Crime Scribe Yearbook 2018 by The Solicitors Group

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Contents...

CrimeScribe Foreword ................................................................................................. 8

Crown Court............................................................................................................................ 89

Long term detention.............................................................................................................. 90

CrimeScribe Edition No. 66........................................................................................ 14

Dangerous offenders............................................................................................................. 91

CASE-LAW................................................................................................................................ 14

Detention at Her Majesty’s pleasure.................................................................................... 91

Reforming the Advocates Graduated Fee Scheme......................................................... 18

The Legal Aid Agency............................................................................................................ 91

The Sentencing Council......................................................................................................... 18

CASE-LAW................................................................................................................................ 92

Gang Injunctions.................................................................................................................... 22

Special measures.................................................................................................................... 25

Breach of injunctions.............................................................................................................. 26

Supervision Orders.................................................................................................................. 26

Electronic monitoring............................................................................................................. 26

Detention Orders.................................................................................................................... 27

Appealing an injunction........................................................................................................ 27

Legal aid.................................................................................................................................. 27

50 useful things for Criminal Practitioners to know – January 2017................................... 28

CASE-LAW................................................................................................................................ 99

The Policing and Crime Act 2017.......................................................................................... 50

Scenario 1................................................................................................................................ 56

Scenario 2................................................................................................................................ 57

Scenario 3................................................................................................................................ 57

Using a hand-held mobile phone whilst driving.................................................................. 58

The Sentencing Council......................................................................................................... 59

Home Office circulars............................................................................................................ 108

CrimeScribe Edition No. 71........................................................................................ 110

CASE-LAW................................................................................................................................ 110

CrimeScribe Edition No. 72........................................................................................ 124

CrimeScribe Edition No. 67........................................................................................ 50

CrimeScribe Edition No. 70........................................................................................ 96

Legislation................................................................................................................................ 96

Statutory Instruments.............................................................................................................. 124

CASE-LAW................................................................................................................................ 126 Sentencing.............................................................................................................................. 133

CrimeScribe Edition No. 73........................................................................................ 134

CASE-LAW................................................................................................................................ 134

CrimeScribe Edition No. 74........................................................................................ 148

CASE-LAW................................................................................................................................ 59

Digital forms for claiming....................................................................................................... 148

Guide to the Court of Appeal.............................................................................................. 150

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

Finance.................................................................................................................................... 150

CrimeScribe Edition No. 68........................................................................................ 66

Sentencing Council................................................................................................................ 66

More than one summary offence........................................................................................ 69

F – Exceptions.......................................................................................................................... 69

Newton Hearings and Special Reasons Hearings............................................................... 71

Mandatory life sentences for murder................................................................................... 72

Determining the level of reduction...................................................................................... 73

Statutory Instruments.............................................................................................................. 73

Magistrates’ Courts sentencing guidelines.......................................................................... 76

CASE-LAW................................................................................................................................ 76 Legislation................................................................................................................................ 77

CrimeScribe Edition No. 69........................................................................................ 78

Sentencing Council................................................................................................................ 78

Guilty plea section only......................................................................................................... 78

Referral orders......................................................................................................................... 79

Minimum sentence under Section 51A of the Firearms Act 1968..................................... 80

Sentencing principles............................................................................................................. 80

Grave crimes........................................................................................................................... 82

Charged alongside an adult................................................................................................ 83

Parental responsibilities.......................................................................................................... 83

Determining the sentence.................................................................................................... 84

Crossing a significant age threshold between commission of offence and sentence. 84

Persistent offenders................................................................................................................. 85

Conditional discharges.......................................................................................................... 86

Referral orders......................................................................................................................... 87

Youth rehabilitation orders (YRO).......................................................................................... 88

Custodial sentences............................................................................................................... 88

Youth Court............................................................................................................................. 89

Time Limits................................................................................................................................ 153

Transcript and notes of evidence......................................................................................... 153

Perfection of Grounds of appeal......................................................................................... 154

Respondents notice............................................................................................................... 154

Referral by the Registrar......................................................................................................... 155

Oral applications for leave to appeal................................................................................. 155

Powers of the single Judge................................................................................................... 156

Bail pending appeal.............................................................................................................. 156

Funding for grant of leave or reference to full Court......................................................... 157

Refusal by the single Judge.................................................................................................. 157

Directions for loss of time....................................................................................................... 158

Case Management Duties.................................................................................................... 159

Statutory instruments.............................................................................................................. 160

10 CrimeScribe Edition No. 75........................................................................................ 168

Guilty Plea............................................................................................................................... 181

Cracked Trials.......................................................................................................................... 181

Trials.......................................................................................................................................... 182

Advising the suspect at the police station – 100 issues – October 2017.......................... 183

Answers to 100 Questions – October 2017........................................................................... 193

Regina v Hamer [2010] WLR (D) 235..................................................................................... 212

11 CrimeScribe Edition No. 76........................................................................................ 214

Fines.......................................................................................................................................... 87

Procedure in relation to particular grounds of appeal...................................................... 151

CASE-LAW................................................................................................................................ 161

Remittal from the Crown Court for sentence...................................................................... 83

Form NG and grounds of appeal......................................................................................... 150

Abandonment........................................................................................................................ 159

Dangerousness........................................................................................................................ 81

CASE – LAW............................................................................................................................. 214

Statutory Instruments.............................................................................................................. 227

12 CrimeScribe Edition No. 77........................................................................................ 230

CASE-LAW................................................................................................................................ 230

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Foreword CrimeScribe Summary

Hello and welcome to this forward to the 2017 editions of CrimeScribe covering editions 66 – 77. CrimeScribe is a monthly digest of all matters of importance to criminal practitioners. Statutory Instruments, Legislation, Guidance from the Sentencing Council, Case-Law, Directives and anything else of relevance within a given month will be included in the content. Sometimes a particular edition is given over to an extremely important document such as changes to legal aid. Reading CrimeScribe is an easy way of keeping up to date with all that is happening and will save you the bother of having to trawl through various websites when you most probably don’t have the time to do it anyway! Remember that under the new regime all lawyers need to ask themselves how they can develop and become better lawyers within a given 12 month period. Keeping up to date with everything must surely be an important part of that. Edition number 66 contained, amongst other things, a paper entitled ‘50 useful things for Criminal Practitioners to know – January 2017 – this document was effectively a summary of important things that had occurred in 2016 Edition number 67 dealt, in large measure, with the Policing and Crime Act 2017 and the amendments to pre-charge bail that were brought into force on the 3rd April 2017 – I don’t think the legislation has had the desired effect in that the vast majority of suspects are now being released pending further enquiries/investigation without being on bail at all! Edition number 68 gave a comprehensive review of the new ‘Reduction in Sentence for a Guilty Plea’ document published by the Sentencing Council and operative from the 1st June 2017 – an absolute ‘must read’ for all lawyers appearing in Court – this document replaced the 2007 guidance Edition number 69 dealt with another document published by the Sentencing Council – ‘Sentencing Children and Young People – Overarching Principles and

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Offence Specific Guidelines for Sexual Offences and Robbery – Definitive Guideline’ and operative from the 1st June 2017 – this document replaced the earlier ‘Overarching Principles – The Sentencing of Youths’ document Edition number 70 dealt with further sections of the Policing and Crime Act 2017 which came into force on the 3rd April 2017 and also some very interesting caselaw including the case of Hudson on the issue of whether or not a particular building was a ‘dwelling’ under the Theft Act – you may have missed the fact that in certain circumstances breach of bail conditions is now a criminal offence carrying 12 months imprisonment! Edition number 71 dealt with, amongst other things, the important case of Hassani and guidance as to how a case should be firmly managed under the Criminal Procedure Rules once a ‘not guilty’ plea has been entered – we all know that the twin objects of case management are to obviate the need for witnesses to be called to give live oral testimony and for the parties to get together and agree what the precise trial issues are and, again with precision, what the challenges to the evidence amount to Edition number 72 contained the 2017 amendments (No. 3) to the Criminal Procedure Rules 2015 and some interesting case-law concerning ‘presumption and determination of age’ – I also included a checklist of ‘20 points for consideration for any lawyer dealing with a child or young person’ Edition number 73 contained the very important case of Maxwell and an examination of all of the sentencing errors that had occurred within it. This analysis is well worth reading and highlights the pitfalls for Crown Court Advocates when dealing with complex sentencing cases – it is accepted by all that sentencing is unnecessarily complex and a large scale review is to be carried out Edition number 74 was an analysis of that very important document published by Her Majesty’s Courts and Tribunal Service and entitled ‘Guide to commencing proceedings in the Court of Appeal (Criminal Division) – I have given you the ‘distilled essence’ of the document Edition number 75 dealt with Statutory Instrument 2017 No.1019 – The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2017 – this, as you know, reduced the PPE from 10,000 to 6,000 for (effectively) Representation Orders dated on or after the 1st December 2017 – I analysed the current position in ‘40 easily digestible bullet points!’ 10

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Edition number 76 dealt with a number of very interesting cases including the case of Ivey and Genting Casinos and the Supreme Court’s decision that the dishonesty test in Gosh does not represent the true position – dishonesty is to be judged on a purely objective basis – also the very important case of Ray and the extent to which a householder may use disproportionate force when faced with an intruder Edition number 77 (the final edition of the year) considered the case of Dean Malcolm Lewis and James Marshall-Gunn and the issue of Terminating Rulings under Section 58 of the Criminal Justice Act 2003 – these Terminating Rulings have cropped up in cases throughout 2017 – also of interest in 2017 were the number of cases referred to the Court of Appeal by the Attorney General for consideration that the sentence imposed by the Crown Court Judge was unduly lenient – the ‘rule of thumb’ seems to be that if the Attorney General is successful then expect the sentence to be doubled! – It is not an absolute rule but it was a theme running throughout the cases in 2017.The December edition also made reference to the cases in the Crown Court that are susceptible to challenge by way of Case-Stated and Judicial Review in the High Court and those that are not – Sections 28 and 29 of the Senior Courts Act 1981 are very important in this area As you can tell from the above, CrimeScribe is pretty comprehensive. If something of importance happened within any given month the chances are it found its way into either that month’s edition of Crimescribe or the following one. If you’re not already a reader that I hope this summary has whetted your appetite for the 2018 editions!

Section 1 CrimeScribe Edition No. 66

Hello and welcome to this monthâ&#x20AC;&#x2122;s edition of CrimeScribe. It is, as you know, a review of everything of significance for criminal lawyers that has happened in the month. The bad news is that very little of any significance for criminal lawyers happened in December 2016. It was very quiet on the legislation front and there was very little relevant case-law. I have therefore compiled a list of 50 things for Criminal Practitioners to know/at least be aware of in January 2017 and the document forms the bulk of the material for this monthâ&#x20AC;&#x2122;s edition. I have, in addition, written a paper in relation to Gang injunctions (and the breach of such injunctions) in the Youth Court. I have been meaning to do this for some time. This may be sprung upon you when you are acting as the Court Duty Solicitor!

CASE-LAW In the unreported case of R v JS (8th of December 2016) the Court of Appeal had to wrestle with the appropriate amount of credit applicable for a guilty plea which was entered after the commencement of the trial. They made the obvious point that the Sentencing Guidelines on the issue of reduction in sentence for a guilty plea (last published in April 2007 but we are due a new set of guidelines very shortly) do not distinguish, so far as the amount of any credit is concerned, between a plea which is entered at the door of the Court and the plea entered after the trial has begun. In each of those two cases the recommendation is for a reduction of 10%. It may well be that something in the region of 10% is appropriate but sentencing Judges should not feel constrained by this guideline to give 10% credit for a guilty plea entered after the commencement of the trial in all circumstances. The matter, as with all things, is an exercise in judgement. To what extent have the witnesses been spared the ordeal of actually having to give evidence by the late plea? To what extent have time and costs been saved by the late plea? How strong is the case against the defendant at the stage of the late plea?

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One can well imagine that a late plea which avoids non-professional witnesses (and children in particular) having to give evidence would probably attract more credit than a late plea which avoided professionals having to give evidence. In this particular case, although there appears to have been a strong case against the appellant, in view of the partial admissions in the telephone call to his natural daughter to which we have referred, the appellant did, by his plea, save at least some prosecution witnesses from what would have been an ordeal for them, in particular, the appellant’s wife. Moreover, several days of Court time were saved. In these circumstances, we accepted the submission that some credit was appropriate to be given although it is not a case where we would consider that 10% or anything like that is appropriate. They said that the appropriate custodial term would have been in the region of 22 years after the trial and allowed for one year’s credit for the appellant’s late plea. R v Rashid [2017] EWCA Crim 2 A long but interesting read in relation to the correct usage of an intermediary for the defendant during the trial. There were also arguments as to whether or not the police station interviews should have been rightfully admitted in evidence bearing in mind the lack of an Appropriate Adult. The defendant did have legal advice during part of the interview process. The Solicitor didn’t raise the point of an Appropriate Adult and I am not in any way critical of the Solicitor. He was not alerted in anything he saw or heard for the need for an Appropriate Adult. The Custody Sgt saw no signs of mental vulnerability. He was examined by the doctor who also saw no signs of mental vulnerability. Part of the reason why the judgement is an interesting read are the various experts opinion on the defendant’s IQ. One expert assesses the IQ level initially at 55. This would surely have classified him as having significant learning difficulties and yet he had achieved a number of GCSEs (including English and mathematics at grade C). The Court of Appeal held that the Judge had been quite correct not to authorise the use of an intermediary for the defendant throughout the entire trial, noting that ‘cases in which an Order will be made for an intermediary to be present for the whole trial will be very rare’.

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Reforming the Advocates Graduated Fee Scheme You may or may not know that the Ministry of Justice is consulting at the moment on the reform of the payments for Crown Court Advocacy. The consultation opened on the 5th January 2017 and the closing date is the 2nd March 2017. The system for Advocates has remained largely unchanged since 2007. The current fees payable to Advocates are contained in Statutory Instrument 435 of 2013. The Litigator fees were reduced by 8.75% and then reduced again by 8.75% but the second 8.75% reduction was lifted by Statutory Instrument 313 of 2016 for new business which commenced on or after the 1st April 2016. The Advocates fees were subject to no such reductions. This is why the fees quoted in Statutory Instrument 435 of 2013 are still highly relevant for Advocates. The consultation paper sets out proposals for reform of the funding scheme which pays Advocates to defend clients in the Crown Court. The government is seeking views on all aspects of these proposals. In particular, the government would like to hear views specifically on: The graduated fee bundle Categorisation of offences and standard cases Early guilty pleas and cracked trials Special preparation Other aspects of the scheme design; and Equalities matters I don’t want to go into any detail about the ‘proposed reforms’. They are fully set out in the consultation document and available for all to read. I shall, if and when the fees of the Advocates are in any way altered, provide a full analysis in the relevant monthly edition of CrimeScribe.

The Sentencing Council There’s always something new coming from The Sentencing Council and today (24th January 2017) new sentencing guidelines have been published that will be used in all Magistrates’ Courts in England and Wales. The new guidelines are not intended to result in significant differences to current sentencing practice but there are changes to sentencing for some specific offences.

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Speeding is a good example of the above in that there will be a new higher sentence for the most serious offenders. Fines for certain offenders who speed will have a starting point of 150% of weekly income rather than the existing level of 100% of weekly income. The new starting point will be applied in cases where the potential harm is that much greater because of the speed at which the vehicle was driven. For TV licence payment evasion offences, conditional discharges have been added as a sentencing option within the sentencing range for the lowest level of offending. The new guidelines are available to view on The Sentencing Council website and will be used to sentence adult offenders in the Magistrates’ Courts in England and Wales from the 24th April 2017 I have just been having a close look at the new guideline for vehicle taking without consent. The revised guideline is very different from the current guideline in terms of its format. Whether it is Category 1, 2 or 3 the Court should still consider disqualification from driving. Something in the region of 9 to 12 months for a Category 1 offence; 5 to 8 months in the case of a Category 2 offence and consideration should be given to disqualification for a Category 3 offence. Very different from the current guideline which makes a passing reference to ‘may disqualify’. We may find that disqualification is back in vogue for offenders who take other people’s motor vehicles without their consent. Those of you who have been around for some time will know that this offence used to carry 8 penalty points but the power to award those 8 points was taken away with the Road Traffic Offenders Act 1988 although the power to give a discretionary disqualification under Section 34 (2) of the Road Traffic Offenders Act 1988 was retained. My experience has been that the issue of disqualification is hardly ever considered in a taking without consent case. I suspect that from April 2017 onwards the risk of disqualification will become much more real. Might I suggest that you go onto their website and look at the new guidelines in relation to certain offences. Not all of the guidelines for all offences have been amended. I counted 27.

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Gang Injunctions Injunctions to prevent gang-related violence and drug dealing activity against youths With effect from the 1st June 2015 the Policing and Crime Act 2009 (as amended by the Crime and Courts Act 2013), the Serious Crime Act 2015 and the Magistrates’ Courts (Injunctions: Gang-related Violence) Rules 2013 gives applicants the power to apply to the Youth Court to obtain an injunction against a particular gang member aged 14 – 17 years old who has engaged in, encouraged or assisted gang-related violence or drug dealing An Injunction to Prevent Gang-Related Violence and Drug Dealing Activity against Youths (Gang Injunctions) is a civil tool that allows the police or local authority to apply for a Court Order against an individual to prevent gang-related violence, by imposing a range of prohibitions and requirements. Section 51 of the Serious Crime Act defines gang-related violence as ‘Violence or a threat of violence which occurs in the course of, or is otherwise related to, the activities of a group that; Consists of at least 3 people Has one or more characteristics that enable its members to be identified by others as a group; and Engages in gang-related violence or is involved in the illegal drugs market. The injunction aims to: Prevent the respondent from engaging in gang-related violence; and/or Protect the respondent from gang-related violence Conditions attached to an injunction may include prohibitions or requirements, for example, barring the youth from going to a particular place or area or from associating with and/or contacting a specified person or persons, or requiring him or her to participate in activities specified in the injunction. The Court can impose prohibitions or requirements which have effect outside the area of the Court in which the application is heard. In addition to which the Rules specifically grant the Youth Court powers to impose a Supervision Order or Detention Order on anyone under 18 who breaches an injunction.

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The responsibility rests with the applicant, rather than the Court, to make sure that police attend hearings where necessary to ensure the safety of the public, staff and judiciary. The Court should be satisfied they can meet a number of security measures including: Courtroom layout – ensuring that the layout provides adequate security measures to create a safe environment; Witness facilities – to create separate waiting areas for witnesses so that they do not come into contact with respondents; Secure cells – ensuring that secure accommodation is available to hold respondents pending any hearing/breach etc; Special measures – to assist vulnerable/intimidated witnesses e.g. screens preventing the respondent seeing the witness or video-link. Gang injunctions are available in the Youth Court for 14 to 17-year-olds. Application can be made by a wide range of agencies, including the police and local authorities. Before issuing an application against the youth, the applicants should make the local Youth Offending Service (YOS) aware of the case background and what can be included in Gang injunctions so as to ensure the YOS are fully aware and content that the proposed requirements being sought are appropriate. An application fee is payable for ‘commencing proceedings where leave is required’ in civil proceedings in accordance with the Magistrates Courts Fee Order 2008 (as amended) Gang injunctions may be issued at any Youth Court but Practice Direction 65 of the Civil Procedure Rules lists the following Court Centres identified for hearing cases of this nature which have the appropriate facilities for special measures and national coverage – included in the list are: West London, Birmingham, Liverpool and Manchester (there are others)

The application to the Youth Court must state: 1.

The name, address and date of birth of the respondent;

The name and address of a parent or guardian of the respondent; and

The terms of the injunction applied for.

The applicant must have evidence that the respondent has either engaged in, encouraged, or assisted gang-related violence, or is about to. Applicants will need to satisfy the Court that the terms of the injunction are necessary either to prevent the respondent from engaging in, encouraging or assisting gang-related violence, and/or to protect the respondent from gang-related violence. If the injunction application is successful the Court order will specify reasonable prohibitions or requirements which the young person must adhere to. In the event the case is adjourned the Court has the power to grant an interim injunction which can contain any or all of the various provisions of a full injunction. Applications for the injunction can either be ‘with’ or ‘without notice’ With notice applications A copy of the application must be served by the applicant on the respondent personally. Without notice applications If an application without notice is made, the application must also state the reasons why it is necessary for the initial application to be made without any notice being given.

Special measures Special measures are available in proceedings for injunctions in the case of witnesses who are under 18 and vulnerable and intimidated adult witnesses (Section 16 and 17 of the Youth Justice and Criminal Evidence Act 1999). The Court has to satisfy itself that the special measure, or combination of special measures, is likely to maximise the quality of the witness’s evidence before granting an application for special measures.

The Crime and Security Act 2010 places responsibility on the YOS to provide reports to the Court and to administer civil Supervision Orders NB – in the event that the young person breaches the injunction, the YOS will be expected to provide a pre-sentence report to the Court and will be responsible for the administration of any disposals of a supervisory nature

Breach of injunctions Breach of an injunction by a respondent aged 14 – 17 can be dealt with in different ways. The Court retains its inherent contempt of Court sentencing powers (i.e. no further action to be taken or a fine given) but in addition the Court is given 2 specific powers to make a Supervision Order and the power to make a Detention Order

Supervision Orders A Supervision Order may last for up to 6 months and contain 1 or more of 3 elements: A Supervision Requirement – this will involve the respondent having to attend appointments with the Youth Offending Service. An Activity Requirement – may be made requiring the defaulter to participate in a particular activity for a specified number of days within the period of up to 6 months for which the Order is made. The total number of days on which an activity requirement is ordered must not be fewer than 12 or more than 24. A residential activity requirement may last for a period of not more than 7 days. A Curfew Requirement – places an obligation on the defaulter to remain in a particular place for particular specified periods

Electronic monitoring A Supervision Order which contains a curfew requirement may also contain an electronic monitoring (EM) requirement to enforce compliance with the terms of the curfew.

Detention Orders In serious cases or where, for example, other breach sanctions have been exhausted, the Court may make a Detention Order against the respondent which may last no longer than 3 months and may involve the respondent being detained in: A secure training Centre; A young offender institution; or Secure accommodation Variation, discharge and review of injunctions The 2009 Act contains provisions for the variation, discharge and review of injunctions. The Court has the power to vary or discharge an injunction at a review hearing, or upon application by either the respondent or the applicant.

Appealing an injunction A youth found to be in breach by the Youth Court may appeal to the Crown Court under Section 46B of the Policing and Crime Act 2009

Legal aid Access to legal aid for Gang injunctions will be subject to a civil means and merits test to assess whether legal aid is available. Applications for legal aid should be made to the Legal Aid Agency (LAA) However, breach of a Gang injunction is a criminal offence, therefore legal aid is available. â&#x20AC;&#x192;

50 useful things for Criminal Practitioners to know – January 2017 1

The ‘guidance’– as opposed to Guidelines published by The Sentencing

Council (November 2016) concerning the offence of driving, attempting

to drive or being in charge of a motor vehicle with drugs in the system above

the permissible levels – the offence was created in March 2015 – if you don’t

have it, might I suggest you go onto their website and store it on your laptop/

tablet/whatever – ‘guidance’ in relation to when the Community Threshold

may have been crossed and ‘guidance’ as to when the Custody Threshold

may have been crossed – the actual level of drugs doesn’t get a mention

at all!

The Offender Rehabilitation Act 2014 and the new licence provisions for

both adults and youths upon release – in particular, be alert to the fact that

adult offenders who are remanded in custody and who are subsequently

given a custodial sentence of more than one day may require a different

advocacy approach as any sentence of more than one day given to an

adult will result in half the sentence being served with the remaining half

being on licence and supervision period thereafter – the time spent in custody

will only relate to the custodial element and the defendant will therefore still

have a licence and supervision period adding up to 12 months from release

(release might be on the day as the Magistrates’ might impose a sentence

‘deemed served’) – to avoid the licence and supervision requirements why

not consider asking for a short conditional discharge?

Have a working knowledge of Chapter 8 of The Legal Aid, Sentencing and

Punishment of Offenders Act 2012 – (available from legislation.gov.uk)

Chapter 8 is a very short Chapter and gave us the new Schedule to go at

the back of the Rehabilitation of Offenders Act 1974 – the rehabilitation

periods are very different from what they have been in the past – again, might

I suggest that you simply download Chapter 8 and store it for when you need

to advise upon it – it is relevant at the police station, the office and at Court

Be aware of Statutory Instrument 313 of 2016 –

(available from legislation.gov.uk) – this, as you probably know, is the Statutory

Instrument that set all the fees for publicly funded legal aid work (apart from

Crown Court Advocacy rates) for all new business conducted on or after the

1st April 2016

Both the Draft Contract Terms document and the Draft Specification are

available (Legal Aid Agency website) – only in draft format at the moment

because the actual final documents are due our way between now and the

1st April 2017 when the new Contracts come into force – the Specification

document is well worth a read and will answer many of the questions you may

have in relation to billing – it’s so long ago now since we signed the last

Contract (May 2010) that many people seem to have forgotten about its

existence and do not regard it as a living document for answering their

questions! – Part 6 is a riveting read in relation to your role as a Duty Solicitor

and Part 9 covers advising the suspect at the police station/investigation

stage i.e. all of the pre-charge stuff – Part 10 is interesting in that it gives you

the full list of those for whom you may act as the Court Duty Solicitor and those

for whom you may not act! – If nothing else, you should have access to Parts

6, 9 and 10 on your smart-phones/tablets

Duty Solicitor requirements under the new Contract: – These are different to

those contained in our current Contract and now include:

36 Court and Police Station attendances; to include at least 12 Magistrates’ Court and 12 Police Station attendances, the 36 may include a maximum of 12 Crown Court hearings. At least 3 Magistrates’ Court or Crown Court hearings and at least 3 Police Station attendances in each rolling 3 month period In each rolling 12 month period, undertaking no less than 4 Police Station Duty slots allocated in that Duty Solicitor’s name. 14 Hours worth of Contract work per week as part of your ‘engagement’ with the firm 2 CPD hours annually on issues relating to the law practice and procedure of Magistrates’ Court/Police Stations 7

R (Cuns) v Hammersmith Magistrates’ Court [2016] EWHC 748 (Admin) was

yet another reminder from the High Court that when a defendant is seeking to

put forward a statutory defence (in this case a needle phobia preventing him

from providing a specimen of blood at the police station in a road traffic

case) there must be some evidential basis for the defence – in this particular

case the suspect at the police station merely said that he had a needle

phobia – the defendant declined to give evidence at all and no medical

evidence was called in support of the phobia – the defence put forward in

this case was a ‘reasonable excuse’ but the same reasoning applies equally

to any other statutory defence i.e. ‘ good cause’, ‘lawful authority’, ‘a good

reason’, ‘lawful authority’ – statutes are littered with statutory defences! 29

All change in the Adult Court following the publication of the new Allocation

Guidelines by The Sentencing Council and operative from the 1st March 2016

– expect far more cases to be retained by the Magistrates’ following this

Guidance – not so troublesome in the Adult Magistrates’ Court where the

defendant can always elect trial by jury even where jurisdiction has been

retained – it may though, on occasion, have an effect upon the fee in that it

is a Fixed Fee for both Litigator and Advocate were a defendant elects trial

and then pleads guilty on indictment

Those of you who operate in the Youth Court will be aware of the fact that

jurisdiction is often being retained, by way of trial, for some Serious and

Grave crimes e.g. rape in circumstances where jurisdiction would previously

have been declined – this is more problematic in the Youth Court than in the

Adult Court because the youth has no power to elect Crown Court trial (such

a right being available to an adult for all either-way offences) – the youth may

find himself tried in the Youth Court and thereafter committed to the Crown

Court for a higher sentence than the Youth Court can impose – this is because

the Youth Court has had its full committal for sentence powers restored – they

were taken away on the 1st April 2000 – they were then restored in a modified

form for dangerous offenders – they were then restored following a guilty plea

– the final part of the restoration took place in April 2015 when they were

given the power to commit for sentence following conviction after a trial in

the Youth Court

In 2016 The Sentencing Council published Draft Guidelines on the credit

applicable following guilty pleas – although the new Guidelines were meant

to come our way in November 2016 I am not aware that the Guidelines

proper have been published (they were certainly not available at the time of

dictation of these notes – January 2017) – they are meant to replace the

Guidelines that were published in April 2007 – it did say in the Draft Guidelines

that there should still be full credit on a timely guilty plea even where the

evidence in the case was ‘overwhelming’ – this was a reverse of previous

guidance which indicated that credit could be capped at 20%

The Criminal Procedure Rules now comprise 3 documents and they are

as follows:

The Criminal Procedure Rules 2015 – Statutory Instrument 2015 No.1490 (in

force from the 5th of October 2015)

The Criminal Procedure (Amendment) Rules 2015 – Statutory Instrument 2016

No.120 (in force from the 4th April 2016)

The Criminal Procedure (Amendment No. 2) Rules 2016 – Statutory Instrument

2016 No. 705 (in force from the 3rd October 2016)

Again, I would suggest that you store these 3 documents on your smart-phones etc 12

The individual right of election of an adult for Crown Court trial has gone –

the position now is that if one of a number of co-defendants elects Crown

Court trial then all defendants must be sent under Section 51 of the Crime and

Disorder Act 1998 – the only exception to this is where the defendant wishes

to stay in the Magistrates’ Court and enter a guilty plea – the Magistrates’

thereafter having to decide whether to sentence in their Court or commit to

the Crown Court for a higher sentence under Section 6 of the Powers of

Criminal Courts (Sentencing) Act 2000

The Justices’ Clerk’s Society is concerned that different Magistrates’ Courts

operate different procedures as to the precise point at which a defendant

surrenders to bail – under case-law a surrender may take place when the

defendant books on with someone deputed to take names or when the

defendant formerly enters the Court in answer to his name being called

– please ensure that you know which procedure operates in your Court – if a

defendant arrives at 11:50 AM and their case is not called into Court until 12

noon then no Bail Act offence will have taken place where the procedure is

that surrender takes place when the defendant formerly enters the Court

in answer to his name being called – it would be quite different for a

defendant surrendering at 11:30 AM when the procedure was that he book

on with someone deputed to take names at a given time e.g. 9:30 AM

Severance of youths from adults when they both appear jointly charged

(or charged with offences arising out of the same circumstances) in the Adult

Magistrates’ Court – the Allocation Guidelines published by The Sentencing

Council, and referred to earlier, allow for severance and give guidance to

Magistrates’ on the things that should be considered in a severance

application – the test under Section 24 of the Magistrates’ Courts Act 1980

in relation to either-way offences being ‘interests of justice’ – although the

new Guidance would seem to be more skewered towards severance I think

you would probably agree that, as a matter of practical reality, severance

is highly unlikely in the Adult Magistrates’ Court unless the youth is in a position

to enter a guilty plea – the Magistrates’ would be reluctant for there to be a

trial for the adult in the Crown Court and a trial for the youth in the Youth Court

– the ‘interests of justice’ no doubt incorporate the interests of witnesses who

would rather not have to attend 2 trials

Res Gestae and the case of Barnaby v Director of Public Prosecutions

[2015] EWHC (Admin) – remember that the law on hearsay is now governed

by the Criminal Justice Act 2003 – the old common law exceptions to the

rule against the admissibility of hearsay evidence have been retained by

Section 118 of the Act – res gestae is in that list – res gestae permits the receipt

of otherwise hearsay statements where those statements were said by a

person in a moment of extremis/anguish whereby the possibility of concoction

or distortion can be disregarded – the classic, of course, is the domestic

violence incident where the police are on the scene within a matter of

minutes and the complainant is still highly distressed – the complainant may

give a full account to the police officers in her house but thereafter refuse to

make a statement admissible in criminal proceedings i.e. a written statement

– in these circumstances the prosecution may apply for the evidence from the

police officers to be allowed under the res gestae principle

Cautions for Adult offenders at the police station stage – do be aware

of Statutory Instrument 2015 No. 790 – The Criminal Justice and Courts Act 2015

(Simple Cautions) (Specification of Either-Way Offences) Order 2015 and

Statutory Instrument 2015 No. 830 – The Criminal Justice and Courts Act

2015 (Simple Cautions) (Specification of Police Ranks) Order 2015 – these

Statutory Instruments brought in the amended law on the 13th April 2015

Have a working knowledge of Directive 2012/13/EU of the European

Parliament and of the Council – 22nd of May 2012 ‘On the right to information

in criminal proceedings’– I have heard that some legal advisers are

successfully using this document in order to gain more disclosure from the

police officers prior to the interview in serious matters – several of the

Paragraphs are very interesting and I merely flag up Paragraph 28 which

reads as follows:

‘The information provided to suspects or accused person about the criminal act they are suspected or accused of having committed should be given promptly, and at the latest before their first official interview by the police or another competent authority, and without prejudicing the course of ongoing investigations. A description

of the facts, including, where known, time and place, relating to the criminal act that the person is suspected or accused of having committed and the possible legal classification of the alleged offence should be given in sufficient detail, taking into account the state of the criminal proceedings when such a description is given, to safeguard the fairness of the proceedings and allow for an effective exercise of the rights of the defence’ 18

Statutory Instrument 2016 No. 35 is The Police and Criminal Evidence Act

(Codes of Practice) (Revision of Code E) Order 2016 and it came into force in

February 2016. The Order brings into force a revised Code of Practice under

Section 60 (1) (a) of the Police and Criminal Evidence Act 1984 which

will supersede the existing Code of Practice issued under that subsection. The

amendments to Code E exempt 4 types of offences from the requirement that

the interview of individuals regarding indictable offences must be

audio recorded.

The 4 types of offences are as follows: Possession of cannabis Possession of Khat Retail theft (shoplifting) of property with a value not exceeding £100 Criminal damage to a value not exceeding £300 19

The statutory option under Section 8 of the Road Traffic Act 1988 has been

repealed (Deregulation Act 2015) – suspects will now be charged where they

provide a specimen of breath of 50 or below and no longer have the

entitlement to have that specimen replaced by an alternative specimen

The counterpart of the driving licence has been abolished (Road Safety Act

2006) – apparently, the only relevant part of the licence now is the plastic

part (pink for a full licence holder and green for a provisional licence holder)

– I am assured that if the counterpart is the only thing that you possess (i.e. the

paper part) then that is still good and you need not apply for any

replacement – if you change your name or if you change your address or if

you have to send your licence to Swansea for any reason, the paper part will

not be returned and you will have to provide the necessary to get a

plastic one

The new Section 35A and 35B of the Road Traffic Offenders Act 1988 as

inserted by Section 30 of the Criminal Justice and Courts Act 2015 – an

explanation of how the Section works was given to us in the case of Paul

Maurice Needham and Others [2016] EWCA Crim 455

In a nutshell, where a defendant is sentenced to a term of custody and also made subject to a disqualification from driving – Section 35A obliges the Court to extend the period of disqualification in order to cover the incarceration period e.g. the defendant is sentenced to a term of imprisonment of 24 months and the Court intends to disqualify for 24 months for the same offence – the pronouncement is a 24 month disqualification with a 12 month extension making a total of 36 months (it will be a 12 month extension because the defendant will serve 12 months of a 24 month Determinate Sentence) Things get a little bit more complicated where the Court proposes to disqualify and impose custody for one offence and to impose a period of custody consecutively for a unrelated motoring offence e.g. using the same above example, the Court imposes a term of custody for a period of 24 months for a driving offence and also disqualifies the defendant for 24 months for the same offence and, in addition, a further period of 24 months custody, consecutively, is imposed for a non-driving offence (let’s call it assault) – the actual period of custody is now 48 months (24+24) – the extension under Section 35A of 12 months will not take the offender up to the half-way point of his sentence – the Court could therefore adjust the disqualification by a further 12 months under Section 35B in order to take the offender up to the halfway point of the sentence (12+12 = 24 which would be the period of incarceration on a 48 months sentence i.e. half) 22

The 2 circumstances in law in which the Magistrates’ would be entitled to

impose a mandatory minimum sentence (4 months in the case of a youth) (6

months in the case of an adult) –

Threatening someone with an article with a blade or point or an offensive

weapon under Section 142 of the Legal Aid, Sentencing and Punishment of

Offenders Act 2012 (LASPO) – either in a public place or on school premises –

‘Second strike’ possession of a knife or bladed article or offensive weapon

under Section 28 and Schedule 5 of the Criminal Justice and Courts Act 2015

R v Jogee, Ruddock v the Queen [2016] UK SC 8 – the decision of the Supreme

Court in relation to joint-enterprise

The Supreme Court made a unanimous decision that the earlier decisions of the Court of Appeal were wrong. The common law had taken a wrong turning 30 years earlier. Something more than mere foresight, i.e. knowledge of the possibility/ realisation of a possibility is required – what is required is something more than a criminal venture between 2 or more people to commit crime A when the Principal commits crime B – the mental element of the secondary party being more than mere knowledge of a possibility/a realisation that it was possible – in order to be guilty, the secondary party must do more than merely foresee that the Principal may commit crime B – the mental element for secondary liability is intention to assist or encourage crime B or a range of crimes, one of which is committed; either will suffice Foresight of crime B is not automatic authorisation for it. Foresight of it is simply evidence of intention to assist or encourage. It is a matter for the jury in every case whether or not the secondary party assisted or encouraged the commission of the crime. 24

I’m indebted to Anthony Edwards for drawing to our attention the case of R v

Andrews [2016] 4 costs LO 705 in which the Costs Judge held that cross

examination of a witness continues until such time as any witness might

be recalled, noting that trials involving defendants who self-represent tend to

be chaotic. Thus attendance until at least after the completion of the

defendant’s evidence seems to be ‘authorised’

‘Authorised’ in the sense of authorised when one is Court-Appointed under Section 38 (4) of the Youth Justice and Criminal Evidence Act 1999. I’m sure you would agree with me that there are increasing numbers of Court Appointments to cross-examine under the Section. Anthony made the point in his article in the 10th October 2016 edition of The Gazette that there were concerns that the costs involved, paid from central funds at private client rates, would be reduced by a change in Part 23 (4) of The Criminal Procedure Rules 2015, which provides that: (4)

Where an Advocate is appointed by the Court –

(a)

The appointment terminates at the conclusion of the cross-examination

of the witness.

This is clearly not the case!! We had the very important case of Abbas v CPS [2015] EWHC 579 (Admin) in which lady Justice Hallett gave a very clear judgement holding that to allow for effective

cross- examination there was a need for a pre-trial conference and also for presence at pre-trial applications such as bad character or disclosure. Thus firms could well be paid for all preparation and preparatory meetings. I have spoken to various people who have always claimed their own client private rates rather than the rates that were set down in 2010 (I’m sure you’re familiar with these old Central Funds rates).Their own client private rates may be more than the rates set out in 2010. No doubt the reasonableness of their rates will be judged against the 2010 rates. I’m sure many of you would have had the experience of claiming the Band A fee (Solicitor of 8 years or more admission) only to be ‘knocked back’ to a Band B fee. I’m not sure there’s much we can do about this, short of Judicial Review. We perhaps don’t want to go there; the rates being far more generous than those claimable under a normal Representation Order. I’ve also spoken to various people who have told me that, on occasion, the Justices’ clerk has attempted to limit the amounts to the hourly legal aid rates payable for work on Magistrates’ Court cases. This surely cannot be right and proper. Those rates given to us in 2010 are the appropriate ones payable. If memory serves me well, there was an application before the Master of the Rolls (Lord Dyson) that the rates be reduced but the application was not successful. Rightly so, the rates are getting on for 7 years old anyway! 25

The case of B and Leeds Crown Court and Crown Prosecution Service [2016]

EWHC 1230 (Admin) – a very important case which overturned something

which had been happening in the Youth Court for many years – as you know,

the Youth Court has the power to impose a Detention and Training Order

of up to 24 months – the law has always been in the Youth Court that provided

the youth is not given more per offence than could have been given to

an adult, the sentences could be made consecutive to one another so long

as the overall sentence did not exceed 24 months – this was a relatively simple

case in which for 2 offences of aggravated vehicle taking (low value

damage) the sentence was 4 months on one offence with 4 months

consecutively on another offence making a total overall sentence of 8

months – this would not have been permissible in the case of an adult where

the Magistrates’ would have been capped at 6 months (these being summary

only offences) – the High Court took the view that it was wrong in principle

to impose more upon a youth than could have been imposed upon an adult

and, taking into account the guilty pleas that were entered, the sentence was

reduced to 4 months

The Psychoactive Substances Act 2016 – the Act was brought into force in

its entirety at midnight on the 25th May 2016 – the Act creates a blanket ban

on the Production, Supply, Importing or Exporting of psychoactive substances

in the United Kingdom – mere Possession is not an offence unless it takes place

within a custodial institution – a psychoactive substance is defined as ‘any

substance which is capable of producing a psychoactive effect in a person

who consumes it, and is not an exempted substance’ – for the purposes of

this Act ‘a substance produces a psychoactive effect in a person if, by

stimulating or depressing the person’s central nervous system, it affects the

person’s mental functioning or emotional state’. – Section 3 of the Act creates

an exemption for certain substances – these substances are listed in Schedule

1 to the Act as follows:

Caffeine Tobacco Alcohol Medicinal products Food Chocolate doesn’t get a mention but I suspect we are still okay with it! The 4 main offences are created by Sections 4 – 8 and are either-way and carry 7 years on indictment Section 9 which creates the offence of simple possession in a custodial institution is either- way and carries 2 years on indictment 27

CPD is no more!, If you haven’t already done so, might I suggest you go onto

the SRA website and have a look at the new Competency Regime scheme –

it seems to me that you need to compile your own Development Plan and

Training Programme under the new Competency Regime – decide what you

think you need to do over a given 12 month period (1st of November 2016 –

31st of October 2017) in order to become a more competent lawyer and then

keep a record of what you did and why you did it and what you learnt from

it – it might be worthwhile to include additional reference to the bits that

were worthwhile and why and the bits upon which you still consider you need

further development – it might not affect what you actually do in practice at

all but it should affect the way in which you record what you do – no doubt

there will be a relevant box to tick on the renewal of your

Practicing Certificate 37

There is a new Policing and Criminal Justice Bill before parliament at the

moment which will place time limits on the length of police bail pre-charge.

There have been murmurings of discontent for some while now about the

length of time that suspects can be on bail and these all came to a head with

the long bail periods in certain recent high-profile cases. In most cases, under

the proposals, the period will be 28 days with a senior police officer being able

to extend that limit to 3 months. Thereafter, only the Courts will be able to

allow a suspect to remain on bail. There is to be a presumption that most

suspects will not be placed on bail and, even if initially arrested, will be

released without bail while the investigation continues. It will, of course, be

very advantageous for clients not to be arrested because these arrests do

have a habit of getting onto computer records (The Disclosure and Barring

Service) and may cause problems in obtaining positions such as that of a

nanny or upon applications for visas etc. The downside of all of this is that

many will know they are subject to a police enquiry but will have no idea of

when it will all end and may well be suffering consequences i.e. suspension

from work during the period.

Identification of issues by the defence – the following amendments have

been made as a result of Rule 24.3 of the Criminal Procedure Rules (which

is about trials in the Magistrates’ Court) and Rule 25.9 (which concerns trials

in the Crown Court) – these Rules are amended by Rules 9 and 10 (a) of these

Rules to provide for the identification of issues by the defence at the

beginning of the trial. In the Crown Court, if the defendant declines the

Judge’s invitation to identify the issues for the jury, and if the Judge thinks

it necessary to help achieve a fair trial for jurors to know what the defendant

had declared would be in issue before the trial began, then the Judge can

require the jury to be given a copy of that declaration (known as the

‘defence statement’) – these amended Rules came into force on the 4th

April 2016

R v Taylor (Appellant) [2016] UKSC 5 – We knew from the Supreme Court

decision in R v Hughes [2013] WLR 2461 that there had to be ‘some causal

connection between the driving and the death which was more than merely

the vehicle being on the road’ (Hughes was a prosecution concerning

causing death (uninsured)) – the case of Taylor went to the Supreme Court

to see whether or not the same reasoning applied in an aggravated

vehicle taking (causing death) case – the Supreme Court held that it did,

thereby overturning the earlier Court of Appeal decision of R v Marsh

[1997] 1 CR APP R 67 38

The Supreme Court unanimously allowed the appeal in the case of Taylor holding that the driving must have been at fault for a person to be convicted of aggravated vehicle taking under Section 12A of the Theft Act 1968 The judgement was given by Lord Sumption who said this at Paragraph 23: ‘This brings me to the fundamental reason why in my opinion this appeal must succeed, and why I would have taken the same view even if I have felt able to distinguish the language of Section 12A of the Theft Act or depart from the reasoning in Hughes. The Crown’s argument effectively invites the Court to treat this Section as imposing strict liability for the aggravating factors which differentiate this offence from the basic offence under Section 12 in circumstances where that course is neither necessary nor warranted by the language of the Act’ 31

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

the Court gave guidance on credit for guilty pleas and said that early

admissions/co-operation/remorse in a police station interview may well affect

the sentence in that the Court would be entitled to start the sentence at a

lower starting point than it otherwise would have done and from that lower

starting point to deduct whatever credit is applicable for the indication of

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

starting point might be appropriate for example, ‘taking the suspicion away

from others’ or ‘admissions made in a case that might have been difficult to

prove’, for example, where the victim’s would find it difficult to give evidence

– the Court of Appeal saying that each case would be different and that

some early admissions may be of no benefit at all in terms of the sentence, my

own examples are overwhelming evidence cases and those where the

defendant’s actions are caught on video/witnessed by police officers

The case of R (Collins) v The Secretary of State for Justice [2016] EWHC 33

(Admin) – an interesting case concerning the so-called ‘householders

defence’ contained within Section 76 (5A) of the Criminal Justice and

Immigration Act 2008 – Sir Brian Leveson, giving the judgement of the Court

held that 76 (5A) of the 2008 Act did not extend the ambit in law of the

second limb of self-defence but, properly construed, provided emphasis

as to the requirement to consider all of the circumstances permitting a degree

of force to be used on an intruder in householder cases which is reasonable in

all the circumstances (whether that degree of force was disproportionate

or less than disproportionate). In particular, it did not alter the test to permit,

in all circumstances, the use of disproportionate force and, to that extent

the CPS review had adopted the WRONG TEST when re-considering the facts

of the case. Neither did the provision offend Article 2 of the EC HR

Section 76 of The Serious Crime Act 2015 came into force on the 29th

December 2015 – see Statutory Instrument 2015 No. 1976 (The Serious Crime

Act) (Commencement No. 4) Regulations 2015 – the Act created a new

offence of ‘controlling or coercive behaviour in an intimate or familial

relationship’ – the offence carries a maximum sentence of 5 years

imprisonment on indictment – there is an excellent Home Office Guidance

document on the Home Office website

The offence is constituted by behaviour on the part of the perpetrator which takes place ‘repeatedly or continuously’. The victim and alleged perpetrator must be ‘personally connected’ at the time the behaviour takes place. The behaviour must have had a serious effect on the victim, meaning that it has caused the victim to ‘fear violence will be used against them on at least 2 occasions, or it has had a substantial adverse effect on the victim’s day-to-day activities’. The alleged perpetrator must have known that their behaviour would have a serious effect on the victim, or the behaviour must have been such that he or she ought to have known (objective test) it would have that effect. Controlling or coercive behaviour does not relate to a single incident, it is ‘a purposeful pattern of behaviour which takes place over time in order for one individual to exert power, control or coercion over another’. 34

QASA – keep an eye on this. I don’t think it’s gone away. I think it will re-

appear this year and that Advocates will be expected to register. Levels 1, 2, 3

or 4 do give some thought to your level of registration.

