999 7000-7999 8000-8999 9000-9999 10,000 0-39 40-369 370-799 800-1299 1300-2699 2700-4199 4200-5359

Initial Fee

Incremental fee per page of prosecution evidence (£)

£638.20 £1,152.58 £5,049.74 £9,131.96 £13,072.77 £17,252.41 £21,432.04 £25,611.69 £29,788.93 £357.60 £357.60 £1,673.21 £4,946.64 £8,865.80 £11,242.37 £14,691.41 £18,140.45 £21,589.49 £25,038.53 £28,593.21 £357.60 £357.60 £1,673.21 £4,946.64 £8,865.80 £11,242.37 £14,691.41 £18,140.45 £21,589.49 £25,038.53 £28,593.21 £357.75 £357.75 £2,162.92 £4,807.79 £8,418.74 £15,583.59 £20,129.84 £22,402.90 £24,676.03 £26,949.15 £29,222.28 £31,493.13 £357.44 £357.44 £3,373.66 £7,282.43 £11,779.02 £21,697.63 £26,264.52

8.57 8.29 5.44 2.39 2.39 2.39 2.39 2.39 0.00 0.00 7.31 6.96 5.60 4.32 2.16 2.16 2.16 2.16 2.16 0.00 0.00 7.31 6.96 5.60 4.32 2.16 2.16 2.16 2.16 2.16 0.00 0.00 8.60 7.15 5.31 4.21 2.27 2.27 2.27 2.27 2.27 2.27 0.00 0.00 9.14 9.09 8.99 7.08 3.04 3.04

204

Table 5 Final Fees for Trials

Offence Class I I I I I J J J J J J J J J J J K K K K K K K K K K K K

PPE Range 5360-6519 6520-7679 7680-8839 8840-9999 10,000 0-79 80-209 210-699 700-1049 1050-1999 2000-3599 3600-5199 5200-6799 6800-8399 8400-9999 10,000 0-119 120-734 735-1289 1290-2399 2400-4499 4500-7999 8000-8399 8400-8799 8800-9199 9200-9599 9600-9999 10,000

Initial Fee

Incremental fee per page of prosecution evidence (£)

£29,796.25 £33,327.97 £36,859.71 £40,391.43 £43,920.11 £1,467.58 £1,467.58 £3,622.54 £9,824.91 £13,543.42 £22,295.42 £35,767.03 £49,238.64 £62,710.26 £76,181.87 £89,645.06 £1,031.82 £1,031.82 £6,356.06 £11,193.67 £21,042.53 £39,605.74 £70,544.40 £74,080.24 £77,616.08 £81,151.94 £84,687.78 £88,214.79

3.04 3.04 3.04 3.04 0.00 0.00 16.58 12.66 10.62 9.21 8.42 8.42 8.42 8.42 8.42 0.00 0.00 8.66 8.72 8.87 8.84 8.84 8.84 8.84 8.84 8.84 8.84 0.00

205

The following table shows the proposed percentage uplifts to the total graduated fee, for cases where a firm represents multiple defendants

Table 6. Defendant Uplifts Number of Defendants Represented by Firm

Percentage uplift applicable to total fee

1 2-4 5+

0% 20% 30%

206

Table 7 Extra Fees Scenario

Claim period

Percentage of Case type used the total fee to determine total fee

Cracked trial before retrial, where there is no change of litigator

25%

Cracked trial

Retrial, where there is no change of litigator

25%

Trial

Up to and including plea and case management hearing transfer (original litigator)

25%

Cracked trial

Up to and including plea and case management hearing transfer – guilty plea (new litigator)

100%

Guilty plea

Up to and including plea and case management hearing transfer – cracked trial (new litigator)

100%

Cracked trial

Up to and including plea and case management hearing transfer – trial (new litigator)

100%

Trial

Before trial transfer (original litigator)

75%

Cracked trial

Before trial transfer - cracked trial (new litigator)

100%

Cracked trial

Before trial transfer – trial (new litigator)

100%

Trial

During trial transfer (original litigator)

100%

Trial

Claim up to and including the day before the transfer

During trial transfer (new litigator)

50%

Trial

Claim for the full trial length

During trial transfer – retrial (new litigator)

25%

Trial

Claim for the full retrial length

Transfer before retrial (original litigator)

25%

Cracked trial

Transfer before cracked retrial (new litigator)

50%

Cracked trial

Transfer before retrial (new litigator)

50%

Trial

Claim for the full retrial length

Transfer during or after retrial (original litigator)

25%

Trial

Claim up to and including the day before the transfer

Transfer during or after retrial (new litigator)

50%

Trial

Claim for the full retrial length

207

LITIGATOR GRADUATED FEE SCHEME TABLES EFFECTIVE

S.I. 415/2014 Schedule 1

Trials, Cracked Trials, Guilty Pleas Representation Orders on or after 20/3/2015

208

MARCH 2014

Class

Description (Stat Instrument 855)

Homicide and related grave offences

Offences involving serious violence or damage, and serious drug offences

Lesser offences involving violence or damage, and less serious drug offences

Sexual offences and offences against children

Burglary, etc

Offences of dishonesty (less than £30,000)

Other offences of dishonesty (greater than £30,000)

Miscellaneous other offences

Offences aginst public justice

Serious sexual offences

Other offences of dishonesty (over £100,000)

209

Fixed Fees

Appeal against Conviction

£349.47

Appeal against Sentence

£155.32

Committal for Sentence

£232.98

Contempt

£116.49

Alleged breach of a Crown Court Order

£77.66

Hearing subsequent to sentence

£155.32

Cracked trial or guilty plea at the election of the defendant

£330.33 per case

210

Table 1 Final Fees for Guilty pleas Offence Class A A A A A A A A A B B B B B B B B B C C C C C C C C C D D D D D D D D D E E E E E E E E E F F F F

Initial Fee

Incremental fee per page of prosecution evidence (£)

211

Table 1 Final Fees for Guilty pleas Offence Class F F F F F G G G G G G G G G H H H H H H H H H I I I I I I I I I J J J J J J J J J K K K K K K K K K

Initial Fee

Incremental fee per page of prosecution evidence (£)

212

Table 2 Final Fees for Cracked Trials Offence Class A A A A A A A A A B B B B B B B B B C C C C C C C C C D D D D D D D D D E E E E E E E E E F F F F

Initial Fee

Incremental fee per page of prosecution evidence (£)

213

Table 2 Final Fees for Cracked Trials Offence Class F F F F F G G G G G G G G G H H H H H H H H H I I I I I I I I I J J J J J J J J J K K K K K K K K K

Initial Fee

Incremental fee per page of prosecution evidence (£)

214

Table 3. PPE Cut off point for Trial cases Trial length in days

PPE cut off A

PPE cut off B

PPE cut off C

PPE cut off D

PPE cut off E

PPE cut off F

PPE cut off G

PPE cut off H

PPE cut off I

PPE cut off J

PPE cut off K

120

105

120

138

122

134

186

126

139

120

126

158

173

157

185

126

252

156

170

157

156

195

206

191

232

156

314

186

203

193

186

229

240

225

281

186

372

218

238

230

218

265

276

260

329

218

433

257

274

267

257

301

310

301

376

257

495

293

306

301

293

333

342

338

420

293

550

330

338

339

330

365

373

374

464

330

606

367

370

378

367

399

405

412

509

367

663

404

402

417

404

433

437

449

554

404

721

440

434

455

440

467

470

486

598

440

779

477

465

493

477

500

501

523

642

477

836

514

497

531

514

532

533

559

686

514

894

551

535

569

551

565

564

596

730

551

951

587

573

607

587

598

596

637

774

587

1,007

624

611

646

624

646

627

687

818

624

1,063

661

649

684

661

696

659

736

862

661

1,119

697

687

722

697

746

690

786

907

697

1,174

742

722

753

742

787

720

826

943

742

1,230

786

757

785

786

828

752

867

980

786

1,286

830

792

819

830

868

784

908

1,017

830

1,341

874

826

857

874

908

816

948

1,053

874

1,396

917

860

894

917

948

848

988

1,088

917

1,451

961

895

931

961

988

880

1,028

1,124

961

1,505

1,005

935

967

1,005

1,028

912

1,068

1,160

1,005

1,560

1,049

975

1,004

1,049

1,068

944

1,107

1,196

1,049

1,615

1,099

1,016

1,041

1,099

1,108

976

1,147

1,231

1,099

1,670

1,150

1,057

1,077

1,150

1,148

1,007

1,187

1,267

1,150

1,725

1,200

1,098

1,114

1,200

1,188

1,039

1,226

1,303

1,200

1,780

1,251

1,138

1,151

1,251

1,228

1,070

1,266

1,349

1,251

1,835

1,301

1,179

1,187

1,301

1,268

1,102

1,307

1,394

1,301

1,889

1,352

1,220

1,224

1,352

1,308

1,133

1,357

1,439

1,352

1,944

1,402

1,261

1,262

1,402

1,347

1,165

1,407

1,485

1,402

1,999

1,453

1,302

1,303

1,453

1,435

1,196

1,457

1,530

1,453

2,054

1,503

1,348

1,345

1,503

1,526

1,228

1,507

1,575

1,503

2,109

1,554

1,395

1,386

1,554

1,617

1,259

1,557

1,621

1,554

2,164

1,604

1,441

1,428

1,604

1,708

1,291

1,607

1,666

1,604

2,219

1,652

1,484

1,444

1,652

1,745

1,314

1,629

1,704

1,652

2,271

215

Table 4 Basic Fees for non-complex trials Trial length in days

1467.58

1097.66

739.59

1394.20

352.72

357.60

357.75

357.44

1467.58

1031.82

1467.58

1097.66

739.59

1394.20

352.72

357.60

357.75

357.44

1467.58

1031.82

1720.12

1550.54

1172.10

1634.12

1069.30

1002.54

1061.44

1219.83

1720.12

1605.95

2237.37

1977.31

1582.92

2125.50

1386.37

1256.37

1367.58

1678.37

2237.37

2172.45

2728.74

2382.74

1973.20

2592.30

1687.58

1497.50

1658.39

2113.98

2728.74

2710.63

3228.75

2793.64

2360.79

3067.32

1969.83

1744.03

1946.80

2558.03

3228.75

3212.86

3721.45

3199.88

2750.62

3535.38

2268.17

1990.43

2237.26

2995.09

3721.45

3745.08

4214.14

3606.10

3140.46

4003.44

2566.51

2232.85

2527.72

3432.14

4214.14

4277.30

4678.50

3971.70

3491.30

4444.58

2835.01

2451.05

2789.13

3830.87

4678.50

4756.31

5142.87

4337.31

3842.15

4885.72

3103.53

2669.24

3050.54

4229.61

5142.87

5235.30

5610.68

4703.40

4202.52

5330.14

3384.38

2893.66

3319.13

4636.46

5610.68

5735.81

6075.32

5069.04

4563.06

5771.55

3665.31

3118.07

3587.39

5043.66

6075.32

6236.62

6539.97

5434.68

4915.39

6212.97

3945.87

3341.58

3849.82

5443.72

6539.97

6737.45

7004.61

5800.33

5267.72

6654.39

4217.79

3560.94

4112.26

5843.76

7004.61

7238.25

7469.26

6165.97

5620.05

7095.79

4488.87

3780.29

4374.70

6243.81

7469.26

7739.03

7933.90

6531.62

5972.38

7537.20

4759.98

3999.65

4637.14

6643.86

7933.90

8239.02

8398.54

6897.26

6324.71

7978.62

5031.07

4219.01

4899.57

7043.91

8398.54

8725.68

8863.18

7262.90

6677.04

8420.03

5302.17

4438.36

5162.01

7443.96

8863.18

9212.34

9327.83

7628.54

7029.36

8861.44

5573.26

4657.72

5424.44

7844.01

9327.83

9698.99

9792.47

7994.19

7381.70

9302.86

5844.35

4877.08

5686.88

8244.07

9792.47

10185.66

10265.98

8331.93

7671.20

9752.67

6068.38

5056.54

5902.71

8572.81

10265.98

10672.32

10739.39

8669.65

7960.78

10202.42

6292.42

5236.08

6118.65

8901.56

10739.39

11158.98

11204.79

9007.35

8250.38

10644.56

6509.78

5415.62

6334.58

9230.34

11204.79

11645.64

11670.20

9337.38

8539.98

11086.69

6727.15

5595.17

6550.51

9555.51

11670.20

12132.30

12135.62

9667.40

8828.07

11528.83

6944.52

5774.70

6762.96

9876.59

12135.62

12618.96

12601.02

9997.43

9111.12

11970.98

7161.89

5954.25

6973.74

10197.68

12601.02

13105.63

13066.42

10327.46

9394.19

12413.10

7379.25

6133.79

7184.51

10518.77

13066.42

13592.28

13,531.83 10,657.49

9,677.24

12,855.25

7,596.63

6,313.33

7,395.29

10,839.85 13,531.83 14,078.95

13,997.25 10,987.52

9,960.29

13,297.38

7,813.99

6,490.78

7,606.05

11,160.95 13,997.25 14,565.60

14,462.65 11,317.54 10,243.34 13,739.51

8,031.35

6,667.19

7,816.82

11,482.03 14,462.65 15,052.26

14,928.06 11,647.57 10,526.40 14,181.66

8,248.73

6,843.61

8,027.60

11,803.11 14,928.06 15,538.93

15,393.46 11,977.61 10,809.46 14,623.79

8,466.10

7,020.03

8,238.36

12,124.20 15,393.46 16,025.58

15,858.88 12,307.63 11,092.51 15,065.93

8,683.46

7,196.44

8,449.14

12,445.28 15,858.88 16,512.25

16,324.28 12,637.66 11,375.56 15,508.07

8,900.83

7,372.86

8,659.91

12,766.37 16,324.28 16,998.91

16,789.69 12,967.69 11,658.62 15,950.21

9,118.20

7,549.28

8,870.68

13,087.46 16,789.69 17,485.57

17,255.10 13,297.71 11,941.68 16,392.34

9,335.56

7,725.70

9,081.45

13,408.54 17,255.10 17,972.23

17,720.51 13,627.75 12,224.73 16,834.48

9,552.94

7,902.11

9,292.23

13,729.63 17,720.51 18,458.89

18,185.91 13,957.77 12,507.79 17,276.62

9,770.30

8,078.53

9,503.00

14,050.72 18,185.91 18,945.55

18,651.32 14,287.79 12,790.84 17,718.75

9,987.66

8,254.95

9,713.77

14,371.80 18,651.32 19,432.22

19,089.96 14,589.79 12,903.16 18,135.46 10,074.81

8,385.36

9,804.91

14,639.44 19,089.96 19,897.71

216

Table 5 Final Fees for Trials Offence Class A A A A A A A A A A A B B B B B B B B B B B B B C C C C C C C C C C C C D D D D D D D D D D D E E

Initial Fee

Incremental fee per page of prosecution evidence (£)

217

Table 5 Final Fees for Trials Offence Class E E E E E E E E E F F F F F F F F F F F G G G G G G G G G G G H H H H H H H H H H H H I I I I I I I

Initial Fee

Incremental fee per page of prosecution evidence (£)

218

Table 5 Final Fees for Trials

Offence Class I I I I I J J J J J J J J J J J K K K K K K K K K K K K

Initial Fee

Incremental fee per page of prosecution evidence (£)

3.04 3.04 3.04 3.04 0.00 0.00 16.58 12.66 10.62 9.21 8.42 8.42 8.42 8.42 8.42 0.00 0.00 8.66 8.72 8.87 8.84 8.84 8.84 8.84 8.84 8.84 8.84 0.00

219

The following table shows the proposed percentage uplifts to the total graduated fee, for cases where a firm represents multiple defendants

Table 6. Defendant Uplifts Number of Defendants Represented by Firm

Percentage uplift applicable to total fee

1 2-4 5+

0% 20% 30%

220

Table 7 Extra Fees Scenario

Claim period

Percentage of Case type used the total fee to determine total fee

Cracked trial before retrial, where there is no change of litigator

25%

Cracked trial

Retrial, where there is no change of litigator

25%

Trial

Up to and including plea and case management hearing transfer (original litigator)

25%

Cracked trial

Up to and including plea and case management hearing transfer – guilty plea (new litigator)

100%

Guilty plea

Up to and including plea and case management hearing transfer – cracked trial (new litigator)

100%

Cracked trial

Up to and including plea and case management hearing transfer – trial (new litigator)

100%

Trial

Before trial transfer (original litigator)

75%

Cracked trial

Before trial transfer - cracked trial (new litigator)

100%

Cracked trial

Before trial transfer – trial (new litigator)

100%

Trial

During trial transfer (original litigator)

100%

Trial

Claim up to and including the day before the transfer

During trial transfer (new litigator)

50%

Trial

Claim for the full trial length

During trial transfer – retrial (new litigator)

25%

Trial

Claim for the full retrial length

Transfer before retrial (original litigator)

25%

Cracked trial

Transfer before cracked retrial (new litigator)

50%

Cracked trial

Transfer before retrial (new litigator)

50%

Trial

Claim for the full retrial length

Transfer during or after retrial (original litigator)

25%

Trial

Claim up to and including the day before the transfer

Transfer during or after retrial (new litigator)

50%

Trial

Claim for the full retrial length

221

NEW LGFS TABLES EFFECTIVE JANUARY 2016

S.I. 415/2014 Schedule 1

Trials, Cracked Trials, Guilty Pleas Representation Orders on or

after 20/3/2015

222

Fixed Fees for cases up to 500 PPE Guilty Pleas

PPE

101-200

201-300

301-400

401-500

Class of Offence

0-100

£623.91

£925.20

£1,575.67

£2,023.92

£2,427.49

B C D E F G H I J K

£516.13 £425.29 £590.12 £189.13 £190.64 £205.08 £190.70 £176.11 £624.97 £579.60

£801.00 £644.20 £853.18 £421.99 £429.52 £446.81 £437.67 £435.09 £917.17 £733.21

£1,240.29 £893.93 £1,331.85 £718.95 £678.95 £709.66 £691.12 £759.08 £1,436.04 £1,247.57

£1,665.08 £1,129.42 £1,799.25 £1,028.40 £952.71 £960.68 £963.60 £986.10 £1,980.90 £1,624.66

£1,999.57 £1,378.01 £2,200.34 £1,200.46 £1,138.20 £1,155.19 £1,132.31 £1,275.73 £2,364.54 £2,049.27