Regina and FNC [2015] EWCA Crim 1732 – Authority for the very sound

proposition that where the DNA is actually deposited upon the victim and

there is a very high statistical probability that it is indeed the defendant’s DNA,

this will always raise a sufficient case to answer

The Recorder ruled that there was insufficient evidence to go before the jury. The Court of Appeal saying this in 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 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 a 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 must take place in the Crown Court before a Circuit Judge’. 36

Referral Orders – as those of you who operate in the Youth Court will know,

when Referral Orders first came in an offender could only ever receive one

– the law was then amended whereby, if exceptional circumstances

existed, the Court was given a discretion to give a second Referral Order

further amendments were brought about by Sections 43 – 45 of the Criminal

Justice and Courts act 2015 which amended the Powers of Criminal Courts

(Sentencing) Act 2000 – as a result of removing the restrictions against more

than one Referral Order it all got a bit messy in that if the second or

subsequent Referral Order was breached for non-compliance with the

terms of the Contract, or further offences were committed during the

currency of the Contract, the Court had no discretion and had to revoke that

Referral Order – Section 43 of the Act amends Schedule 1 to the PCC (S

A 2000 to provide for alternatives to revocation for breach of a Youth

Offender Contract. A fine of up to a maximum of £2,500 may be imposed or

the Youth Offender Contract extended 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 second or subsequent Referral

Order in respect of additional or further offences in the same way as it is

currently available for a first Referral Order – Section 45 of the Act amends the

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 additional offences.

Driving whilst Disqualified – turn your back and they keep changing things in

relation to disqualified drivers – the Criminal Justice and Courts Act 2015

created a new offence of ‘causing serious injury whilst driving whilst

disqualified’ – either-way and carrying 4 years on indictment – the same Act

altered the maximum penalty available for the offence of ‘causing death

whilst driving whilst disqualified’ – formerly, the offence was either-way

and carried 2 years on indictment – it is now purely indictable and carries 10

years on indictment – the offence of driving whilst disqualified does not

carry a mandatory disqualification under Section 34 (1) of the Road Traffic

Offenders Act 1988 – it carries 6 penalty points – in lieu of these 6 penalty

points being imposed the Court may impose a discretionary disqualification

under Section 34 (2) of the Road Traffic Offenders Act 1988 – it is a summary

only offence and consecutive periods of custody can be imposed but those

periods must not exceed 6 months – some modest credit may be given for

guilty pleas – see the Guidance in this area published by The Sentencing

Council in April 2007 (Credit for a Guilty Plea) and available on their website

The Home Detention Curfew Scheme (HDC) – it is discretionary and not

everyone will get the benefit of it – it applies to Adults – they are eligible for

early release at the 25% stage of the sentence – they are released and

tagged and if they disregard the terms of their tagging they will be recalled

[Section 255 of the Criminal Justice Act 2003] and taken back into custody

and serve up to the half-way (50%) point of their sentence – they will be

ineligible to enter the tagging scheme in the future as a consequence of the

earlier breach

Are Crown Court decisions susceptible to challenge by way of Case-Stated or

Judicial Review? – See Section 29 (2) and (3) of the Senior Courts Act 1981

(formerly the Supreme Court Act 1981) – these sub-sections inform us that

matters ‘relating to trial on indictment’ are not susceptible to challenge in the

High Court by way of Case-Stated or Judicial Review – do be careful not

to fall at the first hurdle!! – you need to 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 or Case-Stated – here’s a

simple illustration of the point (and it’s just one of many) – 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 was a matter ‘relating to trial on indictment’ and was therefore not

amenable to challenge by way of Judicial Review

Statutory Instrument 2016 No. 389 is the Criminal Justice Act 2003 (Surcharge)

(Amendment) Order 2016 – it came into force on the 8th April 2016 – it

increased the amounts payable under the Victim Surcharge for both adults

and youths

For the avoidance of doubt, all of the offences must have been committed on or after the 8th April 2016 in order for the new increased amounts mentioned in this Statutory Instrument to be applicable – if but one of the offences pre-dates the 8th April then the former lesser amounts of the Surcharge are applicable No Surcharge is applicable for offences committed before the 1st April 2007 41

Alcohol Abstinence Monitoring Requirements – watch out for these – they

are probably going to come to a Magistrates’ Court near you in 2017

they were created by Section 76 of the Legal Aid, Sentencing and Punishment

of Offenders Act 2012 which inserted a new Section 212A into the Criminal

Justice Act 2003 – the monitoring of compliance with the obligations of an

alcohol abstinence monitoring requirement is by means of a trans-dermal

electronic tag fitted to an offender to measure the level of alcohol contained

in their sweat (George Orwell would turn in his grave!)

I am reliably informed by people who know far more about these matters than I that the offender has a box fitted in their home and that the tag must in some way be attached to the box in order for a reading to be made at several points during the day. The tag must not be immersed in water and so no baths for these people!! They clearly have the backing of the government. The Ministry of Justice announced in February 2016 that it was to spend a further £400,000 on ankle bracelets to combat alcohol related crime. The announcement also said that the Orders would be extended across the whole of the London Boroughs from the 1st April 2016 following an 18 month pilot in 4 London Areas. The Ministry reported that 9 in 10 offenders had complied with the requirements. I strongly suspect that they are going to roll these out nationwide sooner rather than later! 42

Regina v Raymond Martin Marshall, Christopher Ramos and Saraj Mahmood

Hussain [2015] EWCA Crim 1999 – R v Hoggard [2013] EWCA Crim 1024 – R v

Thorsby and Others [2015] EWCA Crim 1

All of the above cases concern Qualifying Curfews! The Court of Appeal are not happy with us because we are not bringing to the attention of Crown Court Judges the amount of time that our clients were subject to a Qualifying Curfew i.e. a curfew of 9 hours or more per day monitored by an electronic tag and the Courts are not reducing the custodial sentences accordingly – as you know, the client is entitled to a half-day reduction of the sentence for every whole day spent subject to the tag – see Section 240A of the Criminal Justice Act 2003 43

Your client is aggrieved at the severity of the sentence imposed by the Crown

Court Judge and wants to appeal the matter to the Court of Appeal (Criminal

Division) – could the Court of Appeal (Criminal Division) increase the

sentence? – What does Section 11 (3) of the Criminal Appeal Act 1968 say

about all of this? – Would the position be any different if the client was

aggrieved at the severity of the sentence imposed by the Magistrates’ and

wanted to appeal the matter to a Crown Court Judge? – Could the Crown

Court Judge increase the sentence? – What does Section 48 (4) of the Senior

Courts Act 1981 say about all of this? – Does it make any difference whether

you are appealing merely the sentence or appealing both the conviction and

the sentence?

R v Usaceva [2015] Crim 166 – The Judge had ordered that in addition to

disqualification the appellant’s licence should be endorsed with 11 penalty

points – the Judge was in error on the point but it’s an easy mistake to make

– if you look at the Schedule at the back of the Road Traffic Offenders Act

1988 you will see that next to various offences in that Schedule is a reference

to endorsing the client’s record with between 3 and 11 penalty points

however, what is not made plain is that the endorsement with between 3 and

11 penalty points only applies where Special Reasons are found for not

ordering the normal mandatory disqualification that applies to the relevant

offences mentioned in the Schedule – the law is contained in Section 44 (1

(a) of the Road Traffic Offenders Act 1988 which requires only that the

particulars of the penalty points are to be endorsed when a person is

convicted of an offence involving obligatory disqualification and is

not disqualified

R v Malkin [2014] EWCA Crim 1937 – this case concerned the mandatory

minimum sentence the Court must impose for possession of certain firearms

unless there are exceptional circumstances relating to the offence or to the

offender which justify it’s not doing so.

The Judge at Norwich Crown Court had imposed 5 years following a plea of guilty to an offence of possessing a prohibited weapon contrary to Section 5 (1) (aba) of the Firearms Act 1968 The applicant was aged 53 and of previous good character. He lived in a house in an isolated rural position. He had a licence which permitted him to own 4 shotguns and 4 shotguns were found in a secure cabinet. In the same cabinet were an air rifle and an air pistol. He said that there were no other firearms but a search revealed other firearms which included a loaded sawn- off shotgun in the bedside cabinet in the main bedroom. Ammunition was also found. In interview he accepted being in possession of firearms and ammunition. He said he had no idea who shortened the shotgun; it was an item he had inherited. He said he used it to shoot rats out of the window. The Judge could find no reasons for not imposing the mandatory minimum sentence set down by Parliament. There was nothing exceptional in the mitigation. There was nothing exceptional (in the applicant’s favour) concerning the offence. This was a sawn-off shotgun with ammunition (it was loaded) found on a search when the applicant had said that there were no other firearms. The decision to retain that unlicensed and prohibited weapon was taken deliberately and knowingly and he persisted in it for 15 years. It was kept in a wholly unsecure location in a loaded state and indeed, he fired it from time to time. The 5 year sentence was upheld on appeal. 46

Credit under the ‘3 strikes rules’. The case of R v De St Aubin [2014] EWCA

Crim 1921 is just one of many in this area – the Court of Appeal had to

concern itself with the credit applicable for someone under the ‘3 strikes

rule’ – Section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 –

the plea was entered at a Plea and Case Management Hearing and normally

a plea at that stage should attract a discount on sentence of 25% to reflect

the plea at that stage

The prosecution indicated that the Judge could give up to 20% discount for the plea of guilty on the sentence. That was somewhat misleading. By Section 144 of the Criminal Justice Act 2003 it is stipulated that a sentence must be passed of not less than 80% of the minimum statutory sentence that is set down where the 3 strikes provisions apply (7 years on a third supply of Class A drugs – 3 years on a third dwelling house burglary) – hence, if the Judge was in this case to have passed a 3 year sentence or to have taken as a starting point 3 years imprisonment the maximum reduction he could then make was 20% – given that he took a much higher starting point than 3 years it was open to him to reduce the sentence by 25% to reflect the time at which the plea was offered – the Court of Appeal amended the credit to read 25% In summary, this 20% business only applies where 3 years is being given for a third (or more) dwelling house burglary or 7 years is being given for a third (or more) supply of Class A drugs – the sentence shall not fall below 80% of 3 years or shall not fall below 80% of 7 years 47

In the Supreme Court decision of T v The Secretary of State for the Home

Department and Another [2014] UKSC 35 the Supreme Court ruled that

cautions and minor convictions should not have to be disclosed in criminal

records checks and that the requirement to do so breached privacy.

At issue was the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and Sections 113A and 113B in Part V of the Police Act 1997. As you know the Order makes certain questions exempt from the above provisions of the 1974 Act including where they relate to specific professions and employments and to working with children and vulnerable adults. Part V of the 1997 Act deals with Enhanced Criminal Record Certificates. These are issued where an exempted question within the meaning of the 1975 Order is asked, including by a prospective employer. Disclosure is then made of every relevant matter recorded on the PNC, including, at the relevant time, any spent conviction or caution. In T, the police issued Warnings in 2002 to an 11-year-old boy in respect of the theft of 2 bicycles. The Warnings were disclosed in 2008 under Part V of the 1997 Act when T applied for a part-time job with a football club possibly involving contact with children. They were disclosed again in 2010 when he applied for a place on a sports studies course which again might have involved contact with children.

In JB, the police issued a caution to a 41-year-old woman in 2001 in respect of the theft from a shop of a packet of false fingernails. In 2009 she completed a training course for employment in the care sector. She was required to obtain an ECRC, which disclosed the caution. The training organisation told JB that it felt unable to put her forward for employment in the care sector. Both of the above had no other criminal records. They both claimed that such disclosure violated their right to respect for a private life. They were both successful in the Court of Appeal and the Secretary of State had appealed that ruling to the Supreme Court. The Supreme Court unanimously found against the Secretary of State. They upheld the Declarations of Incompatibility in relation to the 1997 Act. 48

The maximum financial penalty in the Magistrates’ Court for a Level V offence

of £5000 has been abolished – the maximum financial penalty now for a Level

V offence is unlimited – the cap taken away by Section 85 of LASPO – there

has been no change to levels I II III and IV

Schedule 16 of the Crime and Courts Act 2013 took away the £5000 cap on compensation in the Magistrates’ Court – compensation is now an unlimited amount 49

R (Singh) v Ealing Magistrates’ Court and Another [2014] EWHC 1443 (Admin)

– S was a privately paying defendant in the Magistrates’ Court – a

hearing was ineffective due to the prosecution arriving without any papers

– not unsurprisingly the defence advocate sought an order under Section 19

of the Prosecution of Offences Act 1985 that the Crown pay for this wasted

hearing by way of a ‘costs thrown away order’ – as you know, Section 19A

permits either party to the proceedings to make an application for wasted

costs against the other party to the proceedings if that other party has been

guilty of ‘an improper or unreasonable or negligent act or omission’

The Deputy District Judge saw fit to refuse the costs application The matter went to the High Court and the Court took the view that the Deputy District Judge was wrong to have refused the application. They quoted the Criminal Procedure Rules and the principle that criminal cases must be dealt with justly. The decision of the Deputy District Judge was reversed and the Order was made that the prosecution pay the defendant’s costs incurred in respect of the aborted hearing in the sum of £864

The amendment of an information/charge for a summary only offence

outside of the 6 month limitation period – See Section 127 of the Magistrates’

Courts Act 1980 – we have had many cases in this area of which by far the

most quoted is the Scunthorpe Justices’ case – the principles seem to be that

such an amendment might be permissible so long as it continued to allege

the same wrongdoing or misdoing as that within the original information and

so long as it did not lay the defendant open to a penalty that would not have

been available in the original information

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Section 2 CrimeScribe Edition No. 67

Hello and welcome to this month’s edition of CrimeScribe. Unlike previous months, quite a bit has happened in the last one. Important Case-law, amendments to the Codes of Practice under PACE, sentencing guidelines and, perhaps the most important of all, changes to legislation regarding pre-charge bail as a result of the implementation of Sections of the Policing and Crime Act 2017 which are due in this April (the 3rd). I think the changes to pre-charge bail are probably as good a place as any to start this month’s edition. Can I say at the very outset that I am indebted to the document written by the College of Policing entitled ‘Policing and Crime Act – Pre-Charge Bail – Frequently asked questions’ and I hope they don’t mind the fact that I have used extracts from the document in order to assist in the understanding of what is quite a complicated piece of legislation. Any mistakes or misunderstandings of the document are purely down to me.

The Policing and Crime Act 2017 As you all know, bail can either be Street bail given by the arresting officer (with or without conditions) or bail from custody by the Custody Officer (with or without conditions). Street bail was a concept introduced by the Criminal Justice Act 2003. A new Section 30A was introduced into PACE. As a result of the amendment it is lawfully possible for a Constable to arrest a person and then to grant them bail (with or without conditions) to attend a police station on a given date in the future. Post detention bail may be granted by a Custody Officer for the purpose of further enquiries to be made in the matter or a charging decision by the CPS. There are certain conditions which can never be imposed by a Constable as part of street bail and they are as follows:

A security

A condition to live at a bail hostel

A surety (a surety could, however, be imposed by a Custody Officer and

taken by an Inspector – a rare, almost once in a blue moon, event!)

Presumably, there is no power of a Constable to impose a condition of

electronic monitoring of a curfew (I haven’t looked it up but I have a strong

feeling my presumption is probably correct!)

The suspect has a right to oppose or make representations about the imposition of bail conditions (there seems to be no statutory authority for this, but lawyers do it all the time!). This, of course, will only ever happen, in reality, at the police station. I doubt if such representations would get very far with the officer in the street proposing Street bail! A suspect can seek variation of such conditions at the police station before another custody officer or, if the police refuse such variation, to the local Magistrates’ Court under Section 47 (1E) of PACE. See also the Criminal Procedure Rules 2015, as amended, Rule 14.6. It has been acknowledged for some time that the lack of any time limits on a suspects bail position pre-charge is unsatisfactory. The Act seeks to place a limit upon the amount of time that a suspect may remain on bail pre-charge. I won’t bore you with stories of clients who have been on bail for months, some even for more than a year. It doesn’t help that there is no fee to go back to the police station (on the bail return) when nothing is happening apart from the client simply being re-bailed. Representations can be made that the client be taken off bail but I just wonder how often lawyers attend police stations in order to make such representations before the Duty Inspector! You may or may not know that where the suspect is taken off bail but fresh evidence comes to light justifying a re-arrest on the same matter then the detention clock goes back to 0 – see PACE Section 47 (2) and 47 (7). On occasion this might result in it being better for the client to remain on bail! The definition of fresh evidence has been changed and is now: ‘Since the person’s release, new evidence has come to light or an examination or analysis of existing evidence has been made which could not reasonably have been made before the person’s release’ (amended Sections, 30C (4), 41 (9), 42 (10), 43 (18) and 47 (2) of PACE 51

Meanwhile, back to the new legislation: THERE IS A PRESUMPTION OF RELEASE WITHOUT BAIL WITH BAIL ONLY BEING IMPOSED WHEN IT IS BOTH NECESSARY (PRESUMABLY BECAUSE THE POLICE WANT CONDITIONS ON IT) AND PROPORTIONATE THE PRESUMPTION OF RELEASE WITHOUT BAIL DOES NOT APPLY TO CASES OF BAIL TO ALLOW THE CPS TO MAKE A CHARGING DECISION UNDER SECTION 37 (7) (a) OF PACE – THERE IS NO CHANGE TO THE CURRENT POSITION ON THIS IN SUMMARY THE PERIOD OF PRE-CHARGE BAIL – WHILST INVESTIGATIONS BE PERSUED (WITH OR WITHOUT CONDITIONS) WILL BE UP TO 28 DAYS FROM ARREST (INSPECTOR) AND THEREAFTER UP TO A MAXIMUM OF 3 MONTHS (SUPERINTENDENT OR ABOVE) AND THEREAFTER CONSENT IS REQUIRED IN THE MAGISTRATES’ COURT. THE ONLY EXCEPTION TO THE ABOVE IS IN RELATION TO ‘THE MOST COMPLEX CASES’ WHERE THE PROPOSAL IS FOR THE DECISION TO EXTEND BAIL BEYOND 3 MONTHS TO BE TAKEN BY A SENIOR CIVIL SERVANT FOR SFO CASES;IN CPS CASES,THE DECISION WOULD BE TAKEN BY AN ASSISTANT CHIEF CONSTABLE IN CONSULTATION WITH A SENIOR PROSECUTOR,WITH THE COURTS NOT BECOMING INVOLVED UNTIL 6 MONTHS AFTER ARREST I would not have thought there will be many of these but police cases that are designated as exceptionally complex can have a further ABP extension, up to a total of 6 months, before the case has to be presented to a Magistrates’ Court. A Designated Case is one which has been designated as exceptionally complex by a Qualifying Prosecutor, as defined in the new Section 47ZE (9). The CPS is considering how it will designate prosecutors for this purpose and any guidance that those prosecutors will require. There is no definition in the Act of Exceptionally Complex – the phrase should be given its ordinary meaning In summary exceptionally complex cases will have a 4 stage process as follows: 1)

An initial ABP of 28 days

An extension thereafter by someone not below the rank of Superintendent of

up to 3 months

An extension thereafter by someone not below the rank of Assistant Chief

Constable or Commander of up to 6 months 52

An application to the Magistrates’ Court for any extension beyond 6 months

The suspects right to appeal the imposition of bail conditions is unaffected by the amendments under the Act. There will be a review of the bail position by the Superintendent after 28 days (the Superintendent will no doubt have to review the necessity and proportionality of bail continuing beyond the period of 28 days). It would appear that the suspect or their legal representative must be given an opportunity to make representations (Section 47ZD (3) and (4) – I hope that I am correct in this analysis, the Act could be clearer! We will have to wait and see how this works in practice. We know that there is a provision within PACE (Section 42 (6) and (7)) whereby the Supt is required to hear representations about an extension beyond 24 hours for those in custody and it may, in practice, simply become analogous to this. There will then, if required, be a review upon Court application once 3 months have elapsed since arrest. Is bail both necessary and proportionate? – These terms are not defined in the Act at all. Remember that the Act is only engaged where the suspect is being bailed for further investigation – if the custody Sgt decides to bail pending a CPS decision on the matter then the Act is not engaged and the Necessary and Proportionate test for bail is wholly irrelevant, as all the time periods under the Act. Under Section 37 (7) (a) of PACE there is no presumption to release without bail and the pre-conditions to bail do not apply i.e. Custody Sergeants will invariably bail suspects pending a CPS charging decision (with or without conditions) and this will be perfectly reasonable and in accordance with PACE. If the Custody Officer feels that bail is required, they can apply bail without an Inspector authorising an applicable bail period (ABP). This also applies where a person is released on bail following an arrest for breach of Section 37 (7) (a) bail. The custody officer will set a bail return date that allows a realistic time for the CPS to make a charging decision and record that decision. There are no time limits for CPS charging decision bail (the Act is not engaged!) but the time limits will start if the CPS asks for further information to reach a decision – this is because we have moved into an investigation stage and the ABP applies to investigations. The Act does not re-write PACE – Section 37 (7) (a) of PACE states that if the Custody Officer has sufficient evidence to charge the person arrested with the offence for which they were arrested, the person arrested must be either: 53

Released on bail without charge Kept in police detention so the DPP can make a decision under Section 37B of PACE The presumption to release without bail and the pre-conditions to bail do not apply. If the Custody Officer determines that they have sufficient evidence to charge, their only options under Section 37 (7) (a) are to either release the arrested person on bail or keep them in police detention to enable a CPS charging decision Where the Act is engaged because of further investigations /enquiries, an Authorising Officer (Inspector/Superintendent/Asst Chief Constable) or Magistrate needs to be satisfied that the 3 (B â&#x20AC;&#x201C; D) or the 4 (A â&#x20AC;&#x201C; D) conditions within a new Section 47ZC are met on the day of the decision to place the suspect on bail. These conditions are that: A

There are reasonable grounds to suspect that the suspect is guilty of the

offence (Authorising Officer only)

Further investigation is needed or further time for police decision to charge

is required

The investigation or charging decision is being conducted diligently

and expeditiously

Release on bail is necessary and proportionate

None of these 4 conditions takes any account of the period of bail to be granted. The period of bail is fixed by Parliament under the Act. Initially 28 days and thereafter up to 3 months and thereafter application to Court. ALL OF THE ABOVE TIME LIMITS ARE TO EXCLUDE THE TIME TAKEN FOR THE CPS TO REACH A CHARGING DECISION This would all be very well if the period for the CPS to reach a charging decision was a short one. In reality, some decisions, particularly in sexual cases, take many weeks or even months and there is no protection afforded under the Act for this period of time at all. The file may well be sent to the CPS for a charging decision. The CPS may send the file back to the police in order for further investigation, in which case the Act becomes re-engaged once it moves from the CPS charging decision stage back into the investigation stage.

Inspectors, Superintendents and other Authorising Officers can authorise an applicable bail period (ABP). Think of this in terms of a window of time within which the Custody Officer can set and vary bail. The Custody Officer retains the power to grant bail where the case is submitted to the CPS for a charging decision, without the need to obtain authorisation for an ABP. This is because the provisions of the new Act are not engaged where the suspect is being granted bail merely for the case to be submitted to the CPS to decide whether or not to charge. The situation changes if the CPS decided that further investigation work needs to be done – now the Act is engaged. The ABP clock will be suspended while a case is with the CPS for a charging decision. The clock starts again if the CPS requests further work to be done. The bail clock stops the day the file is sent to the CPS and starts again the day the CPS sends its request for further police work. NB – If the suspect fails to attend at the end of the ABP and the police wanted to reinterview them and probably re-bail them with a Superintendents authority for up to 3 months the police would still need to extend the ABP in the usual way and to the normal timetable and this would be the case even if the suspect failed to attend NB – The police cannot seek a bail extension once the ABP has lapsed In order to keep a person on bail, all extensions have to take place while a current ABP is running. There can be no retrospective extensions. If a person fails to answer bail, the ABP still continues to run. In order to prevent it expiring, the police need to make efforts to seek the suspect’s or their legal representative’s representations prior to making a determination to extend the ABP. Even though the period has been extended – the suspect will still be wanted for failing to answer bail. Some excellent scenarios from the College of Policing document may throw some light onto this somewhat murky area!

SCENARIO 1 The suspect is arrested in relation to a serious child sex offence on the 1st July 2017. He is released on bail on an initial period of 28 days (as authorised by the Inspector) for further enquiries to be carried out. The ABP (applicable bail period) authorised by the Inspector will end on the 29th July (a period of 28 days following the date of the arrest – for the avoidance of doubt, do not include in the calculation the date of the arrest) On the 10th July the police have all the evidence they need for a charge and send the file to the CPS for a charging decision (8 days of the 28 day APB having elapsed – it would appear that you do not count the day of arrest and you do not count the day the file was sent back to the CPS) The analogy is with a remand in custody by the Magistrates’. I know we work on 7 day cycles but the initial remand can be for a period of ‘8 clear days’ under the Bail Act 1976. By ‘clear days’ is meant that you do not count the day upon which the bail decision was made and you do not count the day upon which the defendant returns to Court – a defendant could therefore be remanded in custody on Monday and not re-appear until Wednesday of the following week – a period of 10 days with 8 of them being ‘clear days’. The ABP clock stops (or, to be more precise, is suspended – see Section 47ZL (2) (b) of PACE) because the file is now with the CPS for a charging decision On the 18th July the CPS ask for further enquiries to be carried out by the police and return the file The ABP clock starts again (or, to be more precise, resumes – see Section 47ZL (6) (b) of PACE) Having resumed on the 18th July (8 days having elapsed thus far) the ABP period will be for a further 20 days (28 minus 8) and will end on the 6th August. The Custody Officer can set a new bail date if needed within the new applicable ABP period i.e. the return date could be within the 20 day period

TO SUMMERISE 1

Do not include in the 28 day period the date of the arrest

Do not include in the 28 day period the date the file is sent back to the CPS for

a charging decision

Do include in the 28 day period the date the file is sent back to the police for

further investigation work

SCENARIO 2 The same dates as in Scenario No. 1 i.e. arrested on the 1st July and bailed for an initial period of 28 days (ending on the 29th July) but in this scenario the police send the file to the CPS on the 25th July for a charging decision and the CPS indicates that a decision will take 4 to 5 months – the ABP, is, of course, suspended as from the 25th July ( you do not count the date upon which the file is sent to the CPS for a charging decision nor any time it is with them thereafter and so the remaining APB dates are 25th, 26th, 27, 28th and 29th – a period of 5 days) and it is at the discretion of the Custody Officer to set a bail return date in line with the CPS estimate as to how long a charging decision will take – see existing Section 37 (7B) and a new Section 47ZL (3). After nearly 4 months, on the 4th November the CPS requests further work. The police only have 5 days of the original ABP remaining – here, new Sections 47ZL (7) and (8) will apply in that the ABP is automatically extended to 7 days, beginning on the day the CPS request is made for further work – the 5 days therefore goes up to 7!

SCENARIO 3 The suspect is released from custody for a CPS charging decision – Section 37 (7) (a) bail – remember that there is no ABP period because the Act is not triggered unless the suspect is bailed pending further enquiries/investigations by the police in the case. The CPS then return the file to the police requesting further work – since there never was an APB authorised, the effective bail start date is the date the CPS requests further work – in these circumstances there is an automatic 7 day ABP – if the police require longer than 7 days it would appear that they apply to an Inspector for an initial 28 day ABP 57

USING A HAND – HELD MOBILE PHONE WHILST DRIVING It has been illegal to use a hand-held mobile phone whilst driving, all while stopped with the engine on, since December 2003. It’s not 100% safe to use a hands-free phone. Whilst not an offence it could certainly be a factor in whether or not you are charged with an offence of careless driving or even dangerous driving. From the 1st March 2017 the fixed penalty notice for using a hand-held mobile phone whilst driving will increase from £100 to £200. The penalty points will increase from 3 to 6. Two of those offences and you acquire 12 and are therefore liable to a mandatory minimum disqualification of 6 months unless you could argue something that would mitigate the normal consequences of the conviction i.e. exceptional hardship of some sort. 6 points would also be disastrous to the Probationary Driver (if the offence was committed during the 2-year probationary period) because the Court would impose the points and Swansea would revoke the full licence and put the driver back into the position of being a learner again! Refuse to accept the fixed penalty and the matter would have to go to Court. That might not be such a bad tactic as at least you could try and get the Court to give a discretionary disqualification on the offence rather than the 6 penalty points. Whichever way you cut it, it would be bad news for a Probationary Driver!! You only have to be seen using a mobile phone whilst driving. I didn’t know this but, apparently, the police have even been using unmarked lorries to observe drivers who text or phone as the higher seating position means they can see and record offences not normally visible from a car. This is simply what I have read. I cannot verify the truth or otherwise of this. If your driving is bad or if there is a crash while you’re using your mobile phone you could be prosecuted for careless driving, dangerous driving or, if someone is killed, for causing death by careless or dangerous driving. It’s a risky business to use a mobile phone whilst driving but we all know that thousands of motorists are doing it daily. The difference between the hand-held mobile phone and a hands-free mobile phone is simply that using a hand-held mobile phone whilst driving is the actual offence whereas using a hands-free mobile phone, whilst not an offence in itself may be evidence of not being in proper control of the vehicle.

The penalties for ‘not in proper control’ are a fine of £100 and 3 penalty points or up to £1,000 if the matter goes to Court. Cyclists are not immune! – whilst it is not a specific offence to use a hand-held mobile phone whilst cycling you do lay yourself open to an allegation of careless or dangerous cycling

THE SENTENCING COUNCIL New guidance on imposing community and custodial sentences was published with effect from the 1st February 2017. The guidance clarifies the point that practitioners have made for some time – suspended sentences should only be imposed when custody is actually intended and not as a more severe form of community order – the two tests quite different – are the offences serious enough to warrant a community order – are they so serious that nothing other than custody is justified – I think the distinction between these two tests became a little blurred when the Court was given the power to impose community requirements within a suspended sentence of imprisonment (that is just my personal view!)

CASE-LAW Lord Chancellor and Edward Hayes LLP and Nick Wrack [2017] EWHC 138 (QB) This was an appeal by the Lord Chancellor to the High Court against a decision of Costs Judge Rowley. The first and second respondents are solicitor and counsel respectively. The defendant was charged with conspiracy to assist unlawful immigration and offences of fraud. There were some 68 persons mentioned in the telephone text schedules. At the conclusion of the trial the respondents submitted their claims for graduated fees on the basis that the PPE included the pages served on a disc by the prosecution which consisted of downloads from the mobile phone of the defendant which had been seized by the police. The claim of each respondent was determined by a different Determining Officer who each calculated that the pages served on disc should not be included within the PPE. 59

The Determining Officers deemed this material to be unused. The matters were re-determined with no change and an appeal was made to Costs Judge Rowley who allowed the appeals. The disc was provided directly by the prosecution counsel to the defendant counsel without it going via the CPS. This was not a point that should have been taken by the Determining Officer. There is no reason why the defence advocate should be penalised by this approach. The point was made yet again that the information served on disc needed to be considered just as carefully by the defence lawyers as it had been by the prosecution lawyers before its disclosure. The point is made at Paragraph 10 of the judgement that the trial Judge had said that the material extracted from the telephone was ‘central to the prosecution case’. The Costs Judge made his view very clear at Paragraph 12 of his judgement as follows:

‘The Agency’s main argument for disallowing the electronic evidence is that

the relevant information has been extracted and therefore the remainder

does not need to be considered or paid for. Realistically, there is no way that

the prosecution can always be clear as to which information is or is not

relevant to the defendant’s case and so it is not simply a question of

the prosecution making sure that all relevant documents are provided.

Lines of argument to be run by the defendant cannot always be foreseen by

the prosecution. Consequently where the evidence is important, the

defendant must be entitled to look at the underlying evidence that surrounds

it and not simply what the prosecution considers needs to be extracted to

prove its case. Such information needs to be scrutinised by the defendant’s

legal team and it is entitled to be remunerated for so doing’

The High Court saying this at Paragraph 24 of the judgement:

‘Given the importance of the text messages to the prosecution case it was,

in my view, incumbent on those acting on behalf of the defendant to look

at all the data on the disc to test the veracity of the text messages, to assess

the context in which they were sent, to extrapolate any data that was

relevant to the messages relied on by the Crown and check the accuracy of

the data finally relied on by the Crown. I regard the stance taken by the

appellant in respect of the surrounding material on this disc as unrealistic

It fails to properly understand still less appreciate the duty on those who

represent defendants in criminal proceedings to examine evidence served

upon them by the prosecution.

Appeal of the Lord Chancellor dismissed. R (TL) and THE CHIEF CONSTABLE OF SURREY POLICE [2017] EWHC 129 (Admin) An interesting case which dealt with the issues of whether or not an arrest for the purposes of imposing bail conditions was proportionate and whether or not an arrest was proportionate for the purposes of searching premises. I’m sure we would all agree that these cases will always turn on their own ‘facts’. The Claimant in the case was arrested by Surrey police (the defendant in this case) in relation to serious allegations of rape and sexual assault made against him by his former partner. The claimant was informed that the police wished to interview him. It is clear that even at this very early stage the Claimant must have known in general curtains that allegations of a sexual nature had been made against him. They were allegations of an historic nature. It is quite clear that the DC in the case had already decided to arrest the claimant before he had taken the opportunity to speak to him or the complainant in the case. The police were informed (after the complainant had given her account in an ABE interview) that the complainant was very frightened of the Claimant’s family. She was advised by the officer that once the Claimant had been spoken to he will have bail conditions. The DC even wrote in his log – ‘The main priority when I return fully next week will be to arrest and interview the suspect after I have had a chance to review the victim’s account’

The matter was discussed between the PC and the DS and the decision was made to arrest the suspect in order to conduct a search of his home address for electronic equipment..... The DC had written in his statement ‘..... I decided that voluntary attendance was not a reasonable or viable option in this particular case. I believed the risk of the Claimant tampering or destroying evidence was too high.’ The solicitor was informed in advance of the attendance that the Claimant would be arrested ‘part of our consideration in relation to arresting the Claimant was in order to prevent interference with the victim which may include consideration of bail conditions if we reached a point that the Claimant was to be bailed’ The Claimant was arrested outside Guildford police station by the DC upon arrival for interview. In the first instance the Claimant was told that the arrest was to ‘effect a prompt investigation’ Later he told the Claimant that the grounds for believing that the prompt investigation required him to effect an arrest were: 1

To prevent interference with the witness (complainant)

Search of premises and seizure of evidence

Obtain evidence by way of questioning

Post interview the Claimant was bailed with a condition non contact. The Claimant’s premises were searched by 3 police officers whilst he was at Guildford police station (Section 18 of PACE). There was some evidence that a computer had recently been moved from a desk. The Claimant was later informed that no further action was to be taken in the case. The claimant sought a Declaration that his arrest (and associated bail conditions) was unlawful. If granted, this would lead to the removal of any record of his recent arrest from the PNC. The case examined the criteria for an arrest under Section 24 of PACE and the guidance to police officers contained in Code G of the codes of practice under PACE.

The analysis is a long one and the case runs to 76 paragraphs. In conclusion the Court held that permission would be granted to the Complainant and that he was entitled to the Declaratory relief he sought. I shall just quote Paragraph 74 of the judgement as follows â&#x20AC;&#x2DC;Given that (a) the claimantâ&#x20AC;&#x2122;s arrest was unnecessary for the specific purpose of interviewing him (here, I am paraphrasing the Section 24 (5) (e) issue in that regard as more precisely formulated for these purposes by the Court of Appeal in Hayes), (b) there were no reasonable grounds necessitating his arrest in order to impose bail conditions, and (c) there were no reasonable grounds necessitating his arrest in order to search his premises (in preference to obtaining a search warrant under Section 8 of PACE) it must follow that the lawfulness of the Claimantâ&#x20AC;&#x2122;s arrest cannot be upheld. I know the above case is very specific but it does remind officers of the detailed guidance contained in Code G of the Codes of Practice and the matters to which they must apply their minds. I have said for a long time now that all practitioners attending police stations must be as familiar with Code G as they are with Code C. I simply reiterate the plea! R v Ordu [2017] EWCA Crim 4 The above case was yet another reminder to us of the very high test in order to appeal a conviction many years after the event. The Applicant had been given advice which was correct at the time about the prospects of a Section 31 Immigration and Asylum Act 1997 defence as the law then stood. He was told, quite rightly, that the defence would not succeed. Things have moved on since then and following case-law in 2010 and 2013 the advice given today would be very different and that his defence would be likely to succeed. He appealed 8 years and 3 months out of time and argued that there was a clear injustice and the conviction should not stand as it was unsafe. He contended that there was substantial injustice on the basis of the wrongful conviction and so the extension of time for leave to bring the appeal should be allowed.

It was agreed that there was clear injustice – how could there be anything else when the defence would be likely to succeed today! The Crown however argued that although there was injustice there was no substantial injustice (which, as you know, is the test in order to obtain exceptional leave to appeal out of time) The Court saying this at Paragraph 20 of the judgement:

‘For the reasons explained in Johnson at [18] and [19] there are powerful

reasons why convictions properly returned under the law as it was understood

at the time of conviction should not be set aside simply on that ground. This is

why it is for the applicant for exceptional leave to appeal out of time

to demonstrate that a substantial injustice would be done by refusing

that application.......’

And this at Paragraph 33 of the judgement:

‘We refuse to grant the necessary extension of time in this case. It is a very

long extension and this is not, for the most part, the fault of the applicant

However, it means that he has now lived through all the adverse

consequences of the conviction and emerged to a happier, more settled

and safe life in the United Kingdom. The conviction and sentence is now

a long time ago and quashing the conviction will not remedy the unpleasant

memories which are now the only legacy. On the information before us,

quashing the conviction would actually make no real difference to the

applicant’s life at all, and in those circumstances it is impossible to say that a

Substantial Injustice will occur if this appeal is not allowed to proceed’

Statutory Instruments THE CRIMINAL PROCEDURE (AMENDMENT) RULES 2017 For those of you who like to keep abreast of the Rules I just flag up for your attention Statutory Instrument 2017 No.144 which is The Criminal Procedure (Amendment) Rules 2017 and comes into force on the 3rd April 2017. We now have The Criminal Procedure Rules 2015 (October 2015) together with the amendments to those Rules (April 2016) together with the further amendment

to those Rules (October 2016) and finally the above i.e. the further amendments coming into force in April 2017.We now have 4 Statutory Instruments in total and all available from legislation.gov.uk Just a couple of amendments to bring to your attention: Part 8 – a new Rule 8.4 is added to require a Magistrates’ Court to allow the defendant sufficient time to consider prosecution information not previously served or made available Part 14 – Rule 14.2 is amended to require the Court, when considering bail, to allow the defendant sufficient time to consider information provided by the prosecutor, and to give itself sufficient time to consider the parties’ representations and come to a reasoned conclusion. Rule 14.5 is amended to make it explicit that prosecution information submitted to the Court in bail proceedings must be provided to the defendant, too. Statutory Instrument 2017 No. 103 is The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code C, D and H) Order 2017 and came into force on the 23rd February 2017 You can read the Statutory Instrument for yourself and I don’t propose to deal with all of the minor amendments but I do want to flag up 2 amendments as follows: 1

Revisions to Code C enable interpretation services for persons who are

suspected of a criminal offence to be provided by interpreters who are

not physically present in the suspect’s location, by way of a live link electronic

communication system

Revisions to Code C make it clear that a juvenile for the purposes of detention

is a person who has not attained the age of 18 rather than a person who has

not attained the age of 17 – as you know under LASPO a child is now defined

as anyone below the age of 18

Section 3 CrimeScribe Edition No. 68

Hello and welcome to this month’s edition of CrimeScribe. The bulk of this month’s edition will concentrate on one of the 2 very important documents recently issued by the Sentencing Council. One in relation to the ‘Reduction in Sentence for a Guilty Plea – Definitive Guideline’ and the other concerning ‘Sentencing Children and Young People – Overarching Principles and Offence Specific Guidelines for Sexual Offences and Robbery – Definitive Guideline’. Both of which are operative from the 1st June. I shall deal with the ‘Sentencing Children and Young People’ document in some detail in next month’s edition. I might add, in passing, that here we are on the 29th March 2017 (admittedly, very early in the morning!) but we still don’t know what fees will be payable under the new Contracts (which we have already signed!) starting on the 1st April. You couldn’t make it up could you! I shall deal with whatever comes our way in next month’s edition. Just so that we are absolutely clear on the point – anything contained within brackets relates to my thoughts and is not an extract from the guidance.

Sentencing Council The new document on credit will replace the existing Guidelines (which go back to April 2007) and is relevant for anyone aged 18 or over, and to organisations, sentenced on or after the 1st June 2017 regardless of the commission date of the offence and regardless of the conviction date. There is no change there. The guideline applies equally in Magistrates’ courts and the Crown Court. Guidance on reductions in sentence for a guilty plea for those aged under 18 is contained in the ‘Sentencing Council Overarching Principles – Sentencing Children and Young People.

Section 144 of the Criminal Justice Act 2003 provides: (1)

In determining what sentence to pass on an offender who has pleaded guilty

to an offence in proceedings before that court or another court, a court must

take into account:

(a)

The stage in the proceedings for the offence at which the offender indicated

his intention to plead guilty, and

(b)

The circumstances in which this indication was given

Q–

What do the guidelines say concerning those people who make admissions

and show remorse in a police station interview?

A–

Factors such as admissions at interview, co-operation with the investigation

and demonstrations of remorse should NOT be taken into account in

determining the level of reduction. Rather, they should be considered

separately and prior to any guilty plea reduction, as potential

mitigating factors

[I know I have mentioned this before but please take some time to read the case of R v Caley and Others – Court of Appeal – December 2012 – in which the Court gave guidance as to how the Judge should approach the sentencing exercise where the suspect had made admissions and shown remorse in the interview – the Court said that each case would need to be judged on its own merits but that, in certain circumstances, admissions made in a police station interview might result in the Judge starting the sentence at a lower starting point and, from the lower starting point, deducting whatever credit was applicable in the case – examples of where this might be relevant were given in the case and the classics are – where the Crown may have had difficulties bringing the case home, but for the admissions and where suspicion was deflected away from others who had come under suspicion by virtue of the fact that the suspect had made admissions in the interview – I’m sure you can think of others – this is an important mitigation point and advocates should read the case] THE BENEFITS APPLY REGARDLESS OF THE STRENGTH OF THE EVIDENCE AGAINST THE OFFENDER.THE STRENGTH OF THE EVIDENCE SHOULD NOT BE TAKEN INTO ACCOUNT WHEN DETERMINING THE LEVEL OF REDUCTION.

[The above passage is really important and should, respectfully of course, be brought to the attention of any Judge who seeks to reduce the credit to nearer 20% based upon the premise that the evidence was ‘overwhelming’ and that the defendant therefore had little choice other than to plead guilty. This has been happening and such an approach had been supported by various Court of Appeal decisions (R v Joy being merely one of them). This approach should not be taken for anyone sentenced on or after the 1st June 2017] The guideline applies only to the punitive elements of the sentence and has no impact of Ancillary Orders including orders of disqualification from driving [there is nothing wrong though with the advocate bringing the early guilty plea to the attention of the court and asking that the court consider making the disqualification lower than it otherwise would have done to reflect the entirety of the mitigation in the case including the early guilty plea – the point is simply being made that there is no entitlement to a reduction by way of credit in a period of disqualification for a timely guilty plea – absent special reasons, of course, the disqualification could never be reduced to a term below that set by Parliament as being the minimum term] The MAXIMUM level of reduction in sentence for a guilty plea is one third Where a guilty plea is indicated at the first stage of proceedings a reduction of one third should be made (subject to the exceptions in Section F). The first stage will normally be the first hearing at which a plea or indication of plea is sought and recorded by the court. Plea indicated after the first stage of proceedings – maximum one quarter – sliding scale of reduction thereafter (subject to the exceptions in Section F) The reduction should be decreased from one quarter to a maximum of one tenth on the first day of trial having regard to the time when the guilty plea is first indicated to the court relative to the progress of the case and the trial date (subject to the exceptions in Section F). The reduction should normally be decreased further, even to zero, if the guilty plea is entered during the course of the trial. For the purposes of this guideline a trial will be deemed to have started when prerecorded cross-examination has begun

The reduction in sentence for a guilty plea can be taken into account by imposing one type of sentence rather than another; for example: By reducing a custodial sentence to a community sentence, or By reducing a community sentence to a fine

More than one summary offence When dealing with more than one summary offence, the aggregate sentence is limited to a maximum of 6 months. Allowing for a reduction in each guilty plea, consecutive sentences might result in the imposition of the maximum 6-month sentence. Where this is the case, the court may make a modest additional reduction to the overall sentenced to reflect the benefits derived from the guilty pleas. [Nowhere is the above more relevant than when the court is sentencing a defendant for multiple offences of driving whilst disqualified – there would be nothing wrong with the court imposing consecutive sentences for the offences of driving whilst disqualified but the court should not utilise the whole of the 6 months where guilty pleas had been entered – there should be some modest additional reduction to the overall sentence to reflect the guilty pleas i.e. a sentence of 2 months +2 months +2 months would be wrong whereas a sentence of 2 months +2 months plus 1 month might well be appropriate for 3 guilty pleas to 3 offences of driving whilst disqualified] Reducing a custodial sentence to reflect a guilty plea may enable a Magistrates’ court to retain jurisdiction of an either-way offence rather than committing the case for sentence to the Crown Court

F – Exceptions Where the sentencing court is satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one third should still be made. In considering whether this exception applies, sentencers should distinguish between the cases in which it is necessary to receive advice and/or have sight of evidence in order to understand whether the defendant is in fact and law guilty of the offence

(s) charged, and cases in which the defendant merely delays guilty plea (s) in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal. [The above 2 passages are hugely important – Appendix 3 at the back of the document is a flowchart illustrating reductions for indictable only offences (excluding murder) – the flowchart makes it abundantly clear that a defendant charged with an indictable only offence who appears in the Magistrates’ court and does not indicate a plea of guilty at the first hearing puts his one third reduction at risk – the flowchart refers to a reduction of one quarter where the guilty plea is entered at the first hearing in the Crown Court – as you know, Rule 8 of the Criminal Procedure Rules 2015, as amended, (Initial Details of the Prosecution Case) has been extended to apply to purely indictable only offences and the Criminal Procedure Rules also require the court to ask a defendant charged with a purely indictable only offence whether or not he is prepared to indicate a plea at that first hearing in the Magistrates’ court – if the indication is one of ‘not guilty’ there should be a further enquiry as to whether or not the defendant is willing to assist the court with trial issues at this stage – the new guidance issued by the Sentencing Council reflects the position under the Criminal Procedure Rules i.e. the expectation that an indication of guilt could be given at the first stage in a purely indictable only offence – after the 1st June 2017 advocates must advise (and record the advice) very carefully in this area. There will, no doubt, be cases where the Judge at the Crown Court is still minded to give the full one third reduction where a guilty plea is entered at the first hearing in the Crown Court but, in future, it might be limited to the somewhat narrow band of cases in which the defendant needed to be advised on the evidence before knowing whether he was guilty or not guilty of the crime – it might also apply to those defendants who have little or no knowledge of having committed the offence and need the lawyer to tell them precisely what it is as alleged that they have – those 2 examples are qualitatively different from the client who knows that he did it but simply wants advice from his lawyer as to the extent of the prosecution evidence against him and the strength of the case – there are going to be many interesting discussions, not least concerning the lack of any appreciable evidence upon which to advise at that first listing in the Magistrates’ court!, between Crown Court Judges and lawyers in this area following the new guidance] I think it hardly needs saying that if the above is true in relation to indictable only matters then it is also true in relation to offences which are either-way (see Appendix 1 at the end of the document) i.e. the defendant is going to have to enter a guilty plea at the Magistrates’ court stage in order to get the full reduction of one third

and any indication of guilt thereafter at the first listing in the Crown Court will attract a reduction or one quarter (unless the lawyer can put forward the same argument, referred to above, as would be relevant in a purely indictable only offence) Appendix 2 at the back of the document refers to summary only offences and I suspect you can work out what the credit position is in relation to summary only offences. It is, as you might expect, a very simple flowchart.

Newton Hearings and Special Reasons Hearings In circumstances where an offender’s version of events is rejected at a Newton Hearing or Special Reasons hearing, the reduction which would have been available at the stage of proceedings the plea was indicated should normally be HALVED. Where witnesses are called during such a hearing, it may be appropriate further to decrease the reduction. [I can see the logic of this in relation to Newton Hearings but I suspect that it will not be relevant in the vast majority of Special Reasons hearings which merely concern an ancillary order anyway i.e. disqualification or penalty points] If an offender is convicted of a lesser or different offence from that originally charged, and has earlier made an unequivocal indication of a guilty plea to this lesser or different offence to the prosecution and the court, the court should give the level of reduction that is appropriate to the stage in the proceedings at which this indication of plea (to the lesser or different offence) was made, taking into account any other of these exceptions that apply. In the Crown Court where the offered plea is a permissible alternative on the indictment as charged, the offender will not be treated as having made an unequivocal indication unless the offender has entered that plea. Minimum sentence under Section 51A of the Firearms Act 1968 – there can be no reduction for a guilty plea if the effect of doing so would be to reduce the length of sentence below the required minimum term. [I’m sure you know that for offences within the Schedule the required minimum term is 5 years for someone aged 18 or over and 3 years for someone aged 16 or 17]

When dealing with adults (18 or over) â&#x20AC;&#x201C; if an appropriate custodial sentence of at least 6 months falls to be imposed on a person aged 18 or over who has been convicted under Sections 1 or 1A of the Prevention of Crimes Act 1953; or Sections 139, 139AA or 139A of the Criminal Justice Act 1988 (certain possession of knives or offensive weapons) or A prescribed custodial sentence falls to be imposed under Section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 (drug-trafficking offences) or Section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 (burglary offences), The court may impose any sentence in accordance with this guideline which is not less than 80% of the appropriate custodial period [This means in practice that the sentence must not fall below 80% of 6 months or 80% of 3 years or 80% of 7 years â&#x20AC;&#x201C; the Judge may still give a full one third credit so long as the sentence does not fall below 80% of the mandatory minimum sentence i.e. if the Judge decides that 12 years is an appropriate starting point for a third supply of Class A drugs then the Judge can give one third as this will not take the sentence below 80% of 7 years]

Mandatory life sentences for murder Murder is the most serious criminal offence and the sentence prescribed is different from all other sentences. By law, the sentence for murder is imprisonment (detention) for life and an offender with remain subject to the sentence for the rest of his life. Given the special characteristic of the offence of murder and the unique statutory provision in Schedule 21 of the Criminal Justice Act 2003 of starting points for the minimum term to be served by an offender, careful consideration has to be given to the extent of any reduction for a guilty plea and the need to ensure that the minimum term properly reflects the seriousness of the offence. Whilst the general principles continue to apply (both that a guilty plea should be encouraged and that the extent of any reduction should reduce if the indication of plea is later than the first stage of the proceedings) the process of determining the level of reduction will be different.

Determining the level of reduction Whereas a court should consider the fact that an offender has pleaded guilty to murder when deciding whether it is appropriate to order a whole life term, where a court determines that there should be a whole life minimum term, there will be no reduction for a guilty plea. In other circumstances: The court will weigh carefully the overall length of the minimum term taking into account other reductions for which the offender may be eligible so as to avoid a combination leading to an inappropriately short sentence; Where it is appropriate to reduce the minimum term having regard to a plea of guilty, the reduction will not exceed one sixth and will never exceed 5 years; The maximum reduction of one sixth or 5 years (whichever is less) should only be given when a guilty plea had been indicated at the first stage of the proceedings. Lesser reductions should be given for guilty pleas after that point, with a maximum of one twentieth being given for a guilty plea on the day of trial.

Statutory Instruments Statutory Instrument 2017 No. 311 is The Criminal Legal Aid (Standard Crime Contract) (Amendment) Regulations 2017 and comes into force on the 1st April 2017 – part of the Explanatory Note at the end reads as follows: ‘Chapter 1 of Part 4 of the Policing and Crime act 2017, when commenced, will introduce new proceedings relating to police bail. Payment for work done in connection with these proceedings will be made under paragraph 3 (4) of Schedule 4 to the Remuneration Regulations. Regulation 3 (5) (c) amends that paragraph and the heading of the table in that paragraph so that it refers to all applications relating to police bail. It currently refers only to applications to vary the conditions of police bail.’ [What I think will happen is that we will get a new box on the CRM 3 form – Advocacy Assistance in the Magistrates’ court – those of you familiar with CRM 3 will know that there are already boxes on it relating to Warrants of further detention,

application for variation of pre-charge bail conditions and prison law – it is a moot point as to whether or not applications for variation of pre-charge bail conditions are means tested – I personally think that they are – applications for Warrants of further detention are, of course, not means tested] ‘Regulation 5 provides that these Regulations will apply to work done pursuant to determinations for criminal legal aid made on or after 1st April 2017 and will not affect work done pursuant to a determination made before that date’ ‘Regulation 9 of the Remuneration Regulations provides that, where representation is provided in connection with proceedings in the Crown Court, providers of legal aid services must not accept payment for work done in connection with those proceedings from sources other than the Lord Chancellor. Regulations 3 (2) and 3 (3) extend this prohibition of payment from other sources to work done in connection with proceedings in the Magistrates courts’ [Does this mean that someone having the benefit of a Representation Order will not be able to pay privately for a QC in the Magistrates’ court?] Statutory Instrument 2017 No. 282 is The Criminal Procedure (Amendment No. 2) Rules 2017 and comes into force on the 3rd April 2017 – this commencement date coincides with the coming into force of the pre-charged bail alterations under the Policing and Crime Act 2017 – Rules 14.20, 14.21 and 14.22 are added to provide for applications to the Magistrates courts under Sections 47ZF and 47ZG of the Police and Criminal Evidence Act 1984 (applications for the court’s authority to extend the period during which a defendant who has been arrested for an offence may be on bail after being released without being charged) Rules 14.1, 14.2, 14.4 and 14.6 are all amended in consequence of those Sections of the 1984 Act and in consequence of the 3 new Rules. Statutory instrument 2017 No. 294 is The Road Traffic Offenders (Additional Offences) Order 2017 and comes into force on the 5th of April 2017. This Order amends Section 20 of the Road Traffic Offenders Act 1988 (which allows records from prescribed devices, such as Automatic Number Plate Recognition cameras, to be used as evidence in proceedings for certain offences and merely extends the offences to include driving on the hard shoulder of a motorway and a failure to comply with an indication given by a light signal not to enter, or proceed in, a traffic lane (which is an offence under Section 36 (1) of the Road Traffic Act 1988

Statutory instrument 2017 No. 104 is The Road Traffic Offenders Act 1988 (Penalty Points) (Amendment) Order 2017 and came into force on the 1st March 2017 This, as you know amended Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 to change the number of penalty points attributable to the offence under Section 41D (b) of the Road Traffic Act 1988 of contravening or failing to comply with a construction and use requirement as to the use of hand-held mobile telephones, or other hand-held interactive communication devices, while driving. Prior to this Order coming into force, a person committing an offence under this provision would have received 3 penalty points. A person committing such an offence after this Order comes into force will receive 6 penalty points. [The amount payable under the Fixed Penalty Notice is also increased from ÂŁ100 to ÂŁ200] [You will see that the Order is wider than merely hand-held mobile phones and concerns any hand-held interactive communication device] Statutory Instrument 2017 No.189 is The Criminal Justice and Courts Act 2015 (Commencement No. 6) Order 2017 and came into force on the 23rd February 2017. This Order brings into force Section 31 of and Schedule 7 to, the Criminal Justice and Courts Act 2015 insofar as they are not already in force. They make provision for a driving disqualification imposed by Ireland on a UK resident, or the holder of a UK driving licence, for certain specified road traffic offences to be recognised and given effect in the UK. They also make provision for a driving disqualification imposed by the UK on an Irish resident, or holder of an Irish driving licence, for those offences to be notified to the appropriate Irish authority so that the disqualification may be recognised and given effect in Ireland. This gives effect to the agreement on the Mutual Recognition of Driving Disqualifications between the UK and Ireland made on the 30th October 2015. Statutory Instrument 2017 No. 306 is The Policing and Crime Act 2017 (Possession of Pyrotechnic Articles at Musical Events) Regulations 2017 and comes into force on the 3rd April 2017. These Regulations specify a description of an event for the purposes of Section 134 (5) of the Policing and Crime Act 2017. This Section provides that it is an offence for a person to be in possession of pyrotechnic article at a place where a qualifying musical event is being held, or at any other place that is being used by the organiser of the event for the purposes of either regulating entry to or departure from the event, or for providing sleeping or other facilities to attendees of the event. 75

A qualifying musical event is an event at which one or more live musical performances take place and which is either specified, or of a description specified, in Regulations. These Regulations specify a description of such an event as one that is provided for members of the public or a section of the public only, and which takes place on premises that is authorised by a premises licence issued under the Licensing Act 2003 to provide regulated entertainment in the form of a performance of live music. [A whole raft of provisions of the Policing and Crime Act 2017 came into force with the issue of The Policing and Crime Act 2017 (Commencement No. 1 and Transitional Provisions) Regulations 2017 – there is a Schedule within this Statutory Instrument outlining the provisions of the Act coming into force on the 3rd April 2017 – Section 134 is just one of those provisions coming into force]

Magistrates’ Courts sentencing guidelines The guidelines for many motoring offences (but the list also includes some nonmotoring offences) are changing from the 24th April 2017. Please do ensure that you are working from an updated version after that date. The one that made it into the newspapers concerns the guideline sentence for those who are driving at twice the permissible speed in a given area i.e. 60 or over in a 30 or 80 or over in a 40 – the starting point for the financial penalty in such instances is now a Band C fine rather than a Band B fine i.e. the starting point is now 150% of relevant weekly income rather than 100% of relevant weekly income.

CASE-LAW R v Warren [2017] EWCA Crim 226 I don’t want to go into this case in any detail but it is an excellent case setting out the principles to be borne in mind when the Crown Court Judge changes his/her mind and wants to increase the sentence within the 56 days allowed by Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. The obvious point was made that the Judge should not use the slip rule merely because there is a change of mind about the nature or length of the sentence but the slip rule is available where the Judge is persuaded that he had made a material

error in the sentencing process, whether of fact or law. It is relevant in considering whether he had made a material error that that error might be corrected by the Court of Appeal on the Attorney General’s application against the leniency of the sentence imposed by the Crown Court Judge – a Judge should never seek to change the sentence by the mere threat of a review by the Attorney General – if the Judge thought that the sentence was right at the time then that should be the sentence.

Legislation Section 67 of the Serious Crime Act 2015 comes into force on the 3rd April 2017. The Section concerns sexual communication with a child. It is an either-way offence carrying a maximum of 2 years imprisonment. The Section inserts a Section 15A into the Sexual Offences Act 2003. The offence criminalises conduct where an adult intentionally communicates e.g. by email or text or note or orally with a child under 16 (a reasonable belief that the person is aged 16 or over would be a defence) for the purpose of obtaining sexual gratification if the communication is sexual or intended to encourage the child to make a communication that is sexual.

Section 4 CrimeScribe Edition No. 69

Hello and welcome to this month’s edition of CrimeScribe. The bulk of this month’s edition will concentrate on the second of those 2 very important documents recently issued by the Sentencing Council. One was in relation to the ‘Reduction in Sentence for a Guilty Plea – Definitive Guideline’ and the other concerns ‘Sentencing Children and Young People – Overarching Principles and Offence Specific Guidelines for Sexual Offences and Robbery – Definitive Guideline’. Both of which are operative from the 1st June. Having dealt with the reduction document in last month’s edition I shall deal with the ‘Sentencing Children and Young People’ document in some detail in this month’s edition. The document is some 46 pages long and I shall attempt to distil the essence of it. [I must add, at the very beginning of this month’s edition, in passing, that, Statutory Instrument 313 of 2016 continues to govern our fees for the work we do as Solicitors/ Litigators until further notice. As you know, it is Statutory Instrument 435 of 2013 which governs Crown Court advocacy fees until further notice]

Sentencing Council The ‘Sentencing Children and Young People’ guideline applies to all children or young people who are sentenced on or after the 1st June 2017, regardless of the date of the offence. Guidance for sentencing children and young people set out in the 2006 robbery guideline and the 2007 sexual offences guideline, both produced by the Sentencing Guidelines Council, are replaced by this guideline.

Guilty plea section only This section of the guideline applies regardless of the date of the offence to all children or young people where the first hearing is on or after the 1st June 2017. It applies equally in youth courts, the magistrates’ courts and the Crown Court. 78

The guidance in relation to guilty pleas merely replicates the guidance already published by the Sentencing Council and operative for anyone sentenced on or after the 1st June 2017 – insofar as adults are concerned (18 and over) the guidance is applicable for anyone sentenced on or after the 1st June 2017 – you will note immediately that it is slightly different for children and young people where it is the first hearing that is relevant. Factors such as admissions in interview, co-operation with the investigation and demonstrations of remorse should not be taken into account in determining the level of reduction. Rather, they should be considered separately and prior to any guilty plea reduction, as potential mitigating factors. The strength of the evidence should not be taken into account when determining the level of reduction. Credit only applies to the punitive elements of the sentence and has no impact on ancillary orders including orders of disqualification from driving. Detention and training orders – a detention and training order can only be imposed for the periods prescribed – 4, 6, 8, 10, 12, 18 or 24 months. If the reduction in sentence for a guilty plea results in a sentence that falls between the two prescribed periods the court must impose the lesser of those two periods. This may result in a reduction greater than a third, in order that the full reduction is given and a lawful sentence imposed. A DTO of up to 24 months may be imposed on a child or young person if the offence is one which, but for the plea, would have attracted a sentence of detention in excess of 24 months under Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000

Referral orders As a referral order is a sentence that is only available upon pleading guilty there should be no further reduction of the sentence to reflect the guilty plea

Minimum sentence under Section 51A of the Firearms Act 1968 There can be no reduction for a guilty plea if the effect of doing so would be to reduce the length of sentence below the required minimum term

Sentencing principles When sentencing children or young people (those aged under 18 at the date of the finding of guilt) a court must have regard to: The principle aim of the youth justice system (to prevent offending by children and young people); and The welfare of the child or young person Whilst the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused. For a child or young person the sentence should focus on rehabilitation where possible. A court should also consider the effect the sentence is likely to have on the child or young person (both positive and negative) as well as any underlying factors contributing to the offending behaviour. It is important to avoid â&#x20AC;&#x2DC;criminalisingâ&#x20AC;&#x2122; children and young people unnecessarily; the primary purpose of the youth justice system is to encourage children and young people to take responsibility for their own actions and promote re-integration into society rather than punish. Restorative justice disposals may be of particular value for children and young people as they can encourage them to take responsibility for their actions and understand the impact their offence may have had on others. It is important to bear in mind any factors that may diminish the culpability of a child or young person. Children and young people are not fully developed and they have not attained full maturity. As such, this can impact on their decision-making and risk taking behaviour. It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. They may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to the victims of their crimes. Children and young people are also likely to be susceptible to peer-pressure and other external influences and changes taking place during adolescence can

lead to experimentation, resulting in criminal behaviour. When considering a child or young personâ&#x20AC;&#x2122;s age, their emotional and developmental age is at least equal importance to their chronological age (if not greater). Deterrence can be a factor in sentencing children and young people although normally it should be restricted to serious offences and often will be outweighed by considerations of the child or young personâ&#x20AC;&#x2122;s welfare. Subject to certain legal exceptions, cases involving children and young people should be tried in the Youth Court. A trial in the Crown Court, with the inevitably greater formality and greatly increased number of people involved (including a jury and the public), should be reserved for the most serious cases. A child or young person must always appear in the Crown Court for trial if: Charged with homicide Charged with a firearms offence, subject to a mandatory minimum sentence of 3 years (and is over 16 years of age at the time of the offence); or Notice has been given to the court (under Section 51B or 51C of the Crime and Disorder Act 1998) in a serious or complex fraud or child case.

Dangerousness A case should be sent to the Crown Court for trial if the offence charged is a Specified Offence (see Schedule 15 of the Criminal Justice Act 2003) and it seems to the court that if found guilty the child or young person would meet the criteria for a sentence under the dangerous offender provisions A sentence under the dangerous offender provisions can only be imposed if; The child or young person is found guilty of a specified violent or sexual offence; and The court is of the opinion that there is a significant risk to the public of serious harm caused by the child or young person committing further specified offences; and A custodial term of at least 4 years would be imposed for the offence In anything but the most serious cases it may be impossible for the court to form a view as to whether the child or young person would meet the criteria of the dangerous offender provisions without greater knowledge of the circumstances of the offence and the child or young person. In those circumstances jurisdiction in the

case should be retained in the youth court. If, following a guilty plea or a finding of guilt, the dangerousness criteria appear to be met then the child or young person should be committed for sentence

Grave crimes Where a child or young person is before the court for an offence to which Section 91 (1) of the Powers of Criminal Courts (Sentencing) Act 2000 applies and the court considers that it ought to be possible to sentence them to more than 2 years detention if found guilty of the offence, then they should be sent to the Crown Court. The test to be applied by the court is whether there is a real prospect that a sentence in excess of 2 years detention will be imposed. An offence comes within Section 91 where: It is punishable with 14 yearsâ&#x20AC;&#x2122; imprisonment or more (but is not a sentence fixed by law); It is an offence of sexual assault, a child sex offence committed by a child or young person, sexual activity with a child family or inciting a child family member to engage in sexual activity; or It is one of a number of specified offences in relation to firearms, ammunition and weapons which are subject to a minimum term but, in respect of which, a court has found exceptional circumstances justifying a lesser sentence. Before deciding whether to send the case to the Crown Court or retain jurisdiction in the youth court, the court should hear submissions from the prosecution and defence. As there is now a power to commit grave crimes for sentence the court should no longer take the prosecution case at its highest when deciding whether to retain jurisdiction. In most cases it is likely to be impossible to decide whether there is a real prospect that a sentence in excess of 2 years detention will be imposed without knowing more about the facts of the case and the circumstances of the child or young person. In those circumstances the youth court should retain jurisdiction and commit for sentence if it is of the view, having heard more about the facts and the circumstances of the child or young person, that its powers of sentencing are insufficient. Children and young people should only be sent for trial or committed for sentence to the Crown Court when charged with, or found guilty of, an offence of such gravity

that a custodial sentence substantially exceeding 2 years is a realistic possibility. For children aged 10 or 11 and children/young people aged 12 â&#x20AC;&#x201C; 14 who are not persistent offenders, the court should take into account the normal prohibition on imposing custodial sentences.

Charged alongside an adult The guidance merely re-iterates the guidance we already have in relation to adults and youths who are charged together. The guidance in relation to Allocation and Sending was published some while back and operative from the 1st March 2016

Remittal from the Crown Court for sentence If a child or young person is found guilty before the Crown Court of an offence other than homicide the court must remit the case to the youth court, unless it would be undesirable to do so, (Section 8 of the PCC (S) A 2000). In considering whether this is undesirable a court should balance the need for expertise in the sentencing of children and young people with the benefits of the sentence being imposed by the court which determined guilt. Particular attention should be given to children and young people who are appearing before the Crown Court only because they have been charged with an adult offender; Referral Orders are generally not available in the Crown Court but may be the most appropriate sentence.

Parental responsibilities For any child or young person aged under 16 appearing before court there is a statutory requirement that parents/guardians attend during all stages of proceedings, unless the court is satisfied that this would be unreasonable having regard to the circumstances of the case (Section 34A of the Children and Young Persons act 1933). The court may also enforce this requirement for a young person aged 16 and above if it deems it desirable to do so. In addition to this responsibility there are also Orders that can be imposed on parents. If the child or young person is aged under 16 the court has a duty to make a

parental bind over or impose a parenting order, if it would be desirable in the interest of preventing the commission of further offences. There is a discretionary power to make these Orders where the young person is aged 16 or 17. If the court chooses not to impose a parental bind over or parenting order it must state its reasons for not doing so in open court. In most circumstances a parenting order is likely to be more appropriate than a parental bind over. A court cannot make a bind over alongside a referral order. If the court makes a referral order the duty on the court to impose a parenting order in respect of a child or young person under 16 years old is replaced by the discretion to do so.

Determining the sentence In determining the sentence, the key elements to consider are: The principal aim of the youth justice system (to prevent re-offending by children and Young people); The welfare of the child or young person The age of the child or young person (chronological, developmental and emotional); The seriousness of the offence; The likelihood of further offences being committed; and The extent of harm likely to result from those further offences The seriousness of the offence is the starting point for determining the appropriate sentence; the sentence imposed and any restriction on liberty must be commensurate with the seriousness of the offence.

Crossing a significant age threshold between commission of offence and sentence There will be occasions when an increase in the age of a child or young person will result in the maximum sentence on the date of the finding of guilt being greater than that available on the date on which the offence was committed (primarily turning 12, 15 or 18 years old).

In such situations the court should take as its starting point the sentence likely to be imposed on the date on which the offence was committed. This includes young people who attain the age of 18 between the commission and the finding of guilt of the offence but when this occurs the purpose of sentencing adult offenders has to be taken into account, which is: The punishment of offenders The reduction of crime (including reduction by deterrence); The reform and rehabilitation of offenders; The protection of the public; and The making of reparation by offenders to persons affected by their offences When any significant age threshold is passed it will rarely be appropriate that a more severe sentence than the maximum that the court could have imposed at the time the offence was committed should be imposed. However, a sentence at or close to that maximum may be appropriate.

Persistent offenders Some sentences can only be imposed on children and young people if they are deemed a persistent offender. The child or young person must be classed as such for one of the following to be imposed: A youth rehabilitation order (YRO) with intensive supervision and surveillance when aged under 15; A YRO with fostering when aged under 15; and A detention and training order (DTO) when aged 12 â&#x20AC;&#x201C; 14 The term â&#x20AC;&#x2DC;persistent offenderâ&#x20AC;&#x2122; is not defined in statue but has been considered by the Court of Appeal. In general it is expected that the child or young person would have had previous contact with authority as a result of criminal behaviour. This includes previous findings of guilt as well as admissions of guilt such as restorative justice disposals and conditional cautions A child or young person who has committed one previous offence cannot reasonably be classed as a persistent offender, and a child or young person who has

committed two or more previous offences should not necessarily be assumed to be one. To determine if the behaviour is persistent the nature of the previous offences and the lapse of time between the offences would need to be considered (see the case of R v M [2008] EWCA Crim 3329) If there have been 3 findings of guilt in the past 12 months for imprisonable offences of a comparable nature (or the child or young person has been made the subject of orders as detailed above in relation to an imprisonable offence) then the court could certainly justify classing the child or young person as a persistent offender. When a child or young person is being sentenced in a single appearance for a series of separate, comparable offences committed over a short space of time then the court could justifiably consider the child or young person to be a persistent offender, despite the fact that there may be no previous findings of guilt (R v S [2000] 1 CR App R (S) 18. In these cases the court should consider whether the child or young person has had prior opportunity to address their offending behaviour before imposing one of the optional sentences available for persistent offenders only; if the court determines that the child or young person has not had an opportunity to address their behaviour and believes that an alternative sentence has a reasonable prospect of preventing re-offending then this alternative sentence should be imposed. Custodial sentences must be a last resort for all children and young people and there is an expectation that they will be particularly rare for children and young people aged 14 or under.

Conditional discharges A conditional discharge is appropriate when, despite a finding of guilt, the offence is not serious enough to warrant an immediate punishment. The fixed period of conditional discharge must not exceed 3 years. Unless exceptional circumstances are found, a conditional discharge cannot be imposed if the child or young person has received one of the following in the previous 24 months: two or more cautions; or a conditional caution followed by a caution (see Section 66ZB Crime and Disorder Act 1998)

Fines The court may impose a fine for any offence (unless the criteria for a mandatory referral order are met). In accordance with statutory requirements, where financial orders are being considered, priority must be given to compensation orders and when an order for costs is to be made alongside a fine, the amount of the costs must not exceed the amount of the fine. If the child or young person is under 16 then the court has a duty to order parents or guardians to pay the fine: if the young person is 16 or over this duty is discretionary. In practice, many children and young people will have limited financial resources and the court will need to determine whether imposing a fine will be the most effective disposal.

Referral orders A referral order is the mandatory sentence in the youth court or Magistratesâ&#x20AC;&#x2122; Court for most children and young people who have committed an offence for the first time and have pleaded guilty to an imprisonable offence. Exceptions are for offences were a sentence is fixed by law or if the court deems a custodial sentence, an absolute or conditional discharge or a hospital order to be more appropriate. A discretionary referral order can also be imposed for any offence where there has been a plea of guilty regardless of previous offending history. It should be remembered that they are not community orders and in general terms may be regarded as orders which fall between community disposals and fines. However, bearing mind that the principal aim of the youth justice system is to prevent children and young people offending, second or subsequent referral orders should be considered in those cases where: (a)

The offence is not serious enough for a YRO but the child or young person

does appear to require some intervention OR

(b)

The offence is serious enough for a YRO but it is felt that a referral order would

be the best way to prevent further offending (as an example, this may be

because the child or young person has responded well in the past to such an

order and the offence now before the court is dissimilar to that for which a

referral order was previously imposed).

In cases where children or young people have offended for the first time and have pleaded guilty to committing an offence which is on the cusp of the custody threshold, YOT’s should be encouraged to convene a Youth Offender Panel prior to sentence (sometimes referred to as a ‘pseudo-panel or pre-panel’) where the child or young person is asked to attend before a panel and agree an intensive contract. If that contract is placed before the sentencing youth court, the court can then decide whether it is sufficient to move below custody on this occasion. The proposed contract is not something the court can alter in any way; the court will still have to make a decision between referral order and custody but can do so on the basis that if it makes a referral order it can have confidence in what that will entail in the particular case.

Youth rehabilitation orders (YRO) YRO’s are the community sentence available for a youth. The court may include one or more requirements designed to provide for punishment, protection of the public, reducing re-offending and reparation. The maximum period of a YRO is 3 years and the offence must be serious enough in order to impose a YRO but it does not need to be an imprisonable offence. The order may contain intensive supervision and surveillance or with fostering An intensive supervision and surveillance requirement and fostering requirement are both community alternatives to custody The offence must be punishable by imprisonment, cross the custody threshold and a custodial sentence must be merited before one of these requirements can be imposed An order of this nature may only be imposed on a child or young person aged below 15 (at the time of the finding of guilt) if they are a ‘persistent offender’

Custodial sentences A custodial sentence should always be used as a last resort. If offence specific guidelines for children and young people are available then the court should consult them in the first instance to assess whether custody is the most appropriate disposal.

The available custodial sentences for children and young people are:

Youth Court 1–

A detention and training order for one of the following periods: – 4, 6, 8, 10, 12,

18 or 24 months.

Crown Court 1–

Detention and training orders (the same periods are available as in the

youth court)

2–

Long term detention (under Section 91 of the PCC (S) A 2000)

3–

Extended sentence of detention or detention for life (if dangerousness criteria

are met)

4–

Detention at Her Majesty’s pleasure (offences of murder)

Under both domestic and international law, a custodial sentence must only be imposed as a ‘measure of last resort’; statute provides that such a sentence may be imposed only where an offence is ‘so serious that neither a fine alone nor a community sentence can be justified’ (see Section 152 (2) Criminal Justice Act 2003). If a custodial sentence is imposed, a court must state its reasons for being satisfied that the offence is so serious that no other sanction would be appropriate and, in particular, why a YRO with intensive supervision and surveillance or fostering could not be justified. In determining whether an offence has crossed the custody threshold the court will need to assess the seriousness of the offence, in particular the level of harm that was caused, or was likely to have been caused, by the offence. The risk of serious harm in the future must also be assessed. The pre-sentence report will assess this criterion and must be considered before a custodial sentence is imposed. A custodial sentence is most likely to be unavoidable where it is necessary to protect the public from serious harm. When considering the relevant adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of HALF to TWO-THIRDS of the sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. In most cases when

considering the appropriate reduction in the adult sentence the emotional and developmental age and maturity of the child or young person is of at least equal importance as their chronological age. The individual factors relating to the offence and the child or young person are of the greatest importance and may present a good reason to impose a sentence outside this range. A court should bear in mind any negative effects a short custodial sentence can have; short sentences disrupt education and/or training and family relationships and support which are crucial stabilising factors to prevent re-offending There is an expectation that custodial sentences will be particularly rare for a child or young person aged 14 or under. If custody is imposed, it should be for a shorter length of time than that which a young person aged 15 – 17 would receive if found guilty of the same offence. For a child or young person aged 14 or under the sentence should normally be imposed in a youth court (except in cases of homicide or where the dangerous offender criteria are met). A DTO cannot be imposed on any child under the age of 12 at the time of the finding of guilt and is only applicable to children aged 12 – 14 if they are deemed to be a ‘persistent offender’ A detention and training order can be made only for the periods prescribed. Any time spent on remand in custody or on bail subject to a qualifying curfew condition should be taken into account when calculating the length of the order. The accepted approach is to double the time spent on remand before deciding the appropriate period of detention, in order to ensure that the regime is in line with that applied to adult offenders (see the case of R v Eagles [2006] EWCA Crim 2368). After doubling the time spent on remand the court should then adopt the nearest prescribed period available for a DTO

Long term detention A child or young person may be sentenced by the Crown Court to long term detention under Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 if found guilty of a grave crime and neither a community order nor a DTO is suitable These cases may be sent for trial to the Crown Court or committed for sentence only (see Section 3 (b) of the PCC(S) A 2000 (as amended)

It is possible that, following a guilty plea, a two-year detention order may be appropriate as opposed to a sentence of Section 91 detention, to account for the reduction

Dangerous offenders If a child or young person is found to be a dangerous offender they can be sentenced to extended detention or detention for life A sentence of extended detention may be imposed only where the appropriate custodial term would be 4 years or more. The extension period must not exceed 5 years in the case of a specified violent offence and 8 years in the case of a specified sexual offence. The term of the extended sentence of detention must not exceed the maximum term of imprisonment for an adult offender convicted of that offence.

Detention at Her Majesty’s pleasure This is the mandatory sentence for any child or young person found guilty of committing a murder. The starting point for the minimum term is 12 years. Thereafter, pages 32 – 35 deal with the Breach of orders Pages 36 – 41 are the Sexual Offences Guideline Pages 42 – 46 are the Robbery Guideline

The Legal Aid Agency New outcome codes have been published as a result of the implementation of the Policing and Crime Act 2017 and the new terms in relation to bail or no bail during the investigation process. The codes are as follows: CN09 – Released No Bail CN10 – Bail Varied/Extended CN11 – Bail Not Varied/Extended I was asked recently to clarify the position of the billing of police station work where the client is simply released without bail pending further investigations. This, and

many more questions like it, can be answered by having a look at the 2017 Standard Crime Contract – Specification document which came into force as part of the new Contract on the 1st of April 2017. If you cannot bear the thought of reading all of it then at least read the following: Part 6 – Duty Solicitor Contract Work Part 9 – Criminal Investigations Part 10 – Criminal Proceedings The answer to the above point is to be found in Part 9 at Paragraph 9.104 which reads as follows: A claim must only be submitted when: (c)

The Criminal Investigation has been concluded, either by way of the client

being charged or reported for summons, or the Matter has been disposed of

in any other way; or

(d)

It is known that no further work will be undertaken from the client in the same

Matter only: or

(e)

It is unclear whether further work will be required and a minimum of one

month has elapsed since the last work in the Matter was undertaken. This

provision will not apply where the client has an outstanding bail back in the

Matter, unless it is known that further work will not be undertaken on that

occasion; or

(f)

Post-charge work has been undertaken that is within the scope of this Unit of

Work, and is not the subject of a claim under the Representations Unit of Work.

CASE-LAW R v Turk [2017] EWCA Crim 391 In May 2016 in the Crown Court at Lewes the defendant stood trial for various offences of a sexual nature. After the trial the jury retired to consider its verdicts. On the following day, in a note to the Judge (not disclosed to Counsel) the jury indicated it had reached unanimous verdicts on some counts. The Judge decided not to take those verdicts at that stage but to send the jury home to resume their deliberations the following day.

The following morning the Judge was informed that, overnight, the defendant had taken his own life. Following discussions with Counsel, the Judge invited the jury foreman to return such unanimous verdicts as the jury had already reached. The jury returned a mixture of guilty and not guilty verdicts. The jury was then discharged from giving verdicts on the remaining counts. The Judge then ordered that the indictment be of no legal effect and it was endorsed in terms: ‘The Court being satisfied that this defendant is dead, has declared this indictment to be no longer of legal effect, and has directed that the file be closed’ There was an appeal against this by the defendant’s mother and the Court of Appeal held that as soon as a Judge learns that a defendant has died, it is his duty to take no further steps in the case against that defendant save for receiving proof of death whereupon the indictment as far as it concerns that defendant must be declared of no effect. The verdicts were wrongfully returned and must be set aside as a nullity with the convictions annulled. Regina v Walsh CROWN COURT AT CHESTER SCCO Ref: 197/16 DATED: 16 MARCH 2017 Counsel appealed against the decision of the Determining Officer of the Legal Aid Agency to reduce the number of pages of prosecution evidence forming part of the Advocate Graduated Fees claim. Following the conclusion of the case a police officer had requested the return of the exhibit (a DVD data disc) as it contained sensitive information required in respect of outstanding offences being investigated. The appellant contended that the exhibit had been served by the prosecution and the Court in a Notice of Additional Evidence. The exhibit was highly relevant to the Crown’s case. It had never existed in a paper format. It was impossible for the Appellant to supply the Respondent with the exhibit because it had been returned to the officer at the request of the police. The respondent was saying that it was impossible effectively to consider the inclusion of electronic exhibits as PPE as the Determining Officer had had no opportunity to see and evaluate the evidence.

The Court held in essence that the absence of a computer disc was not in itself fatal to a successful claim. The Determining Officer should have considered all of the relevant circumstances in this case. R v Coles CROWN COURT AT CARDIFF SCCO: Ref 51/16: DATED 15th March 2017 This was an appeal against the decision of the Determining Officer in a claim under the Litigators Graduated Fee Scheme. The issue was whether or not the Litigator should be paid a trial fee or a cracked trial fee. Reference was made to Paragraph 96 of what is generally assumed to be the leading case in this area – Lord Chancellor v Ian Henry Solicitors Limited [2011] EWHC 3246 (QB) The solicitors submitted that although no jury had been selected or sworn, the Court had dealt with ‘substantial matters of case management’ and so, in turn, there had been a trial in a meaningful sentence. The respondent submitted that the discussions that had taken place between prosecution and defence counsel did not constitute ‘substantial issues of case management’ The Costs Judge made a finding that the Court had dealt with ‘substantial matters of case management’ with the consequence that the trial had begun in a meaningful sense. ‘The guidance at Paragraph 96 (7) in Henery permits a broad, pragmatic determination on a case-by-case basis. It seems to me if, as here, the parties are engaged in discussions of significant evidential import at the direction (or with the permission) of the trial Judge, over the period during which the jury would ordinarily have been sworn and the prosecution case opened, it can be held reasonably that the trial has begun in a meaningful sense’. ‘.... In my conclusion, the negotiation of 13 timeline documents in a ten-handed drug conspiracy, with the consequence that the indictment is re-drafted significantly, does constitute substantial matters of case management. I conclude accordingly that the appeal is allowed on the first issue and hold that this was a trial and not a cracked trial.

R v Riddell [2017] EWCA Crim 413 A most unusual case in which the Court of Appeal said that self-defence might be available on a count of dangerous (or careless) driving but that it was likely to be rare! R v Johnson [2017] Crim 189 The defendant conveyed into prison a package which he thought contained only spice. He had no idea it included Pills and SIM cards. The Court of Appeal held that the Judge’s ruling that he had no defence in law was correct. The Court saying this: ‘The ‘mens rea’ the Crown had to prove was his knowledge that he was carrying into the prison something prohibited. It did. The defendant need not know the precise nature of the articles in question. The contents of the package and the extent of his knowledge about the contents of the package will be of great significance in considering where, in the scale, the offence lies and might in some circumstances require a Newton hearing. Better Case Management Just letting you know that issue 12 of the newsletter accompanying better case management was published in March 2017 and concerns Streamlined Forensic Reporting

Section 5 CrimeScribe Edition No. 70

Hello and welcome to this monthâ&#x20AC;&#x2122;s edition of CrimeScribe. Quite a bit has happened this month in relation to both legislation and case-law. I considered the pre-charge amended bail position in some detail in a previous edition of Crimescribe and I want to start this monthâ&#x20AC;&#x2122;s edition with an examination of other provisions of the Policing and Crime act 2017 of relevance to criminal practitioners.

Legislation Sections 52 to 67 of the Act introduced statutory and judicial safeguards to the precharge bail process, including time limits and a hierarchy for the decision making process. The main change is that there is now a presumption of release without bail unless the necessity and proportionality criteria are met. Pre-charge bail is initially limited to 28 days, with one extension of up to 3 months to be authorised by a senior police officer. Thereafter the police will have to apply to a Magistrate for further bail. The new provisions came into force on the 3rd April 2017. Also in force on the 3rd April 2017 are Sections 68 and 69 of the Act which provide for a new offence of breach of pre-charge bail conditions relating to travel This is a somewhat new development as, traditionally, breach of bail conditions has never been an offence (see Section 7 of the Bail Act 1976) The new offence applies where a person is arrested on suspicion of committing a relevant terrorism offence (as listed in Section 41 of the Counter-Terrorism Act 2008), is then released on pre-charge bail and subsequently breaches conditions of that bail aimed at preventing them from leaving or attempting to leave the UK (the legislation applies to England, Wales and Northern Ireland). The bail conditions are determined by the police and may include not leaving

the UK, not entering any port, a requirement to surrender travel documents and a requirement not to be in possession of any travel documents – even if they belong to another individual. The maximum penalty is 12 months imprisonment, an unlimited fine, or both. Sections 72 – 79 of the Act are worth a read because they make various amendments to police powers under the Police and Criminal Evidence Act 1984 (PACE). These sections are in force Section 72 fills a gap in police bail enforcement powers by extending the power under Section 17 of PACE to enter and search premises for the purpose of arrest to include existing powers to arrest persons if they fail to comply with the terms and conditions of their bail, whether before or after charge. Previously the Section 17 power did not apply. Section 73 amends the remaining provisions in PACE, namely Sections 30A (bail elsewhere than at the police station), 63B (testing for presence of Class A drugs) and 65 (appropriate consent), that treat 17 year olds as adults to ensure that they are always treated as children when detained in police custody. Sections 74 and 75 insert news Sections 45ZA and 45ZB in PACE and amends Sections 39, 45 and 45A of PACE to enable the police to make efficiencies through the use of ‘live link’ technology for extensions of detention under Sections 42, 43 and 44 of PACE, and for interviewing suspects detained in police stations where the interviewing officer is at a different location to the suspect. Section 76 updates the terminology in Section 60 of PACE, substituting the term ‘tape recording’ for ‘audio recording’. Section 77 inserts a new requirement in Section 60B of PACE that suspects who are interviewed voluntarily (not having been arrested) are notified in writing of a decision that they are not to be prosecuted for the offence in question. Section 120 amends Section 60AA (powers to require removal of disguises) of the Criminal Justice and Public Order Act 1994 to make provision for an oral authorisation to be given to remove disguises where it would not be practicable to make an authorisation in writing. In such cases, the oral authorisation would need to specify appropriate matters (such as the location where the powers could be exercised)

and be subsequently recorded in writing. This provision will enhance the policeâ&#x20AC;&#x2122;s ability to prevent crime in spontaneous, fast moving public order situations. Section 173: Forced Marriage: anonymity for victims (applies to England and Wales) This provision provides lifelong anonymity for victims of forced marriage. The protection applies from the time an allegation is made. From that point, the publication or broadcast of any information likely to result in the identity of the victim being identified to members of the public will be prohibited. The protection given is broad and wide ranging; it covers traditional print and broadcast media as well as information published online, including on social media. It will be an offence to publish information in contravention of the prohibition (the maximum penalty for the offence is an unlimited fine). The aim of this measure is to give more victims the confidence to come forward so they receive the support they deserve and perpetrators are brought to justice. Section 175: Sentences for offences of putting people in fear of violence etc (applies to England and Wales) In response to concerns about the significant impact which the most serious stalking and harassment offences can have on victims, Section 175 increases the maximum penalty for these offences so that Courts will have the power to impose longer custodial sentences in the most serious cases. Section 4A of the Protection from Harassment Act 1997 provides for the offence of stalking involving fear of violence or serious alarm or distress. Section 4 of that Act provides for the offence of putting people in fear of violence. Section 175 of the 2017 Act increases the maximum penalty of these two offences from 5 to 10 years imprisonment, and amends the Crime and Disorder Act 1998 in order to increase the maximum penalty for the racially or religiously aggravated versions of both of these offences from 7 to 14 years imprisonment. The above changes only apply to offences committed on or after the 3rd April 2017 Section 176 amends the definition of sexual exploitation at Section 51 of the Sexual Offences Act 2003, which applies to the offences at Sections 48 to 50 of the 2003 Act. These offences are concerned with the sexual exploitation of children and, respectively, punish causing or inciting such exploitation, controlling a child in relation to sexual exploitation or arranging or facilitating the sexual exploitation of a child.

Currently, for the purposes of these offences a child is sexually exploited if he or she either offers or provide sexual services in return for payment, or ‘if an indecent image of the child is recorded’. The amendment made by Section 176 ensures that the definition also cover situations where indecent images of a child are ‘streamed or otherwise transmitted’ as well as where they are recorded, making the offences more robust in the light of technological changes and ensuring that those who exploit children in this way can be effectively prosecuted for the appropriate offence.

CASE-LAW Hudson v Crown Prosecution Service [2017] EW HC 841 (Admin) This was an interesting case as to whether or not the ‘building’ in question was a ‘dwelling’ for the purposes of Section 9 (3) (a) of the Theft Act 1968. It was an appeal by way of Case Stated to the High Court from the decision of a Deputy District Judge sitting in Birmingham to hold that, on the facts before her, the building was indeed a ‘dwelling’. The appellant and a co-accused were charged with burglary contrary to Section 9 (1) (a). Both of them had pleaded guilty to ‘non-domestic’ burglary but that plea was not acceptable to the Crown. The facts: 1–

The property in question was rented out to tenants – the last tenant having left

the property some 2 days before the burglary occurred

2–

It was not disputed that the appellant and the co-accused were responsible

for the burglary

3–

The property was fully furnished in all rooms and equipped to be habitable.