101-200

201-300

301-400

401-500

Trials

Cracked

Class of

Offence

PPE

0-100

PPE

A B C D E F G H I J K

£884.72 £680.29 £536.57 £801.88 £272.47 £248.74 £263.02 £254.11 £296.15 £854.51 £702.75

£1,589.64 £1,192.92 £858.74 £1,375.58 £626.97 £613.58 £726.87 £631.57 £780.97 £1,481.89 £935.17

£2,557.47 £1,942.55 £1,249.88 £2,295.35 £1,054.91 £1,034.89 £1,110.93 £1,055.00 £1,296.09 £2,452.13 £1,551.61

£3,244.09 £2,384.90 £1,498.44 £3,078.19 £1,274.47 1.257.60 £1,407.21 £1,230.60 £1,776.55 £3,221.82 £2,150.74

£3,780.71 £2,730.63 £1,732.05 £3,446.49 £1,515.07 £1,408.53 £1,546.48 £1,396.22 £1,836.80 £3,890.95 £2,586.46

Trials

PPE

0-100

101-200

201-300

301-400

401-500

£1,697.67

£2,741.76

£3,881.81

£4,914.81

£5,888.45

£2,181.36 £1,824.09 £2,398.90 £1,179.17 £1,052.92 £1,054.06 £1,443.80 £1,779.70 £2,700.87 £1,957.11

£3,234.00 £2,702.69 £3,626.39 £2,040.21 £1,717.22 £1,854.79 £2,179.28 £2,490.00 £3,876.63 £2,315.27

£4,253.51 £3,615.76 £4,734.08 £2,665.58 £2,222.19 £2,366.91 £2,685.84 £3,171.49 £4,907.84 £2,931.67

5,351,27 £4,718.64 £6,066.88 £3,559.33 £2,998.04 £2,976.55 £3,349.84 £3,988.44 £6,071.07 £3,560.93

Class of

ffe ce A B C D E F G H I J K

£1,405.67 £1,068.79 £1,645.35 £690.59 £607.98 £569.27 £661.89 £1,006.88 £2,080.59 £1,438.74

223

a e1

ees f r

Offence class A A A A A A A B B B B B B B C C C C C C C D D D D D D D E E E E E E E F F F F F F F G G G G G G G

eas

PPE

Initial fee

501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000

£2,511.21 £3,847.97 £6,931.71 £10,015.43 £11,835.33 £13,655.24 £15,474.14 £2,058.11 £3,084.59 £5,448.09 £7,811.60 £9,543.20 £11,274.79 £13,005.42 £1,400.53 £2,058.00 £3,345.14 £4,632.30 £5,919.46 £7,206.61 £8,493.05 £2,348.90 £3,587.84 £6,370.53 £9,153.23 £10,882.75 £12,612.25 £14,340.79 £1,233.02 £1,798.34 £2,549.32 £3,300.30 £4,051.28 £4,802.26 £5,552.82 £1,164.16 £1,610.41 £2,128.34 £2,646.26 £3,164.19 £3,682.12 £4,199.75 £1,164.16 £1,610.41 £2,128.34 £2,646.26 £3,164.19 £3,682.12 £4,199.75

224

Incremental fee per page £2.68 £1.71 £1.71 £1.01 £1.01 £1.01 £0.00 £2.06 £1.31 £1.31 £0.96 £0.96 £0.96 £0.00 £1.32 £0.72 £0.72 £0.72 £0.72 £0.72 £0.00 £2.48 £1.55 £1.55 £0.96 £0.96 £0.96 £0.00 £1.13 £0.42 £0.42 £0.42 £0.42 £0.42 £0.00 £0.89 £0.29 £0.29 £0.29 £0.29 £0.29 £0.00 £0.89 £0.29 £0.29 £0.29 £0.29 £0.29 £0.00

a e1

ees f r H H H H H H H I I I I I I I J J J J J J J K K K K K K K

eas

501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000

£1,172.27 £1,619.03 £2,133.57 £2,648.12 £3,162.66 £3,677.21 £4,191.45 £1,298.46 £1,913.36 £2,742.18 £3,571.00 £4,399.83 £5,228.67 £6,057.03 £2,511.21 £3,847.97 £6,931.71 £10,015.43 £11,835.33 £13,655.24 £15,474.14 £2,177.77 £3,498.21 £7,934.06 £12,369.90 £15,752.56 £19,135.22 £22,515.98

225

£0.90 £0.29 £0.29 £0.29 £0.29 £0.29 £0.00 £1.23 £0.46 £0.46 £0.46 £0.46 £0.46 £0.00 £2.68 £1.71 £1.71 £1.01 £1.01 £1.01 £0.00 £2.65 £2.46 £2.46 £1.88 £1.88 £1.88 £0.00

a e2

ees f r cracke tria s

Offence class A A A A A A A B B B B B B B C C C C C C C D D D D D D D E E E E E E E F F F F F F F E E E F F F F

PPE

Initial fee

501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 6400-8199 8200-9999 10,000 0-49 50-249 250-999 1000-2799

£3,985.26 £7,013.99 £13,399.58 £19,785.18 £24,854.29 £29,923.39 £34,989.69 £2,745.74 £4,398.09 £8,367.99 £12,337.89 £15,675.89 £19,013.87 £22,350.01 £1,729.06 £2,742.22 £5,069.77 £7,397.33 £9,724.89 £12,052.45 £14,378.71 £3,721.05 £6,476.83 £12,346.28 £18,215.74 £23,032.00 £27,848.26 £32,661.85 £1,414.86 £2,071.81 £3,065.16 £4,058.52 £5,051.89 £6,045.25 £7,038.05 £1,407.65 £2,215.42 £3,349.43 £4,483.43 £5,617.43 £6,751.43 £7,884.80 £5,051.89 £6,045.25 £7,038.05 £202.72 £202.72 £1,001.33 £2,215.42

226

Incremental fee per page £6.07 £3.55 £3.55 £2.82 £2.82 £2.82 £0.00 £3.31 £2.21 £2.21 £1.85 £1.85 £1.85 £0.00 £2.03 £1.29 £1.29 £1.29 £1.29 £1.29 £0.00 £5.52 £3.26 £3.26 £2.68 £2.68 £2.68 £0.00 £1.32 £0.55 £0.55 £0.55 £0.55 £0.55 £0.00 £1.62 £0.63 £0.63 £0.63 £0.63 £0.63 £0.00 £0.55 £0.55 £0.00 £0.00 £3.99 £1.62 £0.63

a e2

ees f r cracke tria s F F F F F G G G G G G G H H H H H H H I I I I I I I J J J J J J J K K K K K K K

2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000 501-999 1000-2799 2800-4599 4600-6399 6400-8199 8200-9999 10,000

£3,349.43 £4,483.43 £5,617.43 £6,751.43 £7,884.80 £1,407.65 £2,215.42 £3,349.43 £4,483.43 £5,617.43 £6,751.43 £7,884.80 £1,376.08 £2,077.83 £3,210.31 £4,342.78 £5,475.25 £6,607.73 £7,739.57 £1,878.27 £2,922.00 £4,382.54 £5,843.07 £7,303.60 £8,764.14 £10,223.85 £3,985.26 £7,013.99 £13,399.58 £19,785.18 £24,854.29 £29,923.39 £34,989.69 £2,607.98 £4,872.23 £12,023.79 £19,175.37 £25,273.74 £31,372.12 £37,467.10

227

£0.63 £0.63 £0.63 £0.63 £0.00 £1.62 £0.63 £0.63 £0.63 £0.63 £0.63 £0.00 £1.41 £0.63 £0.63 £0.63 £0.63 £0.63 £0.00 £2.09 £0.81 £0.81 £0.81 £0.81 £0.81 £0.00 £6.07 £3.55 £3.55 £2.82 £2.82 £2.82 £0.00 £4.54 £3.97 £3.97 £3.39 £3.39 £3.39 £0.00

Table 3. PPE Cut Off Points for Trial Cases

Trial length in days

PPE cut off A

PPE cut off B

PPE cut off C

PPE cut off D

PPE cut off E

PPE cut off F

PPE cut off G

PPE cut off H

PPE cut off I

PPE cut off J

PPE cut off K

501

550

501

606

501

509

501

663

501

554

501

721

501

598

501

779

501

523

642

501

836

514

501

531

514

532

533

559

686

514

894

551

535

569

551

565

564

596

730

551

951

587

573

607

587

598

596

637

774

587

1,007

624

611

646

624

646

627

687

818

624

1,063

661

649

684

661

696

659

736

862

661

1,119

697

687

722

697

746

690

786

907

697

1,174

742

722

753

742

787

720

826

943

742

1,230

786

757

785

786

828

752

867

980

786

1,286

830

792

819

830

868

784

908

1,017

830

1,341

874

826

857

874

908

816

948

1,053

874

1,396

917

860

894

917

948

848

988

1,088

917

1,451

961

895

931

961

988

880

1,028

1,124

961

1,505

1,005

935

967

1,005

1,028

912

1,068

1,160

1,005

1,560

1,049

975

1004

1,049

1,068

944

1,107

1,196

1,049

1,615

1,099

1,016

1,041

1,099

1,108

976

1,147

1,231

1,099

1,670

1,150

1,057

1,077

1,150

1,148

1007

1,007

1,187

1,267

1,150

1,725

1,200

1,098

1,114

1,200

1,188

1,039

1,226

1,303

1,200

1,780

1,251

1,138

1,151

1,251

1,228

1,070

1,266

1,349

1,251

1,835

1,301

1,187

1,301

1,268

1,102

1,307

1,394

1,301

1,889

1,352

1,220

1,224

1,352

1,308

1,133

1,357

1,439

1,352

1,944

1,402

1,261

1,262

1,402

1,347

1,165

1,407

1,485

1,402

1,999

1,453

1,302

1,303

1,453

1,435

1,196

1,457

1,530

1,453

2,054

1,503

1,348

1,345

1,503

1,526

1,228

1,507

1,575

1,503

2,109

1,554

1,395

1,386

1,554

1,617

1,259

1,557

1,621

1,554

2,164

1,604

1,441

1,428

1,604

1,708

1,291

1,607

1,666

1,604

2,219

1,652

1,484

1,444

1,652

1,745

1,314

1,629

1,704

1,652

2,271

228

Table 5. Final Fees for trials Offence class A A A A A A A A A B B B B B B B B B B C C C C C C C C C C D D D D D D D D D B B B B B B B B F F F F F

PPE

Initial fee

Incremental fee per page

501-699 700-1049 1050-1999 2000-3599 3600-5199 5200-6799 6800-8399 8400-9999 10,000 501-899 900-1299 1300-1999 2000-3299 3300-4999 5000-5999 6000-7999 8000-8999 9000-9999 10,000 501-799 800-1249 1250-1999 2000-3199 3200-4559 4560-5919 5920-7279 7280-8639 8640-9999 10,000 501-699 700-1049 1050-1999 2000-3599 3600-5199 5200-6799 6800-8399 8400-9999 10000 501-599 600-1349 1350-2999 3000-4749 4750-6499 6500-8249 8250-9999 10,000 501-699 700-1399 1400-1949 1950-3549 3550-5149

£6,605.42 £8,882.80 £12,244.73 £20,157.51 £32,337.32 £44,517.12 £56,696.95 £68,876.76 £81,048.96 £5,610.00 £9,084.69 £12,011.13 £16,499.55 £24,835.21 £35,735.68 £42,147.72 £54,971.80 £61,383.84 £67,789.47 £4,829.62 £7,324.86 £10,467.86 £15,099.47 £20,223.84 £26,031.46 £31,839.08 £37,646.71 £43,454.33 £49,257.70 £6,275.15 £8,438.66 £11,632.50 £19,149.63 £30,720.44 £42,291.27 £53,862.10 £65,432.92 £76,996.51 £3,823.58 £4,565.52 £8,256.29 £11,819.21 £15,598.07 £19,376.92 £23,155.77 £26,932.46 £3,219.23 £4,472.31 £8,015.66 £10,164.34 £13,282.65

£11.44 £9.61 £8.33 £7.61 £7.61 £7.61 £7.61 £7.61 £0.00 £8.71 £7.32 £6.41 £6.41 £6.41 £6.41 £6.41 £6.41 £6.41 £0.00 £8.35 £6.98 £6.18 £4.27 £4.27 £4.27 £4.27 £4.27 £4.27 £0.00 £10.87 £9.13 £7.91 £7.23 £7.23 £7.23 £7.23 £7.23 £0.00 £7.75 £4.92 £2.16 £2.16 £2.16 £2.16 £2.16 £0.00 £6.30 £5.06 £3.91 £1.95 £1.95

229

Table 5. Final Fees for trials F F F F G G G G G G G G G H H H H H H H H H H I I I I I I I I I I J J J J J J J J J K K K K K K K K K K K

5150-6749 6750-8349 8350-9999 10,000 501-699 700-1399 1400-1949 1950-3549 3550-5149 5150-6749 6750-8349 8350-9999 10,000 501-619 620-1299 1300-2999 3000-4999 5000-5999 6000-6999 7000-7999 8000-8999 9000-9999 10,000 501-799 800-1299 1300-2699 2700-4199 4200-5359 5360-6519 6520-7679 7680-8839 8840-9999 10000 501-699 700-1049 1050-1999 2000-3599 3600-5199 5200-6799 6800-8399 8400-9999 10,000 501-734 735-1289 1290-2399 2400-4499 4500-7999 8000-8399 8400-8799 8800-9199 9200-9599 9600-9999 10,000

£16,400.96 £19,519.27 £22,637.58 £25,851.39 £3,219.23 £4,472.31 £8,015.66 £10,164.34 £13,282.65 £16,400.96 £19,519.27 £22,637.58 £25,851.39 £3,577.70 £4,346.77 £7,611.47 £14,089.28 £18,199.58 £20,254.67 £22,309.83 £24,364.99 £26,420.15 £28,473.24 £4,126.78 £6,584.12 £10,649.53 £19,617.04 £23,746.01 £26,939.07 £30,132.14 £33,325.22 £36,518.28 £39,708.59 £6,605.42 £8,882.80 £12,244.73 £20,157.51 £32,337.32 £44,517.12 £56,696.95 £68,876.76 £81,048.96 £3,915.04 £5,746.58 £10,120.31 £19,024.76 £35,807.93 £63,779.87 £66,976.65 £70,173.44 £73,370.24 £76,567.04 £79,755.84

230

£1.95 £1.95 £1.95 £0.00 £6.30 £5.06 £3.91 £1.95 £1.95 £1.95 £1.95 £1.95 £0.00 £6.46 £4.80 £3.81 £2.06 £2.06 £2.06 £2.06 £2.06 £2.06 £0.00 £8.22 £8.13 £6.41 £2.75 £2.75 £2.75 £2.75 £2.75 £2.75 £0.00 £11.44 £9.61 £8.33 £7.61 £7.61 £7.61 £7.61 £7.61 £0.00 £7.83 £7.88 £8.02 £7.99 £7.99 £7.99 £7.99 £7.99 £7.99 £7.99 £0.00

Discontinuance before evidence served

Class of Offence

A B C D E F G H I J K

Fee payable

£ £ £ £ £ £ £ £ £ £ £

307.57 251.40 200.22 292.19 83.50 88.52 88.52 86.33 78.93 307.57 289.70

231

Chapter 9 CrimeScribe Edition No. 49

Hello and welcome to this month’s edition of CrimeScribe. It’s a very quiet time of the legal year and, with this in mind, I have included an additional document at the end of this month’s CrimeScribe entitled ‘100 things you really ought to know – July 2015’ It is a series of Questions and Answers and I hope that you will find the document useful. It will be September before we know our fate in relation to whether or not we have been successful in obtaining a Duty Provider Contract. I read in my Gazette that some London firms have already been notified of the fact that they have been unsuccessful. I believe that such notification has taken place because they failed in relation to not meeting the technical requirements as opposed to a failure on the actual merits; the requirements having been met. Worrying times! You will all know that in a couple of areas there were insufficient tenders and the process in these 2 areas has started again. Assuming the information has been released, I shall be covering this whole area in more depth in next month’s edition. You will have read about the intention of the Ministry of Justice to close 57 Magistrates’ Courts, 2 Crown Courts and the merger of other buildings. A consultation has just begun. Full details are available on the Ministry of Justice website. No doubt this will mean that both lawyers and clients will have to travel even greater distances within the Procurement Areas in order to access those courts remaining!

Statutory Instruments The new Criminal Procedure Rules 2015 have been published and come into force on the 5th of October 2015. Those of you wanting a copy should visit legislation.gov. uk and request Statutory Instrument 2015 No. 1490. Statutory Instrument 2015 No. 1476 is ‘The Modern Slavery Act 2015 (Commencement No. 1, Saving and Transitional Provisions) Regulations 2015. I have absolutely no idea whether or not this will ever cross your desk but it is just as well that you know that Regulation 2 brought into force on the 31st of July 2015 provisions of the 2015 Act relating to offences of slavery, servitude, forced or compulsory labour and human trafficking, prevention orders, the Independent AntiSlavery Commissioner, a defence for slavery and trafficking victims who commit certain offences and special measures for witnesses in criminal proceedings. 232

Regulations 3 to 8 make saving and transitional provision in connection with the coming into force of the provisions of the 2015 Act relating to offences of slavery, servitude, forced or compulsory labour and human trafficking. So now you know!

Case-law The case of Barbara Marshall v Crown Prosecution Service [2015] EWHC 2333 (Admin) is a must read for all criminal practitioners dealing with a common road traffic scenario. It is that of the husband and wife who both share the driving of a motor vehicle and cannot say for sure which of them was the driver at the material time when issued with a notice under Section 172 (2) (b) of the Road Traffic Act 1988. The matter went to the High Court by way of case stated; the Magistrates’ having convicted Mrs Marshall of the offence. I should just like to mention a procedural matter first. In the Magistrates’ Court Mrs Marshall appeared in person without legal representation. Mr Marshall gave evidence first on behalf of the defendant, Mrs Marshall. The High Court was concerned as to why this had occurred. There was no good reason why Mr Marshall should have given evidence first. It was Mrs Marshall who was the defendant charged with the offence and the court needed primarily and as a matter of priority to hear directly from her what she knew or believed about the identity of the driver of the vehicle on the occasion in question and what steps, if any, she had taken to ascertain the identity of the driver when she received the notice in April 2013. They said this at Paragraph 9:

‘Furthermore, in a criminal trial, witnesses of fact are regularly excluded from

court when other witnesses give evidence in order that they may not be

influenced by what they would otherwise hear and that any testing of the

evidence may be effectively conducted’

The statutory authority for the point that the defendant should give evidence first is contained in Section 79 of PACE which reads as follows: If at the trial of any person for an offence –

(a) the defence intends to call two or more witnesses to the facts of the case;

and

(b) those witnesses include the accused,

233

the accused shall be called before the other witness or witnesses unless the court in its discretion otherwise directs. In essence, the evidence from both Mr and Mrs Marshall was that they had both travelled along that particular stretch of road on the evening in question. The magistrates convicted Mrs Marshall of the offence under section 172 (3) on the ground that on all the evidence she had failed to show that she ‘did not know and could not with reasonable diligence have ascertained who the driver was’. The full judgement is well worth the read. The Justices found against Mrs Marshall and the High Court said this at Paragraph 46:

‘It was not therefore on any view irrational for the Magistrates’ Court to refuse

to exclude the probability that a conscientious and determined enquiry by Mrs

Marshall, for example along the lines that I have indicated, would have

revealed whether it was Mrs Marshall or her husband who drove past the

agreed camera by Kenway Road at 11:08 PM on 5 March 2008.’

This must surely be the approach for any court to take when dealing with a situation in which more than one person is saying that they could have been the driver on the relevant occasion. It will always come down to whether or not the defendant has discharged the statutory defence, albeit on the balance of probabilities, that reasonable diligence has been exercised to ascertain who the driver was.

DPP V Bulmer [2015] EWHC 2323 (Admin) The first case I have read in relation to these new Criminal Behaviour Orders. This was an appeal by the DPP by way of Case Stated pursuant to Section 111 of the Magistrates’ Courts Act 1980 in respect of the decision made by a District Judge on the 11th of March 2015 at York and Selby Magistrates’ Court. The learned District Judge refused to make a Criminal Behaviour Order pursuant to Section 22 of the Anti-Social Behaviour, Crime and Policing Act 2014 in respect of the respondent. The Order sought by the prosecution was of unlimited duration and would have prohibited the respondent from entering the area within the York outer ring road as delineated on a map. I don’t intend to go through the case in any detail save to say that there were 6 questions posed for the High Court in the case stated. It is very ‘facts specific’ as you can imagine but well worth the read if you get the chance. Do remember that the ‘necessity test’ that was relevant for ASBO’s has been replaced by the ‘helpful test’ for Criminal Behaviour Orders and the consideration of this test was one of the points raised. 234

The Queen on the application of Anderson v Guildford Magistrates’ Court [2015] EWHC 2454 (Admin) A Judicial Review against the decision of the Guildford Magistrates’ to refuse to vacate a trial. Very much facts specific but worth a read and a reminder to us all, in these days of expedition, of the deed for criminal cases to be dealt with JUSTLY which is, of course, the overriding objective of The Criminal Procedure Rules.

In the Crown Court sitting at Luton – Regina versus AS and Others – Judgement on Application for Paper Copy of Telephone Billing Information (June 2015) Another case in which a Crown Court Judge (HH Judge Bartle QC) was asked to make a ruling on the service of a paginated paper copy of the 5132 pages of Telephone billing information which had been served by the prosecution on disc. The prosecution opposed that application. An order was made by the Judge as part of his general case management powers in order to ensure compliance with the overriding objective of the Criminal Procedure Rules, namely, to deal with criminal cases JUSTLY – see Para 77 of the judgement The Judge was also satisfied that the application had not been made simply in order to increase counsel’s remuneration in the case. The Judge saying this at Paragraph 78

‘............ I am satisfied that it is just and fair to make the Order sought so that the defendants are able to give instructions on an essential part of the prosecution case and I’m also satisfied that such instructions could not be given if the Order was not made’ Also this at Para 79

‘Also, I have no doubt that, although the ability to search the billing information

electronically is of great value, as observed in R v Sagoo, the ability to highlight

items on the billing information, to make cross-references and comments is a

necessary tool in the understanding and use of the billing information and that

it would be neither just or fair to deny the defendant the opportunity to make

such use of the billing information’

235

It was a classic case of conspiracy to supply class A controlled drugs and there were 79 numbers upon which the Crown relied in the case. Downloads from the phones relied upon had been printed and served. The phone Schedule was almost 200 pages (exhibit pages 570 – 762). The prosecution relied on the telephone evidence to show links between the defendants (not just between the trial defendants) and others on specific days. The phone Schedule formed part of the paginated jury bundle. It was colour-coded to show (as the prosecution contended) which phones were used by which defendants, the persons being called, the duration of the calls and from where the calls were made. The case is well worth a read because it analyses other important recent judgements in this area.

Director of Public Prosecutions v Whitaker [2015] EWHC 1850 (Admin) The Crown’s case in the Magistrates’ Court was essentially that the certificate of insurance produced by the defendant did not cover him for his usage on the day, namely business. The problem the Crown had is that there really was insufficient investigation by the Constable as to how the vehicle was being used on the particular day. The van contained a lot of DVDs and the way in which the DVDs were arranged indicated that it looked like a mobile library. The Justices upheld a halftime submission by the defence that a prima facie case had not been made out for business use. The prosecution appealed by way of case-stated and the High Court said that once a valid certificate of insurance had been produced it was for the prosecution to prove that the vehicle was being used in a way not permitted by the insurance certificate. He who asserts the existence of the relevant conduct should prove it, unless Parliament had clearly placed the burden of proving an exemption or defence on the defendant. This seems to me to be entirely logical, given the way the legislation is framed.

Legislation I mentioned this in last month’s edition. On 1 June, the Youth Court acquired, under the Crime and Courts Act 2013, the responsibility of dealing with gang injunctions affecting those under 18. By Section 51 of this Statute, injunctions are available not only for gang-related violence but also for drug-dealing activity. Watch out for these if you are called upon to assist in your capacity as the Court Duty Solicitor.

236

Also on 1st of June a new offence was introduced as Section 40CA of the Prison Act 1952. This makes it an offence, without authorisation, to be in possession of an offensive weapon, or any article that has a blade or is sharply pointed. It is a defence for the accused to show that he reasonably believed that he had authorisation to be in possession of the article in question, or that in all the circumstances, there was an overriding public interest which justified his possession. The offence is an either way offence carrying 4 years imprisonment on indictment.

100 things you really ought to know – July 2015 Q1 The defendant is 21 years of age and sentenced to a term of 4 months

imprisonment by the Magistrates’ – the offences occurred prior to the

1st of February 2015 – how long will the defendant serve and what are the

release provisions?

The defendant is known as a ‘short term prisoner’, will serve 2 months and be

released after 2 months without being on licence

Q2 Would such a defendant be eligible for early release on a tag under the Home

Detention Curfew Scheme (HDCS)?

Possibly at the 25% stage of the sentence, i.e. after 1 month

Q3 What must the duration of the sentence be in order to be eligible to enter the

Home Detention Curfew Scheme (HDCS)?

A sentence of not less than 4 months or more than 48 months

Q4 Would such a defendant be ‘at risk of being returned’ to prison by the Court if

he or she was convicted of further offences committed during the period after

their release from custody, but prior to the 4 month sentence coming to

an end?

No, the ‘at risk of being returned’ provisions contained in Section 116 of the

PCC (S) A 2000 were swept away by LASPO in 2012

Q5 The defendant is 20 years of age and sentenced to a term of 4 months

detention in a young offender institution (YOI) by the Magistrates’– the offences

occurred prior to the 1st of February 2015 – how long will the defendant serve

and what are the release provisions?

The defendant will serve half i.e. 2 months and then be released subject to a 3

month Supervision Period, sometimes referred to as a YOI licence

237

Q6 The defendant is 17 years of age and sentenced to a term of 24 months by

way of a Detention and Training Order (DTO) – the offences occurred prior

to the 1st of February 2015 – how long will the defendant serve and what are

the release provisions?

A6 The defendant will serve a period of 12 months and be trained for a period of

12 months

Q7 The defendant is 21 years of age and sentenced to a term of 12 months

imprisonment by the Magistrates’ – the offences occurred prior to the

1st of February 2015 – how long will the defendant serve and what are the

release provisions?

A7 The defendant is not a ‘short term prisoner’, he has been given a sentence of

12 months, will serve half and be on licence for the remaining half

Q8 The defendant is 20 years of age and sentenced to a term of 12 months

detention in a Young Offender Institution (YOI) by the Magistrates’ – the

offences occurred prior to the 1st of February 2015 – how long will the

defendant serve and what are the release provisions?

A8 LASPO clarified the position of this offender by telling us that he is not released

on a 3 month YOI licence, but, rather, having been given 12 months, he will

serve 6 and be on licence for the remaining 6

Q9 The defendant is aged 21 and sentenced to a term of 4 months imprisonment

by the Magistrates’ – the offences occurred on or after the 1st of February 2015

– what amendments to the release provisions were made as a result of Sections

1 – 9, 11 – 13, 15 – 19 and Schedules 1 – 3 and 5 – 7 of the Offender

Rehabilitation Act 2014?

A9 The defendant will serve 2 months and be on licence for 2 months and then be

subject to Supervision for a period of 10 months (both the licence and

Supervision period must add up to 10 months from his release date)

Q10 What is the new recall period for a Determinate Sentence Prisoner serving a

sentence of less than 12 months and whose index offence was committed on

or after the commencement of the ORA 2014 provisions?

A10 14 days Q11 What would be the position if the particular offender was considered unsuitable

for FTR (Fixed Term Recall)?

A11 Such an offender might find themselves subject to Standard Recall

238

Q12 What is the recall period for a determinate sentence prisoner serving a

sentence of 12 months or more whose index offence was committed on or

after the commencement of the ORA 2014 provisions?

A12 28 days Q13 What would be the position if the particular offender was considered unsuitable

for FTR (Fixed Term Recall)?

A13 Such an offender might find themselves subject to Standard Recall Q14 What is the difference between a Fixed Term Recall and Standard Recall – see

Section 255 of the Criminal Justice Act 2003?

A14 A Fixed Term Recall is for a fixed period whereas in a worst case scenario on the

Standard Recall the offender might find himself serving the entirety of the

remainder of his outstanding sentence subject to an annual review by the

Parole Board

Q15 What types of offenders may find themselves liable to Standard Recall under

Section 255C of the Criminal Justice Act 2003?

A15 Certainly Dangerous Offenders come to mind but also those offenders

convicted of sexual offences and offences of violence – the test really is

whether or not the public are at risk of serious harm from them upon

release (ROSH)

Q16 Imagine that the defendant has been in custody on remand for a period of 411

days. He is sentenced to a term of 12 months imprisonment – it is apparent that

he will not have to serve the 6 months because he has already spent more time

than that on remand – is he, however, still subject to the licence period

of 6 months and could he be the subject of a Fixed Term Recall (or the subject

of more than one Fixed Term Recall) for a period of 28 days under section 255B

of the Criminal Justice Act 2003? – see the case of R (on the Application of

Liberato Galiazia) v The Secretary of State for Justice. [2014] EWHC

3427 (Admin)

A16 The period in custody on remand only relates to the custodial part of the

sentence and such an offender is therefore still released subject to licence

which may be revoked if the offender transgresses in some way.

239

Q17 The defendant is aged 20, and sentenced to a term of 4 months detention

in a Young Offender Institution (YOI) – the offences occurred on or after the

1st of February 2015 – what amendments to the release provisions were

made as a result of Sections 1 – 9, 11 – 13, 15 – 19 and Schedules 1 – 3 and 5 – 7

of the Offender Rehabilitation Act 2014

A17 This defendant is now treated in just the same way as a 21-year-old, i.e. he will

serve 2 months and be on licence for 2 months and be on Supervision for a

period of 10 months (both the licence and the Supervision period must add up

to 12 months following release)

Q18 The defendant is aged 16 – what 3 types of custodial sentence can be

imposed upon a 16-year-old and what are the new release provisions for

offences committed on or after the 1st of February 2015? The Sections dealing

with the custodial sentences are as follows:

Section 90 of the PCC (S) A 2000

Section 91 of the PCC (S) A 2000

Section 100 of the PCC (S) A 2000 – 4, 6, 8, 10, 12, 18 or 24

A18 The 3 types of custodial sentence which can be imposed upon a 16-year-old

are – Detention during Her Majesty’s Pleasure – Long Term Detention and

a Detention and Training Order – the new release provisions will only apply if the

offender is 18 or over at the point of release, i.e. at the halfway stage of his

sentence – if he is 17 or below then the old regime will apply.

Q19 How old would a defendant need to be at the point of conviction in order to

receive a sentence under Sections 90 or 91 or 100?

A19 The defendant would need to be the age of Criminal Responsibility, i.e. 10 Q20 What options are available to the Secretary of State if a person breaches the

terms of their post-release licence?

A20 Where a person breaches the terms of their post-release licence they may be

subject to automatic recall and serve whatever period is deemed appropriate,

i.e. 14 days or 28 days or the entirety of the remainder of their

outstanding sentence.

240

Q21 What 3 options are available to the Court if a person breaches the terms of

their SUPERVISION under the Rehabilitation of Offenders Act 2014?

A21 They may be committed to prison for a period not exceeding 14 days – they

may suffer a financial penalty not exceeding level 3 on the Standard Scale

– they may be given a Supervision Default Order imposing either an unpaid

work requirement or a curfew requirement

Q22 What 3 options are available to the Court if a person breaches the terms of

their SUPERVISION DEFAULT ORDER under the Rehabilitation of Offenders

Act 2014?

A22 The same 3 options as are referred to in the Answer to Q21 Q23 How has the position changed, if at all, in relation to a defendant given a

custodial sentence of 2 years or more?

A23 It has not changed in the slightest in that such a defendant served a period of

12 months and was on licence for a period of 12 months – nothing has

changed and there is no Supervision because the whole of the 12 months

following release is eaten up by the licence

Q24 What Orders did the Community Behaviour Order replace? For how long has it

been available to the Courts and can it be a stand-alone order?

A24 It replaced ASBO’S, DBO’s and ISO‘s and has been available to the Court since

the 20th of October 2014 – it cannot be a stand-alone order – it can only be an

ancillary order made upon conviction for a criminal offence

Q25 What is the duration of a Community Behaviour Order imposed upon an

offender aged 17 or below?

A25 The Order must be for a fixed period of not less than 1 year and not more than

3 years

Q26 What is the duration of a Community Behaviour Order imposed upon an

offender aged 18 or above?

A26 It must be for a fixed period of not less than 2 years or an indefinite period (so

that the Order has effect until further Order)

241

Q27 Chapter 8 of the Legal Aid, Sentencing and Punishment of Offenders Act

2012 gave us a new Table at the back of the Rehabilitation of Offenders Act

1974 – this new Table came into force on the 10th of March 2013 – What is the

new rehabilitation period in relation to a financial penalty imposed upon

an adult (18 or over)? – Would your answer be different if the fine had been

imposed upon a youth (17 or below)?

A27 12 months for an Adult and 6 months for a Youth Q28 What would be the rehabilitation period, if any, for an endorsement in relation

to a Road Traffic Offence?

A28 Would you believe, 5 years! Q29 What would be the rehabilitation period, if any, attaching to a simple police

station caution? – Would your answer be different if the client had accepted a

conditional caution?

A29 There is no rehabilitation period attaching to a simple police caution – in

relation to a conditional caution it is 3 months or even earlier if the conditions

are complied with earlier than 3 months

Q30 What term of imprisonment would have to be imposed upon an offender such

that he or she would NEVER be rehabilitated under the Act? – What other legal

‘thing’ flows from such a sentence?

A30 A period of imprisonment in excess of 48 months – a person given such a

sentence cannot enter the Home Detention Curfew Scheme (HDCS)

Q31 Does a Bind Over to keep the peace attract a rehabilitation period? A31 Yes, would you believe, and it is the period of the Bind Over Q32 The defendant has just been convicted after a summary trial of aggravated

vehicle taking where the aggravation is damage and the value of the damage

is below £5000 – assuming the offence had been committed on or after the

13th of April 2015 and assuming the defendant is 18 or over, what amount must

be paid by way of a Criminal Court Charge under the Prosecution of Offences

Act 1985 (Criminal Court Charge) Regulations 2015

A32 £520 Q33 How would your answer to the previous question differ, if at all, if the defendant

had just been convicted after a summary trial of aggravated vehicle taking

where the aggravation was Dangerous Driving?

A33 The offence is triable either way and the amount would therefore be £1000. 242

Q34 Would it be possible for the Court to impose the Charge and then issue a

warrant of commitment for non-payment, on the same occasion as it imposes

imprisonment or detention for an offence, under Section 82 of the Magistrates’

Courts Act 1980?

A34 No, Section 82 of the Magistrates’ Courts Act 1980 cannot be used Q35 Would it be possible for the Court to impose the Charge and then order a day’s

detention in default under Section 135 of the Magistrates’ Courts Act 1980?

A35 Debatable but you could try it – the Court of Appeal said ‘no’ in the case of

R v Holden [2013] EW CIA Crim 2017, but I don’t think the Justices Clerks are

entirely convinced

Q36 Are there any circumstances in which the Criminal Court Charge can

be remitted?

A36 It can be remitted on an application by the offender once 2 years has elapsed

or 12 months where it is an application by the fines officer or the Court acting of

its own motion

Q37 What is the maximum that can be imposed by way of the Victim Surcharge

and do Sections 82 and 135 of the Magistrates’ Courts Act 1980 apply in

relation to the Surcharge?

A37 £120 – Section 82 most certainly could not be used but I think there is an argument for Section 135 Q38 What is the current position regarding the acquisition or otherwise of

CPD points?

A38 If you go onto the SRA website you will learn that you can enter the voluntary

scheme immediately or you can stay with CPD for this year and for next year as

well – as from the 1st of November 2016, only the SRA scheme will apply

Q39 What new offence was inserted into the Road Traffic Act 1988 by Section 20 of

the Road Safety Act 2006?

A39 Causing death by driving a mechanically propelled vehicle on a road or other

public place without due care or attention or without reasonable consideration

for other persons using the road or place

Q40 What new offence was inserted into the Road Traffic Act 1988 by Section 21 of

the Road safety Act 2006?

A40 Causing death when driving when unlicensed, disqualified or without insurance

243

Q41 What did the Supreme Court say in the very important case of R v Hughes

[2013] UK SC 56 about the new offence mentioned in the previous question?