The utilities – gas, electricity and water were connected and the house was

ready for new tenants to move in albeit at this stage new tenants had not

been identified

The Deputy District Judge held that she did not consider this to be a commercial burglary

Sections 9 (3) and 9 (4) of the Act provide as follows: ‘(3)

A person guilty of burglary shall on conviction on indictment be liable to

imprisonment for a term not exceeding –

(a)

Where the offence was committed in respect of a building or part of a

building which is a dwelling, 14 years;

(b)

In any other case, 10 years

(4)

the reference in Subsection (3) above to a building which is a dwelling, shall

also apply to an inhabited vehicle or vessel, and shall apply to any such

vehicle or vessel at times when the person having habitation in it is not there

as well as times when he is’

You can immediately see the problem – the statutory definition of a building which is a ‘dwelling’ makes no mention of the fact of whether or not it continues to be a ‘dwelling’ even if unoccupied – that clarification point is only mentioned in relation to vehicles or vessels Counsel for the appellant argued that the Judge had answered in a manner unsustainable in law. Alternatively, this Court should give guidance as to the law. On the facts in this case, the building was not the home of anyone at the time. To be a ‘dwelling’ it had to be someone’s home at the time. Whether premises were properly to be regarded as a ‘dwelling’ was a question of fact. Counsel for the Crown submitted that ‘dwelling’ was an ordinary English word; its meaning was a question of fact for the Court – not one of law for the Court. A question of law would only arise for this Court if no tribunal of fact acquainted with the ordinary use of language could reasonably have concluded on the facts of the case that the property in question constituted a ‘dwelling’. The Oxford English dictionary definition of ‘dwelling’ was a house or other place of residence’. This was in contrast to buildings which were not places of residence, such as commercial properties. As a matter of ordinary language, the word ‘dwelling’ was capable of including not only a building dwelt in but also a building constructed or designed for dwelling in. The distinction is an important one for 2 main reasons: Burglary of a dwelling carries 14 years on indictment whereas burglary of a nondwelling carries a maximum of 10 years on indictment Section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, contains the

100

‘three strikes’ provision requiring a (presumptive) minimum custodial sentence of 3 years where an offender aged 18 or over is convicted of a third ‘domestic burglary’ in the circumstances there set out. In turn, ‘domestic burglary’ is defined by Section 111 (5) of the 2000 Act as ‘.... a burglary committed in respect of a building, or part of a building, which is a dwelling’. The Court said two things of real importance that assist: Firstly, ‘....‘dwelling is an ordinary English word; its meaning is a question of fact for the jury, Magistrates’ or a District Judge......’ (Paragraph 19) Secondly, ‘The paradigm case of a ‘dwelling’ is one which is occupied by an owner or tenant. It is thus someone’s home. It is that feature which attracts the particular gravity of a dwelling house burglary: it is an offence against the person as well as an offence against property, undermining a sense of security, violating privacy and causing disturbance and distress as well as economic loss.....’ (Paragraph 20) ‘It does not, however, follow that the policy or logic of dealing severely with burglary of a ‘dwelling’ means that a building, otherwise obviously a ‘dwelling’, ceases to be one for the purposes of Section 9 (3) of the Act, the moment the ‘dwelling’ becomes unoccupied. As it seems to me, where a ‘dwelling’ has become unoccupied, it is a question of fact and degree – not law – as to whether it is no longer a ‘dwelling’ within Section 9 (3). There is a spectrum of factual possibilities’ (Paragraph 21) The burglar takes the risk of the Court finding, on the facts, that that which was burgled was indeed a dwelling! Regina v Luck – Crown Court at the Central Criminal Court – SCCO Ref: 135/16 (dated: 26th of April 2017) This was an appeal by Counsel (‘the Appellant’) against the decision of the Determining Officer at the Legal Aid Agency (‘the Respondent’) in respect of a claim under the Advocates Graduated Fee Scheme (AGFS) The first trial of the defendants occurred between the 23rd November and the 2nd December 2015. On that occasion the jury was discharged because of concerns about or anomalies with the evidence of one prosecution witness. A re-trial was heard between the 25th April and 9th June 2016.

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Those of you who deal with the billing of Advocates claims will know that where the same Counsel represented the defendant in both trials that Counsel takes a fee for both trials but that one of the fees is reduced by a percentage to reflect the fact that Counsel will already have done much of the pre-trial preparation before the first trial – (those of you wanting to know more about this area should consult the Crown Court Fee Guidance Document published by the Legal Aid Agency – March 2017) The issue here was a very simple one – whether Counsel is entitled to elect to have the re-trial reduction to the first trial, as he claims, or the second trial. [It’s an important point because the fees for the two trials may be very different and it would therefore be in Counsel’s interests to have the reduction made from the trial which generated the lower of the two fees] The issue is covered in the 2013 Regulations – again, those of you who are familiar with the billing of Advocates fees will know that these Regulations are to be found in Statutory Instrument for 435 of 2013 The actual percentage reductions are set out in Sub-paragraphs 2 (2) and (3) of Schedule 1 of the 2013 Regulations It’s a bit technical but the Legal Aid Agency take the view that if the claim for the first trial is submitted before the re-trial commences/concludes, it will be assumed that the Advocate has elected to have the reduction applied to the later claim unless the election is made at the time the first claim is submitted. The above is in their Guidance document. The applicant, in summary, states that the 2013 Regulations, which provide for the right of election, do not set out or prescribe when an election is to be made. In the absence of any such direction in the Regulations, an Advocate is entitled to choose whether to exercise the right of election in either the first or the second claim. The applicant’s submission was that the Guidance does not have the same status as the Regulations and should not operate to impose restrictions not contained within the Funding Order. The Costs Judge in this particular case could not see why there was any conflict between the Guidance and what the Advocate had done in this particular case anyway. 102

‘The Guidance provides for an assumption (that the reduction will be applied to the later claim) that is rebuttable by a clear declaration from the applicant. It seems to me that the appellant, when preserving explicitly his right of election when he submitted his first claim, is rebutting effectively the assumption established by the Guidance.’ Another costs decision of importance was that of The Secretary of State for Justice the Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB) – it considered a number of issues surrounding ‘service’ and whether or not the solicitors were able to claim PPE where the evidence was served in a digital format. 1

– The starting point is that only served evidence and exhibits can be counted

as PPE – unused material, albeit disclosed, can never be counted as PPE

– ‘Served’ evidence and exhibits must mean ‘served as part of the evidence

and exhibits in the case’– the evidence on which the prosecution rely will of

course be served; but evidence may be served even though the prosecution

does not specifically rely on every part of it.

– Where evidence and exhibits are formerly served as part of the material

on the basis of which a defendant is sent for trial, or under a subsequent

notice of additional evidence, and are recorded as such in the relevant

notices, there is no difficulty in concluding that they are served but Paragraph

1 (3) of Schedule 2 to the 2013 Regulations only says that the number of PPE

‘includes’ such material: it does not say that the number of PPE ‘comprises

only’ such material.

– ‘Service’ therefore may be informal – it would be in nobody’s interests to

penalise informality if, insensibly and cooperatively progressing a trial, the

advocates dispensed with the need for service of a notice of additional

evidence before further evidence could be adduced and all parties

subsequently overlooked the need for the prosecution to serve the requisite

notice ex post facto.

–‘Service on the Court’ is not a necessary pre-condition of evidence counting

as part of the PPE

– Non-compliance with the formalities of service cannot of itself necessarily

exclude material from the count of PPE

103

– Where the prosecution seeks to rely on only part of the data recovered

from a particular source, and therefore serve an exhibit which contains

only some of the data, issues may arise as to whether or all of the data should

be exhibited. The resolution of such issues will depend on the circumstances

of the particular case, and on whether the data which has been exhibited

can only fairly be considered in the light of the totality of the data. It should

almost always be possible for the parties to resolve such issues between

themselves, and it is in the interests of all concerned that a clear decision is

reached and any necessary notice of additional evidence served. If,

exceptionally, the parties are unable to agree as to what should be served,

the trial Judge can be asked whether he or she is prepared to make a ruling in

the exercise of his case management powers. In such circumstances, the trial

Judge (if willing to make a ruling) will have to consider all of the circumstances

of the case before deciding whether the prosecution should be directed

either to exhibit the underlying material or to present their case without the

extracted material on which they seek to rely.

– If – regrettably – the status of particular material has not been clearly

resolved between the parties, or (exceptionally) by a ruling of the trial Judge,

then the Determining Officer (or, on appeal, the Costs Judge) will have to

determine it in the light of all the information which is available. The view

initially taken by the prosecution as to the status of the material will be a very

important consideration, and will often be decisive, but is not necessarily so: if

in reality the material was of central importance to the trial (and not merely

helpful to the defence), the Determining Officer (or Costs Judge) would

be entitled to conclude that it was in fact served, and that the absence of

formal service should not affect its inclusion in the PPE. Again, this will be

a case-specific decision. In making that decision, the Determining Officer

(or Costs Judge) would be entitled to regard the failure of the parties to reach

any agreement, or to seek a ruling from the trial Judge, as a powerful

indication that the prosecution’s initial view as to the status of the material

was correct. If the Determining Officer (or Costs Judge) is unable to conclude

that the material was in fact served, then it must be treated as unused

material, even if it was important to the defence.

If an exhibit is served, but in electronic form and in circumstances which come

within Paragraph 1 (5) of Schedule 2, the Determining Officer (or, on

appeal, the Costs Judge) will have a discretion as to whether he or she

considers it appropriate to include it in the PPE. As I have indicated above,

104

the LAA’s Crown Court Fee Guidance explains the factors which should be

considered. This is an important and valuable control mechanism which

ensures that public funds are not expended inappropriately.

– If an exhibit is served in electronic form but the Determining Officer or Costs

Judge considers it inappropriate to include it in the count of PPE, a claim

for Special Preparation may be made by the solicitors in the limited

circumstances defined by Paragraph 20 of Schedule 2

– if material which is been disclosed as unused material has not in fact been

served (even informally) as evidence or exhibits, and the Determining Officer

has not concluded that it should have been served (as indicated at 8

above), then it cannot be included in the number of PPE. In such

circumstances, the discretion in Paragraph 1 (5) does not apply.

‘In an attempt to assist those who have to operate the current graduated fee scheme in the digital age, I conclude by sounding two warnings about risks which are illustrated by the facts of this case. First, I would underline the need for all parties to be clear as to the status accorded to particular material: a litigator or advocate who wishes to contend that particular material should be counted as PPE should if at all possible resolve that issue at trial, and ensure that it is recorded in the appropriate notice, rather than leaving the point to be considered at a later stage by the Determining Officer or Costs Judge. Secondly, in a case in which the Lord Chancellor has not made any representations before the Costs Judge, but wishes to exercise her right of appeal to the High Court, any ‘fresh evidence’ should be adduced as soon as possible; failure to do so may cause prejudice to the respondent (who may be given insufficient time to gather evidence in response) and may therefore lead either to the Court refusing to admit the evidence or to a sanction in costs’. I don’t, as a rule, report cases where there is an appeal against the severity of the sentence (because they are so ‘facts specific’) – however, I shall break my rule as the following case was wonderfully illustrative of circumstances in which a Court should consider suspending a prison sentence. The applicant had made full admissions in his interview – he had merely panicked in the situation – he knew that he would lose his job – he was by trade, a driver – he had entered a timely guilty plea – the Judge treated him as a man of previous good character (there had been some previous matters – a conviction and reprimands – but they were as a juvenile and were completely irrelevant to these proceedings) – character letters were read by the Judge – the sentencing Judge considered the applicant to be of ‘positive good character’ 105

R v Vasey [2017] EWCA Crim 434 The applicant pleaded guilty to one offence of escape contrary to common law and one offence of using a motor vehicle without insurance contrary to Section 143 of the Road Traffic Act 1988. The applicant was breathalysed at the roadside using a non-evidential hand-held device (the reading was 66 µg). On that basis he was arrested. A police van was requested to transport him to the police station for the formal breath test procedure to be undertaken. No handcuffs were placed on the applicant and, in short, whilst they were waiting for the van to arrive he ran off down the street and could not be found. He was later re-arrested the very same day at home. The Judge imposed an immediate custodial term The single ground of appeal was that the sentence was manifestly excessive and should have been suspended. The Court of Appeal decided to suspend the sentence of 4 months imprisonment for 18 months. The defendant was a hard-working devoted family man of positive good character and the Court accepted that this offence was indeed out of character and that he had been candid and shown genuine remorse. He had lost his job as a result of the conviction. The applicant was the sole provider for his partner and three young children. Westminster City Council v Owadally and another [2017] EWHC1092 (Admin) A salutary reminder to all of us that pleas of guilty in the Magistrates’ Court must be indicated or entered by defendants personally to comply with Section 17A of the Magistrates’ Courts Act 1980(either-way offences) and not by Counsel representing them The Court saying this at Paragraph 55 (ii) of the judgement:

‘That said, the present case stands as a reminder that guilty pleas in the

Magistrates’ Court must be indicated or entered by defendants personally.

All concerned should take care to ensure that this is the case; a failure to

do so can (as has been seen here) give rise to an unnecessary waste of time

and money. The importance of maintaining a suitable record is

likewise apparent.

106

JS (a child) and the DPP [2017] EWHC 1162 (Admin) At issue in the above case was whether or not the Magistrates’ in the Youth Court had applied a heavier burden upon the defendant than the law required. It was quite an easy case on its facts. Some DNA had been found on a moped and the defendant had been charged with an offence under Section 25 of the Road Traffic Act 1988 which provides as follows: ‘If, while a motor vehicle is on a road or on a parking place provided by a local authority, a person

(a)

Gets on to the vehicle, or

(b)

Tampers with the brake or other parts of its mechanism, without lawful

authority or reasonable cause he is guilty of an offence’

The only evidence against the defendant appeared to be his DNA on the moped. The defendant did say in a written statement that he looked it over which involved him touching it. He therefore had given an explanation as to why his DNA was on the moped – the DNA was found on the exposed ignition wires at the front panel of the scooter. The Magistrates’ explained their conviction as follows:

‘We were of the opinion that the prosecution had made out a viable case.

We listened to the Appellant’s evidence which did not persuade us that there

was no intention to tamper with the moped. We were satisfied so that we

were sure that the appellant did tamper with the moped. Accordingly, we

convicted the appellant’

The Court was troubled by the above and said this at Paragraph 22 of the judgement:

‘However, we are troubled by the manner in which the Magistrates’ expressed

this second stage of their reasoning: ‘we listened to the appellant’s evidence

which did not persuade us that there was no intention to tamper with the

moped’. This wording is unfortunate since it is suggestive of a somewhat

heavier burden on the appellant than a mere evidentiary burden to explain

the presence of his DNA on the moped.

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As regards the standard of proof the Court said this at Paragraph 23:

‘Third, it is submitted that in directing themselves as to whether they were

satisfied as to the appellant’s evidence as to the presence of his DNA on the

moped, the Magistrates’ appear not to have asked themselves the crucial

question whether the appellant’s explanation was or might be true. It is

axiomatic that the mere possibility that the defendant might not be guilty is

sufficient to mean that a jury cannot be ‘sure’ of guilt. Accordingly, a mere

possibility that the appellant’s explanation as to the presence of his DNA on

the moped was true would, and should, have been sufficient for the

Magistrates’ to return a verdict of not guilty. Unfortunately, the Magistrates’

made no mention of this basic tenant of the standard of proof in the reasons

they gave for arriving at their verdict. It is, at best, unclear whether the

Magistrates’ asked themselves the question whether the appellant’s

explanation was or might be true.

Finally, the Court said this at Paragraph 32 ‘Whilst the Magistrates’ may in fact have applied the correct burden and standard of proof when reaching their decision, they nevertheless created the impression by their remarks in open Court that they may not have applied the correct standard of proof. For this reason, in our judgement the decision must be set aside.’

Home Office circulars I draw to your attention Home Office Circular 6/2017 – this is a very interesting read about the new legal provisions on firearms in the Policing and Crime Act 2017. I don’t want to go into great detail about the contents of this Home Office Circular save to say the following: On the 2nd May 2017 the following Sections of the Policing and Crime Act 2017 came into force: Section 125 – ‘Firearms Act 1968: meaning of ‘firearm’ etc’ Section 127 – ‘Possession of articles for conversion of imitation firearms’ Section 128 – ‘Controls on defectively de-activated weapons’ Section 129 – ‘Controls on ammunition which expands on impact’ Section 130 – ‘Authorised lending and possession of firearms for hunting etc’ This document is a ‘must read’ for anyone advising clients/prosecuting defendants in the area of firearms 108

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109

Section 6 CrimeScribe Edition No. 71

Hello and welcome to this month’s edition of CrimeScribe. To say that very little has happened this month is to put it mildly! No significant pieces of legislation to mention; I think the politicians have their minds on other things. No significant statutory instruments to mention. We have had very little in the way of case-law. I shall mention the 2 cases that I think are worth a mention. On the basis that very little has happened I have included the following documents and I do hope that you find them useful: A series of slides dealing with the new guidance documents from the Sentencing Council concerning both adults and youth’s. Both of these new documents, as you know, are effective where the first hearing is on or after the 1st June 2017. I would strongly urge you to familiarise yourselves with the contents of the slides. I have also included a series of Police Station and Magistrates’ Court billing questions together with the relevant paragraphs from the new Specification document which came into force on the 1st April this year. That document is available from the Legal Aid Agency website and, again, I would strongly urge you to obtain a copy of the document; especially if you’re involved in any way with the billing of criminal legal aid work.

CASE-LAW The Queen on the application of Hassani v West London Magistrates’ Court [2017] EW HC 1270 (admin) It was not a good start for the applicant in that in the first Paragraph the Court said this:

110

‘In this case, the applicant seeks now to withdraw his renewed application for

permission to apply for judicial review. This case calls out for a ruling, even

though that application will succeed’.

The applicant was convicted of driving a motor vehicle with excess alcohol (a reading of 57). He was convicted following a trial. He sought to challenge the conviction by way of judicial review somewhat beyond the three-month time limit. He had not given any evidence in his trial. The Crown case was not in any way contradicted. Nor did he seek to appeal to the Crown Court, which would have addressed the merits of the case in a re-hearing. Permission to apply for judicial review was refused on the papers by the single Judge who gave reasons as to why there was no merit in the challenge, as well as noting that it was out of time. The applicant then renewed his application. The solicitors were the same but there had been a change of Counsel who had prepared the judicial review. It was the second Counsel who advised upon the withdrawal of the application for judicial review. The High Court was of the view that second Counsel had given good advice and that there was no merit in the application for judicial review. The High Court was very critical of the way in which the case had been handled. Not only was every imaginable point taken below but the settled grounds of appeal were all without foundation. The Court saying this at Paragraph 9:

‘The criminal law is not a game to be played in the hope of a lucky outcome,

a game to be played as long and in as involved a fashion as the paying client

is able or prepared to afford’

And at Paragraph 10:

‘District Judge Snow practised firm case management in this case. He was

absolutely right to do so. Other courts faced with this kind of approach must

do the same, whether the court is constituted by a professional district judge

or by lay magistrates. Courts must consider the Criminal Procedure Rules,

which are there to be employed actively so as to preclude game-playing and

ensure that the courts only have to address the real issues with

some substance’.

111

Each participant in a criminal case, that is to say lawyers as well as parties, must prepare and conduct their case in accordance with the rules. The key objective under the rules is to deal fairly with the case, and that includes dealing with the case efficiently and expeditiously. Time wasting, extension of hearings and taking hopeless points in the hope of wearing down an opponent or the court are neither proper nor legitimate ways in which to conduct a case, for a party or for a party’s lawyers. Court’s must be aware of such behaviour and employ firm management to prevent it. And at Paragraph 15:

‘It is perfectly open to a court to ask if a defendant intends to give evidence

to the effect that he or she had not been drinking or had drunk so little that

the excess alcohol reading cannot properly be explained. If the answer is

no, then the court can properly question what may be the evidential basis for

a challenge to the reading produced by the testing equipment, provided the

proper procedures have been followed’.

They then make reference to the written judgement made on the 24th June 2016 by Senior District Judge Riddle, as he then was, in the decision of R v Cipriani. They said that his written judgement deals authoritatively with many aspects of such litigation as this and will be helpful for those addressing such cases. Parts of the judgement are then annexed to this judgement. I dealt with the Cipriani case in some detail in an earlier edition. We have all been told, yet again!! Director of Public Prosecutions v Melvyne John Woods [2017] EWHC 1070 (Admin) In this case the DPP appealed, by way of case stated, against a decision of a district judge to re-visit and to reverse a decision made the previous day by a legal team manager to vacate the respondent’s trial. The prosecution had made a written application (which was opposed) to adjourn the trial date. The application was granted and the prosecution de-warned its witnesses. At the hearing itself the defence were successful in persuading the judge to reverse the decision which had been taken to adjourn the case. The prosecution had no witnesses and were decided to offer no evidence in the case. The defence

112

had argued that the original decision should be reversed because the decision had been taken on an application which had been ‘materially misleading’. The court said in its judgement that the prosecution application was misleading. Had the true position been appropriately crystallised it is inconceivable that the initial application would have been granted. They took the view that it could not be said that the district judge’s decision to re-consider and to reverse the original ruling was unreasonable, let alone irrational. 1 - Sentencing Council guidelines for 2017 – operative from the 1st June 2017 2 - Reduction in sentence for a guilty plea The Guidance applies to all offenders aged 18 and older and to organisations in cases where the first hearing is on or after 1st June 2017 The commission date of the offence is not relevant The guideline applies equally in Magistrates’ Courts and the Crown Court The Section dealing with credit is Section 144 of the Criminal Justice Act 2003 The important point is that the Section speaks of ‘the stage in the proceedings at which the offender indicated his intention to plead guilty’ This indication can be given in the Magistrates’ Court regardless of whether the offence is summary only, either-way or purely indictable

3 - Reduction in sentence for a guilty plea Factors such as admissions at interview, co-operation with the investigation and demonstrations of remorse should not be taken into account when determining the level of reduction Rather, they should be considered separately and prior to any guilty plea reduction, as potential mitigating factors

113

The law in this area was fully explained by the Court of Appeal in the case of R v Caley and Others [2012] EWCA Crim 2821 It might well be advisable to give this advice at the police station stage and to make a full note of the fact Disparity on sentencing could well take place on indictment before the Crown Court Judge and the defendant might well require an explanation of why this was so There is nothing new in any of the above – Lord Bingham said much the same a long time ago in the case of Howells

4 – Reduction in sentence for a guilty plea The maximum level of reduction in sentence for a guilty plea is one third Where a guilty plea is indicated at the first stage of proceedings a reduction of one third should be made The first stage will normally be the first hearing at which a plea or indication of plea is sought and recorded by the Court After the first stage of the proceedings the maximum level of reduction is one quarter (subject to the exceptions in Section F) The reduction should be decreased from one-quarter to a maximum of one tenth on the first day of trial The reduction should normally be decreased even further, even to 0, if the guilty plea is entered during the course of the trial

5 – Reduction in sentence for a guilty plea A trial will be deemed to have started when pre-recorded cross-examination has begun The benefits of a guilty plea apply regardless of the strength of the evidence against

114

the offender – thus overturning the line of cases of which R v Joy is simply one example The guideline only applies only to the punitive elements of the sentence and has no impact on ancillary orders e.g. disqualification from driving When dealing with more than one summary only offence the Court may make a modest additional reduction to the overall sentence to reflect the benefits derived from the guilty pleas Reducing a custodial sentence to reflect a guilty plea may enable a Magistrates’ Court to retain jurisdiction and sentence rather than committing the case for sentence 9 months reduced to 6 and 18 months reduced to 12

6 – Reduction in sentence for a guilty plea The exceptions contained in Paragraph F ‘Particular circumstances which significantly reduced the defendant’s ability to understand what was alleged.....’ ‘Or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done.....’ A reduction of one third should still be made ‘Sentences should distinguish cases in which it is necessary to receive advice and/or have sight of the evidence and......’ ‘.......Cases in which a defendant merely delays guilty pleas in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal’

7 – Reduction in sentence for a guilty plea Newton Hearings and Special Reasons

115

If the offender’s version of events is rejected the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved It may be appropriate to decrease further if witnesses are called Seems rather harsh to include Special Reasons in this – Special Reasons are put forward by the offender because of circumstances peculiar to the commission of the offence Where an offender has earlier made an unequivocal indication of a guilty plea to a lesser offence and is convicted of this – full credit At the Crown Court the plea must have been entered to the alternative on the indictment as charged

8 – Reduction in sentence for a guilty plea There can be no reduction for a guilty plea if the effect of doing so would be to reduce the length of sentence below the required minimum term e.g. Section 51 of the Firearms Act 1968 Where the Court is considering 6 months for threatening with a knife/blade/offensive weapon – sentence must not fall below 80% Where the Court is considering 6 months for ‘2 strikes knife possession/articles/ offensive weapons’ – sentence must not fall below 80% Where the offender is subject to the ‘3 strikes rule’ – (drug trafficking offences) – (dwelling house burglary offences) – again, sentence must not fall below 80% Mandatory life sentence for murder – Court should consider the plea of guilty in determining whether it should be a ‘whole life term’ Where it is not a ‘whole life term’ – the reduction (in the minimum term) will not exceed one sixth of the sentence and will never exceed 5 years – this should only apply when a guilty plea has been indicated at the first stage!!

116

9 – Reduction in sentence for a guilty plea Appendix 1 at the back of the guidance is a flowchart illustrating reductions for either-way offences Appendix 2 is a flowchart illustrating reductions for summary-only offences Appendix 3 is a flowchart illustrating reductions for indictable-only offences One wonders how many defendants will be willing to indicate guilt at that the first listing in the Magistrates’ Court for indictable-only offences One wonders how much evidence will be made available to the defence at that stage in order to be able to advise the client properly It might be a safer approach, absent the evidence, to make a note that it is the client who has decided to indicate guilt and that it was not upon advice – or, alternatively, indicate guilt so as to ‘preserve’ the position on credit

10 – Imposition of community and custodial sentences The guideline is operative for any adult (aged 18 or over) sentenced on or after 1 February 2017 regardless of the commission date of the offence and regardless of the conviction date The offence must be ‘serious enough’ to warrant a Community Penalty and the offence must be punishable with imprisonment Save in exceptional circumstances the Community Order must have at least one punitive element and/or a fine Guidance on what amounts to a low, medium or high Community Order There is an Annex at the end which deals with the fine bands – A, B, C, D, E and F If there is an adjournment for reports the Court must make it clear that all sentencing options are to remain open including committal for sentence

117

11 – Imposition of community and custodial sentences A custodial sentence cannot be imposed unless the Court takes the view that the offence is ‘so serious’ that nothing other than a custodial sentence can be justified The Court should always consider what the shortest possible time should be, commensurate with the seriousness of the offence The guidance details how the sentence may be suspended The guidance makes it plain that a custodial sentence, albeit suspended, MUST NOT be imposed as a more severe Community Order The guidance considers the factors which may warrant the sentence being suspended The sentence may be suspended whether it is a term of imprisonment (offenders aged 21 or over at the point of conviction) or detention in a young offender institution (offenders aged 18, 19 or 20)

12 – Sentencing children and young people A hugely important document issued by the Sentencing Council and a ‘must read’ for anyone involved with the sentencing of children and young people The document replaces the old document, with which you may have been familiar, – ‘Overarching Principles – The Sentencing of Youths’ This new guideline applies, regardless of the date of the offence, to all children or young people where the first hearing is on or after the 1st June 2017 It applies equally in Youth Courts, Magistrates’ Courts and the Crown Court The guidance in relation to credit for guilty pleas replicates the adult guidance Invariably, the child or young person will actually enter a plea at the first hearing in order to obtain maximum credit but do give a thought to those offences in which a plea cannot be taken in the Youth Court – homicide – firearms offences – minding a weapon 118

13 – Sentencing children and young people A detention and training order can only be imposed for prescribed periods – 4, 6, 8, 10, 12, 18 or 24 months If the reduction in sentence for a guilty plea results in a sentence that falls between the two prescribed periods the court MUST impose the lesser of those two periods This may result in a reduction greater than a third, in order that the full reduction is given and a lawful sentence imposed Credit for the guilty plea may result in a DT0 of 24 months rather than a committal for sentence in order that a longer sentence could be imposed under Section 91 of the PCC (S) A 2000 A Referral Order is only available upon pleading guilty and there should be no further reduction in the length of the Order to reflect the guilty plea There can be no reduction for a guilty plea in relation to a sentence for an offence under Section 51A of the Firearms Act 1968 if it took the sentence below the minimum term

14 – Sentencing children and young people The principal aim of the youth justice system is to prevent offending by children and young people and a Court must always have regard to this A Court must also have regard to the welfare of the child or young person Whilst the seriousness of the offence will be the starting point – the approach should be individualistic and focused on the child or young person – as opposed to offence focused The sentence should focus on rehabilitation wherever possible It is important to avoid criminalising children and young people unnecessarily Children and young people must be encouraged to take responsibility for their own

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actions and a Court must try to promote re-integration into society rather than punishment

15 – Sentencing children and young people Dangerousness – a child or young person could still be SENT but the guidance makes it clear that it will be almost impossible to make the determination, in anything but the most serious cases, at that early stage Consider retaining jurisdiction – taking a plea – getting reports – there is always the possibility of COMMITTING FOR SENTENCE at the end of the case under Section 3C of the PCC(S)A 2000 Don’t forget the 4-YEAR rule! Grave crimes – a child or young person could still be SENT but the guidance makes it clear that it is likely to be impossible to decide whether the test is met at such an early stage The test to be applied by the Court is whether there is a real prospect that a sentence in excess of 2 years detention will be imposed Retain jurisdiction and COMMIT FOR SENTENCE if, having heard more about the facts and the circumstances of the child or young person, the Court considers its powers of sentencing to be insufficient

16 – Sentencing children and young people Where the child or young person is charged alongside an adult and appears together in the Adult Magistrates’ Court then thought should be given towards severance of the youth from the adult The guidance merely reiterates that which we have already been given in March 2016 in relation to Allocation and Sending There are a number of factors for a Court to consider in deciding whether or not to sever a youth from an adult

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In reality, unless the youth is prepared to indicate an admission, there is little chance of severance and both the youth and the adult will be SENT to the Crown Court Severance could, in theory, take place whether the offence was either-way or purely indictable The youth might well prefer not to be severed and to take his/her chances with the jury if contesting the matter!!

17 – Sentencing children and young people Where a child or young person is found guilty before the Crown Court of an offence other than homicide the Court must REMIT the case to the Youth Court, unless it would be undesirable See Section 8 of the PCC(S)A 2000 It might be undesirable because the Judge wants to impose a mandatory minimum sentence which can only be imposed at the Crown Court – firearms offences – minding weapons It might be undesirable because the Judge considers that he or she is in the best position to sentence having determined the relevant criminality of both the adult and the youth in the case Please note the very important point that there is no power for a Crown Court Judge to REMIT a youth to the Youth Court for TRIAL – the remittal power is only in relation to sentence following conviction This does seem rather odd but more than one Judge in the past has said that only Parliament can fill the lacuna

18 – Sentencing children and Young People The guidance says that Referral Orders are ‘generally not available’ in the Crown Court – I don’t fully understand the wording of the guidance – I thought that there was no power for a Crown Court Judge to make a Referral Order

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I suppose the guidance is hinting at the fact that the Crown Court Judge could re-constitute himself as a District Judge (Magistrates’ Court) – see Section 66 of the Courts Act 2003 The guidance goes on in some detail about parental responsibilities and the Orders that can be made upon parents and the circumstances in which Orders cannot be made upon parents The guidance considers the key elements in determining the sentence – hugely relevant when a defence advocate is preparing a plea in mitigation to avoid custody The guidance considers the view to take where a significant age threshold has been crossed between the commission date of the offence and the sentence These ages are turning 12, 15 or 18

19 – Sentencing children and young people Where a significant age threshold has been crossed – the Court should take as its starting point the likely sentence to be imposed on the date on which the offence was committed We have had a number of cases saying that this legal principle is merely the starting point and may not necessarily be the finishing point! Persistent offenders – a YRO (with intensive supervision and surveillance) (or fostering) when aged under 15 or a DT0 when aged 12 – 14 may not be imposed unless persistence is found Persistence – 3 findings of guilt in the last 12 months for imprisonable offences of a comparable nature – or restorative justice disposals or cautions/conditional cautions Custodial sentence must be a last resort for all children and young people and there is an expectation that they will be particularly rare for children and young people aged 14 or under

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20 – Sentencing of children and young people Conditional discharges – cannot be imposed if the child or young person has received 2 or more cautions or a conditional caution followed by a caution unless exceptional circumstances See Section 66ZB Crime and Disorder Act 1998 – these previous matters must have been received within the last 24 months The guidance then considers financial penalties, referral orders, youth rehabilitation orders and custodial sentences generally The guidance then considers the custodial sentences available at the Crown Court The guidance then considers breach of orders and there are specific guidelines in relation to sexual offences and specific guidelines in relation to robbery offences

21 – Other guidelines of note We have the revised Magistrates’ Court guidelines which were given to us on the 24th April 2017 – the starting points for a number of offences have increased under these guidelines We have guidelines in relation to Dangerous Dogs – these guidelines are particularly relevant after the greatly increased sentences available for dog offences under the Anti-Social Behaviour Crime and Policing Act 2014 – operative 1st of July 2016 Robbery – operative 1st of April 2016 Health and safety offences, corporate manslaughter and food safety and hygiene offences – operative 1st of February 2016 Theft – 1st of February 2016 Fraud, bribery and money laundering offences – operative 23rd of May 2014 Environmental offences – operative 26th of April 2014

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Section 7 CrimeScribe Edition No. 72

Hello and welcome to this month’s edition of CrimeScribe. Again, nothing of any real consequence regarding legislation but we did have a couple of Statutory Instruments and some quite useful case-law. I shall start this month’s edition with those Statutory Instruments.

Statutory Instruments Statutory Instrument 2017 No. 755 is The Criminal Procedure (Amendment No. 3) Rules 2017 Part of this Statutory Instrument comes into force on the 10th August but the relevant Part dealt with here will come into force on the 2nd October 2017 This is an amendment to the Criminal Procedure Rules 2015 and in particular to Part 3 of those Rules (Case Management) Article 4 (2) at the plea and trial preparation hearing the Court must – (a)

Satisfy itself that there has been explained to the defendant, in terms the

defendant can understand (with help, if necessary), that the defendant will

receive credit for a guilty plea;

(b)

Take the defendant’s plea or if no plea can be taken then find out whether

the defendant is likely to be guilty or not guilty;

(c)

Unless the defendant pleaded guilty, satisfy itself that there has been

explained to the defendant, in terms defendant can understand (with help, if

necessary), that at the trial –

(i)

The defendant will have the right to give evidence after the Court has heard

the prosecution case,

(ii)

If the defendant does not attend, the trial may take place in the

defendant’s absence, 124

(iii)

If the trial takes place in the defendant’s absence, the Judge may inform the

jury of the reason for that absence, and

(iv)

Where the defendant is released on bail, failure to attend Court when

required is an offence for which the defendant may be arrested and

punished and bail may be withdrawn; and

(d)

Give directions for an effective trial

(b)

In rule 3.21 (Application for joint or separate trials, etc), at the end of the note

to the rule insert –

‘Any issue arising from the decision under this rule may be subject to appeal

to the Court of Appeal. Part 37 (Appeal to the Court of Appeal against

ruling at preparatory hearing), Part 38 (Appeal to the Court of Appeal against

ruling adverse to prosecution) and Part 39 (Appeal to the Court of Appeal

about conviction or sentence) each contains relevant rules. The powers of the

Court of Appeal on an appeal to which Part 39 applies are set out in Sections

2, 3 and 7 of the Criminal Appeal Act 1968

Statutory instrument 2017 No. 736 is The Police and Criminal Evidence Act 1984

(Application to Revenue and Customs) (Amendment) Order 2017

This Order amends Schedule 1 to the Police and Criminal Evidence Act 1984

(Application to Revenue and Customs) Order 2015 by adding references to

various provisions of PACE to those which the 2015 Order applies, with

modifications, to relevant investigations conducted by officers of

Revenue and Customs or persons detained by them. A relevant investigation

is a criminal investigation conducted by officers of Revenue and Customs

which relates to a matter in relation to which Her Majesty’s Revenue and

Customs has functions. The effect of the amendments (read with the general

modifications made by Part 1 of schedule 2 to the 2015 Order) is to give

officers of Revenue and Customs powers similar to those given to a Constable

for the following purposes:

Part 4 of the Policing and Crime Act 2017 amends PACE in relation to pre-

charge bail and other miscellaneous police powers. Sections 72 of the 2017

Act amends Section 17 (1) of PACE by adding Section 17 (1) (cab), permitting

a Constable to enter and search any premises for the purpose of arresting a

person for breach of bail under existing powers set out in sub-paragraphs (i) to

(v) of Section 17 (1) (cab). Article 2 (2) (a) of this Order inserts a reference

to section 17 (1) (cab) (ii) into Schedule 1 to the 2015 Order, permitting officers

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of Revenue and Customs to enter and search any premises to exercise their

existing powers of arrest under Section 46A (1) (arrest for failing to answer to

bail) and 46A (1A) (arrest for breaching conditions of bail) of PACE.

Section 63 of the 2017 Act inserts Sections 47ZA to 47ZM into PACE, establishing

time limits to the period a person may be on bail without charge under Part 4

of PACE

Article 2 (2) (b) of this Order adds references to sections 47ZF, 47ZG and 47ZH

of PACE to Schedule 1 to the 2015 Order, permitting an officer of Revenue And

Customs to apply to a Magistrates’ Court as a ‘qualifying applicant’ to extend

the period a person may be on bail without charge.

When an application is made to the Court under Sections 47ZF or 47ZG, 47ZH permits a qualifying applicant to apply to the Court for authorisation to withhold sensitive information from the person who is on bail and their legal representative.

CASE-LAW DPP and Manchester and Salford Magistrates’ Court and John Blakeley [2017] EWHC 1708 (Admin) and Manchester and Salford Magistrates’ Court and Joshua Whyte These cases concerned case management and the vexed issue of the disclosure of unused material. To keep it nice and simple, I like to think of the provision of evidence upon which the Crown would seek to convict and the disclosure of unused material. Disclosure is a term of art and relates solely to the provision of unused material which meets the test. The test, as you know, is that there should be disclosure by the prosecution of material which might undermine the prosecution case or support the case advanced by the defence. The two cases concerned two prosecutions brought against motorists in unconnected circumstances for driving a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in their respective breath specimens exceeded the prescribed limit.

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The same defence solicitors have appeared and, in both cases, defence statements have been served which deny the consumption of sufficient alcohol to give rise to a positive reading and challenge the reliability of the device used in the procedure. Pursuant to these statements, applications have been made under Section 8 of the 1996 Act (CPIA) for comprehensive documentation concerning the relevant device, relying on expert evidence to the effect that there must have been some defect in the device: the evidence proceeds on the unstated premise that what is said by each of the motorists as to their alcohol consumption is accurate. It is a rather long judgement (and well worth the read for anyone dealing with this type of road traffic case) but the High Court granted a judicial review in favour of the DPP and ruled that on the facts of these cases there was no basis upon which the material requested could reasonably have been thought capable of undermining the prosecution or advancing the defence case – the suggestions that the machine was in some way unreliable was mere speculation. They don’t use this term in the judgement itself but it seems to me that they regarded the whole thing as some sort of ‘fishing expedition’ on the part of the defence in order that something might just come to light which would cast doubt upon the reliability of the machine – part of the DPP’s argument was that the requests would involve an awful lot of work in collecting and collating material that was not even in their hands! The Queen on the application of M v Hammersmith Magistrates’ Court, Westminster City Council, Hammersmith Youth Offending Team [2017] EWHC 1359 (Admin) The claimant applied for judicial review. The claimant is said to be Algerian and does not speak English. In essence, he claims to be a 16-year-old, who was wrongly assessed to be an adult by the defendant Magistrates’ Court without any proper age assessment procedure. He seeks to challenge that process and his consequential sending to Southwark Crown Court as an adult to face 3 offences of theft and fraud. Although the police summary indicated that there was a suspicion that he was older than 16, no age assessment was conducted on behalf of the police. The police therefore treated the claimant as if he was a child for the purposes of their procedures and obligations under PACE. The claimant was interviewed under caution in the presence of a solicitor, an appropriate adult, and an Arabic interpreter.

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The claimant then appeared at the Hammersmith Youth Court for a first appearance before a bench of lay magistrates. The magistrates expressed doubts about his age. The defence asserted that the claimant was 16. The defence applied for an adjournment in order to provide evidence of age. The magistrates refused the application for an adjournment. They then retired for a short period of time. They returned to Court and announced their decision that they deemed the claimant to be 18 years old. In taking that decision they had no evidence on the question of the claimant’s age from the police, from the youth offending team, or from any local authority. There was no ‘Merton-compliant’ age assessment. The magistrates then declined summary jurisdiction and sent the claimant to Southwark Crown Court for trial as an adult pursuant to Section 51 of the Crime and Disorder Act 1988. The magistrates remanded the claimant into custody as an adult on the basis that there were substantial grounds to believe that he would fail to attend Court and/ or commit further offences. He has been held on remand in her Majesty’s prison Wormwood Scrubs as an adult. Section 99 (1) of the Children and Young Persons Act 1933 in its relevant parts provides as follows: ‘99 presumption and determination of age’ (1)

Where a person, whether charged with an offence or not, is brought before

any Court otherwise than for the purpose of giving evidence, and it appears

to the Court that he is a child or young person, the Court shall make due

enquiry as to the age of that person, and for that purpose shall take such

evidence as may be forthcoming at the hearing of the case, but an order

or judgement of the Court shall not be invalidated by any subsequent proof

that the age of that person has not been correctly stated to the Court, and

the age presumed or declared by the Court to be the age of the person so

brought before it shall, for the purposes of this Act, be deemed to be the true

age of that person, and, where it appears to the Court that the person

so brought before it has attained [the age of 18] years, that person shall for

the purposes of this Act be deemed not to be a child or young person’.

There is clear authority that where there is a real issue about the age of the defendant, criminal courts should adjourn proceedings so as to conduct the ‘age

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inquiry’ permitted by Section 99 (1) of the Children and Young Persons Act 1933 – see the case of R v Steed [1990] 12 Cr APP R (S) 230 The Court then went on to say this at Paragraph 16 of the judgement ‘There is, therefore, in my view, no doubt that it is not appropriate for a Magistrates’ Court to do as they did in this case. In cases where there is a real doubt as to the claimed age, the proper course is to make directions for an age assessment to be conducted. The relevant authority, through the medium of the youth offending team or service, will usually be the appropriate avenue to pursue’ A particular complication arising on these facts is that the Crown Court lacks any statutory power to remit cases for trial to the Magistrates’ Court or Youth Court. This lacuna was identified and considered by the Divisional Court in W v Leeds Crown Court [2011] EWHC 2326 (Admin). Hence, the Crown Court could not remit this claimant’s case to the Youth Court even if the proceedings were remaining at the Crown Court and it transpired that he was under 18. By virtue of the deeming provisions set out above, the Crown Court could in theory continue to deal with the claimant as an adult. To enable an urgent ‘Merton-compliant’ age assessment to be conducted the decision of the Youth Court as to age and sending to the Crown Court are both quashed. So also the decision, it follows, to remand in custody to an adult prison. The claimant is remitted to the Youth Court so that the matter can be re-considered as a matter of urgency. Meanwhile, the appropriate course is for the claimant to be remanded to local authority accommodation under Section 91 (3) of LASPO 2012. For those reasons, permission for judicial review is granted. I would grant judicial review and make an order in those terms. Whilst dealing with the question of age I would just flag up the following 20 points for consideration for any lawyer dealing with a child or young person as follows: 1

A child is a person between the age of 10 and 13 years

A young person is aged between 14 and 17

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LASPO 2012 defines a child for remand purposes as anyone aged 17 or below,

thus removing the anomalous position of a 17-year-old in the Youth Court

being deemed an adult for remand purposes – this is no longer the case – a

person 17 or below who is not bailed will be remanded into the care of the

Local Authority or remanded to Youth Detention Accommodation (YDA) – but

note point 4

A person 17 down to 12 may be remanded to Youth Detention

Accommodation (YDA) if the criteria within LASPO are met – there is no YDA

for anyone aged 10 or 11 – only a remand into the care of the Local Authority

It is the age at first appearance which determines the Court i.e. if the matter

has been listed in the Youth Court and the offender is 18 then the offender is in

the wrong Court and the matter must, in some way, be transferred to

the Adult Court – this happens sometimes because the offender was 17 at

the commission date of the offence and 17 at the date of charge and no-

one has spotted the fact that the offender will be 18 on the occasion of his

first appearance at Court

Where an offender has crossed an age threshold and becomes 18 at the

point of sentence (whereas he was a youth at the time of the commission of

the offence) the general principle is that he should be sentenced as at his

age at commission of the offence to reflect his maturity/lack of maturity at the

time of the commission of the offence – this, however, is merely a principle

and the Court may depart from the principle and sentence as an adult but

must give reasons in Court as to why it is sentencing as an adult – the cases in

this area are R v Ghafoor and R v Assad Yarrow

Where a 17-year-old is bailed to the Youth Court and does not attend for his

first appearance and a warrant is issued and he is 18 at the time of the

execution of the warrant the proceedings lie to the Adult Magistrates’ Court

There can be no Detention and Training Order for any child aged 10 or 11

the minimum age for a Detention and Training Order is 12 (whether the

offender is being dealt with in the Youth Court or the Crown Court)

The custodial sentence available for a child aged 10 upwards is long term

detention under Section 91 of the Powers of Criminal Courts (Sentencing)

Act 2000 – grave crimes – the sentence can only be imposed on indictment at

the Crown Court 130

The other custodial sentence available for a child aged 10 and upwards is

Detention during her Majesty’s Pleasure (murder) – Section 90 of the PCC (S)

A 2000

A 15-year-old appearing in the Youth Court as a first-time offender pleading

guilty to an offence punishable with imprisonment in the case of an adult can

be given a Detention and Training Order – it is one of the 4 exceptions to a

Referral Order

A child or young person aged 12, 13, or 14 appearing in the Youth Court as a

first-time offender pleading guilty to an offence punishable with imprisonment

in the case of an adult can only be given a Detention and Training Order if

they meet the criteria for being a ‘persistent offender’

A child or young person aged 10,11, 12, 13 or 14 appearing in the Youth Court

can only be given a Youth Rehabilitation Order (YRO) with intensive

supervision and surveillance or fostering if they meet the criteria for being a

‘persistent offender’

The current definition of a persistent offender is contained in the document

published by The Sentencing Council and operative where the first hearing

is on or after the 1st June 2017 – the document being entitled ‘Sentencing

Children and Young People Overarching Principles and Offence Specific

Guidelines for Sexual Offences and Robbery’ – this document replaced the

earlier document entitled ‘Overarching Principles – the Sentencing of Youths’

Allocation and Sending is not something you would normally get involved in at

the Youth Court but it becomes an issue if the child or young person attains

the age of 18 prior to plea on a matter either-way – he can elect jury trial and

the justices can decline jurisdiction of the matter if they wish

A person who has attained the age of 18 cannot be made the subject of a

Referral Order – even though they may have been convicted whilst still a child

or young person

A person who has attained the age of 18 can be made the subject of a Youth

Rehabilitation Order (YRO) so long as they were 17 or below on the date on

which they were convicted

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Where an offender becomes 18 on conviction it is a matter for the Youth Court

as to whether or not they keep the matter in their Court for sentence or

commit to the Crown Court for sentence (grave crimes) or remit to the Adult

Court for sentence under Section 9 of the PCC (S) A 2000

Mandatory minimum sentences are available for certain offences in the

Youth Court but the offender must be aged 16 or 17 on the date on which

they are convicted – two examples – threatening someone with an article

with a blade or point or offensive weapon in public or on school premises –

second possession of a bladed article, knife or offensive weapon

Unpaid work may be part of a Youth Rehabilitation Order but the offender

must have been aged 16 or 17 at the time of conviction

R (DPP) v Stratford Magistrates’ Court and Others [2017] EWHC 1794 (Admin) In 2015, the biennial Defence and Security Equipment International exhibition took place in London between the 14th and 18th of September. Between the 9th and the 12th of September, while the exhibition was being set up, the interested parties obstructed the passage of vehicles making their way to the exhibition centre. They were arrested and charged with offences of wilfully obstructing the highway, contrary to Section 137 of the Highways Act 1980. On the 11th April 2016, they were tried before District Judge Hamilton at Stratford Magistrates’ Court. Their defence was that they had been using reasonable force to prevent the commission of crimes at what they characterised as an ‘arms fair’, within the meaning of Section 3 (1) of the Criminal Law Act 1967. On the 15th April 2016, following a 5-day trial, during which factual and expert evidence were called, they were acquitted of all charges. In the present claim, the DPP seeks an order compelling the Magistrates’ Court to state a case for the opinion of the High Court, following the District Judge’s refusal to do so in a ruling made on the 5th May 2016, or alternatively, an order quashing the District Judge’s decision with the direction that the case be remitted to the Magistrates’ Court for a re-trial. Section 3 (1) of the Criminal Law Act 1967 provides:

A person may use such force as is reasonable in the circumstances in the

prevention of crime, or in effecting or assisting the lawful arrest of offenders or

suspected offenders or of persons unlawfully at large. 132

The first question for the Court was whether the District Judge was right to conclude that the defence under Section 3 (1) of the Criminal Law Act 1967 was available to the defendant. The High Court took the view that it was wrong to have come to this conclusion. There is clear authority that this defence should not be left to the jury in circumstances where the use of force is not directed to the prevention of an imminent or immediate crime. No crime could be said to have been committed on the highway. If any crimes were being committed at all, they were being committed at the exhibition.

Sentencing 19 terror related offences will be added to the Unduly Lenient Sentencing Scheme. People found guilty of encouraging terrorism, sharing terrorist propaganda and other terror-related offences could see their sentences increased if victims or the public think the punishment is too soft. Under plans confirmed by ministers, the scheme – which allows victims of crime and the public to query the sentences handed out by the Courts – will now include an increased range of terror-related offences. Sometimes the Attorney General comes in for criticism for not appealing what many might be regarded as an unduly lenient sentence. Not everyone appreciates that the Attorney General can only appeal certain offences on a Schedule. Statutory Instrument 2017 No. 751 is The Criminal Justice Act 1988 (Reviews of Sentencing) (Amendment) Order 2017 This Order amends The Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006 – Statutory Instrument 2016/1116 Schedule 1 to the 2006 Order describes cases to which Part 4 of the Criminal Justice Act 1988 is to apply. That Part allows the Attorney General, with leave from the Court of Appeal, to refer certain cases to the Court of Appeal where he considers that the sentence imposed in the Crown Court in that case was unduly lenient. This Order adds either way offences which trigger the terrorism notification requirements in Part 4 of the Counter-Terrorism Act 2008 to Schedule 1 to the 2006 Order.

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Section 8 CrimeScribe Edition No. 73

Hello and welcome to this month’s edition of CrimeScribe. Again, nothing of any real consequence regarding legislation or Statutory Instruments but we did have an excellent sentencing case and I propose to devote the bulk of this month’s edition of CrimeScribe to what went wrong in this particular sentencing exercise. There are salutary lessons for all criminal practitioners in this case (including District Judges and those who advise Magistrates’) and the points that I make need to be fully understood by anyone involved at all in any way in the sentencing process. The facts of the case and the errors within it would make an excellent examination question!! The second case dealt with in this month’s edition of CrimeScribe deals with the procedural requirements of the Bail Amendment Act 1993. I have specifically concentrated on these 2 cases because they are, by far, the 2 most important cases of the month for criminal practitioners.

CASE-LAW Dean Christopher Maxwell and R [2017] EWCA Crim 33 The Case started out as a simple appeal against the severity of the sentence that had been imposed by the Crown Court Judge. It all took place in the Crown Court at Cardiff. There were a large number of offences. The defendant in total was given a determinative period of imprisonment of 7 years and 4 months (88 MONTHS). In addition he was disqualified from driving for 3 years and until an extended re-test had been passed. There were errors in the sentence that had been passed. Some of them were rather simple errors and some of them were more complicated errors arising from the unnecessarily complex pieces of legislation in the area of sentencing. I have

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held the view for a long time now that the area of sentencing in criminal offences needs to be examined and radically overhauled. It is an unnecessarily complex and labyrinthine in nature. I shall deconstruct the sentencing exercise and deal with it on a point by point basis. I am not in any way critical of the Judge. I am not in any way critical of the advocates who appeared before the Judge. They all fell into error. Those errors are probably being repeated up and down the land on a daily basis and only those which result in an appeal to the Court of Appeal (Criminal Division) actually come to light!! Had this sentencing exercise been an examination question I venture to suggest that most criminal lawyers would have struggled with it. It is a small but important point. It is always the lawyers in the Criminal Appeal Office who identify the errors. Hats off to them!! I shall deal with the sentencing issues raised on a point by point basis. 1

– Where sentences are imposed for multiple offences it is absolutely vital

that it is made clear whether a particular sentence is to run concurrently

with, or consecutively to, another sentence also imposed – this was not done

in this particular case although it was clear from the overall sentence of

7 years and 4 months (88 months) that the Judge must have intended that

the period of 3 years on the burglary count was to be made consecutive

rather than concurrent.

– It is perfectly permissible in law to make a pronouncement of ‘no separate

penalty’ on an offence (s) but the pronouncement must always be made

where there is to be no sentence on a particular offence – mere silence

on the point will not do. There cannot be counts on the indictment to which

no pronouncement is made at all once convictions have been recorded on

them. In this particular case the Judge simply failed to pass sentence on 5

offences. The court clerk appears subsequently to have entered the results of

no separate penalty, with licence endorsement. It is for Judges to sentence,

not for court staff. Even though the sentences were nugatory, they were

not validly passed. The Crown concedes as much, and we quash each of

those 5 sentences. These 5 offences, together with the 3 offences of low-value

theft (see later discussion) were all before the Crown Court, but were either

not dealt with, or were dealt with unlawfully. These cases remain before

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the Crown Court. In the interests of good Administration, the Crown will need

to consider what to do about those offences which remain before the Crown

Court. It may conclude that the most pragmatic course in all the

circumstances is simply to withdraw the charges and have the Crown Court

record amended accordingly.

– Unless special reasons are found there must always be a pronouncement

of the endorsement when dealing with road traffic offences which require an

endorsement – even where no penalty points are being attributed to the

offence or there is to be no disqualification as regards that particular offence

– this is because a record needs to be kept at Swansea of all convictions that

attract an endorsement, regardless of whether or not a sentence was

imposed i.e. a pronouncement of ‘no separate penalty but an endorsement

on the offenders record’ will be perfectly lawful.

– Watch out for the position of the defendant being given a custodial

sentence for the offence and a term of disqualification for the same offence

as well. The law was amended by the introduction of Section 35A into

the Road Traffic Offenders Act 1988. In a nutshell, this requires the sentencer to

pronounce an extension under Section 35A to cover the defendant’s

incarceration period i.e. the actual disqualification itself should not start

until the offender’s release at the half-way stage. A typical example would

be a sentence of custody of 4 months and a disqualification of 12 months.

In these circumstances the disqualification MUST be extended under Section

35A by a period of 2 months to represent the 2 months the defendant will

serve of the 4-month sentence – no such pronouncement was made in this

particular case – in this particular case for Count 6 (Aggravated Vehicle

Taking) the defendant was disqualified from diving for a period of 3 years

and given a term of imprisonment of 2 years – the disqualification was

perfectly lawful – aggravated vehicle taking qualifies for a mandatory

minimum period of disqualification (absent special reasons) of 12 months

under Section 34 (1) of the Road Traffic Offenders Act 1988 – anything above

12 months is a matter for the discretion of the sentencer – in this particular

case the sentencer should have announced a period of 3 years

disqualification extended by a term of 12 months i.e. half of the 24 months

imprisonment that had been imposed on the offence of aggravated

vehicle taking

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– Watch out for the position of the defendant being given a custodial

sentence for the offence and a term of disqualification for the same offence

as well AND being given consecutive sentences for other offences as well

– this is precisely what happened in this particular case where the overall

sentence was a period of 7 years and 4 months (88 months) – in these

circumstances Parliament acknowledges that the extension under Section

35A will not take the offender to the half-way point of the sentence (the

half-way point of an 88 month sentence is 44 months) – there should therefore

have been a pronouncement of a disqualification of 3 years with a 12 month

extension (mandatory) and a further adjustment (this further adjustment being

discretionary rather than mandatory) under Section 35B of the Road Traffic

Offenders Act 1988 of anything that took the offender up to the 44 month

half-way period of the sentence i.e. there could have been an adjustment

of up to 32 months – a full adjustment of 32 months would have meant that

the disqualification of 3 years would not have commenced until the offender’s

release at the 44 month stage – any adjustment of less than 32 months would

have meant the 3-year disqualification starting at an earlier stage whilst the

offender was still incarcerated (thereby deriving a benefit from the

disqualification starting when he was not in a position to drive any way!)

A 32 month adjustment and a 12 month extension would have amounted to 44 months – half of the 88 month sentence imposed Those of you who want to know more about all of this should read the Court of Appeal decision of R v Needham [2016] 2 Cr APP R (S) 26 The effect of the Judges pronouncement was that the whole of the 3-year period of disqualification would have been served whilst the defendant was still in prison – this is not what Parliament expects 6

– The Judge required an extended re-test – there would not have been a

problem in law with the Judge ordering an extended re-test under Section

36 of the Road Traffic Offenders Act 1988 (I do believe though that in

these circumstances it is discretionary rather than mandatory – it is most

certainly mandatory for the offence of dangerous driving) – but for the fact

that the offender was already subject to a re-test – sentencers are precluded

from ordering a re-test where offenders are already subject to a re-test – see

the case of R v Anderson [2012] EWCA Crim 3060 – see also Paragraph 43 of

the case of Needham (which the citation was given earlier)

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Before I go on to consider the other points in the sentencing exercise it is important to stress that it would appear, from reading the judgement, that all of the matters at the Crown Court arrived there by way of having been SENT under Section 51 of the Crime and Disorder Act 1998.We are not talking here about circumstances in which a defendant pleaded guilty and was committed for sentence. This is an important point to bear in mind when considering the remaining points. The judgement does quite clearly start off by saying that the appellant pleaded guilty in the Crown Court at Cardiff to a large number of offences. 7

– There were clearly some counts on the indictment concerning low-value

shoplifting offences under Section 22A of the Magistrates’ Courts Act 1980. As

you know, theft by way of low-value shoplifting is a summary offence if the

offender chooses to keep the matter in the Magistrates’ Court. The

Magistrates’ have no power to decline jurisdiction on the offence. The

offender has the right to elect trial by jury on the offence. If the offender

elects trial by jury then it is treated in just the same way as any other theft

offence i.e. it carries 7 years on indictment – it is very important therefore to

appreciate that there was NO ELECTION on the 3 counts of theft by way

of low-value shoplifting – nor was there an enquiry into the value of them

these low- value shoplifting offences were merely sent under Section 51 of

the Crime and Disorder Act 1998 – there were 3 counts of theft by way of low

value shoplifting – it is possible to aggregate the values where 2 or more

offences are charged ‘on the same occasion’ – it was clear that even in the

aggregation that the 3 offences would not have exceeded £200 in

aggregate – accordingly, since the appellant had not elected trial, and since

the aggregation provision did not apply, the 3 counts alleging theft by way of

low- value shoplifting were triable only summarily.

The Appeal Court then went on to consider Section 40 of the Criminal Justice Act 1988 as being a provision which would enable a Crown Court Judge to deal with summary only offences as being included in an indictment (I’m not really sure why the Court of Appeal embarked on this exercise at all!) – Section 40 of the Criminal Justice Act 1988 contains a list of offences to which this Section applies and theft by way of low-value shoplifting does not appear on that list!– this, to my mind, is the end of the matter! – The low-value shoplifting offences could not have been lawfully added onto the indictment under Section 40 of the Criminal Justice Act 1988. Section 40 of the Criminal Justice Act 1988 permits a count charging a person with a summary offence to which this Section applies to be included in an indictment if the charge is founded on the same facts or evidence as a count charging an indictable

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offence or is part of a series of offences of the same or similar character as an indictable offence which is also charged. It was not a relevant Section on these facts. Q

– So how did the low-value shoplifting offences arrive at the Crown Court and

was their arrival there a lawful one?

– The 3 low-value shoplifting offences could only have arrived lawfully at the

Crown Court by way of being SENT there under Section 51 of the Crime

and Disorder Act 1998 – as you know, Section 51 allows for the sending of

purely indictable only offences and either-way offences related to the

indictable offence and summary offences related to the indictable offence or

either-way offence so long as that summary offence is punishable with

imprisonment or involves obligatory or discretionary disqualification

from driving

The Court said this at Paragraph 30 of the judgement:

‘It will be seen from Section 51 (3) that the sending provisions distinguish

between either-way and summary offences, and from Section 51E that the

tests for whether those offences are related to an indictable offence are

different. The test for summary offences under Section 51E (d) appears to be

narrower than that applicable to either- way offences under Section 51E

(c). This would appear to be consistent with the intention that only those

summary offences which have a close link to more serious offences sent to

the Crown Court should trouble that Court. Before us, both parties contended

that the 3 low-value thefts were sufficiently connected with the circumstances

giving rise to the Count 2 theft by reason of the fact that they involve the

same 2 offenders, committing very similar offences of the same type within

the same general locality, and within a short time frame. Additionally, the

motivation behind the offending appears to be the same, namely, the

acquisition of money for drugs.

And at Paragraph 31 of the judgement:

‘It may perhaps be open to argument as to whether that is sufficient

connection, but we remind ourselves that the language of Section 51 (3)

(b), ‘appears to the Court to be related to the offence……’provides leeway

to the Justices. A determination that there is an apparent connection

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between the circumstances of the offences is something less than a

determination that in fact they are connected. In this respect, a contrast is to

be drawn with the language of Schedule 3 of the 1998 Act which, at

Paragraph 6, deals with the power of the Crown Court to deal with a summary

offence and which, at Paragraph 6 (2), places an obligation on the Crown

Court to consider whether in fact the summary offence is related to an

indictable offence for which he was sent for trial. In those circumstances, we

do not think it right to go behind the decision of the Justices to send the 3 low-

value offences to the Crown Court under Section 51 (3), particularly when

neither party sought to argue to the contrary before us.

The Court of Appeal then went on to say that the 3 low-value criminal damage offences were therefore properly sent to the Crown Court by the Justices but, having arrived there, they were dealt with in an unlawful manner. The correct way of dealing with them would have been under the provisions of Schedule 3 Paragraph 6 of the Crime and Disorder Act 1998. The procedure there was not adopted in this case because the Court wrongly dealt with the 3 offences in terms of the indictment. It therefore follows that the joinder, pleas and sentence on those counts were a nullity and that the convictions recorded on counts 1, 16 and 18 must be quashed, and the appeal allowed. They also said this at Paragraph 33:

‘In sending the theft matters to the Crown Court under Section 51 (3), the

Justices did not differentiate between Section 51 (3) (a) and Section 51 (3)

(b). Those sub-sections distinguish between either-way and summary offences

As this case has illustrated that failure to distinguish may well have led to

the wrongful inclusion of the 3 counts on the indictment. Consideration at the

Magistrates’ Court of whether a theft by shoplifting is low-value or not (and

whether, if low-value, the defendant wishes to elect trial is sent to the Crown

Court under Section 51 (1)) would enable the Court to identify whether the

sending is under Subsection (3) (a) or (b), and thus avoid the problem which

has arisen’.

This is really important as the Court of Appeal are saying that with shoplifting lowvalue the Magistrates’ Court still has to deal with a procedural matter even though the low-value shoplifting offences are related offences and are being sent to the Crown Court under Section 51 of the Crime and Disorder Act 1998 The procedure the Court of Appeal apparently want the Magistrates’ to embark

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upon is to ascertain that the offences are indeed low-value shoplifting offences and then to ask the defendant whether or not he or she wishes to elect trial by jury on those matters (nobody in their right mind would elect trial by jury because then the offences are treated as normal thefts on indictment and the Judge would have the power to impose a term of imprisonment not exceeding 7 years!!!) – Far better not to elect whereby the powers of the Crown Court Judge are limited in that the offences must be treated as summary only with all of the limitations in sentencing surrounding summary only offences – I just wonder how many Magistrates’ are being advised by their legal advisers to do this!!!! – Probably a few more now than was the case before the decision in Maxwell – I am still surprised though that the Court of Appeal took such a strong line in this particular case and said that the joinder, pleas and sentencing on these 3 offences was a nullity Having quashed the convictions on counts 1, 16 and 18 (the low-value shoplifting counts), the sentences imposed for those offences, totalling 6 months in all, to run consecutively, must also be quashed. 8

– A term of 2 years imprisonment was imposed on count 6 for aggravated

vehicle taking. This sentence was unlawful since the offence was to be

treated as a summary only offence by reason of the value of the damage.

The maximum term of imprisonment that could therefore have been imposed

on this offence by the Judge was one of 6 months (reduced to 4 months

following the guilty plea)

Care must always be taken when dealing with aggravated vehicle taking under Section 12A of the Theft Act 1968. The offence of simple vehicle taking (which is always summary only and carries a maximum term of imprisonment of 6 months) may be aggravated in one of 4 ways as follows: a)

– By virtue of the fact that the vehicle was driven dangerously

(always either-way)

– By virtue of the fact that someone was injured (always either-way)

– By virtue of damage being caused to the vehicle (either-way unless the

value of the damage is less than £5000 in which case it becomes

summary only)

– By virtue of damage being caused to something other than the vehicle

(either-way unless the value of the damage is less than £5000 in which case it

becomes summary only)

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Where the offence is summary only the maximum penalty is 6 months imprisonment (effectively 4 months imprisonment following a guilty plea and the Judge had imposed 2 years imprisonment) I found the 2 year sentence following a guilty plea difficult to understand. Even if the offence had been either-way (which it was not) the maximum term of imprisonment for aggravated vehicle taking is 2 years. The defendant had pleaded guilty to all of the offences. It would appear that no credit was given by the Judge for the plea. Perhaps the parties appearing in the Crown Court had all thought that aggravated vehicle taking carried more than 2 years? The effect of the alterations made by the Court of Appeal was that the sentence was reduced from 7 years 4 months (88 months) to 6 years (72 months) 9

– The Court of Appeal had reduced the overall sentence imposed on the

defendant. The Court said this at Paragraph 43 of the judgement:

‘Since this Court has reduced the overall sentence it has power to adjust the

disqualification order without falling foul of Section 11 (3) of the Criminal

Appeal Act 1968....... there could be no objection to the Court making

the disqualification Needham compliant. We therefore amend the order of

disqualification on count 6 by substituting an order of disqualification from

driving for 6 years comprising a discretionary period of 3 years under Section

34, an extension period of 2 months under section 35A and an uplift of 34

months under Section 35B of the Road Traffic Offenders Act 1988. In addition,

we quash the order for an extended re-test since such an order remained

extant from a previous sentence’

I am just going to add a word or two about that Paragraph. The Court of Appeal (Criminal Division) always has to consider Section 11 (3) where the matter has arrived at that Court as an appeal against the severity of the sentence. You may or may not know that the Court of Appeal may alter the sentence but the defendant must not consider that he has been dealt with more harshly by the Court of Appeal than he was dealt with by the Court down below. The Court of Appeal took the view that Section 11 (3) had not been offended by making the term of disqualification Needham compliant as this was a requirement in law to do so. They had, in any event, reduced the sentence of imprisonment from one of 88 months to 72 months.

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The only power of the Court of Appeal, on an appeal against the severity of the sentence, is to make a ‘loss of time direction’ if they consider that the appeal was frivolous or lacked any real merit. That is the only way in which a defendant could actually find his sentence slightly increased. The above scenario is not to be confused with an application by the Attorney General to the Court of Appeal against the leniency of the sentence imposed by a Crown Court Judge. In such circumstances the sentence of a defendant may well be considerably increased!! There is no power for a Crown Court Judge to make a ‘loss of time’ direction when appealing the severity of a sentence imposed in the Magistrates’ Court. The Crown Court Judge could increase the sentence up to the maximum permissible sentence in the Magistrates’ Court – see Section 48 (4) of the Senior Courts Act 1981. This could happen where there is an appeal against the severity of the sentence or there is an appeal against conviction and the defendant is convicted again at the Crown Court. Reference is made to a discretionary period of disqualification of 3 years. Do not misunderstand the point. There is nothing discretionary about a disqualification for aggravated vehicle taking. It is a mandatory disqualification of at least 12 months under Section 34 (1) of the Road Traffic Offenders Act 1988. The term ‘discretionary’ is to distinguish the period of the disqualification i.e. 3 years from the element of extension and the element of adjustment. Quite simply, the Court of Appeal had substituted a sentence of 4 months following the guilty plea on the offence of aggravated vehicle taking. This was the offence under which the Judge had imposed (quite lawfully) a fixed disqualification of 3 years. The sentence being altered by the Court of Appeal from 2 years to 4 months there had to be an extension of 2 months under Section 35A in order to comply with the Section as outlined by the Court of Appeal in the case of Needham. The defendant would serve 2 months of a 4-month sentence. The extension under Section 35A is mandatory for the Court. The overall sentence, however, of the defendant became 72 months. The extension under Section 35A of 2 months would therefore not take the defendant up to the half-way point of the sentence. The half-way point of sentence of 72 months is 36 months. The Court of Appeal therefore made an ‘adjustment’ under Section 35B of a further 34 months. 34 months and 2 months totals 36 months i.e. the disqualification of

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3 years will not ‘kick in’ until the defendant is released from the 72 month sentence at the 36 month stage. The extension under Section 35A is always mandatory but the adjustment under Section 35B is discretionary. The Court of Appeal did not have to adjust the disqualification by the full period of 34 months. The Court of Appeal could have made the adjustment a lesser amount. A lesser amount though would have involved the disqualification starting during the defendant’s incarceration period and this is something that Parliament presumably attempted to avoid by enacting 35A and 35B. I hope that makes sense! The extension under 35A is mandatory and always applies where the Court is imposing a term of custody and imposing a period of disqualification on the same offence. The purport of Section 35A is that the extension of the disqualification takes the offender up to the release point of the sentence. This will usually be the half-way stage in a determinate sentence but could, for example, be the two-thirds stage when a sentence has been imposed under the dangerous offender provisions. 35B comes into play where consecutive sentences of custody are being imposed for non-driving offences i.e. for offences where no disqualification has been imposed. The effect of the consecutive sentences is that the Section 35A extension will not take the offender up to the half-way point of the sentence. It is therefore necessary to look at the totality of the sentence and to decide what adjustment, if any, the Court wants to make under Section 35B as an addition to the extension in order to take the period up to the half-way point. The Court of Appeal saying this about the errors at Paragraphs 46 and 47: 46

– ‘The problems which have arisen are not untypical of what happens if

insufficient attention is given to detail in the lower Court. The problems arise

from the complexity of modern sentencing legislation, but that phenomenon

is well known and all involved in the Crown Court should therefore be alert to

the need for care in technical matters. Sentencing Judges who have the

primary responsibility for getting things right are often burdened with long

sentencing lists. They have a right to expect appropriate assistance from the

advocates before them’

–‘It is clear that no such consideration or assistance was given by the

advocates in this case, either before the Judge came to sentence or indeed

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after he had sentenced in a flawed manner in a number of respects, or had

failed to pass sentence on certain matters at all. Both Counsel have

apologised to this Court for their part in the failures below, but that is small

recompense for the disproportionate time and effort involved in correcting

errors which should never have taken place. We can only urge greater

vigilance on the part of all those involved in sentencing before the

Crown Court’.

R (on the application of Tyrone Cardin) and Birmingham Crown Court, Birmingham Magistrates’ Court and the Crown Prosecution Service, the Governor of HMP Winson Green [2017] EWHC 2101 (Admin) A wonderful case on the provisions of the Bail (Amendment) Act 1993 and wonderfully illustrative of how things can go so wrong so quickly when dealt with by human beings!! The claimant applied for permission for judicial review in the High Court against the decision of Birmingham Magistrates’ Court authorising a warrant of detention for 48 hours pending an appeal by the prosecution against a decision by the Deputy District Judge to grant him bail and also the decision of Birmingham Crown Court to allow that appeal and direct that he be remanded in custody pending trial. He claims that because the prosecution failed to serve written notice of appeal upon him within the time prescribed by the Bail (Amendment) Act 1993, or at all, the Crown Court had no jurisdiction to hear the appeal. He also contends that the Magistrates’ Court were under a positive duty to order his release from custody when the time for service of the written notice of appeal expired. The claimant was one of a number of defendants (3 in all) before the Court. Bail was opposed and the Associate Prosecutor gave oral notice of intention to appeal the granting of bail in respect of 2 defendants at 12:54 PM. One of those 2 defendants was the claimant in this case. The claimant and his Solicitor were both present in Court when the notice was given, and as required by the statue, the oral notice was given before the claimant was released from custody. The Magistrates’ Court was obliged to remand the claimant in custody until the appeal was determined or otherwise disposed of. The normal procedure would be for the Court to issue a warrant authorising the detention of the defendant for 2 hours, that being the period within which the prosecution has to serve the written notice of appeal on the defendant.

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At 13.56 (some 1 hour and 2 minutes after the oral notice) the Associate Prosecutor gave written notice to the relevant Court officer at the Magistrates’ Court of the prosecution’s intention to appeal the granting of bail to the claimant. In the normal course of events the defendant would either be served with the written notice of appeal in the cells or, as was plain in the present case, be brought back into Court for service to be effected. Unfortunately, due to an administrative error, the Court office generated a remand warrant for the claimant which stated, incorrectly, that the written notice of appeal had been served on him at 12:54 PM. This was incorrect. It was the oral notice of appeal that had been given at 12:54 PM. No written notice of the appeal had been served upon the defendant at all!!! The remand warrant was addressed to the Governor of her Majesty’s prison Winson Green. This warrant is necessary in order for the Governor to keep the prisoner until the appearance at the Crown Court. There continued the bail hearing for the third of the 3 defendants. Again, the Deputy District Judge decided that bail was appropriate and at 14:20 hours the Associate Prosecutor gave oral notice that that decision would also be appealed. At 14.33 2 of the 3 defendants who had been granted bail were served with written notices of appeal. The written notice could not be served upon the claimant because by that time the claimant had already been collected by the prison escort contractors and was in the process of being transferred to a prison. The Associate Prosecutor, realising that no written notice had been served upon the defendant made a note to the effect that the defendant needed to be returned to Court ASAP or for the Court to fax over to the prison a copy of the written notice with instructions that it be served on the defendant as soon as he arrived. There was no chance of the defendant being returned to the Court. He was on the van and the clock was ticking! At 14.50 the Magistrates’ Court sent a copy of the written notice of appeal in relation to the grant of bail to the claimant by fax to the prison. However it appears that the fax did not go through. Subsequent attempts to send the notice by fax failed. An email was sent to the prison. This email was sent at 15.13. The van had not arrived by this time. The staff in the prison custody office inexplicably took it upon themselves to decide not to serve the notice on the claimant when he did arrive, because by

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the time that happened, they believe the 2 hours prescribed for service under the Bail Act had already expired. The Bail Amendment Act does not give any definition as to what is ‘the conclusion of the proceedings’ and in interpretation might have been that the bail proceedings had not concluded as far as the 3 defendants were concerned until the final decision had been made in relation to the final defendant. We know that the final decision was made at 14.20 and there was therefore an arguable case that the 2 hours did not expire until 16.20 by which time the van would have arrived at the prison and all may have been well. I might add that this was not the basis upon which people acted. As the claimant was never served with the written notice anyway the timings are irrelevant (but useful should this occur again in the future). An argument was put before the Crown Court Judge that he had no jurisdiction in the case. The Judge indicated that he was satisfied that the requirements of service had been made by the sending of the fax and that the prosecution had acted with all due diligence. Since everyone was aware of the prosecution’s intention to appeal, there was no prejudice to the claimant. The Judge proceeded to hear all 3 bail appeals (against the decision of the Deputy District Judge to grant bail) and allowed the appeals. There has been no criticism of the merits of that decision. Permission to apply for judicial review was refused as the High Court took the view that there was no realistic prospect of it being successful. The prosecution had done everything within their power and it was no fault of theirs that the written notice had not been served upon the defendant within the 2 hour period – the legislation does say ‘where the prosecution fails.....’ and the High Court took the view that they had not ‘failed’ where they had acted with due diligence and done everything that it was within their power to do – the Section was really designed to be problematic where the Crown was simply in some way at fault/to blame.

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Section 9 CrimeScribe Edition No. 74

Hello and welcome to this month’s edition of CrimeScribe. Again, nothing of any real consequence regarding legislation or Statutory Instruments but we did have an excellent document published by Her Majesty’s Courts and Tribunal Service entitled ‘Guide to commencing proceedings in the Court of Appeal Criminal Division’. I intend to devote a large section of this month’s edition to an analysis of this document. It is quite a detailed document running to some 27 pages. I shall attempt to extract the ‘essence’ of the document using a series of bullet points. There will also be news on the new digital forms for claims in relation to proceeds of crime and defendants costs orders and the usual analysis of any relevant recent case-law.

Digital forms for claiming On the 6th September 2017 the Legal Aid Agency alerted us to the fact that starting on the 11th September 2017 Fastrak bills for a defendant’s costs order should be submitted by email to this address: dcofastrak@legalaid.gsi.gov.ukFastTrack@ legalaid.gsi.gov.uk What to include with your claim In order for us to assess your claim the electronic bundle must include: 1

– Fastrak POCA coversheet

– Certified and signed 5911 claim form

– Copy of DCO made by the Court

– Copies of relevant travel or disbursement receipts e.g. expert invoices,

Counsel’s fee notes, travel or parking receipts were the total exceeds £20

– Appropriate evidence of retainers contract i.e. client care letter and

any amendments

– Client’s authority to pay costs to solicitors

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[my note – point No. 6 is an important one – solicitors must ensure that they have their clients authority that the sum be paid to the solicitors – this is because a defendant’s costs order is an order payable to the defendant to reimburse him for his indebtedness to his lawyer – it is not a lawyer’s order – it therefore requires the consent of the client that the money be paid directly to the solicitors rather than to the client himself] An electronic DCO Fastrak cover sheet will be sent by email to all providers who have previously made DCO claims Copies of the form may also be obtained by emailing: dcofastrak@legalaid.gsi.gov.uk The same announcement was made in relation to POCA claims. Starting on the 11th September 2017 all Fastrak and non-Fastrak Proceeds of Crime Act bills should be submitted using a digital claim form. This change will allow POCA claims to be assessed faster. It follows on from the introduction of email submissions for POCA work in January 2017 The introduction of the electronic claim forms will reduce the number of supporting documents required with your claim and improve the quality of determination notes you receive from us: Email addresses will remain the same: poca@legalaid.gsi.gov.uk pocafastrak@legalaid.gsi.gov.uk Fastrak and non-Fastrak forms There are separate claim forms for Fastrak and non-Fastrak claims. Copies of the claim forms and guidance on their completion will be sent to all providers who have previously made claims by email. Copies of the claim forms may also be obtained by emailing: poca@legalaid.gsi.gov.uk

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Guide to the Court of Appeal FINANCE 1

– In terms of the financing, provision for advice and assistance on appeal

is included in the trial representation order issued by the Crown Court. Solicitors

should not wait to be asked for advice by the defendant. Immediately

following the conclusion of the case, the legal Representatives should see

the defendant and advocates should express orally a final view as to the

prospects of a successful appeal (whether against conviction or sentence or

both). If there are reasonable grounds, grounds of appeal should be

drafted, signed and sent to instructing solicitors as soon as possible. Solicitors

should immediately send a copy of the documents received from the

advocate to the defendant.

– Prior to the lodging of the notice and grounds of appeal by service of form

NG, the Registrar has no power to grant of representation order. Also,

the Crown Court can only amend a representation order in favour of fresh

legal Representatives if advice on appeal has not been given by trial

representatives and it is necessary and reasonable for another legal

representative to be instructed. Where advice on appeal has been given by

trial legal representatives, application for funding may only be made to the

legal aid authority (LAA).

– Once the form NG has been lodged, the Registrar is the relevant authority

for decisions about whether an individual qualifies for representation for the

purposes of criminal proceedings before the Court of Appeal Criminal Division.

FORM NG AND GROUNDS OF APPEAL 1

– Where the advocate has advised an appeal and settled grounds,

the solicitor should forward the signed grounds of appeal to the Crown Court

accompanied by the form NG and such other forms as may be appropriate.

A separate form NG is required for each application: for an appeal against

conviction Form NG (Conviction) should be used; for an appeal against

sentence use Form NG (Sentence) and for an appeal against a confiscation

order use Form NG (Confiscation Order).

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– It should be noted that form NG and Grounds of appeal are required to be

served within the relevant time limit in all cases whether or not leave to appeal

is required e.g. where a trial judge’s certificate has been granted.

– Rule 39.3 of the Criminal Procedure Rules 2015 (as amended) sets out in full

the information that must be contained in the appeal notice

– The grounds of appeal should set out the relevant facts and nature of the

proceedings concisely in one all-encompassing document, not separate

grounds of appeal and advice.

– The intended readership of this document is the Court and not the lay or

professional client. Its purpose is to enable the single judge to grasp quickly

the facts and issues in the case. In appropriate cases, draft grounds of appeal

may be ‘perfected’ (see later bullet point in relation to the meaning of

‘perfected’) before submission to the single Judge.

– Advocates should not settle or sign grounds unless they consider that they

are properly arguable. An advocate should not settle grounds he cannot

support because he is ‘instructed’ to do so by a defendant.

Procedure in relation to particular grounds of appeal 1

– In any case where fresh solicitors or fresh advocates are instructed, who did

not act for the appellant at trial, it is necessary for the fresh solicitors or

advocates to approach the solicitors and/or advocate who previously acted

to ensure that the facts upon which the grounds of appeal are premised

are correct, unless there are exceptional circumstances and good and

compelling reasons not to do so.

– Before an application for leave to appeal is made which includes a ground

explicitly criticising trial advocates and/or trial solicitors, the fresh

representatives’ duty to the Court must be fulfilled by their taking proper steps

to ascertain by independent means, including contacting the previous

lawyers, whether there is any objective and independent basis for the grounds

of appeal. Failure to do may result in summary dismissal of a case under

Section 20 of the Criminal Appeal Act 1968.

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– Where there is an application to call fresh evidence a Form W and a

statement from the witness in the form prescribed by Section 9 of the Criminal

Justice Act 1967 should be lodged in respect of each witness it is proposed

to call. The Form W should indicate whether there is an application for a

witness order. The Registrar or single Judge may direct the issue of a witness

order but only the Court hearing the appeal may give leave for a witness to

be called and then formally receive the evidence under Section 23 of the

Criminal Appeal Act 1968

– In cases where fresh representatives are acting, a waiver of privilege will also

usually always be required to enable the Registrar to seek the comments of

the trial representatives as to why the evidence was not available at trial.

– If there is to be an application to adduce hearsay and/or evidence of bad

character or for special measures, then the appropriate forms should be

lodged – see the Criminal Procedure Rules at Rule 39.3

– Where a ground of appeal against sentence is that the Judge has given

insufficient weight to the assistance given to the prosecution authorities,

the ‘text’ which had been prepared for the sentencing Judge is obtained by

the Registrar. Grounds of appeal should be drafted in an anodyne form

with a note to the Registrar alerting him to the existence of a ‘text’. The

Criminal Appeal Office will obtain the ‘text’ and the single Judge would have

seen it when considering leave as will the full Court before the appeal hearing

and it need not be alluded to in open Court.

– Where the application is based on a change of law then Exceptional Leave

is required for out of time appeals or applications. This means that there is also

a requirement to address the Substantial Injustice test within the grounds of

appeal (my note – as you know, we have had some interesting case-law in

this area just recently in which the Court of Appeal Criminal Division have said

that they will not grant exceptional leave for appeals out of time (in the most

recent case the appeal was some 8 years and 3 months after the conviction)

unless the applicant can show Substantial Injustice)

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Time Limits 1

– Notice and Grounds should reach the Crown Court within 28 days from

the date of conviction in the case of an application for leave to appeal

against conviction and within 28 days from the date of sentence in the case

of an application for leave to appeal against sentence – Section 18 of the

Criminal Appeal Act 1968

– Where sentences are passed on 2 different dates there may be 2 appeals

against sentence. Thus, there may be an appeal against the custodial term

and an appeal against a confiscation order.

– An application for an extension of the 28 day period in which to give notice

of an application must always be supported by details of the delay and the

reasons for it. It is not enough merely to tick the relevant box on the Form NG.

The Court will not consider extending time, especially when there has been a

plea of guilty, unless not to do so would give rise to a substantial injustice.

Exceptional leave is required for out of time appeals or applications based

on a change of law. This means that there was also a requirement to address

the substantial injustice test.

Transcript and notes of evidence 1

– In publicly funded conviction cases, transcripts of the summing up and

proceedings up to and including verdict are obtained as a matter of course

There is an obligation for advocates to identify any further transcript which

they consider the Court will need and to provide a note of dates and times

to enable an order to be placed with the transcription company. Whether or

not any further transcript is required is a matter for the judgement of the

Registrar or his staff. Transcripts of evidence are not usually ordered; it may be

appropriate for the advocate to provide an agreed note of evidence.

– In sentence cases, transcripts of the prosecution opening of facts on a guilty

plea and the Judge’s observations on passing sentence are usually obtained.

– Transcript should only be requested if it is essential for the proper conduct of

the appeal in the light of the grounds.

153

Perfection of Grounds of appeal 1

– The purpose of perfection is (a) to save valuable judicial time by enabling

the Court to identify at once, the relevant parts of the transcript and (b) to

give the advocate the opportunity to reconsider the original grounds in the

light of the transcript. Perfected grounds should consist of a fresh document

which supersedes the original grounds of appeal and contains inter alia

references by page number and letter (or paragraph number) to all relevant

passages in the transcript.

– In conviction or confiscation appeals, the Registrar will almost certainly invite

the advocate to perfect grounds to assist the single Judge or full Court.

– As a general rule, the advocate will not be invited to perfect the grounds of

appeal in a sentence case.

– Where an advocate indicates a wish to perfect grounds of appeal against

sentence, the Registrar will consider the request and will only invite perfection

where he considers it necessary for the assistance of the single Judge or

full Court.

– If perfection is appropriate, the advocate will be sent a copy of the

transcript and asked to perfect the grounds, usually within 14 days

– If, having considered the transcript, the advocate is of the opinion that there

are no valid grounds, the reasons should be set out in a further advice and

sent to his instructing solicitors. The Registrar should be informed that this is

being done, but the advocate should not send the Registrar a copy of that

advice. Solicitors should send a copy to the appellant and obtain instructions,

at the same time explaining that if the appellant persists with his application

the Court may consider whether to make a loss of time order

Respondents notice 1

– I don’t wish to go into this in any detail, suffice it to say that the Criminal

Procedure Rules provide for the service of a Respondents Notice – see Rule

39. The Registrar may serve the appeal notice on any party directly affected

by the appeal and this, of course, will usually be the prosecution. That party

154

may then serve a Respondents Notice if it wishes to make representations and

must do so if the Registrar so directs. In practice this procedure primarily

applies prior to the consideration of leave by the single Judge. However, a

Respondents Notice may be sought at any time in the proceedings including

at the direction of the single Judge.

Referral by the Registrar 1

– Where leave to appeal is required (and it will be required in the vast majority

of cases), the Registrar, having obtained the necessary documents, will usually

refer the application to a single Judge for a decision (on the papers) under

Section 31 of the Criminal Appeal Act 1968. The Registrar does have the

power to refer an application for leave directly to the full Court, in which case

he will usually grant the advocate a representation order for the hearing

Where an application is referred because an unlawful sentence has been

passed or other procedural error identified, a representation order will

ordinarily be granted unless the error is such that the Court could correct it on

the papers, but advocates should be aware that the Court may make

observations for the attention of the determining officer that a full fee should

not be allowed on taxation.

– A representation order will not be granted where the presence of an

advocate is not required, such as where there has been a technical error that

the Court can correct without the need for oral argument.

– An applicant would not have the right to attend the hearing because the

appeal is on a point of law only – Section 22 of the Criminal Appeal Act 1968

Oral applications for leave to appeal 1

– Oral applications for leave (together with any ancillary applications such as

bail, extension of time or representation order) are normally considered

by a single Judge on the papers, unless it can be demonstrated that there

are exceptional reasons why an oral hearing is required. An advocate or

solicitors may request an oral hearing, but that request must be supported by

written reasons stating why the case is exceptional and any reasons why

that hearing should be expedited (expedition will be a matter for the

155

Registrar). The application should be copied to the prosecution. The single

Judge determining the substantive application will then decide whether

an oral hearing should be arranged. An advocate may make an application

for a representation order at the hearing itself. Oral applications for leave and

bail are usually heard in Court but in chambers at 9:30 AM before the normal

Court sittings.

Powers of the single Judge 1

– The single Judge may grant the application for leave, refuse it or refer it

to the full Court. In conviction cases and in sentence cases where

appropriate, the single Judge may grant limited leave i.e. leave to argue

some grounds but not others. Advocates must notify the Registrar within 14

days whether the grounds upon which leave has been refused are to be

renewed before the full Court. If a representation order is granted, in a limited

leave case, public funding will only cover grounds of appeal which a single

Judge or the full Court say are arguable.

Bail pending appeal 1

– Bail may be granted (a) by a single Judge or the full Court or (b) by a trial

or sentencing Judge who has certified the case fit for appeal. In the latter

case, bail can only be granted within 28 days of the conviction or sentence

which is the subject of the appeal and may not be granted if an application

for bail has already been made to the Court of Appeal.

– An application to the Court of Appeal for bail pending appeal must be

supported by a completed Form B which must be served on the Registrar and

the prosecution. The Court must not decide an application without giving the

Crown the opportunity to make representations.

– An application for bail will not be considered by a single Judge or the Court

until notice of application for leave to appeal conviction or sentence or

notice of appeal has first been given In practice, Judges will also require the

relevant transcripts to be available so they may consider the merits of the

substantive application at the same time as the bail application.

156

– Where bail is granted pending appeal, the Court may attach any condition

that must be met before the party is released, and may direct how such a

condition must be met.

Funding for grant of leave or reference to full Court 1

– Where the single Judge grants leave or refers an application to the Court,

it is usual to grant a representation order for the preparation and presentation

of the appeal. This is usually limited to the services of advocate only, in which

event the advocate will be assigned by the Registrar. In such a case the

Registrar will provide a brief but does not act as an appellate solicitor

The advocate who settled grounds of appeal will usually be assigned.

However, the Registrar may assign one advocate to represent more than

one appellant if appropriate. If it is considered that a representation order

for 2 advocates and/or solicitors is required, the advocate should notify the

Registrar and provide written justification in accordance with Criminal Legal

Aid (Determinations by a Court and Choice of Representative) Regulations

2013 – (see Statutory Instrument 2013/614)

– If solicitors are assigned, it should be noted that by virtue of Regulation 12, of

the Regulations just referred to above, a representation order can only be

issued to a solicitor if he holds a Standard Crime Contract with the LAA. A

solicitor not holding such a franchise may apply to the LAA for an individual

case contract (ICC) by virtue of which the solicitor is employed on behalf of

the LAA to represent an appellant in a given case.

– In some circumstances, the Registrar may refer an application to the full

Court. This may be because there is a novel point of law, there is fresh

evidence to be considered pursuant to Section 23 of the Criminal Appeal

Act 1968 or because in a sentence case, the sentence passed is very short.

A representation order for an advocate is usually granted. The advocate for

the prosecution usually attends a Registrar’s referral.

Refusal by the single Judge 1

– Where the single Judge refuses leave to appeal, the Registrar sends a

notification of the refusal, including any observations which the Judge may

have made, to the applicant, who is informed that he may require the

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application to be considered by the Court by serving a renewal notice (Form

SJ – Renewal) upon the Registrar within 14 days from the date on which the

notice of refusal was served on him.

– A refused application which is not renewed within 14 days lapses. An

appellant may apply for an extension of time in which to renew his

application for leave under Section 31 of the Criminal Appeal Act 1968. The

Registrar will normally refer such an application to the Court to be considered

at the same time as the renewed application for leave to appeal. An

application for extension for time in which to renew must be supported by

cogent reasons.

– If it is intended that an advocate should represent the appellant at

the hearing of the renewed application for leave to appeal, whether

privately instructed or on a pro bono basis, such intention must be

communicated to the Criminal Appeals Office in writing as soon as that

decision has been made. Whilst a representation order is not granted by the

Registrar in respect of renewed application for leave, the advocate

may apply at the hearing to the Court for a representation order to cover

that appearance. In practice, this is only granted where the application for

leave is successful.

Directions for loss of time 1

– Section 29 of the Criminal Appeal Act 1968 empowers the Court to direct

that time spent in custody as an appellant shall not count as part of the term

of any sentence to which the appellant is for the time being subject. The

Court will do so where it considers that an application is wholly without merit.