A41 They said that in order to be guilty of the new offence there had to be

something more than merely a causal connection between the death and

the vehicle being driven on the road and that it was not necessary that such

act or omission be the principle cause of death.

Q42 What did Section 29 of the Criminal Justice and Courts Act 2015 do with the

offence of causing death by driving (disqualified) for offences on or after the

13th of April 2015?

A42 The Section made the offence purely indictable carrying 10 years on

indictment rather than that which had been the case previously, namely, an

either way offence carrying 2 years on indictment

Q43 What new offence was created by Section 29 of the Criminal Justice and

Courts Act 2015 which came into force on the 13th of April 2015?

A43 Causing serious injury whilst disqualified from driving – a triable either way

offence carrying 4 years on indictment

Q44 A 16-year-old defendant appears in the Youth Court charged with grievous

bodily harm with intent contrary to Section 18 of the Offences Against The

Persons Act 1861 – as a result of amendments to the Powers of Criminal Courts

(Sentencing) Act 2000, brought about by Schedule 3 of the Criminal Justice Act

2003 explain the procedure in Court?

A44 The Court could deal with the issue of Dangerousness as a preliminary issue

although I suspect it would not – the procedure now is that a plea be entered

– if the plea is guilty the Magistrates’ can sentence in the Youth Court or

commit for sentence to the Crown Court under Section 3B of the PCC (S) A

2000 – where a not guilty plea is entered the Court should call for

‘representations on venue’, and decide where the matter ought to be tried

Q45 How was the position amended yet again by Section 53 of the Criminal Justice

and Courts Act 2015 on the 13th of April 2015?

A45 The latest amendment gives the Court the power to commit for sentence

following a conviction after a trial – before this amendment, the Court could

only commit for sentence following a guilty plea unless, of course, the Court

wanted to commit for sentence as a possible Dangerous Offender under

Section 3C of the PCC (S) A 2000 – this has always been permissible either on a

guilty plea or on a conviction following a trial in the Youth Court

244

Q46 How did the District Judge get it wrong in the very recent case of DPP V South

Tyneside Youth Court and B [2015] EWHC 1455 (Admin)

A46 The Judge thought that he would have the power to commit for sentence

under Section 3B, even upon conviction after trial in the Youth Court – this

was wrong because at the time of the hearing there was only a power to

commit for sentence following a guilty plea (save for the issue

of Dangerousness)

Q47 What is the inter-relationship between Schedule 15 of the Criminal Justice Act

2003 and the offence being a Serious and Grave crime under Section 91 of the

PCC (S) A 2000?

A47 Quite simply, many Serious and Grave crimes under Section 91 are also

Specified Offences of a violent or sexual nature under Schedule 15 – where

this is the case, the Court could send the matter to the Crown Court

after hearing representations from the parties as a preliminary issue or commit

for sentence under Section 3C of the PCC (S) A 2000, following a guilty plea or

a conviction after a trial – they could also commit for sentence if it was

a Schedule 15 offence, i.e. Section 47 of the OAPA 1861, even though

the offence was not a Serious and Grave crime – such a course of action would

be extremely unusual!

Q48 Where does Section 3C of the PCC (S) A 2000 fit into all of this and what is the

test for a committal for sentence using this Section? and what mistake was

made by the District Judge in the case of R (BW) v Caernarfon Youth Court and

Crown Prosecution Service [2013] EWHC 1466 (Admin)?

A48 Section 3C is the committal section apropos Dangerousness. The test is that the

offender may fall to be sentenced under the Dangerous Offender

provisions and the ‘4 year rule’ is also to be borne in mind, i.e. that no-

one should be sentenced as a Dangerous Offender unless the offence merits

a Determinate Sentence of at least 4 years – this goes to 6 years where a guilty

plea has been entered and the mistake by the District Judge in the above

case was that the offence simply didn’t warrant a sentence of 6 years or more

– the committal for sentence was therefore quashed by the High Court upon

Judicial Review and the matter remitted back to the Youth Court for sentence

245

Q49 What new offence under Section 56 and Schedule 22 of the Crime and Courts

Act 2013 came into force on the 2nd of March 2015? – (Apparently 52% of

those stopped in South Yorkshire recently failed the test and 45% of those

stopped in the Greater London Area failed the test!)

A49 We have a new section 5A (1) and (2) of the Road Traffic Act 1988, which

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.

Q50 Why is the new offence so different to the current driving whilst impaired

offence under Section 4 of the Road traffic Act 1988?

A50 The new offence is different because it requires no evidence of impairment –

the new offence will sit alongside the current Section 4 offence

Q51 What are the penalties for the new offence? A51 They are analogous to the drink drive penalties Q52 Does the new offence apply only to illicit drugs or are prescription drugs caught

as well?

A52 Prescription drugs are caught as well- see Statutory Instrument 2014 No. 2868 for

the Table in relation to the permissible levels for both illicit and prescription drugs

Q53 What is the statutory defence to the new offence? A53 A new Section 5A (3) of the 1988 Act provides for a defence if a specified

controlled drug is prescribed or supplied in accordance with the Misuse of

Drugs Act and taken in accordance with medical advice. The offence in

Section 4 of the 1988 Act would continue to be used to deal with those

whose driving is impaired by specified controlled drugs taken in such

circumstances. The new Section 5A (4) of the 1988 Act provides that the

defence is not available if medical advice about not driving for a certain

period of time after taking the drug has not been followed.

Q54 As a result of recent amendments made by Section 85 of the Legal Aid,

Sentencing and Punishment of Offenders Act 2012, what is now the statutory

maximum/prescribed sum/level 5 fine on the standard scale/ amount in the

Magistrates’ Court? – See Statutory Instrument 2015 No. 664

A54 The £5000 cap on a level 5 fine has been removed – it is important to have a

look at the Statutory Instrument when prosecuting/defending a case that

is being brought by a body other than the CPS, e.g. Trading Standards – there

are various different maximum fines available in these circumstances 246

Q55 As a result of amendments made by Schedule 16 of the Crime and Courts Act

2013, what is now the maximum amount of compensation that can be

awarded in the Magistrates’ Court?

A55 The maximum amount of compensation is now an unlimited amount rather

than the former maximum amount of £5000 per offence.

Q56 What amendments were made to the ability of the police to give Cautions to

those aged 18 or over by Section 17 of the Criminal Justice and Courts Act 2015

on the 13th of April 2015 as regards purely indictable only offences?

A56 See Statutory Instrument 2015 No. 830 – Exceptional circumstances must exist

and it is the Superintendent making the decision –furthermore, the DPP’s

consent is required before a Caution can be administered to an adult for

a purely indictable only offence

Q57 What amendments were made to the ability of the police to give Cautions to

those aged 18 or over by Section 17 of the Criminal Justice and Courts Act 2015

on the 13th of April 2015 as regards either-way offences specified by an Order

made by the Secretary of State? – See Statutory Instrument 2015 No.790

A57 See Statutory Instrument 2015 No. 830 – Exceptional circumstances must exist

and it is the Inspector making the decision – the consent of the DPP is not

required – not all either- way offences are caught – the relevant ones are listed

within the Schedule in Statutory Instrument 2015 No. 790

Q58 Would your answer to Q57 be any different if the offence was an either-way

offence not specified under an Order or a purely summary offence?

A58 Yes, if in the last 2 years the offender has been convicted or cautioned for

a similar offence the police will not be able to give a simple caution for a non-

specified either way offence or a summary offence unless there

are exceptional circumstances relating to the offender, the offence or the

previous offence – it is the Inspector making this judgement call

Q59 Who decides what is Exceptional? – See Statutory Instrument 2015 No. 830 A59 The Supt if the matter is purely indictable – the Inspector in all other matters Q60 What has become of Sexual Offences Prevention Orders, Foreign Travel Orders

and Risk of Sexual Harm Orders?

A60 They have been replaced by the new Sexual Harm Prevention Orders (SHPO’s)

and Sexual Risk Orders (SRO’s) created by Schedule 5 and Section 113 of the

Anti-Social Behaviour, Crime and Policing Act 2014 – they were both brought

into force by Statutory Instrument 2015 No. 373 on the 8th of March 2015 247

Q61 What has become of the Probation Service? A61 All of the former Probation Trusts have been dissolved and we now have one

national body known as the National Probation Service (NPS)

Q62 What has become of the Criminal Records Bureau? A62 I know we all still talk about the Criminal Records Bureau but it was replaced

some time ago by the Disclosure and Barring Service (DBS) – this is now the

organisation which issues the Criminal Records Certificates and Enhanced

Criminal Records Certificates – if you want to find out a bit more about them

they do have a very readable website

Q63 What is your understanding of Transforming Summary Justice (TSJ)? A63 It is the latest initiative in which, it is hoped, that significant progress can be

made in a case on the very 1st appearance – the defence to be supplied

with more material than they are at present, including the Schedule of non-

sensitive unused material – we wait and see whether or not it is any more

workable than SSSJ

Q64 What small, but important amendment, to the Magistrates’ Courts Trial

Preparation Form has recently been made by the Lord Chief Justice in relation

to a defence application to the prosecution for disclosure of unused material

once the MG6C has been served?

A64 The Lord Chief Justice has authorised an amendment to the list of standard trial

preparation time limits at page 7 of the Magistrates’ Courts Trial Preparation

Form. Time limit (d) (Application for Disclosure) has been re-written to clarify the

obligation on the defendant when making an application for prosecution

disclosure. It now reads as follows:

‘Application for Disclosure (Criminal Procedure Rules, 22.2 122.5; Criminal

Procedure and Investigations Act 1996, Section 8)

The defendant must serve an application for an Order for prosecution

disclosure as soon as reasonably practicable after the prosecutor

complies with the initial duty of disclosure – under Section 8 of the Criminal

Procedure and Investigations Act 1996 no such application may be made

unless a defence statement has been served

The prosecutor must serve any representations in response within 14 days

after that’

248

Q65 What is the role of the defence advocate after they have conducted the

relevant cross- examination of the complainant when Court-Appointed under

Section 38(4) of the Youth Justice and Criminal Evidence Act 1999? – Abbas v

CPS [2015] EWHC 579 (Admin)

A65 They don’t have to leave immediately after the cross-examination of the

complainant – they may stay and offer further assistance on a pro-bono

basis, particularly so where the Court takes the view that they can continue to

offer assistance to the Court in the matter

Q66 What was the result of the application recently put before the Master of the

Rolls for re-consideration of the hourly rates payable from Central Funds?

A66 The application for a further reduction was rejected by the Master of the Rolls –

these rates have been with us now since 2010

Q67 What small but important point was raised and resolved recently concerning

penalty points and disqualifications in the case of R v Usaceva [2015] EWCA

Crim 166

A67 A defendant has their licence endorsed with penalty points or a period of

disqualification from driving but not both for the same offence – the points (3 –

11) are only really relevant and should only be imposed where Special

Reasons have been found by the Court for not imposing the otherwise

mandatory disqualification that would apply in the case

Q68 What is Res Gestae? Can Res Gestae evidence be admitted even though

the person is available to give live oral testimony? Is the crown obliged to serve

a hearsay notice upon the defence when relying upon Res Gestae under

Section 118 of the Criminal Justice Act 2003? What alternative Section

could the Crown rely upon if the court refused an application to admit the

evidence as part of the Res Gestae and, in these circumstances, would

a hearsay notice be required? – See the case of Barnaby v DPP [2015] EWHC

232 (Admin)

A68 Res gestae has traditionally been an exception to the rule against the

admission of hearsay evidence in criminal proceedings – something would fall

within the res gestae principle If it was said in a moment of anguish/distress

whereby concoction on the part of the maker of the statement could be ruled

out because of the circumstances in which the statement was made

249

Q69 What information needs to be placed before the Court by the defence

advocate (or the Crown Advocate if they can assist) whenever the Court has

in mind a custodial sentence and the defendant has been subject to a

Qualifying Curfew within the meaning of Section 240A of the Criminal Justice

Act 2003? – See the case of Thorsby and others [2015] EWCA Crim A69

A69 The period for which the defendant had been subject to a curfew of 9 hours

or more per day monitored by an electronic tag – any period during which the

defendant was in breach of the curfew – any period during which the

defendant was also made the subject of a curfew running concurrently as

a sentence of the Court

Q70 Would a defendant be entitled to credit for time spent in custody awaiting

sentence which coincided with time spent in custody having been recalled on

licence? What does Section 240ZA of the Criminal Justice Act 2003 say about

all of this? – See the case of R v Kerrigan; R v Walker [2014] EWHC 2348 (whilst in

this area, don’t forget the very important cases of Hoggard, Costello, Carruthers

and Darren Mark Whitehouse – these are 4 separate cases)

A70 The short answer is ‘No’. The Section prevents double counting, i.e. the

defendant is only to get the benefit of the Section if he or she would otherwise

have had their liberty

Q71 In what circumstances might the Court of Appeal (Criminal Division) make

what is called a ‘loss of time direction’? – See the recent cases of R v Blakeney

[2014] EWCA Crim 2365 (direction of 21 days); R v Wilson [2014] EWCA Crim 2365

(only the client’s good progress in prison saved him from a loss of time

direction) and R v Gray and others [2014] EWCA Crim 2372 (Directions of

between 2 and 3 months!) – All of the principles were reiterated at Paragraphs

1 to 11 of this last judgement

A71 Where the Court takes the view that it is a frivolous appeal lacking any real

merit and the fact that it is upon the lawyer’s advice will not necessarily save

the client!

Q72 Even if the Court of Appeal (Criminal Division) did not make a ‘loss of time’

direction could they nevertheless increase the severity (not the leniency) of the

sentence that had been imposed by the Crown Court Judge? – See Section 11

(3) of the Criminal Appeals Act 1968

A72 The good news is ‘No’ – whilst Section 11(3) allows the Court of Appeal to alter

the sentence, where there has been an appeal from the Crown Court Judge

against its severity, the defendant must not consider that he has been dealt

with more harshly than he was by the Court down below 250

Q73 Would your answer to Q72 have been any different if it had been an appeal

to a Crown Court Judge against the severity of the sentence imposed by the

District Judge in the Magistrates’ Court? – See Section 48 (4) of the Senior Courts

Act 1981

A73 The answer would have been different in that Section 48 (4) of the Senior

Courts Act 1981 allows a Crown Court Judge to increase the severity of

the sentence imposed by the Magistrates’ where an appeal is pursued, but

only up to the maximum sentence that was available in the Magistrates’ Court,

i.e. the Judge’s powers are not what we call ‘at large’ – they are ‘at

large’ if there is an appeal against conviction and the client is convicted again

on the Crown Court re-trial – something to watch out for when advising clients!

Q74 The general view at the Crown Court now seems to be that a defendant is only

entitled to his full one third credit if he or she indicates guilt at the early first listing

of the case in the Crown Court and not the PCMH – in what circumstances

might it be possible to argue for full credit even though the guilty plea was

entered at the PCMH stage? – See the case of R v Joy [2014] EWCA Crim 2321

A74 In circumstances where the defendant needs to be fully advised of the

evidence in the case against him because he has little or no independent

recollection of the events – in these circumstances it is only fair that the lawyers

have the appropriate evidence upon which to advise which may

available until the PCMH – the Court of Appeal have said this more than once

not be

Q75 There seems to be some confusion as to the appropriate credit applicable on

early indication of guilt in a ‘3 strikes case’ under Sections 110 and 111 of

the PCC (S) A 2000 – is it 20%?, 25%, or 33 1/3? – See the case of R v St Aubin

(2014) EWCA Crim 1921

A75 The sentence must not be reduced below 80% of 3 years (burglary) or 80%

of 7 years (supply of Class A drugs) if the Judge is of the view that the

mandatory minimum sentence should be imposed – if more than the

mandatory minimum sentence is being imposed then a full one 3rd discount

may be given but the sentence must not fall below 80% of 3 years or 80% of

7 years

251

Q76 Can anyone think of some decent EXCEPTIONAL CIRCUMSTANCES which

might persuade a Crown Court Judge not to impose the mandatory minimum 5

years imprisonment sentence on a defendant in possession of a

prohibited weapon contrary to Section 5 (1) (aba) of the Firearms Act

1968? – See the recent case of R v Malkin [2014) EWCA Crim 1937 where all the

usual arguments were rejected yet again!

A76 This is more a plea then a question! The defendant being in his 50’s, of previous

good character and living in a house in a rural location were all to no avail for

Mr Malkin!

Q77 What information can be filtered from a Disclosure and Barring service Criminal

Record Certificate?

A77 Adult convictions may be filtered 11 years after the date of conviction,

assuming it is the persons only offence and it did not result in a custodial

sentence and it does not appear on the list of offences which will never be

removed from a Certificate – adult cautions after 6 years from

being administered , assuming it does not appear on the list – in relation to

youths the same rules apply and the period is 5.5 years for a conviction and 2

years for a caution (the term caution includes reprimands and warnings)

Q78 The defendant has just been sentenced to 6 months imprisonment with a

further 4 months imprisonment concurrently. –for rehabilitation purposes, has the

defendant been given a 6 month or 10 month sentence?

A78 A 6 month sentence – where the terms are ordered to run concurrently one

looks to the longest period imposed for any one offence

Q79 What is the current legal position in relation to whether or not the police are

obliged to destroy the DNA sample and fingerprints of a person?

A79 In the briefest of terms, if the offence is a Qualifying Offence within Section 65

of PACE and the person is arrested (3 years but the consent of the

Commissioner for the Retention of Biometric Material is required). If charged it

is also 3 years but no consent is required – if convicted, retention forever – a

Caution equals a Conviction

For non-qualifying offences, the material should be destroyed if there is an

acquittal and retained forever if there is a conviction

None of the rules apply where the person concerned has a previous conviction

or a previous caution

252

Q80 Do the above rules concerning destruction also apply to photographs? A80 The Protection of Freedoms Act 2012 only makes reference to biometric

material, i.e. the DNA sample and fingerprints – there is no mention of

photographs at all – no doubt ACPO (The Association of Chief Police Officers)

will issue the appropriate guidance to the effect that where the biometric

material has to be destroyed than the photograph should be destroyed as well

Q81 In what circumstances, leaving aside the 3 strikes rule, might the credit

available to the defendant, on the indication of a timely guilty plea be in the

region of 20%, rather than a third?

A81 Where the Court takes the view that it is an ‘overwhelming evidence’ case

such that the defendant has little option other than to plead guilty to

the matter

Q82 In order to cover your back completely (and sleep soundly in your beds at

night!) what 3 pieces of advice should be given to every suspect at the police

station stage who acts upon your advice to have a ‘no comment’ interview?