Such an order may not be made where leave to appeal or a trial Judge’s

certificate has been granted, on a reference by the CCRC or where an

appeal has been abandoned. An appeal is not built into the trial process but

must be justified on properly arguable grounds.

– The only means the Court has of discouraging unmeritorious applications

which waste precious time and resources is by using the powers in the Criminal

Appeal Act 1968 and the Prosecution of Offences Act 1985.

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– The mere fact that an advocate has advised that there are grounds of

appeal will not be a sufficient answer to the question as to whether or not an

application has indeed been brought which was wholly without merit – see

the case of R v Gray and Others [2014] EWCA Crim 2372

– The Form SJ, on which the single Judge records his decisions, and the reverse

of which is used by appellants to indicate their wish to renew, includes:

A box for the single Judge to initial to indicate that the full Court should

consider loss of time or costs order if the application is renewed; and

A box for the applicant to give reasons why such an order should not be

made, whether or not an indication has been given by a single Judge

Abandonment 1

– An appeal or application may be abandoned at any time before the

hearing without leave by completing and lodging Form A. An oral instruction

or letter indicating a wish to abandon is insufficient.

– At the hearing, an application or appeal can only be abandoned with the

permission of the Court.

– A notice of abandonment cannot be withdrawn, nor can it be conditional.

A person who wants to reinstate an application or appeal after abandonment

must apply in writing with reasons. The Court has power to allow reinstatement

only where the purported abandonment can be treated as a nullity and the

applicant must provide the Court with the relevant information to determine

the application.

– An application to treat the abandonment as a nullity is heard by the full

Court. If the Court does agree to treat the abandonment as a nullity, the

status of the application is restored as if there had been no interruption.

Case Management Duties 1

– Rule 36 of the Criminal Procedure Rules 2015 (as amended) gives the Court

and parties the same powers and duties of case management as in Part

3 of the Rules. In accordance with those duties, for each application received,

159

the Registrar nominates a case progression officer. There is also a duty on

the parties actively to assist the Court to progress cases. Close contact

between the advocate and solicitors and the responsible officer is

encouraged in order to facilitate the efficient preparation and listing of

appeals, especially in complex cases and those involving witnesses.

– Powers under the Criminal Appeal Act 1968 exercisable by the single Judge

and the Registrar are contained in Section 31 of the Act. These powers include

the power to make procedural directions for the efficient and effective

preparation of an application or appeal and the power to make an order

under section 23 (1) (a) of the Criminal Appeal Act 1968 for the production of

evidence etc, necessary for the determination of the case.

– Procedural directions given by the Registrar may be appealed to a single

Judge. Those given by a single Judge, including a single Lord Justice, are final.

There you are. I have waded through the first 12 pages of this 27 page document and given you what I consider to be the most important points of general use for criminal practitioners. There is other material in the document from page 13 onwards but it is of a more esoteric nature. 3 examples of the material covered: 1

– Appeals by a prosecutor against a terminating ruling made under Section 58

of the Criminal Justice Act 2003

– Application for a Retrial for a Serious Offence

– Attorney General’s reference of an unduly lenient sentence

The remainder of the document should be read by all criminal practitioners having dealings with the Court of Appeal.

Statutory instruments Statutory Instrument 2017 No. 915 is The Criminal Procedure (Amendment No. 4) Rules 2017 and comes into force on the 13th November 2017 The rules require the Crown Court to collect from a defendant the information required by Section 86A of the Courts Act 2003 (name, date of birth and nationality) in writing or orally. 160

The rules also require a Magistrates Court to collect that information The rules also provide for the conduct of a preparation for trial hearing in a Magistrates’ Court

CASE-LAW PF and REGINA [2017] EWCA Crim 983 The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case and, as a result, certain people are made anonymous in this judgement. The charges preferred against PF were sexual offences said to have been committed against his 2 sisters. PF was born in January 1969. In total there were 5 children within the family. In September 2016 the appellant was convicted of indecent assault and indecency with a girl under the age of 14 years. The offences were said to have been committed by PF on dates between 1979 and 1983. PF would therefore have been between 10 and 14 on the commission dates of the offences. Because of the uncertainty of the complainant in relation to the precise dates of the offences the Judge directed the jury that the appellant must be treated as being below the age of 14 and that the rebuttable presumption of doli incapax applied to all counts, meaning the appellant, as a child, was to be deemed incapable of committing a crime unless the prosecution could rebut that presumption

‘The presumption was rebutted only if the prosecution proved beyond

reasonable doubt both (i) that the child had caused an actus reus with

mens rea, in other words committed the crime, and (ii) he or she also knew

that the particular conduct was not merely naughty or mischievous but

seriously wrong’

The rule was abolished as from 30th of September 1998 by Section 34 of the Crime and Disorder Act 1998 but that provision did not have retrospective effect. Thus, the common law presumption applied in the present case.

161

The appellant’s single ground of appeal is that the Judge misdirected the jury on the issue of doli incapax in that, although he directed them that they had to be sure, on each count, (a) that the appellant did the act alleged against him and (b) that he knew that it was seriously wrong he failed to direct them (c) that, to be satisfied of (b), there had to be some clear positive evidence to that effect distinct from the doing of the alleged act itself. The above had been stated to be the common law position in the case of C (a minor) v DPP [1995] 2 Cr APP R 166; [1996] AC1 (House of Lords) in which Lord Lowry said, amongst other things,......

‘the second clearly established proposition is that evidence to prove the

defendant’s guilty knowledge must not be the mere proof of the doing of the

act charged, however horrifying or obviously wrong that act might be.......’

The Court said this at paragraph 15 of the present case

‘The importance of the inclusion in any jury direction of the final element

going to the rebuttal of the presumption (the finding of clear evidence

beyond the doing of the act in question), if not clear already, was made

so in the decision of this Court in R v M (D) [2016] EWCA Crim 674; [2016] 2

Cr App R 20 (supra). The judgement was delivered on the 20th May 2016, prior

to the commencement of the trial in the present case but, as both counsel

before us frankly acknowledged, it had not come to their attention by the

time of the trial in September 2016. The Judge was not referred to it.’

The Court found the convictions on counts 4 and 6 unsafe and quashed them. The appeal was allowed We had an interesting case on whether or not the ‘building’ in question was a ‘dwelling’ for the purposes of Section 9 (3) (a) of the Theft Act 1968 in the May edition of CrimeScribe. The case in question was Hudson v Crown Prosecution Service [2017] EWHC 841 (Admin) This month’s contribution is the case of DPP and Jane Distill [2017] EWHC 2244 (Admin) This appeal required the Court to consider the definition of a ‘dwelling’ in Section 8 of the Public Order Act 1986. The context was an alleged offence under Section 5 of the 86 Act, said to be racially aggravated within the terms of Section 28 of the Crime

162

and Disorder Act 1998 and thus contrary to Section 31 of that Act. Under Section 5 (2) of the 1986 Act, an offence is not committed where the alleged ‘threatening or abusive words or behaviour’ in question are used by a person ‘inside a dwelling’ and the other person is ‘also inside that or another dwelling’. The appeal is by way of case stated. The appellant, the DPP, appeals against the dismissal by the Wiltshire Magistrates’ Court, sitting at Chippenham on the 18th January 2017, of proceedings against the respondent, Ms Jane Distill, for an alleged offence under Section 31 of the 1998 Act The word’s in question (which I shall not repeat but were of a type that clearly came within the legislation) were allegedly (the defendant did deny usage of the words) uttered whilst the defendant was in the back garden of her grandmother’s property and were heard by the next-door neighbours who were in their own back garden at the time. It was common ground that the alleged incident had taken place wholly within the back gardens of the two adjoining properties, which comprise semi-detached or terraced houses with gardens, in a suburban area of Swindon. The substance of the dispute between the two parties is neatly illustrated in paragraph 4 of the judgement which reads as follows:

‘Ms Distill pleaded not guilty to the charge and the matter was listed for

trial. The solicitors acting for Ms Distill then sought from the magistrates’ court

a pre-binding ruling on the question of whether the garden in which the

offence was alleged to have been committed was part of a ‘dwelling’,

as defined in Section 8 of the 1986 Act. They contended that the definition

of a ‘dwelling’ must be understood as including a private garden such as

this, and therefore that on the undisputed facts of this case no offence had

been committed. The DPP argued to the contrary. The magistrates’ court

decided that question in Ms Distill’s favour, and accordingly, when the matter

proceeded to trial, ruled that there was no case to answer’.

The Court then went on to consider numerous previous cases in this area and found in favour of the DPP. It is a rather long judgement with some 48 paragraphs but the essence of the case in favour of the DPP is to be found in paragraph 43 as follows:

163

‘In my view, therefore, which is strengthened by the consistent reasoning

in those authorities, the construction of Section 5 of the 1986 Act contended

for by the DPP in this appeal is correct. Generally – though I would not go so

far as to say that this will necessarily be so in every case – the concept of a

‘dwelling’ as defined in Section 8 of the 1986 Act, for the purposes of the

exception in Section 5 (2) of that Act, will not include a domestic garden to

the front or rear of a dwelling house. Whether or not this is so will always

depend on the particular facts and circumstances of the case in hand. In

some cases it will not be so; in others it will. In this case, however, on the simple

and uncontroversial facts presented to us, I am of the view that the back

garden at 72 Meadowcroft – and, likewise, the back garden at 74

Meadowcroft – did not come within the Section 8 definition of a ‘dwelling’

and that the magistrates were wrong to conclude that it did’.

R and Tohel Uddin [2017] EWCA 1072 (Crim) This appeal raised a short but important point of construction. It focussed upon the interpretation of the phrase ‘or otherwise’ in the definition of ‘vulnerable adult’ in Section 5 (6) of the Domestic Violence, Crimes and Victims Act 2004 It considered the position of someone who did not fall within the category of disability or illness, and old age. It considered the meaning of other available categories created by the words ‘or otherwise’. It is a fairly long judgement but the essence of it is contained in paragraph 34 which reads as follows:

‘In our view, the choice of the words ‘or otherwise’ to follow the identified

categories is significant. The word ‘or’ creates an alternative scenario. The

word ‘otherwise’ is defined in the Oxford English dictionary as ‘in

circumstances different from those present or considered’. The words ‘or

otherwise’ therefore distinguish the circumstances in question from the

categories that precede them. The words have a specific purpose, leaving

open the possibility of other sets of circumstances or conditions that could

feature as the background to the central operative requirement that the

individual’s ability to protect him or herself from violence, abuse or neglect

is significantly impaired. They provide for an additional third category or

categories of potentially vulnerable adults who are not suffering from an

illness, disability or old age. The linkage between the categories specified

in the alternative category is that the adult’s ability to protect himself must

be impaired.’ 164

And also at paragraph 39:

‘In principle, there is no limit to the facts and circumstances that might lead

to the victim finding him or herself in a state of impaired ability to obtain

protection. None of the categories is closely defined. In the first category,

any illness, physical or mental disability, provided there is evidence that

it caused significant impairment, will suffice. The concept of illness and

physical and mental disability is a broad one. The illness or disability does not

have to be a ‘recognised medical condition’ (as for example in the Homicide

Act 1967). The jury decides if the victim was suffering from an illness or disability

and, if so, its impact on the adults ability to protect him or herself. The concept

of old age in the second category is also not limited. The jury is left to

determine what constitutes old age and whether it caused a

significant impairment’

A victim of sexual or domestic abuse or modern slavery, for instance, might find him or herself in a vulnerable position, having suffered long-term physical and mental abuse leaving them scared, cowed and with a significantly impaired ability to protect themselves. The Court held that on the facts of the instant case the victim most certainly fell within the ambit of this piece of legislation. Felix Joseph Hanrahan [2017] EWCA Crim 1256 This was an appeal by the Attorney General against the leniency of a sentence of 45 months imprisonment imposed upon an individual who was convicted of conspiracy to commit burglary. The defendant had been sentenced to a term of imprisonment of 45 months. The Court of Appeal accepted the Attorney General’s argument that the sentence was unduly lenient and the sentence of 45 months was quashed and there were substituted for it a sentence of seven years and six months (a total of 90 months). I do know how much you get involved in these matters but I have been told by more than one counsel that, as a rule of thumb, if the Attorney General is successful in the appeal, the sentence may well be doubled. It’s almost as if the Attorney General only takes cases were he is of the view that the sentence was half (or less than half) of what it should have been.

165

Don’t get me wrong, I’m not saying there’s any sort of mathematical precision about this but the rule of thumb about the sentence being doubled seems to me to be a good starting point! The sentence must not be lenient but must be unduly lenient. The Attorney General refers the matter to the Court of Appeal under Section 36 of the Criminal Justice Act 1988

166

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Section 10 CrimeScribe Edition No. 75

Hello and welcome to this month’s edition of CrimeScribe. Nothing of any real consequence regarding legislation or Statutory Instruments (we had one SI which dealt with fixed penalties for littering from vehicles in England!). We have also had some interesting case-law which I was going to analyse until we had the Ministry of Justice response to the consultation concerning the Litigators’ Graduated Fees Scheme published on the 24th October 2017 and Statutory Instrument 2017 No. 2019 published on the 26th October (today). They do not make for very good reading. I’m sure you have all heard the news by now but I thought I would devote this month’s edition to a ‘distilled essence’ of the documents and also analyse the effect upon fees of the advice criminal practitioners must give following the implementation of the document ‘Reduction in Sentence for a Guilty Plea – Definitive Guideline’ published by The Sentencing Council and operative for all cases where the first hearing is on or after 1st June 2017. Furthermore, I shall deal with certain queries that have been raised in relation to the billing of police station work under the new Contracts now that the police, in the majority of cases, are releasing suspects from the police station pending further enquiries/investigations. For those of you who have no interest in costs whatsoever I have just updated my 100 questions with 100 written answers in relation to ‘advising suspects at the police station stage’ and this document has also been incorporated into this month’s edition of CrimeScribe. PLEASE FIND DOCUMENTS AT THE END OF THIS PAPER GIVING YOU THE % REDUCTIONS AS A RESULT OF THE PPE BEING CAPPED AT 6,000 RATHER THAN 10,000 AND ALSO THE CURRENT SOLICITOR GUIDELINE HOURLY RATES (OFTEN REFERRED TO AS CENTRAL FUNDS RATES) PAYABLE ON COURT – APPOINTMENT CASES. Ministry of Justice – Litigators’ Graduated Fees Scheme – Response to Consultation – 24th of October 2017 The consultation paper ‘Litigators’ Graduated Fee Scheme and Court Appointees’ was published on the 10th February 2017 and invited comments on proposed

168

changes to (a) the Litigators Graduated Fee Scheme, and (b) the costs of court appointees. The proposals in that consultation paper were as follows: (a)

for a change to the Litigators’ Graduated Fee Scheme in advance of a new

scheme being introduced, which would reduce the number of pages of

prosecution evidence used to calculate the graduated fee from 10,000 to

6,000, with the additional pages being remunerated at hourly rates, and

(b)

To limit the costs payable from central funds to court appointees at the

equivalent of legal aid rates.

The consultation period closed on the 24th March 2017 and this report summarises the responses on the LGFS proposals, including how the consultation process influenced the final shape/future development of the proposals consulted upon. We are still considering the court appointees proposal and will separately respond to consultation on that later. Conclusion and next steps We will shortly lay Regulations before Parliament that will implement the LGFS Proposal on 1st of December 2017 We can also confirm that the fee cut that was suspended in April 2016 will not be reintroduced. So what does this all mean? – The new position in, hopefully, 40 easily digestible bullet points 1

The relevant Statutory Instrument was published today (26th of October

2017) – it is Statutory Instrument 2017 No. 1019 and is entitled ‘The Criminal

Legal Aid (Remuneration) (Amendment) Regulations 2017 – it was made on

the 23rd October and laid before Parliament on the 24th October and will

come into force on 1st December 2017

These Regulations are described as an (Amendment) because they amend

the Criminal Legal Aid (Remuneration) Regulations 2013 – these Regulations

are contained in Statutory Instrument 2013 No. 435 and came into force on 1st

April 2013. 169

The 2013 Regulations are incredibly important when dealing with the billing

of Advocates Fees – this is because Advocates Fees have not changed since

1st April 2013 – do not trust the Fees in the 2013 Regulations in relation to

Litigators – the Litigator rates have been reduced since the 1st April 2013

The Litigator Fees were reduced by 8.75% for all work done on or after 20th

March 2014 – see Statutory Instrument 2014 No. 415

The Litigator Fees were reduced by a further 8.75% for all work done on or

after 1st July 2015 – see Statutory Instrument 2015 No.1369

That second cut of 8.75% was lifted for all work done on or after 1st April 2016 –

see Statutory Instrument 2016 No. 313

All Litigator Fees are currently governed by Statutory Instrument 2016 No.

313 – this applies to all work where the Representation Order is dated (or the

case started) on or after 1st April 2016 – I thought that we might be getting

a new Statutory Instrument to coincide with the coming into force of the new

Contracts on 1st April 2017 – this did not happen – we are still working from

Statutory Instrument 2016 No. 313

THAT SECOND CUT OF 8.75% WHICH WAS LIFTED BY STATUTORY INSTRUMENT 2016

No. 313 WILL NOT BE RE- INTRODUCED (see note above – ‘we can also confirm

that the Fee cut which was suspended in April 2016 will not be reintroduced’)

The new Statutory Instrument 2017 No.1019 will have no effect whatsoever

upon hourly rates claimable for criminal legal aid work

The new Statutory Instrument 2017 No.1019 will have no effect whatsoever

upon the Litigator Fee for Crown Court work which is payable from the Tables

as PPE (pages of prosecution evidence) where the PPE is 6,000 or fewer

Those of you who are not familiar with the billing of Crown Court preparation

work should know that hourly rates for such work were abolished in 2007 (save

for Special Preparation and POCA which are still remunerated at hourly

rates) and replaced by payment by way of PPE and we work from 3 Tables

that are contained in Statutory Instrument 2016 No.313 – the Tables give the

fees for all matters that have been SENT to the Crown Court and then result in

170

Guilty pleas Cracked trials Trials 12

Each Table has a list of Offence Classifications ranging from A – K, where, for

example, A is murder and E is burglary and K is dishonesty with a value

in excess of £100,000 – you will find a full list of the various offences within each

Classification contained in Archbold – this list is taken from Statutory Instrument

2013 No.435

All of the current Tables within Statutory Instrument 2016 No.313 are capped at

10,000 PPE

Transitional Provisions – Paragraph 3 of Statutory Instrument 2017 No. 2019

reads as follows ‘The amendments made by these Regulations do not apply

to matters in which a determination under Section 16 of the Legal Aid,

Sentencing and Punishment of Offenders Act 2012 (representation for criminal

proceedings) is made before 1st December 2017

Where the determination is made on or after 1st December 2017 regard will

need to be had to the new Guilty Plea, Cracked Trial and Trials Tables

contained within Statutory Instrument 2017 No.2019 and to the fact that the

PPE is capped in all 3 instances (and for all Classification of Offences ) at 6,000

PPE rather than 10,000 PPE

‘Regulation 2 amends Schedule 2 to the Remuneration Regulations to reduce

the cut-off threshold from 10,000 to 6,000 PPE. It also substitutes 3 Tables

relating to Fees for Cracked Trials, Guilty Pleas and Trials to reflect the

new threshold’

‘If the PPE exceeds the threshold, Paragraph 20 of Schedule 2 to the

Remuneration Regulations provides that a claim may be made for ‘Special

Preparation’, which is an additional Fee based on the time reasonably

taken to consider the evidence exceeding the cut-off threshold – Paragraph

20 of Schedule 2 also refers as to Paragraph 27 in relation to the prescribed

Fee rates – do not trust these Fee rates in relation to Litigators because the

Litigator fees have been reduced since 2013

171

Just to re-cap (because it can get confusing) – references to the

Remuneration Regulations are references to Statutory Instrument 2013 No. 435

– The Criminal Legal Aid (Remuneration) Regulations 2013

The current litigator hourly rates for Special Preparation are contained in

Statutory Instrument 2016 No.313 at Paragraph 7 on Page 18 and the ‘gist’ of

them is as follows: – I say the ‘gist’ because you really need to read the

Schedule in Paragraph 7 just to ensure that you are claiming the right Fee – it

varies dependent upon where your office is and the experience of the person

doing the work but for the vast majority of experienced practitioners the Fees

are as follows:

Preparation – Senior Solicitor – £48.36 per hour Attendance at court – Senior Solicitor – £38.55 Travelling and waiting – Senior Solicitor – £22.58 Writing routine letters and dealing with routine phone telephone calls – £3.15 Please read the Schedule – there is an awful lot more in it than the figures quoted above 20

The same figures in Paragraph 7 of Statutory Instrument 2016 No.313 are also

your current POCA hourly rates

Special Preparation hourly rates for Advocates are contained in Paragraph

24 of Statutory Instrument 2013 No. 435 (pages 34 and 35) – Paragraph

24 contains a number of Fixed Fees for Advocates and the Fixed Fee for

Special Preparation is £39 per hour for a junior/or led junior – £56 per hour for a

leading junior and £74 per hour for a QC

Just to re-cap – THE NEW PAYMENT REGIME WILL BE THAT ANY PPE OVER

6,000 WILL BE REMUNERATED FOR LITIGATORS AT HOURLY RATES BY WAY OF

SPECIAL PREPERATION AS IS THE CASE AT THE MOMENT FOR ANY PPE

OVER 10,000

172

Regard needs to be had to the document published by the Legal Aid Agency

entitled ‘Crown Court Fee Guidance’ and published in March 2017

concerning the circumstances in which the Litigator and the Advocate may

claim Special Preparation at hourly rates

In so far as Litigators are concerned – the Guidance is fully set out at

Paragraph 3.20 on Page 51 of the document and reads as follows:

Litigators can claim Special Preparation where: a)

Any or all of the prosecution evidence, as defined in Paragraph 1 (2) of the

Remuneration Regulations, is served in electronic form (and has never existed

in paper form – see Appendix D for more information), or

The Representation Order is dated on or after 3rd August 2009 and the

number of PPE exceeds 10,000,

[NB – the guidance set out in b) will obviously be altered to make reference to Representation Orders dated on or after 1st December 2017 and the number of PPE exceeds 6,000] And the Determining Officer considers it reasonable to make a payment in excess of the Graduated Fee, within the circumstances of the case, The Determining Officer must consider:

The reasonable number of hours to view the evidence where Paragraph

3.20.1 (a) applies

The reasonable number of hours to read the evidence where Paragraph

3.20.1 (b) applies

Note Costs Judge decision in R v Brandon (2011) which concludes that for the purpose of determining a Special Preparation Fee it is not appropriate to use a ‘time per page’ calculation. Instead, the amount of time considered reasonable to consider the evidence should be allowed. Enhanced rates do not apply to special preparation. Also refer to the decision in the Lord Chancellor v McLarty (2011) which held that a Special Preparation Fee is not payable for listening to audio-visual tapes as these are specifically excluded from the Remuneration Regulations. The payment for this work is included within the initial fee 173

The decision of the Honourable Mr Justice Penry-Davey in the matter of the Lord Chancellor v Michael J Reed limited (2009) held that video or audio footage cannot be claimed under Special Preparation as moving footage does not fall within the context of ‘any document’. 24

In order to secure payment at hourly rates by way of Special Preparation for

any work undertaken on a case where the page count is in excess of 6,000

and the determination was made on or after 1st December 2017 the Legal

Aid Agency will require evidence of the work undertaken by way of a Work

Log – an example of a Work Log is contained in the Crown Court Fee

Guidance document at Appendix E (this document was published in March

2017 and is freely available from the Legal Aid Agency website – please get

a copy if you are in any way involved in the billing of Crown Court work

from the perspective of Litigator or Advocate or both) – it is not much of

a log and contains the bare basic material expected – I would hope that

your own Work Logs are a good deal more comprehensive than the example

given in Appendix E – Special Preparation at hourly rates requires us to go

back to recording the information as was the case with all Crown Court

preparation work prior to the implementation of the new system in 2007 – It

may be that people have developed bad habits in the last decade and will

need to ‘get back to basics’ and will need to be taught how to keep an

accurate work log throughout the currency of the case – thought needs to

be given to the log at the beginning of the case and not at its conclusion!!

– There have been a spate of cases in which the Legal Aid Agency have

simply refused to pay because there was no detailed and accurate Work

Log of the work that had been undertaken – I am not an apologist for the LAA

but I do think they have a point in relation to a refusal to pay for work that has

not been accurately recorded as having been done!

In relation to Special Preparation for the Advocate, this is dealt with at

Paragraph 2.17 of the Crown Court Fee guidance document on Page 34 and

reads as follows:

Paragraph 17, Schedule 1 of the Remuneration Regulation sets out the circumstances were Special Preparation may be claimed and how it is to be calculated.

174

An hourly rate Fee is paid for Special Preparation in any case on indictment when: a)

It has been necessary to do work by way of preparation substantially in excess

of the amount normally done for cases of the same type because the case

involves a very unusual or novel point of law or factual issue. As held in R v

Johnson (2003) the volume of unused material does not affect the unusual

nature or novelty or otherwise of the point of law or factual issue

The number of PPE exceeds 10,000; [NB â&#x20AC;&#x201C; this will clearly be 6,000 with a

Representation Order dated on or after 1st December 2017]

Any or all of the prosecution evidence, as defined in Paragraph 1 (2) of the

Remuneration Regulations, is served in electronic form only,

And for b) and c) the Determining Officer considers it reasonable to make payment in excess of the Graduated Fee, within the circumstances of the case. The Appropriate Officer must consider: a)

The number of hours in excess of the amount considered reasonable for cases

of the same type where 2 (a) applies

The reasonable number of hours to read the evidence where 2 (b) applies

The reasonable number of hours to view the evidence where 2 (c) applies

Only the following work is deemed to be preparation and eligible for payment: reading the papers, conferences with the defendant, written or oral advice on plea or appeal, written evidence on advice, contacts with the prosecution, viewing the scene of the crime or evidence at police stations, researching the law, preparing for examining witnesses, preparing submissions or any documents for the use at main hearing. Claims that are based on a unit of time per page read over 10,000 pages or on an extrapolation of the unit rate per page found in the Graduated Fee scheme equation will not be accepted and the same would apply to claims for evidence served in an electronic form.

175

A running log is required of all the work an Advocate does on a case, giving dates, times and the nature of the work and in the case of perusal of the prosecution evidence particulars of the documents. In this way the Advocate when formulating their claim and the Determining Officer when considering it will be able to identify the work that is the subject of a Special Preparation claim. A best practice pro forma of a Work Log is set out at Appendix E of this document

You will have noticed immediately that the definition of Special Preparation

is different, and much wider, for the Advocate than for the Litigator – this may

affect your decision as to who does the Special Preparation – Advocates will

be paid for certain parts of Special Preparation where no fee would be

payable to the Litigator for the same type of work

You will find a definition of PPE contained in the Crown Court Fee guidance

document at Appendix D – you will also find the legal definition of PPE

contained in Statutory Instrument 2012 No. 750 starting at Paragraph 6.

PPE is only a relevant concept where the matter has been SENT to the

Crown Court and is therefore ‘a matter on indictment’ – PPP is wholly

irrelevant in committals for sentence and appeals against sentence/appeals

against conviction – with committals for sentence and appeals the Litigator is

paid a Fixed Fee and not a page count fee – these Fixed Fees are listed in

Paragraph 6 of Statutory Instrument 2016 No. 313 on Page 17 of the document

PPE is also an irrelevant concept for Advocates where matters have been

committed for sentence or are the subject of an appeal at the Crown Court

again, Fixed Fees are payable and the Fixed Fees for the Advocates are to

be found in Paragraph 24 of Statutory Instrument 2013 No. 435 on Page 34 of

the document

No decision has as yet been made by the Ministry of Justice in relation to any

possible reduction in fees where the Advocate is Court - Appointed under

Section 38 (4) of the Youth Justice and Criminal Evidence Act 1999 – I quote

from the ‘Litigators Graduated Fees Scheme’ response to consultation

document published on 24th October 2017 – ‘We are still considering the

Court Appointees proposal and will separately respond to consultation on that

later’ – I don’t think this issue has gone away but they may well see how things

go with the PPE cut from 10,000 to 6,000

176

The proposal they are considering is to pay Court Appointments at Legal Aid

Rates rather than the current Central Funds Rates – this will be another huge

cut in the rate of pay for criminal legal aid work

For an interesting case on what is and what is not payable when Court -

Appointed see Abbas v CPS [2015] EWHC 579 (Admin) – furthermore, see the

case of R v Andrews [2016] 4 COSTS LO 705 in which the Costs Judge held that

cross-examination of a witness continues until such time as any witness might

be re-called, noting that trials involving defendants who self-represent tend to

be chaotic. Thus attendance until at least after the completion of the

defendant’s evidence may be authorised. I think you have to exercise your

professional judgement in these matters. It may well be that you would

consider it appropriate to leave earlier than this point or to consider staying,

albeit on a pro-bono basis.

As you all know, the Sentencing Council has published a new document in

relation to credit (it replaced the existing document which was published

in April 2007) – it is entitled ‘Reduction in Sentence for a Guilty Plea – Definitive

Guideline’ and is relevant for all adults (18 or over) and to organisations where

the first hearing of the case is on or after 1st June 2017 – the document makes

it clear that a defendant’s one third credit is at risk if he or she does not

indicate guilt at the first listing – it matters not the type of offence – it could

be summary only, either- way or indictable – the guidance is particularly

relevant from a fee income perspective when dealing with either-way

offences – the old guideline said that a defendant who did not indicate guilt

at the first listing run the risk of having his credit reduced from a third to

30% (30% on an early indication of guilt at the Crown Court) – fortunately, no

one took any notice of this and we were therefore still able to tell clients that

an early indication of guilt at the Crown Court would still result in credit of

one third – thus the defendant could put off his plea or indication of plea

without any real fear and the matter could be sent and the matter was

therefore a matter on indictment and the Litigator would be paid on a page

count – the position now is quite different – it must be explained to the client

that a refusal to indicate or plead at the first listing in the Magistrates’ Court

may well result in credit being reduced from a third to 25% (25% being the

maximum credit available on an early indication of guilt at the Crown

Court unless the Judge takes the view that one of the Exceptions contained

within Paragraph F of the document apply – this may result in the client

entering an early guilty plea in an either-way matter and being committed

177

for sentence – the fee in such a case would be the Category 1A or 1B guilty

plea fee and the committal for sentence fee – these 2 fees added together

may be considerably lower than the fee that would have been payable on a

page count had the plea been entered on indictment

The position concerning the client who is ineligible for legal aid in the

Magistrates’ Court (as you know, it’s an ‘in or out’ system in the Magistrates’

Court – the client either qualifies for legal aid or he does not) is even worse

where a client is ineligible for legal aid in the Magistrates’ Court and is

committed for sentence, there is no Representation Order available for the

Crown Court hearing and the client either deals with the matter in person

or pays a lawyer privately – his position would be different if he put off his plea

and was SENT to the Crown Court – the vast majority of clients who face

matters on indictment at the Crown Court will be granted a Representation

Order to cover the proceedings in the Crown Court which may or may not

come with a contribution of X amount per month for 6 months (5 months if

a prompt payment is made) – it is not the intention of the LAA to make a profit

on the deal i.e. the contribution will be capped at the defendant’s costs (the

costs of the Litigator, the costs of any Advocate and the costs of any

disbursements) – it may therefore be the case that on a guilty plea the

contribution actually payable by the client is a good deal lower than

that which was assessed – in reality though he may well have to make all of

the contributions and then wait for the balance to be returned – do

remember that all contributions are based on there being a trial and the

defendant’s costs actually being more than the costs of the trial – the costs

of a guilty plea may amount to as little as £500 – a client may therefore find

himself without a lawyer at the Crown Court because he does not have the

benefit of legal aid because the matter was committed for sentence – it

might have been completely different had he been sent to the Crown Court –

everyone is pass-ported through the ‘interests of justice’ test where the matter

is sent to the Crown Court

The above scenario may well be a good example of where a Judge would

have regard to Exception F ‘made it unreasonable to expect the

defendant to indicate a guilty plea sooner than was done’ i.e. a plea of guilty

and the committal for sentence would have involved the defendant not

having representation in the proceedings at the Crown Court – Crown Court

Judges tend not to like defendants appearing before them unrepresented

and may well be amenable to giving full credit of one third on a timely guilty

plea to the matter on indictment once the legal aid position has

been explained 178

The only exception to the rule that everyone is given a Representation

Order for a matter on indictment (with or without a contribution) concerns

those defendants who have a joint household disposable income of £37,500

or more per year – such defendants are ineligible for Crown Court legal aid

even where the matter is a ‘matter on indictment’ – it is important to

submit an application for legal aid for such clients even though you know that

the application is going to be refused on the grounds of means – this is

because the Judge at the Crown Court has the power to grant a Defendant’s

Costs Order under Section 16 of the Prosecution of Offences Act 1985 where

the defendant has in some way been successful in the proceedings in the

Crown Court but such an application can only be made and granted where

an application had earlier been made for legal aid in the proceedings and

refused on the grounds of means

More and more clients are being released from the police station pre-charge

pending further investigations/enquiries (not on bail) – Part 9 of the Standard

Crime Contract Specification (which came into force on 1st April 2017 and is

one of the Contract documents) says the following at Paragraph 9.104:

‘A claim must only be submitted when: (c)

the criminal investigation has been concluded, either by way of the client

being charged or reported for summons, or the matter has been disposed of

in any other way; or

(b)

It is known that no further work will be undertaken for the client in the same

matter; or

(e)

It is unclear whether further work will be required and a minimum of 1 month

has elapsed since the last work in the matter was undertaken. This provision

will not apply where a client has an outstanding bail back in the matter, unless

it is known that further work will not be undertaken on that occasion; or

(f)

Post charge work has been undertaken that is within the scope of this Unit of

Work and is not the subject of a claim under the Representations Unit of Work

Most people seem to be invoking (e) and billing the case once one month has elapsed.

179

There is absolutely no truth to the rumour that the same firm can have a

second fee in the case once 6 months have elapsed. The 6 month rule is dealt

with at Paragraph 9.67 of the document and relates to a new provider taking

on the case. It would see that the client does not need a reasonable cause to

transfer from the first provider once 6 months has elapsed.

There seems to be much confusion as to whether or not the Sufficient Benefit

Test applies at the police station stage – for the avoidance of doubt

Paragraph 9.14 reads as follows:

‘The Sufficient Benefit Test is deemed to be satisfied in circumstances where a

client has a right to legal advice, for example under PACE or the Terrorism Act

2000, at the police station and has requested such advice. The right to non-

means tested legal advice arises where a suspect is to be interviewed either

at a police station or other location and includes advice to a person

detained under Schedule 7 of the Terrorism Act 2000 in accordance

with Schedule 8 thereof, either at a port or in a police station. On subsequent

attendances in the same investigation you must ensure that the Sufficient

Benefit Test is satisfied before continuing with the matter.

It would seem to be stating the absolute obvious that there is a Sufficient

Benefit Test that must be satisfied where you are attending upon a client at

the police station who wants advice but has just been charged – keep a

good note of the advice given and be able to justify why you went to that

police station to advise the client even though you knew he had just

been charged – representations on bail might be required – some form of

written statement setting out the basis of any defence might be required –

you might be advising the client to call for a further interview even though he

has just been charged – these are just 3 reasons as to why you might be

attending upon a client at the police station even though he has just

been charged

180

Maximum fees available when PPE reduced from 10,000 to 6,000

GUILTY PLEA

10,000 6,000 REDUCTION % REDUCTION

A £17,115.33

£12,645.68

£4,469.65 26%

£10,124.11

£4,260.67 30%

C £9,393.82

£6,229.61

£3,164.21 34%

£11,608.03

£4,253.76 27%

E £6,141.75

£4,294.33

£1,847.42 30%

F £4,645.18

£3,374.93

£1,270.25 27%

G £4,645.18

£3,374.93

£1,270.25 27%

H £4,636.00

£3,376.98

£1,259.02 27%

I £6,699.45

£4,663.75

£2,035.70 30%

£17,115.33

£12,645.68

£4,469.65 26%

£24,904.04

£16,593.86

£8,310.18 33%

£14,384.78 £15,861.79

CRACKED TRIALS

10,000 6,000 REDUCTION % REDUCTION

A £38,700.71

£26,237.61

£12,463.10 32%

£24,720.46

£16,516.46

£8,204.00 33%

C £15,903.73

£10,183.89

£5,719.84 36%

£24,291.71

£11,834.27 33%

E £7,784.51

£5,342.97

£2,441.54 31%

F £8,721.06

£5,938.94

£2,782.12 32%

G £8,721.06

£5,938.94

£2,782.12 32%

H £8,560.44

£5,783.37

£2,777.07 32%

I £11,308.20

£7,722.79

£3,585.41 32%

£38,700.71

£26,237.61

£12,463.10 32%

£41,440.89

£26,459.12

£14,981.77 36%

£36,125.98

181

TRIALS

10,000 6,000 REDUCTION % REDUCTION

A £89,645.06

£55,974.64

£33,670.42 38%

£74,979.26

£46,617.93

£28,361.33 38%

C £54,482.00

£35,593.56

£18,888.44 35%

£85,162.80

£53,176.70

£31,986.10 38%

£29,788.93

£20,239.91

£9,549.02 32%

£28,593.21

£19,976.45

£8,616.76 30%

G £28,593.21

£19,976.45

£8,616.76 30%

£31,493.13

£22,402.90

£9,090.23 29%

£43,920.11

£31,741.85

£12,178.26 28%

£89,645.06

£55,974.64

£33,670.42 38%

£88,214.19

£52,865.74

£35,348.45 40%

New Guideline Hourly Rates for 2010 (£) Band A

Band B

Band C

Band D

London 1 409 296 226 138 London 2 317 242 196 126 London 3

(229-267) (172-229) 165

121

National 1 217 192 161 118 National 2 201 177 146 111

The rates for London 3, Bands A and B are presented as ranges following the format of The Guide to the Summary Assessment of Costs. These ranges go some way towards reflecting the wide range of work types transacted in these areas.

182

Advising the suspect at the police station – 100 issues – October 2017 1.

In what circumstances, according to the Court of Appeal, might a suspect

quite rightly have a “no comment” interview at the police station and there

be little or no danger of the court considering the drawing of adverse

inferences against him?

Consider your options with the client if you feel that you have been given

inadequate and insufficient disclosure by the police before the interview.

It has been decided, following the interview, that your client will be bailed

pending further investigations. Bail, as you know, may have conditions

attached to it pre-charge, and on this occasion the client is very unhappy

with the bail conditions proposed – consider your legal options and advise

the client.

The client is being offered a TIC schedule and, on the basis that he is going

to make admissions in the interview and be charged with a couple of

offences, he is thinking of having the schedule as well – how would you advise

and where does proceeds of crime fit into all this?

In what circumstances might you consider dealing with the matter at the

police station by way of a written statement rather that the client answering

questions in the interview, and what is the legal position in

these circumstances?

The police would like a sample of your client’s handwriting and he doesn’t

wish to co-operate in this – what are the options for the investigating officers

and can adverse inferences be drawn in relation to his refusal to provide?

The police would like your client’s consent for investigation of his bank

accounts – advise

In what circumstances are the police entitled to remove items of clothing to

look for marks, scars, tattoos etc, and where does the issue of consent fit in?

In what ways might your client, inadvertently or otherwise, raise the issue of

Bad Character during the interview, and what would be your standard piece

of advice to the client regarding Bad Character issues as part of your

183

consultation before the interview? Whilst on this subject, do you think the old

caution should be given if your client is going to be asked questions in relation

to his character, in interview, by means of putting previous convictions to him?

10.

How has it become far easier to advise on issues of Hearsay in consultation

with the client at the police station, as a result of the provisions of the Criminal

Justice Act 2003?

11.

Every so often we all get the client who makes full admissions to us and who

agrees to have a “no comment” interview. He then, for reasons best known to

himself begins to deny the matter in interview and put forward a defence –

what are our options when this arises?

12.

You see a client who readily concedes that he has given false details to the

police, and that those details on the custody record are all wrong. As you

know you cannot represent him in these circumstances unless he agrees

to come clean, and it is agreed that he will do so at the commencement

of the interview. He’s a bit of a slippery character and he reneges on the deal

and perpetrates the false details – consider your options.

13.

What do the Codes of Practice say about the circumstances in which a

suspect is allowed a copy of his taped police station interview – what has

Case Law said about the circumstances in which a legal adviser may be

allowed access to a copy of the taped interview before the normal stage has

been reached?

14.

The suspect “no comments” the interview and does not give evidence at

trial – in these circumstances can adverse inferences be drawn against him

under Section 34 of the Criminal Justice and Public Order Act 1994?

15.

Is it lawful for the police to arrest people who have attended the police

station on a voluntary basis in order to be interviewed?

16.

Do the special warning adverse inferences under Sections 36 and 37 of

the Criminal Justice and Public Order Act 1994 have any significance, above

and beyond the normal adverse inferences that might be drawn from

ordinary “no comment” replies under Section 34 of the same Act?

184

17.

In what circumstances is it legally permissible to interview someone at the

police station post charge?

18.

In what circumstances have the Court of Appeal held that a post charge

interview should not have taken place?

19.

Can adverse inferences be drawn from “no comment” replies in interview at a

special reasons hearing?

20.

Can adverse inferences be drawn from “no comment” replies in interview at

a Newton Hearing - why might you advise a client to talk to the police in

interview, even though he disagrees in part with the way in which the police

are putting the case against him?

21.

What is still the leading case on whether or not adverse inferences should be

drawn against the suspect who “no comments” his interview and what did the

Lord Chief Justice have to say on the point?

22.

Following on from the previous question, what is the important case in which

the issue of whether or not inferences should be drawn following reliance

upon legal advice was dealt with?

23.

Might legal professional privilege be waived if a defendant at trial gives

evidence that he “no commented” his interview as a result of accepting the

legal advice of the police station adviser to remain silent?

24.

Might legal professional privilege be waived if the legal adviser himself gives

evidence during the trial that he advised his client at the police station not to

answer the questions?

25.

Following on really from the 2 previous questions, what have the Court said

are the circumstances in which legal professional privilege might be waived?

26.

What is the best approach to take when the interview officers are being

difficult about your interventions during the interview?

27.

The police have asked your client whether or not he will co-operate in the

provision of intimate samples. He is absolutely adamant that he is not going to

comply - advise on the legal implications and also what the police are likely to

do in these circumstances? 185

28.

The police would like a sample of your client’s ear prints - Advise

29.

There are some cases (admittedly not many) in which an important part of the

evidence is the recognition, or otherwise, of the suspect’s voice - how are you

going to deal with this at the police station?

30.

Sometimes the police tell us (quite erroneously) that they can put our client

physically at the scene because of his DNA - consider the circumstances in

which the proposition may be true and the proposition may be false.

31.

This is a classic, the police tell you that they have found your client’s DNA

at the scene but they will not show you, or tell you where it was found, prior to

the interview - advise the client in these circumstances.

32.

Very similar to the last question, only this time they have video footage which

they have seen, and this shows the whole incident, but they are not prepared

to show it to you before the interview - advise the client.

33.

In what circumstances do we, as the defence, become entitled to sight of the

evidence in the case against our client?

34.

Following on from the previous question, in what circumstances do we

become entitled to sight of the unused material in the case against our client?

35.

Does the client have any choice in the matter of whether or not an interview

takes place? Can an interview be avoided by the client refusing to leave

his cell?

36.

Make a short list of some very good reasons for “no commenting” a

police interview.

37.

Make a short list of some very good reasons for talking to the police

in interview.

38.

Advising on sexual matters at the police station can be a bit tricky sometimes.

What has happened to the Sexual Offences Act 1956? What did the Sexual

Offences Act 2003 do with the “young man’s defence”?

39.

Are there any advantages in the client saying something at the charging

stage, he having had “no comment” interviews? 186

40.

What are the rebuttable presumptions under Section 75 of the Sexual

Offences Act 2003 all about?

41.

The client at the police station gives you instructions that he only did what

he did because of duress - what is the test and how would you advise if he

was reluctant to speak to the police in interview?

42.

In what circumstances have the LAA said we should claim at hourly rates

rather than a fixed fee for police station work?

43.

What are the conflict rules when dealing with more than one client in the

same incident at the police station?

44.

In what circumstances might it be an abuse of process to charge your client

even though admissions had been made in the interview?

45.

Your 16-year-old client at the police station has just been charged with

rape and his parents, who it must be said have been very helpful and

supportive throughout, want to know whether or not this is something that

can be kept in the Magistrates’ Court or whether or not this will end up at the

Crown Court - advise.

46.

Before we start advising the client to make full admissions in a police interview

shall we consider for a moment whether or not we are in mandatory minimum

sentence territory upon a plea being entered at court?

47.

What are the criteria under PACE that permit a superintendent to extend the

suspect’s detention beyond the 24-hour period and would such authorisation,

in order to give the CPS further time to consider whether or not to charge, be

a lawful exercise of such power?

48.

What are the circumstances in which a superintendent can authorise an

interview, even though the suspect has indicated that he wants a particular

solicitor present?

49.

The client is the client from Hell and wants you to “do a deal” with the police

on the basis that he is prepared to accept and make admissions to certain

offences in interview, but he is adamant that he doesn’t even wish to be

interviewed about other matters, and will only make the admissions on the

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strict understanding that he is not even interviewed, let alone charged, with

the offences that are not agreed - how are you going to advise this client

and, perhaps more importantly, what are the police and the CPS going to

make of all this?

50.

Why might it be advantageous to get it on the tape of the interview that the

“no comment” interview was upon legal advice?

51.

The police concede that they have no complainant’s statement but would

like a “first account” interview with your client - you are no doubt veering

towards advising him to “no comment” but could adverse inferences be

drawn at trial from this interview?

52.

What is the advantage of using a written statement in interviews of a

domestic nature?

53.

In a worst case scenario how long could the police keep the client at the

police station prior to charge?

54.

It’s rare to get involved in an interview concerning an alleged breach of bail

conditions but it does happen occasionally. What is the legal distinction

between breach of bail conditions pre-charge and post charge? What does

Case Law tell us about how these matters are dealt with at Court?

55.

In what circumstances now might it be held against a client if he “no

comments” the interview, even though he enters a timely guilty plea at Court?

56.

In what circumstances are the police entitled to test the client for Class

A drugs?

57.

In what circumstances might you, as the legal adviser at the police station,

make an opening statement in a police station interview?

58.

The client would like you to be there when intimate samples are being taken

by the FME but the FME strongly objects - how are you going to approach this

with the Custody Officer?

59.

Are there any circumstances in which the client can object to his interview

being videotaped?

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60.

What are the dangers of having the Appropriate Adult in with you at the

consultation stage, and how have the police station Codes of Practice been

amended in this regard in a way that should make you even more wary of

such a person being present?

61.

Where are we now on the retention of samples for clients who were never

charged or who were charged and acquitted?

62.

The client denies the matter to you in instructions, but wants to make full

admissions to the police in interview in order to get a caution, and doesnâ&#x20AC;&#x2122;t

want to risk being charged and going to Court - would you sit in with such a

client at interview?

63.

If a client accepts a caution in the matter at the police station - can he

thereafter be charged?

64.

If a client accepts a fixed penalty notice at the police station regarding the

matter can he thereafter be charged?

65.

What pieces of advice would you give to a client who was being detained

overnight at the police station, with a view to being questioned the following

day, when you have been with him all that day in â&#x20AC;&#x153;no commentâ&#x20AC;? interviews?

66.

Who are the potential prosecution witnesses against him whilst your client is

detained at the police station?

67.

Your client is not a difficult person but, having been on bail in the matter now

for three months, he wonders whether or not there is any way you can bring

this state of affairs to an end - are the police entitled to re-bail him

ad infinitum?

68.

Would it be lawful for the police to re-arrest and take your client back to the

police station, even though he was on bail to return there for the same matter?

69.

Is there any need now for suspects to attend the police station purely

for charging?

70.

Are the police entitled to take the samples at the booking in stage from all

suspects arrested and detained at the police station?

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71.

Which of the following concepts no longer exist

•

Arrestable offences

•

Serious arrestable offences

•

Indictable offences

•

Offences triable either way

•

Offences recordable

•

Offences summary only

72.

First the client said ‘he did it’, now he’s saying ‘he didn’t’, how many times is a

client allowed to change his instructions before you are “compromised”?

73.

Where the client’s initial instructions to you are that ‘he did do it’, and then he

instructs you that ‘he didn’t do it’ and puts forward a denial in the interview,

can you represent him on a not guilty plea at trial?

74.

What advice will you give the suspect who refuses to consent to

identification procedures?

75.

What advice will you give to the client who refuses to provide a set of his

fingerprints for evidential purposes?

76.

Is the consent of a client necessary in order for there to be a strip search?

77.

Is the consent of the client necessary in order for there to be an

intimate search?

78.

Does Part 1A of the Bail Act 1976 apply at the police station stage?

79.

The police have decided to allow your client a phone call before his interview

- what advice are you going to give him before he makes that call and are

you going to be in the same room when he makes it?

80.

You have been with your client all day and had a series of “no comment”

interviews. It’s very late and everyone is a bit tired and a little fractious and

the client, in your final consultation of the day with him, gives you a telephone

number and wants you to ring a certain person to let them know that he will

not be there at the meeting tomorrow, but he does not want you to tell them

why (sounds reasonable enough, why should this person be informed that he

190

is being detained in the police station overnight) - do you ‘smell a rat’ and are

you going to make that phone call for the client?

81.

Do you think anyone might be listening in on your consultation with

your client?

82.

Where are we now on the law of self-defence?

83.

What is the difference between a ‘legal/persuasive burden’ and an

‘evidential one’, and how might this impact upon your police station advice

to the client?

84.

If the defendant at trial gives evidence of what passed between him and his

solicitor at the police station, is he thereby waiving privilege entirely

and generally?

85.

Your client is being terribly co-operative with the police and has already

admitted 3 dwelling house burglaries. It’s now proposed that he get in the

back of a car and go for a drive around with them in order that he can point

out to them the other burglaries he has committed - what advice are you

going to give the client before he embarks upon this journey and would you

be in the car with him?

86.

The client would like you to be there when his house is searched - is this a

good idea?

87.

What are the pre-requisites for a search under Section 18 of PACE?

88.

Where are we now on the giving of advice at the police station in relation to

immigration matters?

89.

Can a youth be cautioned at the police station - what about a

conditional caution?

90.

Give 3 examples of conditions which may be put within a conditional caution.

91.

Your client has been given a caution/conditional caution/reprimand/warning

- how long before these are spent under the Rehabilitation of Offenders Act

1974 as amended by LASPO?

191

92.

Your client shows you something in the consultation room that you know full

well he should not have been allowed to keep whilst in police detention, let’s

say it’s a mobile phone - where does this leave you?

93.

Your client was 17 at the commission date of the offence, and is 17 at the

point of charge, but he is going to become 18 before his first Court

appearance and the custody officer wants to bail him to the next sitting of

the Youth Court - is this correct?

94.

What is the position where the police want to take prints of your client’s

footwear - any consent required?

95.

What is likely to happen to a client in breach of the conditions of a

conditional caution?

96.

Clients often get concerned about what others might be saying about them

in their interviews at the police station stage, what is the “evidential value” of

what those other people are saying?

97.

Do clients have a right to make a telephone call whilst in detention?

98.

Although the officer may not be fully frank with you in disclosure, consider at

least 5 ways (there are more) in which your client may physically be put at

the scene.

99.

It’s all very well putting in a written statement at charge, on the basis that by

that stage at least you know everything the police have got by way of

evidence, but what is still the main danger of the written statement

at charge?

100. What are the legal advantages in the client accepting settlement of the

matter by way of a fixed penalty notice rather than being given a caution?

192

Answers to 100 Questions – October 2017 1.

In the case of Ali Roble (Court of Appeal January 1997) the Court said this:

“Good reason may well arise if, for example, the interviewing officer has

disclosed to the solicitor little or nothing of the nature of the case against the

defendant, so that the solicitor cannot usefully advise his client or, where the

nature of the offence or the material in the hands of the police is so complex,

or relates to matters so long ago, that no sensible immediate response

is feasible”.

Remember that disclosure prior to the interview should be “sufficient or

adequate” and if it isn’t you may consider advising the client to “no

comment” the first interview, in order to obtain the disclosure during the

currency of the interview, and then have another private consultation with

your client and take instructions. You can always call for a second interview

if you think the client has something worth saying, and, if the police refuse,

have this noted on the custody record and, if necessary, hand in a written

defence statement at the charging stage.

Bail conditions can be reviewed by another Custody Sergeant under PACE

and, after you have engaged in this fairly pointless exercise, you can ask

the magistrates to review pre-charge bail conditions under Section 47 1E of

PACE as amended by the Criminal Justice Act 2003. Payment for the

advocacy at the Court hearing is under CRM3 but remember in order to

qualify for CRM3 he must also qualify under CRM1 which is means tested.

A matter for the client as to whether or not he wants offences taken into

consideration upon sentence. If he signs the TIC schedule at an early stage

in the police station it’s not the end of the matter because he can still

withdraw his consent to anything at the court hearing itself. He may well

receive a slightly higher sentence as a result of the TICs (matter for the judge

and only the client knows whether or not he is bringing trouble to his door by

signing the schedule that might otherwise never come. Dependent upon the

nature of the TICs, some thought needs to be given to the Proceeds of Crime

Act and whether or not any monetary orders are going to be made against

him at court, in due course, as a result of the offences and the TICs.

193

See the cases of:

R v Knight [2003] EWCA Crim 1977 T v DPP [2007] EWHC 1793 (Admin) R v Mohammed June 2009 Written statements do have their place and may be useful where the client has the basis of a decent defence but would interview very badly. Also where the client has admitted one offence to you, but denied another in their instructions, it might be advisable to put in a written statement setting out the basis of the defence to the denied matter, and keeping the admissions made in your police station notes, rather than him having a mixed interview whereby he puts forward both admissions and denials. Case Law would suggest that, so long as he puts in the statement at the police station stage and does not seek to rely upon any new facts not mentioned in the statement adverse inferences should not be drawn against him under Section 34 of the Criminal Justice and Public Order Act 1994 in these circumstances. 6.

If the client does not wish to give a copy of his handwriting this may be the

subject of comment at trial (as with any request made of the client with

which he does not comply). See the case of R v Smith (1985). Comment at

trial is not the same thing as adverse inferences, and no adverse inferences

could be drawn because Parliament has not legislated for adverse inferences

in these circumstances. In the event of a refusal to provide, the police may

also consider house searches under Section 18 of PACE.

The client does not have to consent but the police may always apply to a

Magistrate for a warrant under the Bankers Books Evidence Act which

effectively allows the bank to give over this information to the police without

putting them in breach of their duties to the client as a customer of the bank.

This is dealt with in Section 54A of PACE and under the Section, with the

authority of an inspector, any item of the clientâ&#x20AC;&#x2122;s clothing can be removed

(using reasonable force if necessary) but the Inspector must have reasonable

grounds to believe that such a mark, scar or tattoo would assist in the

identification of the suspect or link him with the actual offence.

194

As follows:

By putting his own character in issue during the interview, i.e. by saying that he

is not a violent or dishonest person etc.

ii.

By attacking the character of someone else who is to be involved in

the proceedings

iii.

By readily conceding that he has convictions for this or convictions for

that etc.

The standard piece of advice must be to “no comment” any questions put to him in relation to his Bad Character as he can “no comment” such replies without fear of adverse inferences being later drawn against him (remember that these are not facts upon which he would later seek to rely at trial). On the subject of the caution, Code C 16.5 states that the old caution should be given in relation to post charge matters, and the argument for saying that the old caution should be given is that presumably any matter post-conviction is also a matter post charge (he would surely have been charged first with the matter before being convicted of it). 10.

Assume always, when advising the client at the police station, that this

hearsay evidence may go in. Remember that under Section 114 of the

Criminal Justice Act 2003 the court is entitled to admit Hearsay evidence if

it thinks it ought to in the interests of justice. In other words one no longer has

to go through the intellectual exercise of wondering whether or not the piece

of Hearsay falls within an exception to the Hearsay rule - don’t “second-guess”

the court’s decision and assume, for the purposes of giving advice at the

police station that the Court decides to admit the Hearsay

evidence concerned.

11.

Where the suspect admits the offence to us in instructions we may well advise

him to “no comment” the interview, and all is well to begin with but he then

starts putting forward a defence - where does this leave us. Some lawyers

would stay until the conclusion of the interview and then reconsider their

position with the client as to whether or not they could represent that client

at court, whilst others would call for the interview to be stopped with a view to

speaking to their client further and leaving the police station at that point.

Those of you who wish to stay, even though you know your client is putting

forward lies to the police, would seem able to do so but you must be careful

195

how you intervene in that interview so as to not lend any credence or show

any support for the obvious lies that are being put forward by the client - as

with many issues at the police station of this nature it is a matter for your

professional judgement.

12.

The simple answer is not to go into interview with such a client unless, and

until, he has already told the Custody Officer in your presence of his true

details. The solicitor to whom this happened (i.e. he went into the interview

with his client and his client perpetrated those false details at the

commencement of the interview) decided that he would be OK if he left the

police station at the conclusion of the interview without taking any further

part in the proceedings there. He was charged with an act designed to

pervert the course of justice and was eventually acquitted by a Crown Court

jury having been on bail for almost a year! - You do not need that sort of grief

in your life.

13.

The Codes state that a suspect is entitled to a copy of the tape of the

interview once charged. The case of DPP v Ara [2001] EWHC Admin 493 is

authority for the proposition that a Solicitor should be allowed access to the

tape of the interview, before charge, if the suspect had no Solicitor at the

police station on the first occasion and the Solicitor is there on the bail back.

(In the case of Ara the Solicitor wanted to listen to the tape to check that

the caution that was being offered was appropriate in all the circumstances).

It would surely be necessary to listen to any previous interviews if the client

had had no solicitor present on the first occasion at the police station when

he was interviewed and the police were proposing to re-interview him on the

bail back.

14.

One would think no, and yet the case of Regina v Chenia [2002] EWCA Crim

2345 would suggest that a defendant may seek to rely upon facts at trial by

the way in which his case is put to the witnesses in cross-examination, and it is

not a pre-requisite that he himself should give evidence (or, for that matter,

call any witnesses in support to give evidence).

15.

As you know, PACE, Section 24(5) sets out the Necessity Criteria for an arrest

and it seems to me that none of them really fit although the police seem to

insist that the arrest is necessary in order to expedite the investigation, carry

out an interview etc. but I donâ&#x20AC;&#x2122;t see how the arrest of the person has any real

effect upon how the matter is handled by the police once he arrives.

196

16.

One might argue that the adverse inferences under Sections 36 and 37 are

slightly stronger than the adverse inferences under Section 34 in that, in order

for Section 34 to be of any use to the prosecution, something must move from

the defence, i.e. reliance upon a fact not mentioned in interview. There is no

need for anything to move from the defence in order for Sections 36 and 37 to

be utilised by the prosecution and it would therefore be appropriate to seek

adverse inferences under those Sections where there is no reliance by the

defendant upon facts in his defence.

17.

See the list set out in the Codes of Practice Code C 16.5.

18.

For the answer see the case of Charles v. The CPS [2009] EWHC 3521 (Admin)

19.

No, because Sections 34, 36 and 37 all relate to trials and a Special Reasons

hearing is a hearing following a guilty plea, but it is not a trial.

20.

The answer is ‘no’ for the same reasons as given in answer 19. It might be

advisable to talk in these circumstances and may result in a lesser charge or

at least the setting up of the defendant’s version or account at an early stage

which might make the argument more plausible at a future Newton Hearing.

21.

See the case of R v Beckles [2004] EWCA Crim 2766. It was Lord Justice Woolf

who effectively said that a suspect could not hide behind his lawyer’s advice

to “no comment” the interview as a means of avoiding adverse inferences -

exactly the same point was reiterated in the case of R v Essa [2009]

EWCA Crim 43

22.

See R v Essa [2009] EWCA Crim 43

23.

No, see R v Essa [2009] EWCA Crim 43

24.

No, see R v Essa [2009] EWCA Crim 43.

25.

See the case of R v Bowden, No. 97/7529/X2 10th February 1999 - legal

privilege may be waived if reasons are given behind the advice to

“no comment”.

26.

Remind the officers of your duty to your client under Code C, notes for

guidance 6D, and remember always the things that you should not be doing

for a client in the interview which are as follows: 197

You have no right to stop the interview (that is a right of your client and the

police) - you would no doubt ask for the interview to be suspended in order to

give your client some legal advice in private.

ii.

You should not be answering the questions on your client’s behalf

iii.

You should not be writing down the answers for your client to read out

iv.

You should not be interrupting the police when they are trying to ask

their questions

You should not be interrupting your client if he is trying to answer

their questions

27.

The provision of intimate samples requires your client’s consent and they

cannot be taken by force. Remind him that adverse inferences may be drawn

at trial and that the police could, if they wanted to, hold him down and take a

non-intimate sample by force (head hair?) in order to get a DNA match.

28.

These fall within the definition of a skin impression, and are therefore a non-

intimate sample, and can be taken by force.

29.

If you know in advance you might consider advising him to be mute during

the interview and, if there’s anything worth saying, put it in a

written statement.

30.

Common sense tells us that we have to consider where the DNA actually is.

If, for example, the DNA is in a very damning place, because blood was left in

the motorcar when he cut himself trying to hotwire it, that may well be very

damning evidence that our client (or someone with a DNA sequence very

close to his) was actually in the car. It might be totally different if his DNA was

found, for example, on a Coke bottle in the foot-well of the car.

31.

Say nothing until the police have revealed in the interview precisely where

the DNA was found - call for the interview to be suspended and take your

client’s instructions further on the matter.

32.

See the answer to question 31

33.

At the point at which a not guilty plea is entered in Court proceedings

198

34.

At the point at which a not guilty plea is entered in Court proceedings

35.

No - the Codes of Practice make it quite clear that it is a matter for the police

as to whether or not they wish to interview, and they can always interview him

in the cell, if they want to, should he refuse to leave it.

36.

The following:

Inadequate and insufficient disclosure

ii.

An interview post-charge

iii.

No defence to be put and talking would merely fill in the prosecution gaps

I’m sure you can add others to this very short list. 37.

The following:

Laying down the basis of a defence

ii.

Putting forward the basis for a later Special Reasons argument

iii.

Putting forward the basis for a later Newton Hearing

iv.

In order to obtain a Caution or conditional caution

In order to possibly obtain more credit with the Judge at the Crown Court

than would ordinarily follow on the guilty plea at Court stage

I’m sure you can think of others to add to this very short list 38.

The Sexual Offences Act 2003 gave the young man’s defence to all clients,

i.e. the age of the suspect is irrelevant and the only relevant matters are the

reasonableness of the client’s belief that the other person concerned was 16

or over (18 or over if there is a position of trust involved) and that the other

party was consenting.

39.

Well he just might want to say something at charge to the effect that he was

acting in self-defence, or he thought the other party was consenting. It’s a

matter for him and it could hardly be said that he has factually laid down

the basis of his defence by saying these few words at charge, and the police

might want to put him into interview again post-charge in order to ask him

questions on the statement.

199

40.

The Sexual Offences Act 2003

75 Evidential presumptions about consent (1)

If in proceedings for an offence to which this section applies it is proved—

(a)

that the defendant did the relevant act,

(b)

that any of the circumstances specified in subsection (2) existed, and

(c)

that the defendant knew that those circumstances existed,

the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it. (2)

The circumstances are that—

(a)

any person was, at the time of the relevant act or immediately before it

began, using violence against the complainant or causing the complainant

to fear that immediate violence would be used against him;

(b)

any person was, at the time of the relevant act or immediately before it

began, causing the complainant to fear that violence was being used, or that

immediate violence would be used, against another person;

(c)

the complainant was, and the defendant was not, unlawfully detained at the

time of the relevant act;

(d)

the complainant was asleep or otherwise unconscious at the time of the

relevant act;

(e)

because of the complainant’s physical disability, the complainant would not

have been able at the time of the relevant act to communicate to the

defendant whether the complainant consented;

(f)

any person had administered to or caused to be taken by the complainant,

without the complainant’s consent, a substance which, having regard

to when it was administered or taken, was capable of causing or enabling the

complainant to be stupefied or overpowered at the time of the relevant act. 200

(3)

In subsection (2)(a) and (b), the reference to the time immediately before the

relevant act began is, in the case of an act which is one of a continuous series

of sexual activities, a reference to the time immediately before the first sexual

activity began.

76 Conclusive presumptions about consent (1)

If in proceedings for an offence to which this section applies it is proved that

the defendant did the relevant act and that any of the circumstances

specified in subsection (2) existed, it is to be conclusively presumed—

(a)

that the complainant did not consent to the relevant act, and

(b)

that the defendant did not believe that the complainant consented to the

relevant act.

(2)

The circumstances are that—

(a)

the defendant intentionally deceived the complainant as to the nature or

purpose of the relevant act;

(b)

the defendant intentionally induced the complainant to consent to the

relevant act by impersonating a person known personally to the complainant.

41.

The defence will only ever work in practice if he can show that he was in fear

of death or serious bodily injury (either of himself or those closest to him) and,

on the basis that he must raise satisfactorily the issue of duress at trial, it would

be seen as quite odd if he had not raised the issue in his police station

interview - he may well be reluctant to name those people who put him under

the duress, but at least the basis of the defence should be laid down at that

early stage.

42.

Where we have crossed the ‘escape threshold’ or where we are at the police

station dealing with post-charge work.

43.

It is for us to decide whether or not there is a conflict in the case although

we should listen to the police and their views on the subject. If there is a

conflict we should return and continue to represent the person whose

instructions we took first.

201

44.

Where a clear and unequivocal offer of a caution has been made by the

police, on the basis that admissions be made in the interview, it may be an

abuse of process to renege on that promise and charge thereafter - see the

leading case of H and Guildford Justices, which is to be distinguished from the

case of D & B v. Croydon Justices [2008] EWHC 442 (Admin) in which they

said that to choose the option least advantageous to the client is not an

abuse of process.

45.

The Youth Court can deal with a matter of rape - it’s a question for them – a

child or young person may plead guilty to a rape and be sentenced in the

youth court or committed for sentence to the Crown Court – a child or young

person may plead not guilty to rape and the court either decline jurisdiction

or (much more likely these days) accept jurisdiction and have the trial in the

youth court and thereafter decide whether or not to sentence in the youth

court or to commit to the Crown Court for sentence – the law was changed

somewhat radically in this area in April 2015 and the guidelines from the

sentencing Council seem to suggest that cases should be retained in the

youth court that would formerly have been declined

46.

The following:

Third time supplier of class A drugs (7 years)

ii.

Third time dwelling house burglar (3 years)

iii.

Possession of certain firearms/ammunition (in the case of an adult, 5 years, in

the case of a person aged 16 or 17, 3 years)

iv.

Second time possession of a knife or an offensive weapon, or a bladed article

(mandatory minimum sentence, unless exceptional circumstances found, 6

months for an adult and 4 months for a youth aged 16 or over)

Possession on school premises or in a public place of a knife or offensive

weapon or bladed article and threatening someone with it – (mandatory

minimum sentence, unless exceptional circumstances found,6 months for an

adult and 4 months for a youth aged 16 or 17)

202

47.

See Section 42 of PACE - the detention may be permitted where it is necessary

to preserve or secure evidence relating to an offence or to obtain such

evidence by questioning, there is no mention of the Superintendent having

the power to extend pending CPS charging advice.

48.

A Superintendent can deny access to a named Solicitor for up to 36 hours,

and permit an interview to take place without that Solicitor being present if

the Superintendent has concerns, such as other people at large being alerted

or evidence in the case disappearing.

49.

Well if the client wants it to happen you’re really under a duty to accept his

instructions but you must warn him about waiver of legal professional privilege

if he wants you to talk to the police about your actual instructions, and you

must also warn him that it might all go horribly wrong, and that the CPS may

not accept the deal, and that he may, in a worst-case scenario, be cross-

examined upon the basis of the deal at trial itself.

50.

The Court said in the case of R v Essa [2009] EWCA Crim 43 that if the Solicitor

had advised “no comment”, and that this was said at the beginning of the

taped interview, then it would be in evidence that the “no comment”

interview was upon legal advice, and this may be something the jury

would consider in deciding whether or not to draw adverse inferences against

the defendant for having gone “no comment”.

51.

Yes, adverse inferences might be drawn at trial from this “no comment”

interview, assuming the legal adviser was given sufficient and adequate

disclosure of the case prior to the interview by the police. Remember that

Lord Justice Laws said in the case of R v Howell [2003] EWCA Crim 01 that

sufficient and adequate disclosure did not always require the provision of a

complainant’s statement and there might be situations in which, for a number

of reasons, no complainant statement had, at that stage, being taken.

52.

As with any written statement, it’s a good way of controlling the interview

(assuming the client keeps to the script and has a “no comment” interview)

and it will avoid the possibility of the client attacking the character of

someone else involved in the proceedings, thereby risking his own Bad

Character going in at trial.

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53.

In the main the Detention Clock starts at the suspect’s arrival at the police

station where he is wanted for questioning and runs for 24 hours (PACE,

Section 41). It can, assuming the offence is indictable, be extended by a

superintendent for a further 12 hours (PACE, Section 42). If, at the 36

hours stage, the police want to keep the suspect longer they must apply to

the Magistrates’ for a warrant of further detention under PACE (PACE, Section

43) and the Magistrates’ can grant 36 hours on the warrant. We are now at

the 72 hour stage and if the police want to keep the suspect even longer they

can go back before the Magistrates’ and ask for an extension on the warrant

of no more than 24 hours (PACE, Section 44). Adding all of those hours

together, the total is 96, pre-charge.

54.

Where the subject breaches his bail conditions pre-charge, he is liable for an

arrest and taken back to the police station for the police to decide what, if

anything, they can do with him. Clearly if there is insufficient evidence to

charge under Section 37 of PACE then he must be re-released. If, however,

the defendant breaches his bail conditions post charge, then he is brought

before the court under Section 7 of the Bail Act 1976 and, in a worst case

scenario, his bail may be taken away and he may be remanded into custody.

Remember that Case Law tells us that the mere breach of bail conditions is

not a ground for withholding bail, and, in order for bail to be taken away, the

court must have substantial grounds to believe that one or more of the

exceptions to bail contained in Schedule 1 to the Bail Act 1976 exist.

55.

Well it’s not going to happen very often fortunately, but a Judge might take

the view that an earlier indication of guilt could have been given at the

police station stage which just might have persuaded the Judge to start

the sentence at a lower starting point in order to reflect those earlier

admissions in the police station interview – it’s nothing to do with credit – credit

of a third is the normal credit where there is an indication of guilt at court at

the first hearing – credit thereafter is 25% on a sliding scale down to 0 – see

the new credit document published by The Sentencing Council and operative

for all cases where the first hearing is on or after the 1st June 2017 – see

also the comments of the Lord Chief Justice in the case of R v Caley and

Others – December 2012

56.

A distinction must be made between testing for Class A drugs upon arrest and

testing for class A drugs post charge. Upon arrest it’s 18 or over but post-

charge it’s 14 or over. It must be with an Inspector’s approval if the suspect

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has been arrested for a non-trigger offence, or charged with a non-trigger

offence, and the Inspector must have reasonable grounds for believing that

misuse of Class A drugs contributed to or caused the offence. The more

normal circumstances are that it is a trigger offence, that being an offence

under the Misuse of Drugs Act 1971 in relation to Class A drugs, or a dishonesty

offence under the Theft Act, or a dishonesty offence under the Fraud Act.

It cannot be taken by force and, if there is a refusal without reasonable

grounds, the police could charge him with a summary only offence carrying a

maximum of 3 months imprisonment in the Magistratesâ&#x20AC;&#x2122; Court. The law in this

area is set out in Section 63B and Section 63C of PACE.

57.

You might if you took the view that the client should not be being interviewed

on the basis of vulnerability, or circumstances peculiar to your client, or the

time at which they proposed to interview, or if you wanted to have a little

whinge about the inadequacy of the disclosure given to you prior to the

interview. Iâ&#x20AC;&#x2122;m sure you can think of other circumstances as well.

58.

It might be best approaching it by telling the Custody Officer that your client

is entitled to receive continuing advice and assistance from you whilst

detained in a police station and it may be considered a breach of his rights,

under the Codes of Practice if you were not allowed to be present whilst the

intimate samples were being taken. Remember that under the Codes of

Practice you must be of the same sex as your client in order to be present

whilst intimate samples are being taken.

59.

The circumstances are set out in Code F of the Codes of Practice at

Paragraph 3.3

60.

There is no legal professional privilege owed by an Appropriate Adult to

your client so clearly there is a danger in the appropriate adult being in with

you whilst you are taking your instructions. It might be that, after the

consultation, some pressure might be put upon that person to reveal to the

police what had taken place in the consultation.

61.

A very short question but a very long answer as a result of the amendments

in this area under the Protection of Freedoms Act 2012. (See my paper at the

end of these notes).

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62.

It might be considered dangerous to sit in with such a client because you

know in advance that he is going to lie to the police, albeit he’s going to lie in

the way that they want him to by making full admissions, even though he’s

told you he didn’t do it.

63.

The House of Lords in the case of Jones v. Whalley [2006] UKHL 41 said that

it would be wrong for the State to charge a person with the same matter

for which he had formally received a caution but that one could never rule

out a private prosecution being brought against him.

64.

See the case of R v Gore and Maher [2009] EWCA Crim 1424, in which fixed

penalties were given for lesser matters and then the defendant’s were both

charged with more serious offences arising from the same incident and the

Court held that, on those facts, it was not an abuse of process to

charge them.

65.

3 pieces of advice:

If you’re allowed to make outgoing phone calls, do appreciate that

those phone calls are going to be monitored by the police and they will not

be confidential

ii.

Do not agree to any interview taking place during the night in your absence

iii.

If there is someone else in the cell with the client during the night, he should

be wary of speaking to that person about the matter for which he is

being detained.

66.

Everyone bar you and, in certain exceptional circumstances, even you! - He

will not, of course, at that stage be a client of yours any longer.

67.

Once upon a time the police were entitled to bail suspects indefinitely but

this was all changed for new cases on or after the 3rd April 2017 and regard

must now be had to the provisions of the Policing and Crime Act 2017

whereby there is a presumption of release without bail with bail only being

imposed when it is both necessary (presumably because the police want

conditions on it) and proportionate. The presumption of release without bail

does not apply to cases of bail to allow the CPS to make a charging decision

under Section 37 (7) (a) of PACE. There is still no change to the current position

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on this. Bail may be granted by the Custody Officer with or without conditions

for whatever period in order to enable the CPS to make a decision as to

whether or not to prosecute the matter. If the suspect is being released

pending further investigations by the police then the maximum period

of pre-charge bail will be up to 28 days from arrest (authorised by an

Inspector) and thereafter up to a maximum of 3 months (authorised by

someone of the rank of Superintendent or above) and thereafter consent

is required at the local Magistrates’ Court. The only exception to the 3 month

limit is in relation to the most complex cases where bail may be extended

beyond 3 months up to a maximum of 6 months but, in CPS cases, the

decision must be taken by someone not below the rank of Assistant chief

Constable in consultation with a Senior Crown prosecutor.

68.

The answer is ‘yes’, see PACE, Section 47(2) and 47(7). 47(2) to the effect that

a person may be arrested. even though he or she is on bail to go back on the

same matter where new evidence justifying such an arrest comes to light and

47(7) is to the effect that, where such an arrest takes place, it shall be as

though the suspect had been arrested for the first time - this effectively means

that the detention clock goes back to 0 and starts again.

69.

Not really in that under Section 29, the police can now send a written notice

of charge together with a requisition notice for the defendant to attend the

local Magistrates’ Court upon it.

70.

No, only those suspects who have been arrested and detained for

Recordable Offences.

71.

The concepts of the arrestable offence and serious arrestable offence were

abolished by the Serious Organised Crime and Police Act 2005 and we now

simply have offences for which, in an officer’s discretion, he or she may

choose to arrest under PACE Section 24(5), assuming the Necessity Criteria

within Sub-section 5 are met.

72.

A matter for your professional judgement!

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73.

Well you can, but only to the extent that you may make submissions at the

half-time stage. You could not, of course, put him in the witness box, or call

any defence witnesses in support of the defence, as he has earlier made

admissions to you. You must also in your cross-examination not seek to suggest

a line of defence. In reality, if such a client wanted a trial, it would be far

better if he instructed completely new Solicitors.

74.

One would have to tell the client that he might be cross-examined at trial

regarding his refusal to consent to identification procedures and that the

police would probably move simply to a covert procedure whereby they

put his image in a DVD along with other images and showed the DVD to

witnesses anyway.

75.

They are a non-intimate sample and can be taken using reasonable force if

necessary under Section 117 of PACE.

76.

No consent required, and an officer of any rank may carry out a strip search

under the Codes of Practice, and the test seems to be very low, namely that

the detainee â&#x20AC;&#x2DC;has something which he or she should not be allowed to keep

whilst in detentionâ&#x20AC;&#x2122;.

77.

It seems to depend upon the nature of the search in that consent is necessary

if the search is for class A drugs whereas consent is not required if the search is

for an item which the detainee may use to harm himself or harm others.

78.

Part 1A are restricted grounds upon which a remand into custody may be

sought for a defendant charged with purely summary imprisonable offences,

and it does not apply at the police station stage.

79.

It might be an idea to leave the room before the phone call is made and also

to warn the client that it is a monitored call and the police would have every

right to listen in on it.

80.

Again, this is a matter for your professional judgement but it might be

advisable to say to the client that youâ&#x20AC;&#x2122;re only prepared to make the phone

call if the police have no issues with it - remember that you have no way of

knowing whether or not you are being used to alert other offenders still

at large.

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81.

Probably a good idea to assume that they are, if only to keep you on the

straight and narrow in all the advice you give to the client!

82.

It has been put in statutory form and is contained in Section 76 of the Criminal

Justice and Immigration Act 2008.

83.

A legal/persuasive burden is upon the defence and is usually the case when

one is arguing a statutory defence, for example, no likelihood of driving whilst

over the limit, a reasonable excuse for being in possession of a bladed article

etc. etc. As it is on the defence it has to be discharged on the civil balance

of proof, namely a balance of probabilities, rather than beyond a reasonable

doubt. An evidential burden describes the situation where the defence

must merely be raised at trial with the burden remaining upon the Crown

to prove, beyond a reasonable doubt that the defence does not apply, a

good example would be self-defence.

84.

Oral Seaton and R. [2010] EWCA Crim 1980 Paragraph 43 (d)

If the defendant does give evidence of what passed between him and his

Solicitor he is not thereby waiving privilege entirely and generally, that is to

say he does not automatically make available to all other parties everything

that he said to his Solicitor, or his Solicitor to him, on every occasion. He may

well not even be opening up everything said on the occasion of which he

gives evidence, and not on topics unrelated to that of which he gives

evidence. The test is fairness and/or the avoidance of a misleading

impression. It is that the defendant should not, as it has been put in some of

the cases, be able both to â&#x20AC;&#x2DC;have his cake and eat itâ&#x20AC;&#x2122;.

85.

A matter for your professional judgement as to whether or not you go on the

journey with him. A matter for him as to whether or not he wants to be entirely

co-operative with the police and indicate the other houses he has burgled.

No doubt it will result in a TIC Schedule being drawn up and the appropriate

advice must also be given to him in relation to this as well.

86.

Not a good idea in that you are not going to be of much use when you

get there and, if something is found and it is shown to you by the police,

you then become a witness of fact and can no longer represent the client in

the proceedings.

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87.

An Inspector’s authority is required. The offence must be indictable (and

remember indictable includes all either-way offences as well). The police

are looking for evidence in relation to the offence for which the suspect has

been arrested and is being detained, or evidence in relation to

similar offences.

88.

Unless you are on the Panel you should not be giving advice on purely

immigration matters although there would seem to be no bar in advising a

suspect at the police station if he had been arrested and was being detained

with a view to being interviewed on immigration offences, so that’s really

the issue that needs to be resolved. If he is merely being interviewed to

establish his status, with a view to removal, it would seem that advice should

not be given unless the firm has an immigration Contract/is on the Panel.

89.

It doesn’t matter any longer with your client is a youth or an adult – both are

eligible for cautions or conditional cautions

90.

Any conditions in relation to reparation, rehabilitation or financial – with Youths

additional conditions may be put in concerning community service and

specified activities is authorised by the Youth Offending Service

91.

It would appear from the Rehabilitation of Offenders Act 1974 that conditional

cautions are not spent until 3 months have elapsed whereas ordinary cautions

are spent at the point of delivery.

92.

It’s a matter for your professional judgement but you might consider saying to

the client that unless he hands that over to the police in your presence you

are going to leave him at that stage - it’s a matter for you as to whether or not

you tell the police he’s got it before you leave.

93.

He must be bailed to the Adult Court because he will be 18 on the first

Court appearance and it is your client’s age on his first Court appearance

which determines the Court to which he should be bailed.

94.

No consent required, your client must have been arrested and be detained

for a Recordable Offence.

95.

He becomes liable for an arrest without a warrant by an officer and will be

taken back to the police station in order for the CPS to decide what to do

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with him. In other areas the CPS seem to be laying information and

summonsing people to Court for the offence for which they had initially been

given a conditional caution. In other areas the Written Charge and Requisition

is being used.

96.

It is not evidence against the client at the police station stage although,

of course, it may become evidence against the defendant at trial in due

course, and most certainly will be if one of them becomes a prosecution

witness and gives evidence for the Crown.

97.

No, the client does not have a right to make a phone call whilst in police

detention his right is to have the police notify someone on his behalf that he

is being detained. Any personal phone call by the client is described as a

‘privilege’ under the Codes of Practice and not a ‘Right’.

98.

The following:

Visual identification via witnesses

ii.

Visual identification through CCTV

iii. DNA iv. Fingerprints v.

Voice identification/recognition

99.

The main danger is that other evidence may come to light, for example of a

forensic nature, which greatly undermines the defence, as put forward in a

written statement in the police station at that very early stage.

100. See the case of Regina v Hamer

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Regina v Hamer [2010] WLR (D) 235 CA: Thomas LJ, Treacy, Saunders JJ: 17 August 2010 A fixed penalty notice which had been issued to a defendant pursuant to s 2 of the Criminal Justice and Police Act 2001 was not a conviction, admission of guilt, proof that a crime had been committed, or a stain on the defendant’s character, and therefore could not be regarded as evidence which impugned the character of the defendant or admitted as such. The Court of Appeal (Criminal Division) so held when dismissing an appeal by the defendant, Gareth Hamer, against his conviction on 12 January 2010 by the Crown Court at Harrow, before Judge Holt and a jury, for an offence of assault occasioning actual bodily harm, contrary to s 47 of the Offences against the Person Act 1861. The prosecution alleged that the defendant had assaulted the complainant taxi driver after an evening out. The defendant pleaded self-defence. He had no previous convictions or cautions, but had received a fixed penalty notice under s 2 of the Criminal Justice and Police Act 2001 for a minor public disorder matter, two months after the instant offence. After discussion between counsel and the judge regarding whether a good character direction should be given, the judge ruled that the jury should be told about the defendant’s penalty notice, but directed the jury that they might think it fairer to disregard it and treat him as of good character, and he gave the defendant a full good character direction. The defendant appealed on the ground that the judge had erred in admitting the fixed penalty notice, since it was not a criminal conviction and involved no admission of guilt. THOMAS LJ, delivering the judgment of the court, said that the fixed penalty notice scheme was a method of dealing with low level crime without the need to prove the offence and commission of it by the person to whom it was issued. It involved no admission of guilt, nor did it create a criminal record. The scheme went no further than that. If the notice was accepted, payment of the penalty provided that no further action could be taken. The notice was distinct from a caution, where commission of a crime was acknowledged. Its issue was not a form of justice, as justice normally included guilt. It was not a conviction, admission of guilt, any proof that a crime had been committed, or a stain on the person’s character. It therefore followed that it was not admissible as an admission of an offence or of bad character in the sense of impugning the defendant’s character. It might be that in some cases the Crown might wish to adduce evidence regarding matters in respect

212

of which the notice had been issued. Counsel for the Crown had not wished the issue of the notice to go before the jury, and it was only at the insistence of the judge that it had done. It was unfair to mention the notice without an attempt to call evidence regarding the circumstances of it. The notice was entirely irrelevant and ought to have been kept from the jury. However, since the defendant had no plausible explanation for the injuries caused to the complainant, in all the circumstances the conviction could not be regarded as unsafe.

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Section 11 CrimeScribe Edition No. 76

Hello and welcome to this month’s edition of CrimeScribe. There has been nothing of any real consequence regarding legislation or Statutory Instruments. Fortunately, though, we have had some really interesting case-law recently which I shall deal with, in some depth, in this edition. I shall start the case-law with the case of Ivey and the new test that we should be adopting in relation to dishonesty. You have to hand it to the Supreme Court. They do like to shake things up intellectually every so often. We have new thinking in the area of joint- enterprise and now, apparently, they don’t think the test that we have adopted for many years concerning dishonesty (Gosh) is entirely appropriate.

CASE – LAW Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] UKSC 67 – On appeal from: [2016] EWC Civ 1093 This is a long judgement consisting of some 75 paragraphs. The case was a civil one. A professional gambler sued the casino for his winnings at a game known as Punto Banco Baccarat. Over 2 days in August 2012 Mr Ivey (the claimant in this case) deployed a highly specialist technique called edge-sorting which had the effect of greatly improving his chances of winning. He had the help of another professional gambler. First they set up the conditions which enabled him to win. Then, later that evening and the following day, over the course of some hours, he won approximately £7.7 million. The casino declined to pay the winnings, taking the view that what he had done amounted to cheating. His case is that it was not cheating, but deployment of a perfectly legitimate advantage. The facts of what happened are not in dispute and in summary are as follows:

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Punto Banco is merely a variant of Baccarat. It is not normally, to any extent, a game of skill. 6 or 8 packs of 52 cards are dealt from a shoe, face down by a croupier. Because the cards are delivered one by one from the shoe, she has only to extract them; no deviation is permitted in their sequence. She places them face down into positions on the table in front of her, marked ‘player’, the ‘Punto’ in the name, and ‘banker’, Banco. Those descriptions label the positions marked on the table; there need be no person as player and ordinarily there is not. She slides the cards from the shoe, face down, one card to player, one to banker; a second to player and a second to banker. In prescribed circumstances she must deal one further card, either to player or to banker or to both, but this possibility is irrelevant to what occurred. The basic object of the game is very simple – to achieve, on one of the 2 positions, a combination of 2 or 3 cards which, when added together is nearer to 9 in total than the combination of the other position. (I shall not bore you with the maths of it any further) You can see immediately that knowing which kind of card is next out of the shoe would give a player an advantage over the casino. The trick is in knowing which kind of card is next out of the shoe! This is where edge-sorting comes into play. Edgesorting becomes possible when the manufacturing process causes tiny differences to appear on the edges of the card so that, for example, the edge of one long side is marginally different from the edge of the other. The difference is sub - millimetric but the pattern is, to that very limited extent, closer to one long edge of the card than it is to the other. It is possible for a sharp-eyed person sitting close to the shoe to see which long edge it is. Being able thus to see which long edge is displayed is by itself of no help to the gambler. All the cards have the same tiny difference between their right and left long edges, so knowing which edge is displayed tells the gambler nothing about the value of the next card in the shoe. The information becomes significant only if things can be so arranged that the cards which the gambler is most interested in all present with long edge type A facing the table, whilst all the less interesting cards present long edge type B. Over the course of continuous play the gambler begins to know which kind of card is next out of the shoe. For edge-sorting to work at Crockford’s it is therefore essential that the croupier is persuaded to rotate the relevant cards without her realising why she’s been asked to do so. This is indeed what happened. Crockfords conducted an ex post facto investigation to find out what had happened and why the punter was able to win quite so much money. After quite

215

lengthy review of the CCTV footage and examination of the cards, the investigators succeeded in spotting what had been done. Nobody at Crockfords had heard of edge-sorting before. The casino informed the claimant that they would not be paying his winnings because the game had been compromised. The claimant said he had not touched the cards but did not state that which at the trial he freely admitted, that he used edge-sorting. Arrangements were made to refund his deposited stake of £1 million. The matter went to the High Court and we get this from Paragraph 27 of the judgement:

‘The Judge found that Mr Ivey gave factually frank and truthful evidence

of what he had done. The finding was that he was a professional gambler

who described himself as an ‘advantage player’, that is, one who, by a

variety of techniques, sets out to reverse the house edge and to play at

odds which favour him. The Judge found that he does so by means that are,

in his opinion, lawful. He is jealous of his reputation and is adamant that what

he does is not cheating. He described what he did with his co-gambler as

legitimate gamesmanship. The Judge accepted that he was genuinely

convinced that what he did was not cheating but the question which matters

is not whether Mr Ivey thought of it as cheating but whether in fact and in law

it was’.

The Judge concluded that it was, and so did the majority of the Court of Appeal. Were they right or wrong? The problem, of course, was that the Supreme Court had to wrestle with whether or not Mr Ivey had acted DISHONESTLY. Paragraph 36 of the judgement is interesting:

‘It follows that, if what Mr Ivey did was cheating, he is in breach of this

implied term and cannot as a result recover his ‘winnings’. As well as

advancing this defence, the casino pleaded that what he did amounted to

the offence under Section 42 (of the Gambling Act 2005) and that in

consequence he could not recover the proceeds of his criminal offence

Mitting J held that the implied term had been broken, and that it was

therefore unnecessary to decide whether or not the statutory offence had

216

been committed. The majority of the Court of Appeal dismissed Mr Ivey’s

appeal. The reasoning of Arden and Tomlinson LJJ was not identical, but both

upheld the Judge’s conclusion that what had been done amounted to

cheating. Sharp LJ would have allowed the appeal, taking the view that there

could not be cheating unless the statutory offence had been committed and

that a necessary ingredient of it was dishonesty as defined in R v Gosh [1982]

QB 1053.’

Let us just remind ourselves of the gosh test – it has stood the test of time for well over 30 years 1

– Was that which was done dishonest according to the standards of

reasonably honest people? (Objective test)

– If the answer to that first question is ‘no’ then the defendant is entitled to

an acquittal

– If the answer to that first question is ‘yes’ then one must go on to consider

whether or not by those standards the defendant must have realised that his

actions were dishonest and he is to be convicted only if the answer to that

second question is ‘yes’ (Subjective test)

Dishonesty is not a matter of law but a jury question of fact and standards – (see Paragraph 48 of the judgement) There have always been problems with the Gosh test i.e. it has the unintended effect that the more warped the defendant’s standards of honesty are, the less likely it is that he will be convicted of dishonest behaviour The Gosh test was not compelled by authority. Although the pre-Gosh cases were in a state of some entanglement, the better view is that the preponderance of authority favoured the simpler rule that, once the defendant’s state of knowledge of belief has been established, whether that state of mind was dishonest or not is to be determined by the application of the standards of the ordinary honest person, represented in a criminal case by the collective judgement of jurors and Magistrates’ At Para 61 of the judgement .....’ The idea that something which is dishonest by ordinary standards can become honest just because the defendant’s thinks it is may often not be an easy one for jurors to grasp’

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And at paragraph 74 of the judgement:

‘These several considerations provide convincing grounds for holding that

the second leg of the test propounded in Gosh does not correctly represent

the law and that directions based upon it ought no longer to be given.

The test of dishonesty is set out by the Lord Nicholls in Royal Brunei Airlines

Sdn Bhd v Tan and by Lord Hoffmann in Barlow Clowes (see paragraph 62

of this judgement). When dishonesty is in question the fact-finding tribunal

must first ascertain (subjectively) the actual state of the individual’s

knowledge or belief as to the facts. The reasonableness or otherwise of his\

belief is a matter of evidence (often in practice determinative) going to

whether he held the belief, but it is not an additional requirement that his

belief must be reasonable; the question is whether it is genuinely held.

When once his actual state of mind as to knowledge or belief as to facts

is established, the question whether his conduct was honest or dishonest is to

be determined by the fact-finder by applying the (objective) standards

of ordinary decent people. There is no requirement that the defendant must

appreciate that what he has done is, by those standards, dishonest.’