See Sections 34, 36 and 37 of the Criminal Justice and Public Order Act 1994

See the case of R v Caley and others [2012] EWCA Crim 2821

See the case of Ashendon and Jones v UK (2011) ECHR 1323

A82 Inferences, sentence length and costs Q83 What is the recognised surrender to bail in the Crown Court? What is the

recognised surrender to bail in the Magistrates’ Court? What Guidance has

been published by the Justices Clerks Society in this regard?

A83 At the Crown Court It’s easy – a person does not surrender to their bail until

they enter the dock and submit themselves to the control of the Dock Officers –

in the Magistrates’ Court It seems to vary from Court to Court – some

Courts accept booking on with the Usher as being the surrender time whilst

others require the defendant to actually enter the Courtroom and

make themselves known to the legal adviser – just be aware of the regime

operating in your local Magistrates’ Court – the JCS would like a more

consistent approach and published a Guidance Document in this area in

September 2014

253

Q84 What are Domestic Violence Protection Notices all about? – See Sections 24 –

33 of the Crime and Security Act 2010

A84 A Domestic Violence Protection Notice is a notice served upon someone

involved in a domestic violence incident. (The notice is usually served at the

police station) containing certain conditions, i.e. ‘not to molest the other

person if they are cohabiting’ and ‘not to return to the home’ are quite

common – the notice also informs the person that an application for a

Domestic Violence Protection Order will be applied for in the Magistrates’ Court

in 2 working days’ time, i.e. if the notice is served on a Monday, then the

hearing will be on the Wednesday.

Q85 What consequences may flow from the breach of a Domestic Violence

Protection Notice?

A85 If a person breaches the terms of the notice, e.g. by going back to the home

they render themselves liable to an arrest and must be placed in Court within

24 hours where there will be an application for a Domestic Violence Protection

Order against them

Q86 What are Domestic Violence Protection Orders all about? See Sections 24 – 33

of the Crime and Security Act 2010

A86 The Orders are applied for by the police and are in much the same terms as the

notice – an order can be made by the Magistrates’ Court for no fewer than 14

days and no more than 28 days

Q87 What consequences may flow from the breach of a Domestic Violence

Protection Order? – See Section 63 (3) of the Magistrates’ Courts Act 1980

A87 The Magistrates’ treat it as they would a breach of any other Civil Order made

in their Court – a maximum term of 2 months imprisonment or a £50 fine for

every day of default of the Order

Q88 What happened to the Driving Licence Counterpart on the 8th of June 2015

– See Statutory Instrument 2015 No. 560 which brought into force Section 10 of

the Road Safety Act 2006?

A88 The counterpart of the driving licence no longer exists as a document in law –

all information of relevance will be that held on the computer at DVLA Swansea

Q89 What, if anything, has happened to the plastic part of the driving licence? –

How often must the plastic part be renewed and what is the cost?

A89 The plastic part of the driving licence is alive and well – it lasts for a period of 10

years – the renewal cost is £20 254

Q90 Can there be a fitness to plead argument in the Youth Court? What flows from

the Court deciding that a defendant is not fit to enter a plea? – See the case of

P (R on the application of) v Derby Youth Court [2015] EWHC 573 (Admin)

A90 Yes. If the defendant is found not fit to plead then a hearing can still be held to

determine whether or not he committed the act or was guilty of the omission

with a view to possibly making a Hospital Order at the end of the case if the

relevant reports are obtained and the reports recommend it

Q91 All of The Criminal Procedure Rules 2014 need to be read but Rule 3.5 is of

particular interest when dealing with the issue of Case Management and

whether or not a statement should be read or a witness needs to be called live

– What does Rule 3.5 say?

A91 It says that no directions should be made which are in conflict with legislation Q92 What is the Overriding Objective of The Criminal Procedure Rules? A92 The overriding objective of the Criminal Procedure Rules is that criminal cases

be dealt with justly!

Q93 What are the 2 main aims of Case Management under The Criminal

Procedure Rules?

A93 The 2 main aims of case management have always seemed to me to be

‘agreeing the trial issues’ and ‘the avoidance, wherever possible, of the

attendance of witnesses to give live evidence’

Q94 What is the ultimate sanction against the lawyer or the defendant for non-

compliance with their duties under The Criminal Procedure Rules?

A94 Wasted Costs – see Rule 76 Q95 What is the current test for the Court in deciding whether or not a defendant

should be granted a ‘defendant’s costs order’ upon being successful in

the case?

A95 The terms of Section 16 of the Prosecution of Offences Act 1985 are to the

effect that an Order should ordinarily be made unless the Court takes

the view that the defendant has brought suspicion upon himself and has misled

the prosecution into believing that their case against him is stronger than it is

Q96 In what other circumstances, according to the High Court might it be

appropriate for the Court to refuse a defendant’s costs order?

A96 It was said in the case of Rees that a Court might consider refusing a DCO

where, even though there was an acquittal, the Court was satisfied that the

defendant had given perjured evidence or the ‘defence’ had been an

ambush at trial 255

Q97 In what limited circumstances now would a Crown Court Judge have the

power to make a defendant’s costs order?

A97 A Crown Court Judge has the power to make a DCO where the matter is

before the Crown Court by way of an appeal as appeals are not considered

to be ‘matters on indictment’ – where the matter is ‘a matter on indictment’

then everyone is entitled to a representation order save for that limited class

of people who have a household disposable income of £37,500 a year or more

– because these people are ineligible for a rep order there is a limited power for

a Crown Court Judge to grant a DCO in the event of them being successful

at the Crown Court – everyone else who is eligible for a representation order

should apply for one and accept it, with or without a contribution – there

can be no DCO at the Crown Court for any client who could have been given

a representation order – see Schedule 7 of LASPO

Q98 What is the current test for the Court in deciding whether or not to make a

‘wasted costs’ order against a defendant or against a lawyer?

A98 In order to be on the receiving end of a wasted costs order the Court must be

of the view that either the lawyer or the defendant must have been guilty of

‘an improper or unreasonable or negligent act or omission’

Q99 What is the current test for the Court in deciding whether or not to make a

‘wasted costs’ order against a non-party to the proceedings – it doesn’t

happen very often but see the case of R v Capita Translation Interpreting

Limited [2014] EWCA Crim 2350

A99 The test is a high one and it is that of ‘serious misconduct’ Q100 What is the main difference between Schedule 15 and Schedule 15B (as

inserted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012) of

the Criminal Justice Act 2003?

A100 Where an offender is found guilty of a Specified Offence under Schedule

15 they may be liable for an Extended Determinate Sentence as a Dangerous

Offender – where an offender is found guilty of their 2nd Schedule 15B offence

meriting a Determinate Sentence of 10 years or more the Judge has the

opportunity of imposing life under the ‘2 strikes and it’s life’ rule even though the

instant offence may not carry life

256

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thesolicitorsgroup.com

Chapter 10 CrimeScribe Edition No. 50

Hello and welcome to this month’s edition of CrimeScribe. As regular readers will know, CrimeScribe is a monthly digest of all that is new and of relevance for criminal practitioners. If I thought that last month was a little quiet for legal news it was simply that they were preparing us for this month when virtually nothing of any interest has been produced! I trawled through all of the September Statutory instruments with a view to finding a nugget but there was nothing. There has been nothing of any real interest in so far as the commencement of Sections in Statutes and very little in terms of case-law. Not wanting to finish this month’s edition there I thought I would devote this edition to those items taxing the minds of criminal lawyers at present.

CPD Let’s kick off with the amendments to the CPD regime. I have spoken to many lawyers about this and it is clear that there is still some confusion within the profession. Let me attempt a little clarity. CPD is alive and well for this current CPD year ending on the 31st of October 2015. It will be alive and well for the next CPD year ending on the 31st of October 2016. For those of you wanting to stay with CPD, that is perfectly permissible and you will simply tick the box, upon application for your new practising certificate, that you met your CPD requirements during the year. 16 hours for solicitors and, I believe, 6 hours for non-solicitors and 12 hours for barristers. I think I’m right in saying that CPD is staying for barristers for the time being but you may wish to check the current position on the BarStandardsBoard website. What is new is that you no longer have to obtain your CPD from an accredited provider. It will probably be a good idea to continue to obtain your CPD from accredited providers because of their experience in delivering CPD training. It seems to me that if you want to do some training in-house yourself then you are perfectly at liberty to do so. You no longer need accreditation from the SRA in order to be the provider of CPD points. That’s quite a big change really if you think about it. Alternatively, you can, if you want to, enter the new Competency Regime immediately (it has been up and running since April 2015) and identify what your training needs are and take steps to ensure that they are met. If you want to know more about the new Competency Regime then please go onto the SRA website. At the moment entering the scheme is entirely voluntary but with effect from the 1st of November 2016 it will be the only scheme available and CPD, as we know it, will no longer be a requirement. I hope that helps.

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OWN CLIENT AND DUTY PROVIDER CONTRACTS – THE FUTURE The other issue taxing the minds of many defence lawyers at the moment is, of course, the new Own Client and Duty Provider Contracts and whether or not the firm has been successful in obtaining a Duty Provider Contract. My understanding is that some 1600 entities have already been notified of the intention to grant them an Own Client Contract. Many firms have chosen not to apply for a Duty Provider Contract. Holding an Own Client Contract might put you in a very good position because you are then able to do Duty Work for a firm holding a Duty Provider Contract who wants to use you as an Agent. The document they produced, prior to the Tender, said that up to 25% of Duty Work could be done by an Agent. There was nothing in the document that seemed to suggest that one could not, whilst holding an Own Client Contract, become an Agent for a number of different firms holding the Duty Provider Contracts. I may be wrong but I think that there is going to be a huge increase in Agency work in the future. I don’t wish to sound in any way alarmist but I wonder where that leaves the selfemployed accredited representative who, traditionally, may have worked for a number of different firms and done both Own Client and Duty Solicitor Police Station work. Then there are the Consultants who again, traditionally, may have worked for a number of different firms doing Police Station work and Court Duty work (provided they had the status of being a Court Duty Solicitor). There are thousands of them out there. Will it be the case that, because they hold no Own Client Contract themselves they will be barred from doing any Duty Work (Police Stations or Magistrates’ Courts) in the future? Clearly, there will be no issue with them doing Own Client work but Own Client work may not be enough. I don’t know the answer and I’ve yet to speak to someone who does. Will they have to, in some way, regularise their position by attaching themselves to a firm holding an Own Client or Duty Provider Contract and being employed by the firm for a period of time? This issue may be resolved by way of a clause in the new Contracts. It might involve, for example, being employed by a firm, albeit on a part-time basis. Another solution might be for firm A (holding the Duty Provider Contract) to give the duty work to firm B (an Agent holding an Own Client Contract) and the Agent to then give the work to C (the freelancer) – remember, the bar in the document seemed to be that the holder of the Duty Provider Contract could not give work out to a non Own Client Contract holder but there seemed to be no similar bar to prevent an Own Client Contract holder from giving the work out to a freelancer. It all sounds rather tortuous doesn’t it? I hope that it is in some way resolved under the new Contracts. We all know how concerned they are about Supervision and it seems to me that the more hands that the case passes through the greater the risk that no firm is actually supervising the freelancer.

259

As at the writing of this month’s edition I do not know the position over the outcome of the Duty Provider Contracts. Rumour has it, and it is no more than a rumour, that we shall all be notified in late September and, in particular, the 28th,29th,30th and possibly as late as even as the 1st of October. No doubt you will all know the position upon reading this month’s edition. We know, with some degree of certainty, the changes to the fee structure in the new Own Client and Duty Provider Contracts because that information has been published and is contained within Statutory Instrument 2015 No.1369. If you haven’t read it yet I would strongly urge you to do so. It is The Criminal Legal Aid (Remuneration etc.) (Amendment) Regulations2015. There are 2 important dates within this SI. The first relates to Part 2 of the Regulations which came into force on the 1st of July 2015. Part 2, as you know, reduced all of the hourly rates for all the work we do in criminal legal aid by 8.75%. This being the second half of the 17.5% overall cut. The first 8.75% cut came our way for all work commenced on or after the 20th of March 2014. The cut relates to all the work we do including the page count fees as litigator for Crown Court work. THERE HAVE BEEN NO CHANGES TO THE PAYMENT RATES FOR CROWN COURT ADVOCACY I am sometimes asked where to find the advocacy rates and it is a simple question to answer because they are all contained in Statutory Instrument 2013 No. 435. This document is entitled The Criminal Legal Aid (Remuneration) Regulations 2013 and came into force on the 1st of April 2013. You will find all of the advocacy rates in this document and they are completely trustworthy and current because the advocacy rates for Crown Court work have not been reduced. I am not sure whether or not there are any plans to reduce them. Do not trust any of the hourly rates in this document as they apply to solicitors and litigators. This is because since the 1st of April 2013 the rates for solicitors and litigators have been reduced by 8.75% for Representation Orders/work commenced on or after the 20th of March 2014 (see Statutory Instrument 2014 No. 415) and again by a further 8.75% for Representation Orders/work commenced on or after the 1st of July 2015 (see Statutory instrument 2015 No.1369). History lesson over, I promise! Let us now consider for a moment the new rates under the new Contracts coming our way on the 11th of January 2016. These are contained in Part 3 of Statutory Instrument 2015 No.1369 and the document makes it clear that they apply to matters in which a ‘relevant determination’ is made on or after the 11th of January 2016. I take that to read Representation Orders granted on or after this date and work undertaken, i.e. Police Station/CRM 1/2/3 etc on or after this date. 260

The first thing we notice (on page 62) of the document is the new concept of the Police Station Attendance – Fixed Fees and Escape Fee Case Thresholds. If the place of attendance is a London Police Station then there is but the one fixed fee of £200.93 (exclusive of VAT). There is an Escape Fee Case Threshold which is set at 3 times the value of the fixed fee, i.e. £602.79p If the place of attendance is outside of London then there is but the one fixed fee of £156.19p (exclusive of VAT). There is an Escape Fee Case Threshold which is set at 3 times the value of the fixed fee, i.e. £468.57p Where the place of attendance is not at a Police Station, the place of attendance is deemed to be – where an interviewing Constable is present – if the interviewing Constable is normally based at a Police Station, that Police Station, or – in any other case, the Police Station nearest to the location of the interview, or – where a services person is assisting with an investigation by Services Police, the Police Station nearest to the location of the interview. We then get an entirely new concept of ‘excess travel time’– this means reasonable travel time in excess of 90 minutes for a one-way journey undertaken for the purpose of Police Station attendance in accordance with the 2015 Duty Provider Crime Contract. It is clear from the document that there is no concept of ‘excess travel time’ when dealing with Own Client work. The Excess Travel Time rates are as follows:

Duty Provider (London Procurement Area) £46.37p per hour

Duty Provider (Non-London Procurement Area) £42.90p per hour

Duty Provider (Unsocial) (London Procurement Area) £56.97p per hour

Duty Provider (Unsocial) (Non-London Procurement Area) £56.97p per hour

They have clearly done this because they appreciate that some Procurement Areas are very large and may well involve a considerable amount of travel time. It probably won’t be a great problem in the London Procurement Areas (time will tell!) but I was in Cumbria the other day when they were talking in terms of a possible twohour journey to a Police Station or Court! With Court closures this can only get worse. Do not confuse fees, with disbursements. It seems to me that the document makes no mention of disbursements and that we would therefore still be able to claim our mileage at 45p per mile and our parking costs.

261

The new Contracts also introduce new concepts as regards the billing of Magistrates’ Court work. We will lose the Lower Standard Fee and the Higher Standard Fee. We will also lose the concept of the Designated and Un-Designated areas. This means that, subject to something that I will say shortly, there will be no travel and waiting claimable on Magistrates’ Court cases. Instead, we will have the concept of the Standard Fee with a Standard Fee limit which will work as follows:

Category 1A Standard Fee £235.56p Standard Fee Limit £426.61p

Category 1B Standard Fee £196.28p Standard Fee Limit £426.61p

Category 2 Standard Fee £449.45p Standard Fee Limit £704.88p

Category 3 Standard Fee £336.01p Standard Fee Limit £651.34p

I think you would agree with me that we are unlikely to get over the Standard Fee Limit in Category 1A and Category 1B cases. These, as you know, are guilty pleas to either way offences or guilty pleas to summary only offences or uncontested breaches or discontinued, withdrawn, no evidence offered etc. I’m not even sure why they’ve retained the Category 3 Fee because these relate to committals and committals have been abolished for current proceedings. Perhaps there are some defendants out there on warrants who might be entitled to committal proceedings in the event of ever being arrested on those old warrants I doubt if it would occur to anyone in Court that committal proceedings were needed in such an eventuality anyway! The Category 2 fee is the one that concerns me the most. The Standard Fee will be the Fee payable for all the work that we have done in relation to that contested breach or contested trial, including the advocacy at trial, unless we have done more work, at hourly rates, than the Standard Fee Limit of £704.88p. With the 17.5% reduction in hourly rates for all work that we do in legal aid it would be necessary to do some 16 hours on the Magistrates’ Court case in order to get over that Standard Fee Limit and to be able to claim the whole of the case on the CRM 7 at hourly rates. I’m sure you would agree with me that 16 hours’ worth of work is a lot of work and may well not be achievable in many cases. In those cases, where it is not achievable, then one must appreciate that the fee payable is £449.45p (excluding VAT). It may be that we will have to change our working practices. We are encouraged at the moment to fully complete the Trial Management Form and highlight all of the trial issues at that first hearing on the occasion of the not guilty plea.

262

It may become routine to take the clients proof of evidence at that first hearing and take his observations on the witness statements (even if that means borrowing the file from the CPS or looking at the statements on their tablet). It may well be the case that the next time we see that client will be on the day of the actual trial. Any defence witnesses who turn up on the day can have their statements taken from them by either the trial advocate or, more likely, a legal assistant, who has come to the trial specifically for this purpose were the client has assured us that witnesses will be in attendance. This may well become the ‘norm’ in all trials were the disputes are purely factual. Totally different considerations will apply where experts have to give opinions on matters. I turn now to the issue of payment for travel. Much as with Police Station work we have this concept of ‘excess travel time’. This means reasonable travel time in excess of 90 minutes for a one-way journey undertaken for the purpose of representation in the Magistrates’ Court in accordance with the 2015 Duty Provider Crime Contract. The rate payable is £21.70p per hour and will only be claimable for Duty Provider work. There would appear to be no claim payable for excess travel time in relation to Own Client work. Everything will depend upon how we acquired the client in the first instance. If we acquired the client in our capacity as Duty Solicitor at the Police Station or Court, then that becomes a Duty Case throughout the duration of the case. My understanding is that ‘once a Duty Case, always a Duty Case’. This means, of course, that we could not ask someone to do the case if they themselves were not the holder of an Own Client Contract. An Agent can only be instructed in a Duty Case, if that Agent possesses an Own Client Contract. There is little to say about CRM 1, 2 and 3 work apart from the fact that all of the rates for all criminal legal aid work were reduced by 8.75% for Representation Orders granted/work done on or after the 1st of July 2015. This then becomes the rate for the work under the new Contracts although I have read that Mr Gove is considering a 3 month moratorium on the 8.75% reduction introduced across the board on the 1st of July for the 1st 3 months of the new Contracts coming into force on the 11th of January 2016. I’m not sure how much this is going to assist. It would be nice, wouldn’t it, if they scrapped the 8.75% reduction and made that 3-month moratorium permanent in the new Own Client and Duty Provider Contracts. We wait and see! That just leaves payment for the work that we do as litigator on our Crown Court files. Those of you who are responsible for billing of Crown Court work will readily appreciate that the vast majority of claims are based upon a page count (PPE). There are only 2 circumstances in which the old hourly rates have survived and they are Special Preparation and Proceeds of Crime. We were given new litigator Tables in Statutory Instrument 2015 No. 1369 reducing the rates payable to litigators by 8.75%.

263

Again, much as with Police Stations and Magistrates’ Court work we have an entirely new concept being introduced into the new Contracts (both Own Client and Duty Provider) with effect from the 11th of January 2016. The important Pages in the SI are 44 and 45. These Pages give as one Table and this one Table will give as the Fixed Fee for the vast majority of our Crown Court cases. The reason I say this is because it will be a Fixed Fee for every Guilty Plea, Cracked trial or trial where the page count is 500 or fewer and this will probably account for 95% of our Crown Court files. Under this new table the following factors become relevant:

The type of case, i.e. Guilty Plea, Cracked Trial or Trial

The classification of offence, A-K

The PPE band into which we fall – there is a Fixed Fee for PPE 0 – 100 – another

Fixed Fee for PPE 101 – 200 – another Fixed Fee for PPE 201 – 300 – another Fixed

Fee for PPE 301 – 400 and another Fixed Fee for PPE 401 – 500. The only question

we need to ask ourselves is ‘which of these 5 blocks do we fall into?’

2 brief examples to illustrate the new Fee system as follows:

A Guilty Plea to a burglary (Class E) where we have between 0-100 pages will

pay £189.13p.

A Trial on a murder (Class A) where we have between 401 – 500 pages will

pay £5,888.45p.

Notice immediately that Trial length becomes irrelevant for payment of a fee as litigator. It has always been a relevant consideration in the past. Trial length becomes a relevant consideration only for the Trial Advocate. It remains to be seen the extent to which we are ‘up or down’ on these new Fixed Fees for Crown Court work. Trust me, having crunched many of the numbers and done a comparison between the Fixed Fees in these new Tables and our current Fees payable under the Current Tables, (and those Tables are all there for you in Statutory Instrument 2015 No. 1369 for Representation Orders granted on or after the 1st of July 2015), page count is everything. In circumstances where the page count is low we may well benefit from the new Fixed Fee which is the same Fee payable whether we have 0 or 100 pages. Alternatively, where we may benefit under the current system because of a high page count, we seem to lose under the new Fixed Fee Tables.

264

As far as the remaining 5% of our Crown Court cases i.e. those cases where the Page count is 501 or more, the Tables contained in Statutory Instrument 2015 No. 1369 will be retained. I have been asked more than once whether or not the Fees are going to be reduced yet again in the new Contracts. My answer is always the same. The Fees were cut by 8.75% for Representation Orders granted on or after the 1st of July 2015 by Statutory Instrument 2015 No. 1369. That was the 2nd part of the 18.75% overall cut. There is no further percentage cut in the new Contracts. There are, however, new CONCEPTS in the new Contracts which have been explored by me fully in this part of this month’s edition of CrimeScribe. I don’t wish to say any more. I hope that this was a useful exercise and that I have given you all an insight into the new Fees coming our way under the new Contracts, subject to the comment mentioned earlier apropos the possible moratorium on the 8.75% reduction for the 1st 3 months of those new Contracts.

THE CRIMINAL COURTS CHARGE I don’t want to say too much about this because I have covered it in a previous edition. It is important that you get hold of Statutory Instrument 2015 No.796 entitled ‘The Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015. The Regulations came into force on the 13th of April 2015 and apply to anyone convicted of an offence after this date. This SI contains the Schedule of amounts payable dependent upon the nature of the conviction. I wasn’t quite sure what the value of the charge would be in the event of a defendant being convicted in the Magistrates’ Court and thereafter committed for sentence. This was due to the fact that committals for sentence are not mentioned anywhere in the Schedule. A closer scrutiny of the Regulations informs us that under Article 3 of the Regulations where, following the summary conviction of a person for an offence, a Magistrates’ Court commits that person to the Crown Court for sentence and the Crown Court accordingly deals with the offender for the offence, the charge the Crown Court must order to be paid is the amount in Column 2 of the Table which corresponds to the amount the Magistrates’ Court would have had to order, had the offender not been committed to the Crown Court for sentence. It is therefore crystal clear that an offender does not benefit in any way by being committed for sentence.

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The charge must not be made against a person convicted of an offence where the Court deals with the matter by means of an absolute discharge, a hospital admission or guardianship under Section 37 (1) of the MHA 1983 or a direction under section 45A (3) of the MHA 1983 (power of higher courts to order hospital admission) We know that a period of custody cannot be imposed in default of payment of the Criminal Court Charge on the occasion of the conviction. Section 82 of the Magistrates’ Courts Act 1980 applies in its entirety to the charge, save for Section 82 (1) (c) (the power to issue a warrant of commitment for non-payment, on the same occasion as it imposes imprisonment or detention for an offence), which is disapplied by Paragraph 3 of Schedule 12 of the Criminal Justice and Courts Act 2015 to the Criminal Court Charge (as it had been to the Victim Surcharge). Section 82 of the Magistrates’ Courts Act 1980 does allow for immediate imprisonment in relation to the Criminal Court Charge if the offence is punishable with imprisonment and the defendant appears to have sufficient means to pay forthwith; or it appears unlikely that he will remain long enough at a place of abode in the UK to allow enforcement by other means. What about ordering the Charge and then dealing with it, by way of a day’s detention in default forthwith under Section 135 of the Magistrates’ Courts Act 1980? I see no reason in law why this would not be possible. Those who argue against such a course of action cite the case of R v Holden [2013] EWCA Crim 2017. This was an attempt by a Crown Court Judge at Birmingham to exercise his powers to sit as a District Judge and order that the Victim Surcharge ordered be remitted to 1 day’s imprisonment and therefore deemed to have been served. The Court of Appeal were not happy because Section 139 of the PCC(S) A 2000 empowered the fixing of a default term for a fine but had not been amended to include the Victim Surcharge. They were therefore of the view that it was not permissible to fix a term in default in these circumstances. You will see immediately that the Court of Appeal were concerned with a different Section of a different Act. I’m sure Anthony Edwards will not mind me quoting from his excellent legal update article in the 14th of September edition of The Gazette in which he writes ‘However, once the Court has imposed a charge it may then consider how its payment is to be enforced. There appears to be no reason why a Magistrates’ Court (or Crown Court Judge, sitting as a District Judge) should not use the power to impose a day’s detention under Section 135 of the Magistrates’ Courts Act 1980. While some commentators suggest that R v Holden prevents such an action, the case makes no reference to the power to detain but rather to the imposition of 1 day’s imprisonment’

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This is an argument that needs to be advanced and, on occasion, may prove to be successful. I don’t see why the argument could not be equally successful in relation to the Victim Surcharge. It seems to me that the argument is likely to be that much stronger where the defendant has spent a night in custody and the Court are minded to deal with the offence by means of a financial penalty and a day’s detention in default under Section 135. That Section would also be useful in clearing up the payment of both the Victim Surcharge and the Criminal Court Charge. No doubt a Higher Court will pronounce on this issue, sooner rather than later.

RECALL FOR BEING IN BREACH OF LICENCE Like many lawyers who do not do prison law I had never really got my head fully around the recall provisions. I have been assisted enormously in this area by reading a document prepared by the National Offender Management Service (just Google it) entitled ‘Recall review and re-release of recall offenders’. It has been substantially revised to coincide with the new provisions under the Offender Rehabilitation Act 2014 which came into force on the 1st of February 2015. I heartily recommend it to you as it is well worth the read. I learned, amongst other things, that there is a new Fixed Term Recall period of 14 days for anyone given a custodial sentence of less than 12 months. I also found out that the Fixed Term Recall period for someone given 12 months or more remains at 28 days. I never quite knew whether or not he would serve the whole of the 14 days or the whole of the 28 days but the document says this on Page 11 ‘Offenders must be re-released automatically at the end of 14 days or 28 days, or may be re-released earlier under the Secretary of State’s executive power to re-release’. I also learned the difference between a Fixed Term Recall and Standard Recall and the test to be applied in order to put an offender into the Standard Recall provisions – it is RISK OF SERIOUS HARM. I had always thought that one had to get a sentence of 12 months or more in order to fall into the Standard Recall provisions but, apparently, that was all changed by LASPO and mention is made of this in the document. I hope I have ‘whetted’ your appetite. I can do no more. I shall leave you with this question – what happens if a person breaches the electronic tag during their Home Detention Curfew period? – The answer is in the document!

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REHABILITATION OF OFFENDERS Second only to my ignorance of the recall provisions was my ignorance in relation to the rehabilitation of offenders under the Rehabilitation of Offenders Act 1974. In this matter I was on a steep learning curve. The first thing I learned was that Chapter 8 of LASPO gave as an entirely new Schedule of the rehabilitation periods to put at the back of the Rehabilitation of Offenders act 1974. This new Schedule has been with us since the 10th of March 2014. Again, my research on the Internet unearthed a document entitled ‘Guidance on the Rehabilitation of Offenders Act 1974’. This Guidance had been specifically published to coincide with all of the amendments under LASPO that came into force on the 10th of March 2014. The following is just one Paragraph extracted from the document on Page 85, and it reads as follows:

‘An endorsement for a road traffic offence listed in Schedule 2 to the Road

Traffic Offenders Act 1988 imposed either by the Court or by means of a fixed

penalty notice (FPN) is a sentence for the purpose of the 1974 Act and may

become spent after 5 years (or 2 ½ years. where the offender is under 18).

Road traffic legislation specifically provides for a FPN in these circumstances to

be treated as a conviction and dealt with as such under the 1974 Act. Penalty

points and a driving disqualification imposed by the Court on conviction may

become spent when they cease to have effect (penalty points have effect for

3 years as set out in road traffic legislation). Where the Court imposes more

than one sentence or penalty for the offence then the longest rehabilitation

period determines when the conviction may become spent’.

I had no idea that a motoring endorsement lasted for 5 years for rehabilitation purposes! I also learned that the rehabilitation period for a conditional discharge was the period of the conditional discharge and that the rehabilitation period for a Bind Over was the period of the Bind Over (but is not a conviction I hear some of you say!). Furthermore, I learned that the rehabilitation period for a conditional caution was 3 months or shorter if the conditions were complied with earlier and that there was no rehabilitation period attaching to a simple caution or an absolute discharge. Much as with the earlier document that I mentioned, it is well worth acquiring as a reference document and will answer many useful questions.

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THE CRIMINAL PROCEDURE RULES AND CASE MANAGEMENT I’m sure you are all aware that the new Criminal Procedure Rules 2015 will come into force shortly. They will be operative from early October. They are updated each March and then we have a new set of rules annually in October. As you know, the overriding objective of the rules is that criminal cases be dealt with justly! Most people I pose that question to answer it by saying ‘acquitting the innocent and convicting the guilty!’ An important part of the Rules concerns Case Management and I read that in addition to getting our heads around Transforming Summary Justice (TSJ) we will now have to get our heads around Better Case Management (BCM), which I am told is coming into play in early October. I really don’t mind what system operates Just so long as everyone in Court does not lose sight of the overriding objective of the Criminal Procedure Rules. I think defence lawyers are more than willing to fully co-operate in Better Case Management just so long as they are given the requisite information at that first hearing by the Crown Prosecution Service in order to be able to advise clients meaningfully as to the state of the evidence against them at the Magistrates’ Court. Having access to the evidence (and unused material Schedule) assists enormously in advising upon pleas and place of trial. It is really difficult to advise clients on case summaries and some clients will simply not plead without advice from the lawyer on the extent of the evidence against them. It also puts lawyers in a very difficult position when there is an expectation from the Court that the client be fully advised when in possession of merely a case summary. Lawyers advise on evidence and case summaries are far from that. We all know that the 3 most important aspects of Case Management are as follows:

The parties agreeing precisely what the trial issues are

The parties agreeing as much of the evidence as they can under Sections 9

and 10 of the Criminal Justice Act 1967 (So as to obviate the need for witnesses

to be called to give live oral testimony during the trial)

The parties reducing the number of hearings to the bare minimum

It is very difficult to meaningfully participate in the above without being able to advise the client on the actual statements. The defence will often find it very difficult to agree a statement that they have not actually seen. That is not a sign of being difficult – it merely reflects the difficult position the defence lawyer is in.

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On occasion clients will simply not plead until they have seen all of the evidence against them. Their defence may be that the prosecution witnesses will not turn up. They may not have a defence at all, but wish to see whether or not the Crown can prove the case against them. They may not wish to even give their lawyer any instructions in the matter. All of the above scenarios put the defence lawyer in a difficult position. We have the very useful case from the Court of Appeal of R v Gavin Rochford (Court of Appeal 2010), in which the Court gave guidance as to what to write on the Trial Management/PCMH form where the lawyer has not been given any defence by the client. They said it was perfectly permissible for the lawyer to write on the form ‘We put the Crown to prove of their case, we advance no positive case ourselves’. It seems to me that a defendant still has the right to have the witnesses in Court to give live oral testimony against him in the sense of testing the evidence without advancing a positive case. The client must, of course, be properly advised on the reduction in credit by taking this course of action and the possibility of increased costs being awarded against him at the end of the case. It also seems to me that it would be very wrong in the circumstances for the Court to order that the statements be read. It must surely be a matter for the lawyer (prosecution or defence) to decide whether or not a statement can be agreed. Section 9 of the Criminal Justice Act 1967 is to the effect that upon receipt of the statement the lawyer has 7 days (and weekends do count) within which to notify the other side that he/she does not agree to the contents of the statement being read and requires the witness to be called live. This must surely be an issue for the lawyer and not for the Court. Directions can be made by the Court, but under Rule 3.5 of the Criminal Procedure Rules Directions should not be made which are in conflict with Primary Legislation. I’ll stop there but I simply make the point that Better Case Management is in everyone’s interests but it requires access to evidence early on in the Magistrates Court in order that there is maximum participation and engagement from every participant within the system (and that includes the defendants). When the new fees come into play in January of next year it will be in everyone’s interests that guilty pleas be entered early (at the 1st hearing) and cases be disposed of quickly (preferably at the 1st hearing) and that there be but 2 hearings in a contested matter, the 1st at which the plea is entered and all of the trial issues sorted and the 2nd at which the trial takes place. That will be to the benefit of all of the lawyers and the witnesses and the defendant’s That’s it, that’s the end of this month’s edition of CrimeScribe. A little more comment than usual but I do hope that you found the edition useful.

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Chapter 11 CrimeScribe Edition No. 51

Hello and welcome to this month’s edition of CrimeScribe. I really thought that we could all get back to some sort of normality after the awards of the Duty Provider Crime Contracts but, alas, no. I had been asked many times whether or not I thought the Dual Contracts would ever come in and my view was always that there was a high probability that they would come in if the tendering process was well handled and resulted in the appropriate firms (and yes, possibly some new firms as well) within the Procurement Areas being granted the appropriate Contracts. I think we are all flabbergasted at the results of the tendering process. I don’t think I can say too much about it at the moment apart from the amazement being expressed by many established firms within given Procurement Areas at not having been offered a Contract/any Contracts within that (or adjacent) areas whilst other firms having had no previous dealings at all in that part of the country have been awarded the Duty Provider Contract(s). I really cannot make any sense of it. I know of several huge ‘concerns’ which have been operating within given Procurement Areas as established providers for many years and have failed on the so-called procurement application form (the completion of Annex C). We shall just have to wait and see how successful the action is concerning those firms who were unsuccessful in the tendering process. I must confess that in my worst nightmare I never thought that the results would be as they are. Was it really a part of their plan to tear up the existing legal landscape and have so little regard to all of the contributions that established firms had made within their areas over decades! Words fail me......... And pursuing the theme of depression.......I read in the Gazette that the Ministry of Justice has proposed a review of criminal advocacy with a stated intention to curb solicitors instructing advocates in their firms. What with a 17.5% cut in fees, imminent assessment under the quality assurance scheme for advocates (QASA) and everything else that is going on, where will it all end! The M OJ invites views on the proposed introduction of a Panel Scheme, a statutory ban on referral fees (already prohibited under our rules anyway!) and the introduction of stronger measures to ensure client choice and prevent conflicts of interest. One suggestion is restricting the ability of defence firms to instruct in-house advocates in publicly funded criminal cases. Solicitors already have an obligation to act in the best interests of their clients and there should be nothing to stop clients selecting an in-house advocate and in such circumstances I cannot see how a conflict of interest would arise. 272

Solicitors who were otherwise quite happy to appear as advocates in the lower courts found themselves having to obtain Higher Rights and appearing in the Crown Court in order to ‘balance the books’ and the trend will surely continue as a result of the ongoing reduction in fees.