So there you have it – the current test for dishonesty! R v Ray [2017] EWCA Crim 1391 This case involved the Court of Appeal considering the degree of force that could be used by way of self-defence in a so-called ‘householder case’ following the implementation of Section 76 (5A) of the Criminal Justice and Immigration Act 2008. The issue in this appeal which is brought with the leave of the Full Court is whether Section 76 (5A) of the Criminal Justice and Immigration Act 2008, which provides the defence of self-defence for the so-called ‘householder case’, was correctly interpreted by the Divisional Court in R (Denby Collins) v The Secretary of State for Justice [2016] EWHC 33 (Admin), [2016] QB 862. That decision, given by a court presided over by the President of the Queen’s Bench Division sitting with Cranston J is not binding on this court. Firstly, a word or two about what happened in the Collins case. This was an application to the High Court involving the so-called ‘householders defence’ contained within Section 76 (5A) of the Criminal Justice and Immigration Act 2008. As you will no doubt remember, the provision was inserted by Section 43 of the Crime and Courts Act 2013 and came into force on 25 April 2013. It permits householders,

218

in certain circumstances, to have the defence even though they have used disproportionate rather than reasonable force (grossly disproportionate force in all the circumstances would rule them out of the defence i.e. you still cannot shoot the burglar in the back when he or she is trying to leave!) The application seeks a Declaration (one of the Prerogative Writs) addressed to the Secretary of State for Justice to the effect that this provision is incompatible with Article 2 of the European Convention on Human Rights (this is the Article which guarantees the right to life in the following terms: ‘Everyone’s right to life shall be protected by law.....’) The facts were very simple and were as follows: Those parties bringing the application were acting on behalf of the person (X) who had been restrained by the householder (B). X had been restrained, at least in part by means of a headlock; as a result of this restraint, he suffered serious personal injury from which he is not expected to recover (hence the application being brought on his behalf by parties representing him). There followed a police investigation in which it was decided not to prosecute B. This decision was upheld following a review by a specialist prosecutor at the Appeals and Reviews unit The High Court, in giving the original judgement of the court, held that Section 76 (5A) of the 2008 Act did not extend the ambit in law of the second limb of selfdefence but, properly construed, provided emphasis as to the requirement to consider all of the circumstances permitting a degree of force to be used on an intruder in householder cases which is reasonable in all the circumstances (whether that degree of force was disproportionate or less than disproportionate). In particular, it did not alter the test to permit, in all circumstances, the use of disproportionate force and, to that extent the CPS review had adopted the wrong test when reconsidering the facts of this case. Neither did the provision offend Article 2 of the ECHR. In other words, these cases are very facts specific Parliament was not intending that householders be given carte blanche usage of disproportionate force in all circumstances, but rather disproportionate force might still avail them of the defence dependent upon the facts. The provision did not in any way offend against Article 2, i.e. the person’s right to life is still protected in law.

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It’s quite a long judgement with some 74 paragraphs, but I think paragraph 61 neatly sums up the legal position and reads as follows: ‘In this context, Section 76 (5A) serves to exclude a householder’s grossly disproportionate use of force from being reasonable. When read with Section 76 (6), which provides that in non-householder cases all disproportionate force is excluded from being reasonable, Section 76 (5A) can be seen to offer a discretionary area of judgement to the jury as to whether if the force was disproportionate, it was nevertheless reasonable in the circumstances. The effect of Section 76 (5A) is not to give householders carte blanche in the degree of force they use against intruders in self-defence. A jury must ultimately determine whether the householder’s action was reasonable in the circumstances, as he believed them to be’ Returning to the present case of R v Ray the court held that the interpretation placed in Denby Collins on the householders defence under Section 76 of the 2008 Act as amended by the 2013 act was correct. Once the jury have determined the circumstances as the defendant believed them to be, the issue, under Section 76 (3), for the jury is (as it always has been at common law) whether, in those circumstances, the degree of force used was reasonable. In determining the question of whether the degree of force is reasonable, in a householder case, the effect of Section 76 (5A) is that the jury must first determine whether it was grossly disproportionate. If it was, the degree of force was not reasonable and the defence of self-defence is not made out. If the degree of force was not grossly disproportionate, then the effect of Section 76 (5A) is that the jury must consider whether that degree of force was reasonable taking into account all the circumstances of the case as the defendant believed them to be. The terms of the 2013 Act have therefore, in a householder case, slightly refined the common law in that a degree of force used that is disproportionate may nevertheless be reasonable. As Subsection (6) makes clear, in a non-householder case the position is different; in such a case the degree of force used is not to be regarded as reasonable if it was disproportionate.

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Thus in our judgement the amendments to Section 76 put the householder relying on self-defence in a position different from all others relying on the defence. This is clear on the language of the Act. But it is narrow and not of the wide ranging effect for which the appellant contended. We accordingly reject the contention that provided the degree of force used by a householder is not grossly disproportionate then it is necessarily reasonable. R v Cook [2017] EWCA Crim 1200 We seem to be getting an awful lot of cases at the moment concerning an appeal by the Attorney-General against the undue leniency of a Crown Court Judges sentence. As you know, Section 36 of the Criminal Justice Act 1988 permits the Attorney-General to take particular cases to the Court of Appeal. The general trend seems to be that if the Court of Appeal is with the Attorney-General then the defendant is at risk of having the sentence DOUBLED. I’m not saying that this is going to happen every time but it seems to be a common theme running through much of the case-law in this area. In this particular case the offender was aged 62. He was of otherwise good character. He had entered early guilty pleas. His health was not great (he had suffered from a stroke in 2012). He had been given a 3-year custodial sentence for possession of prohibited, uncertified firearms. He was a firearms enthusiast who did not possess the weapons for criminal purposes. That fact played an important role in initial mitigation. The mandatory minimum sentence on indictment for possession of certain firearms is 5 years for anyone aged 18 or over and 3 years for anyone aged 16 or 17 unless there are ‘exceptional circumstances’ justifying the imposition of a sentence below the minimum term. We know from cases such as Malkin that such things as age, lack of any previous convictions, timely guilty pleas, are not sufficient to amount to ‘exceptional circumstances’ justifying the imposition of a sentence below the mandatory minimum term as set by Parliament. The Court of Appeal disagreed with the factors that had been taken into account by the Crown Court Judge in making the sentence less than the mandatory minimum term. The Court said that whilst these factors assisted the offender, the potential for the firearms to fall into other’s hands and the possible resultant consequences meant

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an unacceptable risk had been created by the offender. The Court’s view was that the available mitigation fell well short of anything that could amount to ‘exceptional circumstances’. The sentence of 3 years imprisonment passed concurrently on counts 1 and 2 were quashed and the Court substituted terms of 6 years on each of those counts to run concurrently. The other sentences that had been passed below were to remain in force unaltered For a recent example of a case in which the sentence was not doubled see that of R v Elamin [2017] EWCA Crim 621 In this case the Attorney-General successfully challenged a sentence of 7 years and 8 months imposed for rape and sexual assault. The Court taking the view that the offences plainly fell into Category 2A rather than 2B. They involved a degree of planning and the specific targeting of vulnerable individuals who were so drunk that they could not put up any resistance. The Court held that on count 1 there should be substituted a sentence of 10 years and on counts 2 and 3 a sentence of 15 months concurrent but consecutive to that on count 1 making a total sentence of 11 years and 3 months An interesting case which concerned how a jury should approach the burden in a criminal case was that of R v JL [2017] EWCA Crim 76 The Court provided an interesting overview of the law relating to jury questions on how certain they must be of a defendant’s guilt before they could reach a guilty verdict. Need they be sure? Need they be certain? Certainly, there was no need for a juror to be 100% certain as certainty of that sort would amount to absolute or scientific certainty which is certainly not required before a guilty verdict can be returned. [I personally still favour the time-honoured phraseology of ‘satisfied so that you are sure of the defendant’s guilt’ or ’satisfied beyond a reasonable doubt’] The case of R v Stapleford [2017] EWCA Crim 1215 was interesting for a number of reasons

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The defendant was convicted after a trial of a number of offences of fraud. The complainant in the case suffered from dementia. The applicant (he was applying for leave to appeal against his conviction – having been rejected by the Single Judge) was the grandson of the complainant. The applicant had completed a law degree and the Bar Professional Training Course and had been called to the Bar. The applicant accepted that he had opened the credit card account in the name of the complainant and that a number of on-line purchases and cash withdrawals had been made from the complainant’s bank account. The prosecution’s case was that shortly after moving in with the complainant the applicant had used his position to obtain her credit card and debit card for his own purposes, making frequent cash withdrawals and moved on to controlling her finances by setting up an on-line bank account which he used to make transfers and on-line purchases. The defence case was that he had simply acted at all times with the consent of the complainant. There were 3 grounds of appeal as follows: 1

– The Judge had erred in admitting into evidence a caution of the applicant

for an offence of theft by an employee

– The Judge erred in restricting expert evidence as to the complainant’s

reliability as a witness

– The Judge erred in rejecting a defence submission of no case at the close of

the Crown evidence

The Crown made the application to adduce the evidence of the caution pursuant to the Criminal Justice Act 2003, Section 100 (1) (f), as evidence to correct a false impression given by the defendant. The false impression that the Crown said had been created was that the applicant was a man of integrity and good character as being a member of the Bar of England and Wales – he had mentioned this in his police station interview and in stated evidence before the jury. The Judge was satisfied that a false impression had been created in front of the jury. The Court said this at paragraph 16 of the judgement:

.......In our judgement, when members of the public hear that a person is a

member of a reputable profession, the Bar being merely one example, they

are automatically inclined to the assumption that the person cannot be other

than of good character. Whatever may have been the position as to

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the interview and the defence desire to exclude passages in it referring to

the applicant’s professional status, in our opinion, the Judge was entitled to

take the view, having heard the evidence that the applicant’s own evidence

and the manner in which the witnesses for the Crown were cross-examined

about the applicant’s studies and his position as a barrister did create, in the

minds of this jury a false impression.’

The second proposed ground of appeal related to the extent of expert evidence placed before the jury concerning the dementia of the complainant. It was accepted that she was treated as a competent witness. This was an agreed view of the doctors on both sides of the case. The doctors were however in disagreement as to the extent of her dementia and her likely reliability as a witness and the likely reliability of her evidence accordingly. The Judge made her view clear, having considered various authorities, that once competence of a witness was agreed, questions of reliability and credibility were for the jury. The submission of no case to answer was on the basis that in cross-examination the complainant had given evidence that was inconsistent with what she had said to the police in a recorded interview which had formed her examination-in-chief. She had given a series of responses in cross-examination which indicated that she might have given consent to requests by the applicant for money or for payment for matters which were the subject of the counts on the indictment. It was also submitted that the Crown case was so unreliable and so tenuous that it should not have been left for the jury to consider, given the evidence as to the complainant’s deteriorating mental condition. The submission of no case was rejected by the Judge. The Judge taking the view that the answers given by the complainant in evidence did not mean, in her judgement that the evidence was too weak or tenuous such that the case should be withdrawn from the jury. Reliability and credibility of witnesses are ultimately matters for the jury. The prosecution case did not rely solely upon the evidence of the complainant. The Court of Appeal took the view that the Judge had been right to leave the matters to the jury. The overall assessment of the evidence of the complainant and indeed the other elements of the evidence were all for the jury. The renewed application was refused.

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Regina v Michael O’ Rourke and another – 17th of October 2017 – SCCO Ref 10/17, 34/17 and 47/17 This was a costs decision by way of an appeal from a re-determination. The substance of the appeal concerned 5,821 PPE served electronically. The appeal was not on the basis that it had been served electronically but rather because it was reduced by the LAA to 572 pages on the basis that that was the page count generated by displaying the evidence in a different format. The LAA asserted that the evidence could be presented in PDF or Excel format, the latter being searchable electronically but generating a larger page count. The LAA took the view that it was reasonable for the legal team to consider that evidence in a shorter (PDF) format and it paid for the smaller (just under one tenth) number of pages accordingly. There is no suggestion 572 pages constituted edited highlights or a condensed version, they contain the same information as the 5,821 pages, it is purely a question (per the LAA) of how the legal team ought reasonably to have considered that evidence. The legal team, in contrast, asserted that they could not consider the evidence more quickly just because the size of the electronic exhibit could be decreased for the purpose of printing; there were 5,821 pages to consider and that is what should be paid for. The Court said this at paragraph 39 of the judgement:

‘The LAA has not suggested (as is often the case) that there were vast

quantities of irrelevant material, whether it be photographs, games or

whatever, in these exhibits. They accept the material is relevant, they just wish

to pay for the shortest version that was served by the Crown’.

And at paragraph 40 of the judgement:

‘This will always be a fact-specific question, and I anticipate that the facts in

this case, whereby almost all of the several thousand pages of material is

accepted by the LAA as being relevant will seldom occur. I’m in no

doubt on the facts in this case that the allowance of 268 PPE for the

Defendant’s phone records, those of the defendant’s alibi and the 3 other

exhibits, bears no resemblance to the work that the legal team put into this

case. As such in my view it was not a reasonable exercise of the DO’s

discretion to limit the PPE as has been done here’. 225

Accordingly this appeal succeeds and I direct the LAA to pay the balance

of the Excel exhibits claimed, giving credit for the PDF exhibits already

allowed, and accounting for the irrelevant material referred to in paragraphs

25 and 26 above, plus their £100 appeal fee, and costs.

The nitrous oxide issue seems to have been resolved – this was the recent case of R v Chapman and Others [2017] EWCA Crim 319 The matter came before the Court of Appeal as a result of a series of appeals arising out of convictions at Wood Green, Inner London, Lewes and Peterborough Crown Court’s It was dealt with by, amongst others, the new Lord Chief Justice (The Lord Burnett of Maldon – he was sworn in on 2nd October 2017) The issue before the Court of Appeal concerned 4 applications for permission to appeal against their convictions for possession of nitrous oxide with intent to supply contrary to Section 7 of the Psychoactive Substances Act 2016 The appeals required the Court of Appeal to consider the issue of whether or not nitrous oxide is an ‘exempted substance’ for the purposes of the Psychoactive Substances Act 2016 because it is a medicinal product within the meaning of that term as defined by the Human Medicines Regulations 2012 (SI 2012/1916) You probably know that the Act imposes a blanket ban on all psychoactive substances i.e. substances that stimulate or depress the central nervous system and then hands back permission on a substance by substance basis by means of Schedule 1. In none of the original 4 cases was it contended that nitrous oxide was an exempted substance. Indeed, it was agreed that it was not. The applications came about because of widespread publicity given to a number of cases in which Crown Court Judges had upheld the submission that nitrous oxide was an exempted substance under the Act as being a ‘medicinal product’. The Court of Appeal was satisfied that in the circumstances of these cases that the nitrous oxide in question could not be categorised as a medicinal product and therefore was not an exempted substance. They said that the matter had already been settled and was clear on existing authority – see paragraph 20 of the judgement. 226

Nitrous oxide (commonly known as laughing gas – you will see the silver capsules in the streets of all the major cities in this country if you choose to walk around the cities in the early morning before the cleaners have done their job) was first synthesised by Joseph Priestley in 1772 and its use as a recreational drug soon followed. Nitrous oxide does have analgesic properties but it has many other uses as well. The Court said that one must look at the form and use of it. Its presentation and function were also relevant. On the facts of the 4 cases it had not been used for therapeutic reasons but rather purely for recreational reasons that were harmful to health!

Statutory Instruments Statutory instrument 2017 No.1017 is The Policing and Crime Act 2017 (Commencement No. 4 and saving Provisions) Regulations 2017 Regulation 3 of the Statutory Instrument provides for the commencement, so far as they are not already in force, of Sections 80 - 83 of the Policing and Crime act 2017 which amend the provisions of the Mental Health Act 1983 – the commencement date is 11th December 2017 They deal with such things as: 1

– Extension of powers under Sections 135 and 136 of the Mental Health Act

1983 in so far as not already in force

– Restrictions on places that may be used as places of safety, insofar as not

already in force

– Periods of detention in places of safety

– Protective searches: individuals removed etc under Section 135 or 136 of the

Mental Health Act 1983

Regulation 2 of the Statutory Instrument provides for the commencement of Section 162 of The Policing and Crime Act 2017 which is to come into force on 13th November 2017 – Section 162 of the Act provides for a new Section 86A in the Courts Act 2003 which requires that ‘a person who is a defendant in proceedings in a criminal Court must provide his or her name, date of birth and nationality if required to do so at any stage of proceedings by the Court’– a failure so to do without a reasonable excuse is an offence.

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It is clear from further sub-sections within Section 86A of the Courts Act 2003 that whether the defendant is before the Magistrates’ Court or the Crown Court makes no difference – the offence is a summary offence and can be dealt with by the Court and carries a maximum of 6 months imprisonment or a fine – I assume that the fine is unlimited now that Section 85 of LASPO has lifted the restriction of £5000 on a level V fine in the Magistrates’ Court. Julie Wright and Reading Crown Court and The Royal Society for the Prevention of Cruelty to Animals [2017] EWHC 2643 (Admin) This was a Case Stated to the High Court against the findings made at Reading Crown Court – the case having started life at East Berks (Slough) Magistrates’ Court and having been the subject of an appeal to the Crown Court [I have mentioned this before but I hope it is worth mentioning again – appeals are not ‘matters on indictment’ and are therefore decisions which are susceptible to challenge by way of Case Stated or Judicial Review in the High Court – do watch out for matters which are ‘matters on indictment ‘– such matters are not susceptible to challenge by either Case Stated or Judicial Review – see Section 28 (2) and 29 (3) of the Senior Courts Act 1981 – do not fall at the first hurdle!] The Applicant was convicted of offences contrary to the Animal Welfare Act 2006. The Applicant asks the Defendant to State a Case, pursuant to Section 28 of the Senior Courts Act 1981 and Part 35 of the Criminal Procedure Rules 2015. The proposed Question of law in the application was: a)

Can a person ‘keep or train a dog’ within Section 8 (1) (h) of the Animal

Welfare Act 2006 through an agent?

Is the offence under Section 8 (1) (h) of the Animal Welfare Act 2006 limited

to a person who actually ‘keeps or trains an animal for use in connection with

an animal fight?’

The Judge refused to state a case. The Court did not consider that there was any merit in the questions of law. The Applicant then sought Judicial Review of the Defendant’s refusal to state a case. The Single Judge considered the application to be weak but that a broader point of significance had been raised that should be considered by the Court. Permission was therefore given for Judicial Review and the application was considered as a ‘rolled-up’ one.

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The substance of the applicant’s contention is that she cannot be guilty of the offence if the animal was in the physical possession of another person. The Crown Court had made clear findings of fact about the ownership by the Applicant of the dog and her purpose for keeping the dog, namely for use in connection with an animal fight. It was also found as a fact that for some part at least, the dog was kept at the Applicant’s own home. It was, however, the Court’s interpretation of Section 8 (1) (h) and the word ‘keeps’, to include through others, that is challenged by the Applicant. A person may keep an animal by having actual physical possession but also by requesting another to keep it for him. The word includes an assumption of a level of control over the animal whether at the Applicant’s home or at the home of another. In either event the animal is still being kept by the Applicant. Participation in the keeping of animals, for the purposes of a disqualification order, is not confined to shared physical possession. It would include knowingly having joint control of the animal wherever it might be kept. In conclusion Section 8 (1) (h) of the Animal Welfare Act 2006 makes it a criminal offence to keep or train an animal for use in connection with an animal fight and is to be interpreted to include those who may have physical possession as well as those who retain control of the animal whilst it is elsewhere. There is no sensible basis to restrict the interpretation of Section 8 (1) (h) to the person who has actual physical possession or actually does the training themselves and to do so would unnecessarily restrict the offence and the policy of the legislation to criminalise those who are involved in training animals to fight. On the issue of costs the Judge said this at paragraph 23:

‘The interested party (RSPCA) has made an application for costs from Central

Funds pursuant to Section 17 of the Prosecution of Offences Act 1985. The

interested party is not a public authority and is not acting on behalf of

a public authority. It is a private charity which prosecuted the case before the

Magistrates’ Court and properly responded to the application for Judicial

Review. In the circumstances I’m satisfied that its costs should be paid out of

Central Funds I have considered the calculation of those costs and I’m

satisfied that they are recoverable in the sum claimed namely £8,221.80p’

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Section 12 CrimeScribe Edition No. 77

Hello and welcome to this month’s edition of CrimeScribe. It is the very last one of 2017. Again, there has been nothing of any real consequence regarding legislation or Statutory Instruments. Fortunately, though, we have had some interesting case-law which I shall analyse in this edition.

CASE – LAW Regina and Dean Malcolm Lewis and James Marshall-Gunn [2017] EWCA Crim 1734 This was an application for leave to appeal, brought by the prosecution under Section 58 of the Criminal Justice Act 2003, against a terminating ruling. The relevant undertakings had been given by the Crown and it was agreed that the Court did have jurisdiction in the matter. I’m sure you know that the Criminal Justice Act 2003 gave the Crown a new right of appeal (it is only open to the Crown – it is not available to the defence) whereby the Crown can appeal certain rulings made by a Crown Court Judge to the Court of Appeal. A terminating ruling is a ruling which effectively destroys the Crown’s case for example rulings as to evidence or rulings on half-time submissions. The Crown can ask that the matter be put before the Court of Appeal in order that the rulings made in the lower Court may be tested. This was an appeal arising out of a ruling by the Judge at Maidstone Crown Court that there was no case to answer on behalf of each of the two defendants who were standing trial on a count of murder. The appeal was on the basis that it was not a ruling that a reasonable Judge could have made. These cases are always very ‘facts specific’ and the Crown did concede that their case was entirely a circumstantial one. The prosecution case was that the

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defendants were both liable as joint principals. The case was not put against them on the footing of this being a joint- enterprise involving encouragement or assistance by one or the other. As recorded by the Judge, that remained the prosecution’s case when the submission of no case was being debated. It remained the prosecution’s case before us. It was very important that the Crown had put the case on the basis that they were acting as joint principals. The Court said this at Paragraph 35:

The Judge’s ruling was notably thorough and fully reasoned

And at Paragraph 36:

He reminded himself in detail of the principles of Galbraith (1981) 73 Cr App

R 124. He reviewed very carefully the evidence thus far presented. He noted

the weaknesses and concessions in the evidence of Ms S. He reviewed the

forensic evidence very thoroughly. He also recorded, saying that it was ‘one

of the matters that troubled me’, that the Crown’s case specifically was not

put on the basis of joint enterprise and that questions of encouragement and

of the application of the principles of Jogee [2016] 1 Cr App R 31 were not

relied on. The case was that they were joint principals

And at Paragraph 37:

The Judge accordingly directed himself as to the unlawful act constituting the

actus reus and the mens rea with regard to each defendant separately.

Doing that, the Judge considered that there was no real evidence here as

to who threw the liquid, if it was thrown, or who set the fire’. He later

said: ‘there is evidence, of course there is, of presence. There are surrounding

circumstances...... association is not enough. Suspicion is not enough. There

must be an actus reus, there must be a mens rea of intent to kill or cause really

serious bodily harm’. The Judge went on to hold that this was not a case

which ought properly to be left to a jury.’ ‘There simply just is not enough’ was

his conclusion.

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And at Paragraph 40:

Having carefully considered the matter we conclude that this appeal must

be dismissed. There was no error of law or principle in the Judgeâ&#x20AC;&#x2122;s approach:

he correctly directed himself. Thus we are concerned to ask ourselves

whether the Judgeâ&#x20AC;&#x2122;s ruling was one which it was not reasonable for him to

make. We cannot so conclude. This was a ruling which, on the evidence, was

one which it was reasonable for him to make.

And finally at Paragraph 51:

Clearly there were highly suspicious circumstances here. But suspicion is not

enough. In a case where the issue revolves around the inference that a

reasonable jury may draw from evidence which is circumstantial the

essential question is whether or not there is evidence, taking the prosecution

case at its highest, upon which a reasonable jury, properly directed, could

convict: see Khan [2003] EWCA Crim 1345, which considers authorities such

as Goddard [2012] EWCA Crim 1756. For the reasons given, the Judgeâ&#x20AC;&#x2122;s ruling

to the effect that, on the particular facts of this case, there was not a case

to answer was a reasonable ruling. That being so we must confirm his ruling,

dismiss the appeal and direct that both defendants be acquitted of the

offence with which they were charged.

Travis Green and Regina [2017] EWCA Crim 1774 This was an appeal arising out of something that was said by the Judge to the jury in the summing up. The whole case revolved around the credibility of the main prosecution witness referred to as K The gist of it is contained in Paragraph 20 of the judgement:

The first ground of appeal related to a passage in the summing up in which

the Judge referred to the character of K. The appellant himself was a man of

good character and the Judge gave a proper character direction in his

favour (of which there was no criticism). However, with regard to K, at the

point at which he was leading up to a summary of her evidence, he then

said this:

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‘The other thing about [K]: I have told you about the defendant’s character,

but there is no suggestion that [K] is somebody who has ever been in trouble

with the police or ever committed any offence or has a reputation for

untruthfulness or anything of that sort. So, bear that in mind. In a sense, it is

a level playing field here between [K] on the one hand, and the defendant

on the other’

Counsel argued that this was a misdirection in law. He said that it undermined the direction given in the appellant’s favour and he pointed out that no evidence of K’s character had been before the jury, one way or the other For the Crown Ms Farrelly submitted, that there was nothing irregular in the comment made. The Judge was simply assisting the jury in weighing up the individual accounts. It had not been suggested that K was otherwise than of good character. The Court said this at Paragraph 24:

As we said to Counsel in the course of argument, it is the universal experience

of the members of the Court that directions of the type here in issue are

never given in summing-up to a jury. We asked whether the point had arisen

in any reported authority and both counsel told us that they had been unable

to find any case dealing with the point.

And at Paragraph 25

In considering the helpful arguments of counsel, we considered that in the

vast majority of cases, it will be positively undesirable to direct a jury in the

manner in which the Judge did in this case. The burden of proving guilt, so

that the jury is sure, is on the Crown. One element of our procedure in securing

that a jury has to be sure of the guilt of an accused person of good character,

before convicting him or her, is to direct the jury that his or her good character

is a matter that they must bear in mind, in the accused’s favour, in two

respects: first, with regard to his or her credibility; and secondly, suggesting

that it might be less likely than otherwise might be the case that he or she

should commit an offence now. Those elements in an accused person’s

favour are expressly stated to each jury. Unless a jury hears (for good reason)

that a Crown witness is not of good character, they will no doubt assume that

there is nothing to speak against his or her credibility.

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And at Paragraph 26:

We consider that, in all but a very exceptional case (of which we can think

presently of no examples), Judges should refrain from directing juries in the

manner that the Judge did in this case. We think Counsel is right in saying that,

to do so, is to â&#x20AC;&#x2122;water-downâ&#x20AC;&#x2122; a protection that our procedure affords to an

accused person of good character, and to reduce, to that limited extent,

the burden of proof on the Crown. In our judgement, this was a material error

in the summing up

Conviction quashed and the Crownâ&#x20AC;&#x2122;s application for a re-trial refused. Ali (Claimant) and Crown Court at Kingston (Defendant) [2017] EWHC 2706 (Admin) The issue which came up yet again in this case is one to which I have referred to many times in the past. It was an application for permission to apply for judicial review and, if permission was granted, for the substantive application to follow immediately in the normal way of a rolled up hearing. The challenge essentially was to the decision of a Crown Court Judge to remand the claimant in custody for a psychiatric and a pre-sentence report following conviction. There was a conviction on 9th October and the matter was put over until 10th October for a substantial hearing concerning bail. Meanwhile, the claimant was remanded in custody. The challenge contended that the Judge decided wrongly that Section 4 of the Bail Act (the presumption in favour of unconditional bail being granted) should not apply during an adjournment for sentencing reports and that he did not apply the test of whether there was a substantial risk of further offending or absconding. Furthermore, he failed to address the welfare of the children, in particular, the welfare of both claimant and baby as a result of the fact that she was still breastfeeding the baby. Leaving aside the merits of the issues concerned the Court first considered whether it had any jurisdiction at all to consider this application for permission to apply for judicial review in the light of Section 29 (3) of the Senior Courts Act 1981 which provides:

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‘In relation to the jurisdiction of the Crown Court, other than its jurisdiction in

matters relating to trial on indictment, the High Court shall have all such

jurisdiction to make mandatory, prohibiting, or quashing orders as the High

Court possess in relation to the jurisdiction of an inferior court’

The very first issue to grapple with therefore was whether or not the decision of the Judge in relation to bail between the verdict of the jury and the sentencing decision was ‘a matter relating to trial on indictment’. The Court took the view that the decision clearly concerned ‘a matter relating to trial on indictment’ and that therefore there was no jurisdiction for the Court to receive the application for judicial review. They did go on to say that even if they had had jurisdiction the application would still inevitably have failed. [I HAVE SAID THIS MORE THAN ONCE – SECTION 29 (3) AND 28 (2) MUST BE CONSIDERED WHENEVER AN ADVOCATE IS CONSIDERING AN APPLICATION TO THE HIGH COURT FROM THE CROWN COURT – IT WILL NOT BE A PROBLEM IF THE MATTER ARRIVED AT THE CROWN COURT BY WAY OF AN APPEAL FROM THE MAGISTRATES’ COURT BECAUSE SUCH MATTERS ARE NOT CONSIDERED TO BE MATTERS ON INDICTMENT BUT IF THE MATTER ARRIVED AT THE CROWN COURT BY WAY OF HAVING BEEN SENT UNDER SECTION 51 OF THE CRIME AND DISORDER ACT 1998 THEN THE VERY FIRST THOUGHT OF THE LAWYER SHOULB BE ‘WAS WHAT HAPPENED AT THE CROWN COURT A MATTER RELATING TO TRIAL ON INDICTMENT!’] R (DPP) and Aylesbury Crown Court and AB (interested party) [2017] EWHC 2897 (Admin) An interesting case in which the High Court had to consider whether or not the Crown Prosecution Service should be liable, in terms of costs, for the failings of an expert (we all know from case-law that the CPS are liable, in terms of costs, for failings on the part of the police) It was an application by the CPS for judicial review seeking an order quashing a costs order (the costs order) made by HH Judge Sheridan at the Aylesbury Crown Court on the 14th September 2016. The costs order was made under Section 19 of the Prosecution of Offences Act 1985 (the 1985 Act) and the Costs in Criminal Cases (General) Regulations 1986 (the Regulations). The Judge ordered that the CPS should pay ‘the full costs of defence, to be taxed’. 235

In summary the core submission made on behalf of the CPS is that the Judge fell into error and acted without jurisdiction in ruling that the CPS should be liable for the actions of an expert witness instructed by it when the expert witness was an independent third party and the Judge was unable to identify any ‘unnecessary or improper act or omission’. It is submitted, further, that in failing to specify the costs in the costs order, the Judge acted unlawfully. The first point for consideration was whether or not the High Court had jurisdiction to review the matter. The jurisdiction of the High Court to review decisions of the Crown Court is governed by Sections 28 (2) and 29 (3) of the Senior Courts Act 1981. Section 28 (2) of the 1981 Act provides that the Court has no jurisdiction to review ‘a judgement or other decision of the Crown Court relating to trial on indictment’ Under Section 29 (3) of the 1981 Act ‘in relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders as the High Court possesses in relation to the jurisdiction of an inferior Court’ The High Court was satisfied that it did have jurisdiction provided there is a jurisdictional error of sufficient gravity to take the case out of the jurisdiction of the Crown Court: see R v Crown Court at Maidstone, ex parte London Borough of Harrow [2001] 1 Cr App 117, where it was held that where a Judge had no jurisdiction to make the order he purported to make, it could not be categorised as a matter relating to trial on indictment so as to fall within the exclusion in Section 29(3) of the 1981 Act. The expert instructed by the Interested Party’s solicitors (Mr W) concluded that no indecent images of children were found to have been saved anywhere on the computer’s hard disk drive, and that the only pictures that were identified were either deleted or in system-created areas to which the user had no access (Paragraph 13 of the judgement) Mr W sought comments upon his report from the Crown’s expert. On 19th of August 2016, the Crown’s expert sent an email that said:

‘There are no areas of disagreement. The one image I identified as

‘accessible’ was in fact inside a system file and can be discounted’

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Following disclosure of Mr W’s report, the Crown decided to offer no evidence on any of the counts against the interested party (a man who was and is of good character). An application was made by the defence for payment of the entirety of the Interested Party’s legal costs under Section 19 of the 1985 Act. The case for the interested party was that the error on the part of the expert for the Crown was the result of ‘insufficient care’. Such expert having produced a report in which he had concluded that there were 123 indecent images of children, of which 122 were inaccessible to the user of the machine. The exception was a category A image, which was stated to be accessible. Paragraph 16 of the judgement reads as follows:

Skeleton arguments were exchanged, and the matter came on for hearing

before the Judge on 14th September 2016. The case for the Interested Party

was that the error by the Crown’s expert was the result of ‘insufficient care’.

We have been provided with the transcript of the hearing. It is apparent

from that hearing and his ruling, that the Judge attributed no blame to the

Crown Prosecution Service. He held however that the Crown was ‘indivisible in

terms of the parties that they rely upon’. He awarded the defence their costs

‘with a heavy heart’ on the basis that ‘Equality of arms is a very important

point, and if one side can recover their costs when there is an error by the

other side, I cannot see why it is not so the other way round, and I don’t think

it is for the Judge to start adding third parties’. He also encouraged an appeal

to the Court of Appeal, although no appeal is available to the Crown against

a Section 19 order.

The Court took the view that the Judge never addressed the correct question; his approach, as is clear from the transcript, was wrongly influenced by his inability to make an order that the defendant, as the interested party then was, should have his costs out of central funds. The Crown Court only has jurisdiction to order a party to pay the costs of another party to the proceedings if those costs have been incurred as a result of the improper or unnecessary act or omission ‘by or on behalf of’ that party: see Regulation 3 (1) (b). The material words here are ‘on behalf of’.

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The High Court held that the contractual relationship does not make the CPS responsible for the expert’s acts or omissions for the purposes of Regulation 3 The Court does have jurisdiction under Section 19B of the 1985 Act to make a thirdparty costs order but the threshold of serious misconduct in such a case is a very high one and this was not the provision under which costs were awarded in this case. Finally, the Court said this at Paragraph 32 of the judgement:

‘Quite apart from these errors in the Judge’s approach, his failure to carry out

the assessment himself and to specify the amount be paid meant that the

order was ultra vires the Regulations. As I have said, he ordered the ‘Crown to

pay full costs of defence to be taxed’

[As you know, such an order may be made where the Judge is ordering defence costs under Section 16 of the Prosecution of Offences Act 1985. A Crown Court Judge still has the power to make such an order when the matter is before the Crown Court by way of an appeal from the Magistrates’ Court or in those limited circumstances where the defendant has been refused Crown Court legal aid on the grounds of means as having a joint disposable household income of £37,500 a year or more. Everyone else, for a matter on indictment, is eligible for legal aid with or without a contribution]. The proper procedural requirements in relation to an order for costs under Section 19 of the Act are to be found in the Criminal Procedure Rules 45.8 (7) to (10) as amended by the Criminal Procedure (Amendment) Rules 2016 which came into force on the 4th April 2016. And still on the subject of costs: R v Rahal [2017] EWCA Crim 1779 This was an appeal to the Court of Appeal against an order for prosecution costs following a conviction for obtaining services by deception. The appellant was ordered to pay costs in the sum of £23,933.50p to the London Borough of Southwark who brought the prosecution. The prosecution was brought by the London Borough of Southwark because the defendant had falsely represented that she had a child, when she did not, and she

238

obtained a tenancy of housing to which she was not entitled. She pleaded not guilty but was found guilty following an 18 day trial. She was jointly indicted with a number of other individuals who faced similar charges. In relation to the appellant, the Court made a confiscation order in the sum of £29,731 and ordered that this be paid by way of compensation to the London Borough of Southwark. The borough also applied for costs in relation to 4 of the defendants which included the appellant. The Judge considered that it was reasonable and fair for the defendants to pay costs. However, three of them had no means to pay, and so the Judge declined to make an order against them. The position in relation to the appellant was different. She did have the means to pay a costs order. She had a sum of £77,773.22p in bank accounts. She alone of the defendants had the means to pay an order for costs, and so she alone was ordered to pay costs in the sum of £23,933.50p. The question of the award of prosecution costs is dealt with by Section 18 (1) (c) of the Prosecution of Offences Act 1985: ‘(1)

where –

... (C)

any person is convicted of an offence before the Crown Court the Court

may make such order as to costs to be paid by the accused to the prosecutor

as it considers just and reasonable’

The relevant part of the Criminal Procedure Rules 2015 is Part 45 (3)

The order should not exceed the costs that the prosecution have actually

incurred. These costs may include costs incurred in relation to the Court

hearing and the costs of the investigation: see Associated Octel Limited [1997]

1 Cr App R (S) 471.

It was argued that the Court should have considered what costs the prosecution would have incurred if the appellant had been tried alone. I am not sure why this point was argued. Although the appellant’s case was joined with others, the costs actually claimed had been calculated as the costs attributable to the prosecution of the appellant. The Borough specifically did a breakdown of the costs against each individual defendant.

239

It was argued that the Court should have considered what costs would have been allowed on the scale of costs used by the Crown Prosecution Service when they bring proceedings. The Court did not consider that the Judge was required to do that. It was argued that it was unreasonable to award the costs of 2 Counsel and the Court agreed. They did not consider that it was just and reasonable for the appellant to have to pay the costs of 2 Counsel bearing in mind that this was ultimately a relatively straightforward offence of obtaining services by deception. The order for costs was therefore reduced by the amount attributable to second Counsel. I am not sure of the correct citation of this next case but I know that judgement was delivered on 14th November 2017 by the High Court and it involved 2 claimants and concerned the issue of whether or not Magistrates’ Courts have a discretion to extend the time to state a case after the expiration of the 21 days specified in Section 111 (2) of the Magistrates’ Courts Act 1980 as the time within which an application for a case to be stated for the opinion of the High Court must be made. The first claimant was convicted of assault by beating contrary to Section 39 of the Criminal Justice Act 1988 before a deputy district judge at Colchester Magistrates’ Court on the 18th November 2016[and presumably sentenced on that day]. On the 24th November 2016 his solicitors wrote to the Court asking for a copy of the findings and sentencing remarks of the deputy district judge. They repeated their request on the 18th January 2017. On the 14th, 16th and 24th February 2017 the first claimant, acting in person, communicated with the Court, again seeking the deputy district judge’s notes. Those notes were provided on the 27th February 2017. The Deputy justice’s clerk at Colchester Magistrates’ Court made clear however, in letters of the 28th February 2017, and 2nd of March 2017, that the Court had not received a request to state a case from the first claimant or his solicitors. On the 31st March 2017 an application to state a case was made by the first claimant’s current solicitors (then newly instructed). On the 5th April 2017 the deputy justice’s clerk wrote back to the first claimant’s solicitors explaining that the application was out of time and there was no power for time to be extended. The second claimant was convicted following a trial at the Stratford Magistrates’ Court on the 21st April 2017 of two offences of assaulting a constable in the execution of his duty contrary to Section 89 (1) of the Police Act 1996 and one

240

charge of resisting a constable in the execution of his duty to contrary to Section 89 (2) of the Police Act 1996. He was sentenced for these offences on the 26th April 2017. On the 17th May 2017, the time specified in Section 111 (2) of the 1980 Act for applying to the Court for it to state a case, expired. We were told that the second claimant had given instructions to solicitors to state a case at some point before the 15th May 2017 (we were not told when). We were also told that his solicitor’s computer system malfunctioned so that the solicitors were unable to submit the application on that day (the evidence on this was somewhat vague). In the event, the application was made the following day, on the 18th May 2017, and thus a day outside the 21 day time limit. On the 1st June 2017 the district judge refused to consider the application to state a case as it was out of time and there was no discretion to extend time. She nonetheless provided a draft of the case which she would have stated to cover the possibility that this Court might conclude that there was a discretion to extend time and that it ought to be exercised in the second claimant’s favour. The High Court said this at Paragraph 39 of the judgement:

‘In the event we conclude that there is no discretion to extend the statutory

time limit in Section 111 (2) of the 1980 Act. This conclusion is dispositive of

both applications for judicial review, which are refused. No useful purpose

would be served by considering the further arguments made to us on behalf

of the second claimant about the merits of the application to extend time, or

the merits of the substantive stated case (in draft) itself. It is also unnecessary

for us to consider further the question of the first claimant’s delay in bringing

the proceedings.

DPP v Patterson [2017] EWHC 2820 (Admin) This was an appeal by way of case stated from a decision dated 27th of February 2017 of the Magistrates’ sitting in Great Yarmouth dismissing, on the basis that there was no case to answer, two charges of theft, each of £140, on 27th of February 2016 and 4th March 2016 respectively brought against Ms Patterson, the Respondent. The question posed for this Court is whether they were correct so to find. The facts were convoluted! The respondent worked as a cleaner. The company for whom she worked owned property including two caravans. Within the first couple of weeks of her employment she was handed £500 in cash for the rent. In communications on Facebook she was asked by the Managing Director of the company whether he was meant to have sent her his bank details. 241

In reply to him she explained that the money she had been given had been lost or stolen. She continued working for the company at a reduced rate to repay the £500 but made it clear in a message that she did not want the responsibility of handling money. It was then agreed that in future she would not receive cash payments from tenants. Another family was renting a property from the company. Payment was to have been made by card over the telephone for two weeks at £140 a week. No payment was received by the company and the Managing Director (S M) checked with the respondent to see if payment had been made to her. He left various messages with no initial response. Later however he received what he described as a long winded message in which the Respondent said, ‘if you send me some kind of account I will pay weekly’. The managing director took this to be an admission that she had received the money, and later messages from the respondent repeated the request for an account number to repay the money. It was all very confusing as to whether or not the Respondent had had the money but in her interview with the police she admitted that she had received the money and had intended to pay it into the managing director’s account. She said that she had placed it in her rucksack but when she went to retrieve it, the money was missing. She had lost it but was in the process of paying it back. There was some assistance in the Preparation for Effective Trial form in which it was admitted that the money had been given to the respondent, the issue at trial being identified in terms:

‘No dishonesty. The (Respondent) took the money in good faith and intended

to pay the money back to S M (the Managing Director). Her partner spent the

money, believing it was joint money’

On behalf of the Respondent, at the close of the prosecution case it was argued that there was no case to answer on the basis that the prosecution had failed to establish either dishonesty generally or, more specifically, the lack of intention to repay. The prosecution submitted that both elements could be inferred from the surrounding circumstances. It was open to the Court to conclude that when the respondent took the money she had no intention of passing it on, thus permanently depriving her employer of it.

242

Equally, if she deliberately appropriated the money at some later stage with that intention, she was guilty of theft. That led to a conclusion that there was at least a prime facie case that the respondent had been dishonest. The High Court had no issue that the facts clearly showed there was a case to answer. They remitted the matter back to be heard by a fresh bench. Leveson LJ observed in relation to Gosh and Ivey v Genting Casinos [2017] UKSC 67:

‘Given the terms of the unanimous observations of the Supreme Court

expressed by Lord Hughes, who does not shy from asserting that Gosh does

not correctly represent the law, it is difficult to imagine the Court of Appeal

preferring Gosh to Ivey in the future’

I read a statistic the other day that 45% of work in the Crown Court is sex related. With this in mind you might wish to read the following case in relation to the circumstances in which a Crown Court Judge may make a Sexual Harm Prevention Order (SHPO) and the length of such orders. Although such orders can be made for an indefinite period the Court of Appeal seemed to express the view that consideration should at least be given to making the order definitive in terms of length As you probably know anyway, the power of the Court to make such an order derives from Section 103A of the Sexual Offences Act 2003, as inserted by Paragraph 2 of Schedule 5 to the Anti-Social Behaviour, Crime and Policing Act 2014; and, amongst other circumstances, it is available where, post-conviction, a defendant is dealt with by the Court in respect of an offence listed in Schedule 3 or Schedule 5 to the 2003 Act, and ‘the Court is satisfied that it is necessary to make a sexual harm prevention order for the purpose of... protecting the public or any particular members of the public from sexual harm from the defendant....’ (Section 103A (2) (b) (i) The case is R v Sokolowski and R v Pickard [2017] EWCA Crim 1903 The final case for this month’s edition is R v McCall [2017] EWCA Crim 2024 This was an appeal against the sentence imposed following a guilty plea to an offence of causing serious injury by dangerous driving, contrary to Section 1A of the Road Traffic Act 1988.

243

I would not normally deal with appeals against the severity of a sentence but this had an unusual feature in that the defendant was a serving police officer who believed that there was urgency about his attendance to a hotel fire. The Judge accepted that while dangerous to drive at 74 miles an hour in what was a 40 mph zone, the appellant was entitled to do that in an emergency. However, to drive through a red light, as he had done, was dangerous. His dangerous driving had resulted in serious injuries. The sentence imposed was one of 15 months imprisonment suspended for 24 months. In addition there was a disqualification from driving for 3 years and until an extended driving test was passed and an order to pay a sum towards the prosecution costs. The Court said this at Paragraph 14 of the judgement:

‘In relation to ground 1, we do not consider that any principle of law is

engaged by the sentencing exercise in cases where emergency responders

are convicted of dangerous driving. We consider that this is an entirely fact

sensitive exercise giving rise to no point of principle. Moreover, we do not

accept counsel’s submission that emergency responders convicted of

offences of this kind should not go to prison as a matter of law’.

And at Paragraph 15 of the judgement:

‘In this case there was, as the Judge observed, a serious error of judgement

on the part of the appellant in driving through a red light and causing a

collision with a car that was in the junction, neither of which he saw. The harm

involved was very high. On the other hand, this is a case where the appellant

has very weighty mitigation. In addition to the fact that he was an emergency

responder, he has a good driving record. He is a police officer with, as the

Judge observed, a high sense of public service and a commendable record

and he has been genuinely remorseful. There are no guidelines in relation

to sentencing for this offence. Having analysed the facts of the offence

together with the powerful mitigation provided by the fact the appellant was

an emergency responder and recognising the stress and the tension caused

by that, together with the personal mitigation in this case, we consider that

the appropriate sentence was a sentence of 6 months but that sentence was

properly suspended and should be suspended for 2 years. Ground 1

accordingly succeeds to that extent.

244

They also went on to say that the Judge was entitled to conclude that the appellant failed to make out special reasons on the facts as to why he should not be disqualified. They did however reduce the 3 year disqualification to one of 2 years.

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