The Criminal Courts Charge I know I mentioned this in last month’s edition but there are a few points I should wish to add. I read that there have been resignations by Magistrates’ deeply unhappy at their lack of discretion in all of this. I did make the point in last month’s edition that I saw no reason in law why the Criminal Courts Charge (and for that matter, the Victim Surcharge) could not be ordered by the Court and then disposed of by way of one day’s detention in default of payment under Section 135 of the Magistrates’ Courts Act 1980. At the time of writing it was merely an academic point but I am hearing that there are Courts in the country who are dealing with disposal of the charge in just such a manner. Of course, another course of action would be to dispose of the case by means of an absolute discharge! In such circumstances the Regulations make it clear that the Criminal Courts Charge cannot be ordered. The same is true of the Victim Surcharge. I have had some interesting discussions as to what it is precisely that triggers the CCC? Is it the date of the offence or the date of the conviction or the date upon which the matter is being ‘dealt with’ in Court? Looking at the Regulations and the Schedule which sets out the various amounts payable when ‘dealing with’ an offence’ the offence must have been committed after commencement (see Section 21A of the Prosecution of Offences Act 1985 and Section 54 (4) of the Criminal Justice and Courts Act 2015. However, when dealing with breaches, and failed appeals, it seemingly matters not when the offence (or finding) took place, see Section 21B et seq. You may have a legal adviser advising the Magistrates’ that the charge is still payable because they are ‘dealing with’ a breach today regardless of the date of the commission of the offence or the date upon which breach proceedings were laid or the date upon which the breach was admitted/or found to be proved. It may well be that all of these dates pre-date the commencement of the Regulations but the charge is still payable because the Court is ‘dealing with’ a breach after the commencement of the Regulations. I hope that makes sense. I am sure that legal advisers are probably giving differing pieces of advice in this area. It’s not something that I would wish to raise myself! The Justices Clerks Society is of the view that in respect of breaches or appeals, the original conviction must relate to an offence committed on or after the 13th of April 2015.

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I am quite happy to agree with this interpretation because it will always be my client’s interests but I’m not entirely convinced that it is right. I say this with some humbleness as I have an extremely high regard for the JCS. It may well have to be tested at some point.

The Offender Rehabilitation Act 2014 I know that I have dealt with this particular piece of legislation in some detail in previous editions and I do not wish to rehearse that which I have already said but a précis of the new regime will put what I am about to write into some sort of context. The new regime will only apply where the offences were committed on or after 1st of February 2015. Where the offender is an adult (18+) and receives a custodial sentence of more than one day the new regime is that the offender will serve half of the sentence in custody with the remaining half on licence and a further period of supervision after that. The period on licence and the period of supervision must both add up to 12 months. An offender, therefore, given a custodial sentence of 8 months will serve half in custody (4 months) and be on licence for half (4 months) and be subject to a further period of supervision for 8 months. Youths, i.e. those who are 17 down to 10 will only fall within the new regime if their custodial sentence was for less than 12 months and they become 18 at the halfway point of their sentence i.e. upon release. Absent these 2 pre-requisites, they continue to fall within the old regime e.g., a detention and training order of 24 months would still result in the youth being detained for 4 months and trained for 12 months. It seems to me that early release under the Home Detention Curfew Scheme is still available and an adult offender may find themselves released from custody having completed 25% of their total sentence (it is a purely discretionary scheme and the offender must qualify and the sentence must be one of between 4 and 48 months in order to be eligible). The new National Probation Service deals with 30% of its former workload (all of the regional probation trusts having been abolished). The remaining 70% of offenders will be ‘managed’ in terms of their licence and supervision by 1 of 21 Community Rehabilitation Companies (CRC’s). All breaches must be referred to the probation service and the probation service will deal with these breaches in court. What are the terms of the licence? What are the terms of the supervision? You may never have seen or read such documents. I have been greatly assisted in this area by 2 documents which I found on the Internet published by the National Offender Management Service (NOMS). They are both well worth a read. The 1st one is entitled ‘Recall Review and Re-Release of Recall offenders’. The 2nd one is entitled ‘Licence Conditions, Licences and Licence and Supervision notices. From the 1st document I learnt that there is a new Fixed Term Recall (FTR) of 14 days for offenders given a custodial sentence of less than 12 months. 274

I also learnt that an offender may not have to serve the full 14 days as there is scope for earlier release. The Fixed Term Recall of 28 days (which we have had for many years) still exists but is only applicable for offenders given 12 months or more. Again, there is the possibility that the full 28 days need not be served. Fixed Term Recall is not applicable for those offenders assessed as being a risk of serious harm (ROSH). Such offenders fall within the Standard Recall provisions and may, in a worst case scenario, find themselves serving the entirety of the outstanding remainder of their sentence subject to a 1st review after 3 months and annual reviews thereafter. I thought the reviews were annual but I have been reliably informed, by someone who knows an awful lot more about these matters than I do, that there is an initial review after 3 months. From the 2nd document I learnt that offenders released from custody into the community for a period of time will be bound by a number of licence conditions. There are both standard licence conditions and additional licence conditions which may be added in order to protect the public, to prevent re-offending and to secure the successful integration of the offender into the community. A licence must contain the standard licence conditions which are as follows: Be of good behaviour and not behave in a way which undermines the purpose of the licence period;

Not commit any offence;

Keep in touch with the supervising officer in accordance with the instructions

given by the supervising officer;

Receive visits from the supervising officer in accordance with the instructions

given by the supervising officer;

Reside permanently at an address approved by the supervising officer and

obtain the prior permission of the supervising officer for any stay of one or more

nights at a different address;

Not undertake work, or a particular type of work, unless it is approved by the

supervising officer, and notify the supervising officer in advance of any proposal

to undertake work or a particular type of work;

Not travel outside the United Kingdom, the Channel Islands or the Isle of Man,

except with the prior permission of your supervising officer or for the purposes of

immigration deportation or removal.

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Licences may also include additional conditions, for example, exclusion zones or non-contact restrictions, provided that these fall within one of the categories prescribed in the 2015 Order. These categories are:

Residence at a specified place;

Restriction of residency;

Making or maintaining contact with a person;

Participation in, or co-operation with, a program or set of activities;

Possession, ownership, control or inspection of specified items, or documents;

Disclosure of information;

Curfew arrangement;

Freedom of movement;

Supervision in the community by the supervising officer, or other responsible officer, or organisation The Annexes at the back of the document give examples of the various licences available which must be signed by the offender and make it clear that he will be liable to have the licence revoked and be recalled to custody upon failure to comply with any requirement. The Annexes also give examples of the various supervision documents and make it clear that if the offender fails to comply with any requirement of his supervision that he will be liable to be summonsed to appear before a court. The court may order him to be detained for up to 14 days or impose further sanctions such as unpaid work or electronic monitoring. Strangely enough, it does not mention the possibility of the imposition of a fine which would also be available to the court as a sanction. The thing that struck me about the supervision documents was that the conditions on these notices mirror the conditions on the licence documents. In other words, there is little difference, from an offenderâ&#x20AC;&#x2122;s perspective, between being subject to licence and being subject to post-sentence supervision. The important thing for lawyers to appreciate is that breach of the licence may result in recall at the discretion of the Secretary of State and a breach of the supervision will result in the offender appearing in court where the 3 powers are as follows:

Committal to prison for a period not exceeding 14 days

A fine not exceeding level 3 on the standard scale

A supervision default order comprising either unpaid work or a curfew 276

I don’t propose to say any more on the subject, do please try and get hold of the documents and have a quick read.

The Rehabilitation of Offenders Act 1974 This is not a new topic as the amendments to the Schedule at the back of the Act came into force on the 10th of March 2014. I mention it today because I still find lawyers unaware of the new Schedule that was inserted into the Act as a result of the implementation of Chapter 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. LASPO changed everything in relation to the rehabilitation periods and might I suggest that you have a look at Chapter 8. It is very short and contains the new Schedule and a lot of useful information about the new Schedule. I also found on the Internet an incredibly useful document containing guidance about the new rehabilitation periods. If you google ‘Guidance on the Rehabilitation of Offenders Act 1974 – 10th of March 2014’ I’m sure it will take you to the document. It contains a really useful Schedule setting out all of the sentences and rehabilitation periods applicable. It may surprise you to learn that the rehabilitation period for motoring offences is 5 years. Someone mentioned in passing the other day that a part of the renewal of our practising certificate form asks us to indicate whether or not we have acquired any criminal convictions. I wonder how many of us are putting our motoring convictions down on that form!!!!! The same would, of course, apply to the children applying for their university places!!!!! We don’t tend to see motoring transgressions as being convictions at all, do we!

‘2 strikes’ for knife crime offences I only mention this because I have been asked the same question a couple of times recently. As you know, the law was amended by Section 28 and Schedule 5 of the Criminal Justice and Courts Act 2015 which introduced the concept of a minimum sentence for a 2nd strike knife possession. It’s a little wider than knives because the legislation applies a minimum custodial sentence for those aged 16 and over convicted of a 2nd or subsequent offence of possession of a knife or offensive weapon contrary to Section 1 of the Prevention of Crime Act 1953 or Sections 139 and 139A of the Criminal Justice Act 1988. A previous conviction for threatening with a knife or offensive weapon contrary to Section 1A of the Prevention of Crime Act 1953 or Section 139AA of the Criminal Justice Act 1988 counts as a 1st strike (you will remember that these offences were created by LASPO and themselves carry a mandatory minimum custodial sentence unless exceptions are found – 277

incidentally, it was LASPO that introduced into the Magistrates’ Court the concept of the mandatory minimum sentence upon conviction for the 1st time. Prior to this, mandatory minimum sentences had only been available when being sentenced at the Crown Court, dwelling-house burglaries, supply of class A drugs, possession of certain firearms etc etc. The 2 important points to bear in mind are as follows:

A minimum custodial sentence can only be given on conviction of a 2nd

or subsequent offence where that offence is committed after the date of the

commencement of these provisions, i.e. 17 July 2015

The previous relevant conviction for possession of a knife or offensive weapon,

or threatening with a knife or offensive weapon, will satisfy the ‘previous

conviction’ condition for the imposition of the minimum sentence, regardless of

when that prior offence was committed.

Someone asked me recently whether all not the ‘2 strikes’ rule would still apply where the previous conviction had occurred whilst the offender was a youth. My answer was that I could see no reason why it should not apply. The legislation is quite clear. The date of the commission of the earlier offence is irrelevant and the offender may therefore have been a youth at the time.

Section 30 of The Criminal Justice and Courts Act 2015 A word or two about this Section which came into force on the 13th of April this year. Section 30 amends Section 35A of the Road Traffic Offenders Act 1988 and Section 147A of the Powers of Criminal Courts (Sentencing) Act 2000. These Sections will require a court, when sentencing an offender to immediate custody and imposing a ban to EXTEND THE DRIVING BAN to take account of the period the offender will spend in custody. There is nothing new about any of this. These provisions were inserted by the Coroners and Justice Act 2009. The purport of Section 30 is simply to clarify issues that were not clear under the Coroners and Justice Act 2009 legislation e.g. to what extent is the court to take into account the fact that the offender had been remanded in custody for a period of time and would therefore be released somewhat earlier than he or she otherwise would have been. The court is not to take this fact into account. I assume the court is not to take into account the fact that the offender might be released even earlier at the 25% point of his sentence under the discretionary Home Detention Curfew Scheme. It seems to me that the sensible course to adopt when sentencing an offender to a term of custody and at the same time ordering a period of disqualification is to extend the disqualification by half of the period of the custodial sentence. 278

As you know, an offender subject to a determinate sentence will serve half of the sentence and be released at the half-way point subject to licence for the remaining half. Therefore, where the court imposes a custodial sentence of 8 months imprisonment and also disqualifies the offender from driving for a period, it is entitled to take into account that the 1st 4 months of any disqualification may be meaningless as the offender will, most likely, be incarcerated (he may not, he may be released immediately or even earlier because of time spent on remand or at the discretion of the governor on Home Detention Curfew but these are not matters to influence the length of the ban). In circumstances where the court felt that the appropriate period of disqualification was 6 months they would therefore be entitled to make that disqualification 10 months. That’s my understanding of what Section 30 is all about.

Arrested Juveniles As you probably know, the current trend in legislation is to regard 17-year-olds as children rather than adults. Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 a ‘child’ for remand purposes is defined as someone below the age of 18. Continuing this trend is the Criminal Justice and Courts Act 2015 Section 42. This Section came into force on the 26th of October 2015, and amended Section 37 (15) of the Police and Criminal Evidence Act 1984, which defines an ‘arrested juvenile’ held for the purposes of Part 4 of that Act (detention). The long and the short of this is that a 17-year-old who is no longer granted bail after charge is to be treated in precisely the same manner as would a person aged 1016. The police will be required to transfer them to local authority accommodation rather than keeping them in custody overnight – see Section 38 (6) of PACE, unless a Custody Officer certifies that to transfer them to local authority would be impracticable. I recall reading some Home Office guidance many years ago to the effect that ‘impracticable’ was defined as impracticable because of conditions out of the control of the police, i.e. it’s a snowstorm out there and it is therefore impracticable to transfer them to a place other than the police station. There is a requirement under Section 38 (6) (a) to complete a certificate by way of explanation of their continued detention overnight at the police station. My understanding is that transfer to the local authority accommodation should be the norm, even if that is local authority non-secure accommodation. If accommodation is available then he or she should be accommodated by the local authority. If the officer takes the view that the particular person poses a risk of serious harm to the public then the officer is entitled to ask whether or not a secure placement can be found by

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the local authority and, in the absence of a secure place being found, the young person can be detained overnight at the police station but not in a cell unless absolutely unavoidable and never in a cell with adult detainees. That was always my understanding of the position and I don’t think it has changed although I haven’t been called upon to check it for many a year. It was always my experience that young people were detained in police custody overnight for the lack of any suitable accommodation being available by the local authority. I was never convinced of the correctness of the detention. The Section also affects Section 39 (4) of PACE so that the custody officer’s responsibility to arrested 17-year-olds (would always have applied to those10-16) would cease when they were moved to local authority accommodation.

Sentencing Guidelines – Theft Offences The Sentencing Council has published a new Definitive Guideline that will take effect from the 1st of February 2016. For the first time the Courts will have comprehensive guidance to help them to sentence the great variety of offending and offenders that come before them. The Guideline 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 form 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 are stolen. I am sure that these Guidelines will prove very useful in Court and reference to them will become a common occurrence for those sentenced on or after the 1st of February 2016.

Case-Law We have just had a recent case in the area of ‘parasitic accessory liability’ with disastrous consequences for the defendant concerned. The case is that of Kyrone Daley [2015] EWCA Crim 1515.

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The Court, saying this at Paragraph 70 of the judgement:

‘..........the evidence showed that this appellant lent himself to a criminal

enterprise knowing that a potentially murderous weapon was to be carried,

foresaw it might be used with intent to kill or cause grievous bodily harm and,

far from disassociating himself, stayed with the gunman, even as the gunman

became angrier and angrier, and encouraged the gunman in possession of

the gun. He was involved in a gangland execution. The consequences for those

who become involved in this kind of event are severe. As young as this

appellant was, we are satisfied that there is no arguable basis for concluding

that the sentence imposed upon him of custody for life with a minimum term

of 22 years was in any way excessive. Therefore the application for leave to

appeal against sentence is also refused.’

N.B. the appellant was 19 years of age at the time of the incident and 21 at the point of appeal. We don’t get many cases in relation to voice recognition but we had one recently with the case of Regina v Alick Kapikanya [2015] EWCA Crim 1507. Well worth the read. The Court of Appeal held that the Judge was entitled to allow the jury to rely on an audio recording which was used in evidence by a co-defendant and leave it to their determination as to whether or not it was the appellant’s voice on the recording. Of significance was the fact that the quality was good and there was no delay between the jury hearing the co-defendant give evidence and subsequently hearing the recording. Obviously, the Judge must warn the jury of the need for care and must do so emphatically – see Paragraph 65 of the judgement. An interesting, recent bad character case is that of The Crown and Sullivan [2015] EWCA Crim 1565, which looked at the relationship between Section 98 of the Criminal Justice Act 2003 and Section 101 (1) (d) of the same Act. As you know, Section 98 does not require any leave because the Section merely preserves 2 old common law exceptions whereby the evidence was always admissible if it had to do with the alleged facts of the offence or was evidence to do with misconduct during the investigation. Leave is required under Section 101 (1) (d), this being one of the gateways for the admission of bad character where the argument is that the bad character is necessary because it goes to ‘an important matter in issue between the prosecution and the defence during the trial’. It was all about text messages and the Court of Appeal held that this evidence fell within Section 101 (1) (d) and required a careful direction as to how to deal with the text messages. There should have been a bad character direction encompassing a number of elements. The Court of Appeal was of the view that the failure to give a bad character direction rendered the conviction unsafe and the conviction had to be quashed. 281

Chapter 12 CrimeScribe Edition No. 52

Duty Provider and Own Client Contracts Hello and welcome to this month’s edition of CrimeScribe. You will all have read by now that the timetable for the new Contracts has changed. The initial starting date of the Own Client and Duty Provider Contracts was the 11th of January 2016 but this has been put back to the 1st of April 2016 (how they like April Fools’ Day – it’s a favourite date for the commencement of Statutory Instruments) with a ‘backstop’ date of the 10th of January 2017 for the contingency extension ‘in the unlikely event that a further delay is required’; that last bit was a quote! 519 out of 520 successful bidders have indicated their intention to accept the new Contracts. Automatic injunctions exist against proceeding with the new Contracts in those Procurement Areas which are the subject of legal challenge. The fixed fee (National and London) scheme for Police Stations and the new scheme for Magistrates’ Court work which were to have come into effect under the new Contracts in January are now not to come into effect until April 2016 at the earliest. Nothing was said about the amendments for the payment of Crown Court work but I suspect that that was merely an oversight and that nothing will now come in as regards amendments to the payment for legal aid work until we have a new Statutory Instrument published. The current Statutory Instrument, which proposed all of these amendments with effect from January of next year, is No. 1369 of 2015. The above Statutory Instrument, as you know, had 2 significant dates in it; 1st of July 2015 (amendments already in force) and the 11th of January 2016 (the new proposals in the new Contracts). It is not possible in law to amend a Statutory Instrument and so a new one will have to be published. Watch this space......., as and when it is published I shall give you the full details in CrimeScribe. Our 2010 Standard Crime Contracts have been extended yet again and the new expiry date, I believe, is the 30th of March 2016. New Duty Solicitor Rotas will need to be published (will have been published by the time you read this) up until that date. I am given to understand that the slots will be allocated according to existing numbers on the existing Rotas. Where will it all end............., I could go on but do not propose to. I have given up second-guessing them. 282

The Criminal Courts Charge I propose to say very little about this in this month’s edition. I wonder how successful you have been in seeking to persuade your local Magistrates’/District Judges to dispose of the charge by way of a day’s detention in default under Section 135 of the Magistrates’ Courts Act 1980. The only thing I want to add is that the Lord Chief Justice himself has added to the chorus of criticism against the Charge by saying that it has not gone correctly and needs to be reviewed as soon as possible. I suspect that we shall be hearing something about amendments to this Charge sooner rather than later. Introducing a discretion element as to whether or not the charge should be imposed would be a very good start!

The Billing of Crown Court work On the basis that not a great deal has happened this month in terms of new Statutory Instruments, new legislation or new case-law of any real concern I thought I would spend some time in relation to the forms required when billing Crown Court legal aid work. I have spent a fair bit of time this week looking at the various forms for the billing of Crown Court work (litigators and advocates) and trying to work out which form is to be used for which set of circumstances. Due apologies to those of you who are doing this on a daily basis and for whom the completion of these forms is just second nature.

Litigator forms LF1 Online (version 2 – April 2013) The Online form that needs to be completed in some areas of the country (but not all) when claiming the litigator fee under the LGFS scheme. I’m informed that at the moment the LAA will require not only that this form be completed online but that a hard copy be sent in the post to them as well together with the usual documents that they require sight of e.g., a copy of the indictment, a copy of the rep order, a copy of the LAC1 (if applicable), copies of any prior authority etc, etc.

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LF1 – (version 10 – April 2013) The Form that needs to be completed for all Litigator Graduated Fee Scheme Graduated Fees. A hard copy sent in the post to the LAA together with copies of supporting documents referred to above and listed on the Form in Section 8 NB – the above Forms are to be used when claiming a Graduated Fee, i.e. a fee based upon a page count which will vary in a graduated sense dependent upon the amount of PPE in the case. You will be claiming a graduated fee for a guilty plea, a cracked trial or a trial. The matter will be ‘a matter on indictment’ and will arrive at the Crown Court by having been ‘sent’ under Section 51 of the Crime and Disorder Act 1998. It will have been ‘sent’ because it is purely indictable e.g. rape or grievous bodily harm with intent or it will have been ‘sent’ because it is triable either way and either jurisdiction was declined by the Magistrates’/District Judge or the defendant himself elected. You will all appreciate the importance of obtaining the LAC1 form where jurisdiction has been declined. In such circumstances the fee payable is always a graduated fee dependent upon the page count. Where the defendant himself has elected trial by jury on an offence triable either way you may be claiming a graduated fee based upon a page count or a fixed fee. The graduated fee is always claimable where the matter goes to trial at the Crown Court or where the Crown offers no evidence on all of the counts on the indictment and the Judge directs a not guilty verdict and your rep order is dated on or after the 2nd of October 2014. If your rep order is dated prior to the 2nd of October 2014 and the case cracks because the Crown offers no evidence then a fixed fee is payable and not a graduated one. A graduated fee is always payable if the matter goes to trial, regardless of the date of the representation order. A fixed fee is always payable where the defendant elects and then pleads guilty at the Crown Court, regardless of the date of the representation order. LF1 Fixed Fees – (version 2 April 2013) This form is to be used when claiming a fixed, as opposed to a graduated, fee under the Litigator Graduated Fee Scheme. The fee will be a fixed one because the matter has not arrived at the Crown Court by way of being ‘sent’. The matter will have arrived at the Crown Court. In the following circumstances:

Appeal against sentence from a Magistrates’ Court

Appeal against conviction from a Magistrates’ court

Committal for sentence

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Contempt proceedings

Alleged breach of Crown Court Order

The above 4 are listed in Section 4 – Fixed Fees. Further examples of Fixed Fees claimable on the form are listed for you in Section 5. Remember that appeals and committals for sentence are not to be treated as ‘matters on indictment’ and can therefore never be the subject of a graduated fee based upon a page count because they can never be ‘sent’. The fixed fee payable will be entirely dependent upon the date of your representation order. For representation orders dated on or after the 1st of July 2015 the relevant fixed fees are contained in Statutory Instrument 2015 No. 1369 (our fees having been reduced by 8.75%) The fixed fees payable for representation orders granted on or after the 20th of March 2014 but prior to the 1st of July 2015 are contained in Statutory Instrument 2014 No. 415 (our fees having been reduced by 8.75%) The fixed fees payable for representation orders granted on or after the 3rd of October 2011 but prior to the 20th of March 2014 are contained in Statutory Instrument 2011 No.2065. If you have anything that needs billing on a rep order prior to the 3rd of October 2011 there is yet a different Statutory Instrument but it does beg the question of where that file has been all of these years!! Did it fall behind the cabinet and gather dust. LF 1 Special Preparation (version 2 – April 2013) The Form really speaks for itself. You may be making an additional claim for special preparation in addition to your PPE claim on the LF1 because you have a page count in excess of 10,000. Remember that all of the Tables in the amended Funding Orders are capped at 10,000 PPE and that anything in addition to 10,000 pages is to be claimed at hourly rates as special prep. Special preparation may also be claimed where the evidence is served upon you in a non-PPE format, i.e. on disc. You may make a claim for special preparation at hourly rates. It will probably be far more advantageous to put forward an argument that you should be paid as PPE even though the evidence has been served upon you in a non-paper format. There are many cases in this area and you will need to be familiar with them. One of the cases most often quoted in this area is Regina v Napper SCCO Ref: 160/14 – Dated: 4th of September 2014.

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You should also be familiar with the latest Legal Aid Agency Crown Court Fee Guidance document published in August 2015 and available from the Legal Aid Agency website. Special preparation for advocates is dealt with at Paragraph 2.18 and for litigators at Paragraph 3.20. I can tell you now that any claim at so many minutes per page is likely to receive short shrift! They want a work log from you and you should be keeping a thorough record of the work that you are doing in relation to these pages above 10,000 and doing it on a contemporaneous basis. There is an example of a work log in the Guidance Document at appendix E. When claiming special preparation as litigator they have retained the different grades of fee earner – A, B and C. The hourly rates claimable will depend upon the date of your rep order. All of the hourly rates are set out in those Statutory Instruments referred to above. The hourly rate for many years for a Grade A solicitor (8 years admission or more) was £53. It is now (for rep orders on or after the 1st of July 2015) £43.73p per hour or £45.99p per hour for a free earner whose office is situated within the city of London or London Borough – see Article 7 of Statutory Instrument 2015 No. 1369. LF1 Interim (version 2 – April 2013) The form to be completed for all interim disbursement claims incurred under the litigator graduated fee scheme. If you have incurred any disbursements in respect of confiscation proceedings, you should apply to the National Taxing Team for remuneration. This form may well be useful where you have incurred quite expensive disbursements prior to the conclusion of the proceedings and you know that those proceedings are likely to take some time before they reach a conclusion. 5144 – Referred to by practitioners as The Yellow Corner Form because it has a yellow triangle in the top right-hand corner Upon completion of this form it is to be sent to the National Taxing Team and not the Legal Aid Agency It is a very misleading form because it has been overtaken by events and none of the boxes on the form (tick as appropriate) are relevant!

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The only box you would ever tick is at the bottom of them all – ‘other (specify)’ – you will specify confiscation proceedings and this is your claim form for all of the work you have done as a solicitor payable at hourly rates on an ex-post-facto basis. Hourly rates have been retained, as you well know, for this area of work as well as for special preparation. It is a wonderful form and you will often find that your claim for the confiscation part of the proceedings is a good deal healthier than your litigator claim for the substantive offence. In addition to the form the National Taxing Team will require you to sign another form which is a Declaration concerning your claim. You will find the Declaration claim form together with form 5144 on the NTT website. The hourly rates claimable are the same hourly rates as for Special Prep. See the earlier Statutory Instruments referred to for the amounts claimable. Uplifts are available on confiscation work but, like all uplifts, you must make out your case as to why an uplift on a particular item of work should be paid. Uplifts are available for Confiscation but they are not available for Special Preparation – see the case of R v Brandon.

Advocates forms AF1 (version 9 – May 2015) Much as with the LF1 form for litigators the AF1 is the standard form for claims by the advocate of graduated fees. Is to be completed and returned to the Legal Aid Agency. The advocate will be claiming a graduated fee because the matter is a matter on indictment, having been ‘sent’ to the Crown Court from the Magistrates’ Court because the offence is purely indictable or having been ‘sent’ because the offence is triable either way and either jurisdiction has been declined or the defendant has elected jury trial. The advocate and the litigator are in a similar position, as far as fees are concerned, where an election has taken place. We dealt with this earlier with litigators. Where the defendant elects and there is a trial at the Crown Court, then both the litigator and the advocate may claim a graduated fee. Where the defendant elects and pleads guilty at the Crown Court both the litigator and the advocate must claim a fixed fee and no graduated fee is payable. The fixed fee payable to the litigator is set out in Statutory Instrument 2015 No. 1369 (for representation orders granted on or after the 1st of July 2015) and currently stands at £298.65p plus VAT. The fixed fee for the advocate is set out in Statutory Instrument 2013 No. 435 and is currently £194 plus VAT.

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The position changed in relation to those defendants who elected trial by jury and then the Crown offered no evidence on all of the counts at the Crown Court and the Judge directed not guilty verdicts – in these circumstances where the representation order is on or after the 2nd of October 2014 then both the litigator and the advocate may claim a graduated fee based on a page count. Where, however, the representation order is granted prior to the 2nd of October 2014 and the defendant elects and the case cracks then both the litigator and the advocate may only claim the fixed fee referred to above. A word or 2 about the very important Statutory instrument 2013 number 435. I sometimes receive emails asking me about the rates of pay for advocates. The above Statutory Instrument contains all of the rates of pay for Advocates and, in so far as those Advocates rates are concerned, they are trustworthy. They are not trustworthy in relation to all of the rates quoted in the same document for litigators. This is because, as you well know, the litigator rates have been reduced twice since 2013. They were reduced by 8.75% for representation orders on or after the 20th of March 2014 and have been reduced by a further 8.75% for representation orders on or after the 1st of July 2015. The Advocates rates have not been reduced. The Advocates rates go back to 2012 and hence the 2013 document is entirely accurate. The Advocates form is a very useful one in that it is to be used not only when claiming a graduated fee based upon trial length and PPE but can also be used where the advocate is claiming a fixed fee (see Section 4) or a miscellaneous one-off fee because of a particular type of hearing or confiscation hearings (see Section 5) 5145 Advocate’s claim for fees – Referred to by practitioners as the Red Corner Form because it has a red oblong box in the top right-hand corner of it. Upon completion this form is to be returned to the National Taxing Team and not the Legal Aid Agency This is a claim for a discretionary fee by the advocate above and beyond that which would normally be claimed in the matter. The discretionary fee is being claimed because the advocate has undertaken far more work than would be expected of a normal case concerning e.g., a committal for sentence. The fixed fee for the advocate for a normal committal for sentence case is £130. As mentioned earlier, all of these fees are to be found in Statutory Instrument 2013 No. 435. I’m sure you would agree that £130 is not a princely sum if the matter is not dealt with on the one occasion and has to be adjourned to another date. A good example of a claim on a red corner form might be the following:

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The defendant pleads guilty in the Magistrates’ Court and is committed for sentence. The litigator receives the Category 1 lower standard fee for the Magistrates’ Court work and the committal for sentence fee for the Crown Court work. At the Crown Court the Judge decides that he wants a Newton Hearing because of the disparity between the way the Crown are putting their case and the mitigation, as forwarded by defence counsel. There is no mechanism for payment of any further sum for the litigator because this is not ‘a matter on indictment’, i.e. it is a committal for sentence and the fee for the litigator is the committal for sentence fee. The advocate might become involved in a very lengthy hearing at the Crown Court analogous to a trial. It would be quite wrong for the advocate to be limited to the fee of £130 and therefore a claim in these circumstances would be made using the red corner form.

CPD REGIMES We have just embarked upon a new CPD year which runs from the 1 November 2015 to 31 October 2016. Remember that for this current CPD year you have a choice. You can stay with the old system and acquire your 16 CPD points if you are a solicitor or opt into the new Competency Regime as outlined by the SRA. The Competency Regime option has been voluntary since 1 April this year. The Competency Regime will require you to have a Development Plan for the CPD year and to record what you did during the year, why you did it and what you learned from it, effectively a Competency Statement. The new regime requires you to identify your own learning/ development needs for the 12 months and to plan accordingly how best those development needs can be met. They may well be met by listening to podcasts or viewing webinars or attending courses (public or otherwise) or doing legal research in a particular area. Anything effectively which will make you a better lawyer rather than merely attending a CPD course in late October that might be of little or no relevance to your development. With effect from the 1 November 2016 there will only be the Competency Regime and CPD, as we know it, will be abolished. My understanding is that barristers still currently require 12 CPD points. No doubt barristers will keep an eye on any Bar Standards Board developments in this area.

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Case-law Not much case-law of any real interest this month but the notable exception was the case of Regina and FNC [2015] EWCA Crim 1732, which was illustrative of many facets of English law. The case was a very simple one on its facts (which are not particularly pleasant, it must be said). In 2003 the complainant was travelling to work on a crowded tube train. She felt a man bumping into her from behind, making contact several times with the right side of her bottom. The complainant then felt a warm sensation through her trousers. Whilst she was trying to work out what had happened the train stopped and the man got out. She noticed that he was white with brown hair. It became clear to her that the person had masturbated over or against her, ejaculating his semen onto her. She got off the train and went to work. Her colleagues at work said she should report it to the police which she did the following day. She handed her trousers to the police. Tests revealed two stains. Microscopic examination of the portion of the material extracted from one of the stains confirmed the presence of semen. DNA profiling tests were carried out. No match was then found on the database, but the profile was retained. Over 10 years later, in March 2014, the defendant, a man of Middle Eastern origin with what is described as an ‘olive skin’ appearance, was arrested on an unrelated matter. His DNA profile was taken. This was matched against the DNA database. The DNA profile obtained from the trousers matched that of the defendant. The forensic scientist expressed the view that the chance of obtaining the matching DNA profile of the semen originating from another unrelated male was in the order of one in 1 billion. The finding of the semen on the back of the complainant’s trousers was consistent with the defending ejaculating onto the complainant’s trousers as alleged. The evidence on which the prosecution was going to rely was the account of the complainant, the evidence in relation to the DNA match and the interview of the defendant. The prosecution had not produced any evidence as to when the defendant had entered the UK, where he was living in 2003, what his employment was at the time and whether he had any brothers in the UK. Before any evidence was given, submission was made on behalf the defendant that, in the light of the decisions of this Court in R v Lashley, transcript, 8th of February 2000, R v Grant [2008] EWCA Crim 1890, and R v Ogden [2013] EWCA Crim 1294, the evidence of DNA in all the circumstances was not sufficient to give rise to a case to answer. 290

Was the Recorder correct in hearing the submission at the start of the case? The Court of Appeal took the view that the Recorder was wrong to have entertained the submission and that the Courts power to rule on a submission of no case to answer arises only at the end of the prosecution case and there are very limited exceptions to this. It should only be done in a case before the evidence is called where the facts are agreed or assumed and it is common ground between the parties that it would be helpful for the Judge to rule. It appears to have been agreed that the Recorder could so rule, on the erroneous basis that the whole of the prosecution evidence was agreed or was known with certainty. Both the prosecution and the Recorder had overlooked the potential applicability of Section 34 of the Criminal Justice and Public Order Act 1994 – adverse inferences being drawn in order to find a case to answer where specific questions had been put to the suspect in interview and to which he had decided to go ‘no comment’. The Recorder ruled that there was insufficient evidence to go before the jury and the Crown appealed this ruling to the Court of Appeal as a Terminating Ruling under Section 58 of the Criminal Justice Act 2003. As you know, the Crown were given this new avenue of appeal to the Court of Appeal against the rulings of Crown Court Judges which effectively destroyed the Crown’s case in order to have the Court of Appeal rule on the matter. The Court of Appeal saying this in their conclusion at Paragraph 27 of the judgement:

‘It is clear from the decision in Sampson and Kelly and the approach of Lord

Bingham CJ in Adams (No. 2) that where DNA is directly deposited in the course

of the commission of a crime by the offender, a very high DNA match with the

defendant is sufficient to raise a case for the defendant to answer. There is a

clear distinction as the authorities stand, between such a case and cases such

as Lashley where the DNA was deposited on an article left at the scene’

And furthermore at Paragraph 28:

‘In the present case, there can be no doubt that the DNA was deposited in the

course of the commission of the offence by the person who committed the

offence. As the match with the defendant was one in 1 billion, there was

accordingly a very strong case against the defendant and plainly a case

for him to answer that the DNA deposited on the trousers was his. The

decision of the Recorder was wrong in law, the appeal must be allowed

and a trial take place in the Crown Court before a Circuit Judge.’

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Statutory Instruments Statutory Instrument 2015 No.1809 is The Serious Crime Act 2015 (Commencement No. 3) Regulations 2015 which brought into force on 31 October 2015 Sections 74 and 75 of the 2015 Act, which insert new Sections 5B and C into the Female Genital Mutilation Act 2003 to create a duty to notify the police of female genital mutilation in England and Wales. Section 79 of the Act was brought into force on 10 November and inserts a new Section 40 CB into the Prison Act 1952, making it a criminal offence for a person, without authorisation, to throw any article or substance into a prison. The reference to ‘throwing’ includes doing anything from outside the prison that results in the article or substance being projected or conveyed over or through a boundary of the prison so as to land inside the prison. The offence would not apply where it is already an offence for a person, without authorisation, to convey list A, B or C. articles into a prison (which includes throwing them into prison) under Sections 40A to 40C of the Prison Act 1952. Articles or substances that may be caught by the new offence would include new psychoactive substances not already controlled under the Misuse of Drugs Act 1971 and other non-controlled drugs frequently abused by prisoners. The maximum penalty on summary conviction of the offence will be 6 months imprisonment. The maximum penalty on conviction on indictment is 2 years imprisonment. A new Section 40CB (3) provides for a defence were the accused individual reasonably believes that he or she had authorisation to throw the article or substance into prison, or that there was an overriding public interest which justified the act...... good luck with that one before the Magistrates’!!!!!!

Sentencing Guidelines Available to view on the Sentencing Council website are the new Sentencing Guidelines issued by the Sentencing Council in relation to ‘Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences The Guidelines will be operative for anyone aged 18 or over who is being sentenced on or after 1 February 2016, regardless of the commission date of the offence.

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