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Contents... A Forward to the 2014 Editions of Crime Scribe................................................. 4 1 2

Barker & Another v Leicester Crown Court & Another....................................................... 8

February 2014....................................................................................................................... 26

Nicholls v Director of Public Prosecutions [2013] EWHC 4365 (Admin)............................. 28

Transforming Legal Aid – Next Steps: Government Response.......................................... 38

Crown Court work – payment to the litigator..................................................................... 44

Crown Court work – payment to the Advocate................................................................ 46

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Breech proceedings............................................................................................................... 58

May 2014.................................................................................................................................. 62

Offender rehabilitation Act 2014.......................................................................................... 66

Case Law................................................................................................................................. 69

June 2014................................................................................................................................. 74

July 2014................................................................................................................................... 82

August 2014............................................................................................................................ 90

The Victim Surcharge - The very latest................................................................................. 95

Magistrates’ Courts trial preparation form.......................................................................... 97

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April 2014.................................................................................................................................. 48

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March 2014............................................................................................................................. 38

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January 2014......................................................................................................................... 8

Practice Areas Civil Litigation Company/Commercial Commercial Litigation Commercial Property Criminal Law Employment Family Financial Management & Compliance Immigration Insolvency Personal Injury Residential Property Wills & Probate

September 2014................................................................................................................. 98

10 October 2014........................................................................................................................ 108

Criminal Behaviour Orders..................................................................................................... 116

Detention and Training Orders.............................................................................................. 116

11 November 2014.................................................................................................................. 118

Case Law................................................................................................................................. 120

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A Forward to the 2014 Editions of CrimeScribe

Hello and welcome to this forward in relation to the 2014 Editions of CrimeScibe. I do hope that you have enjoyed reading them, both for their legal content and for my comments. It was a very busy year with, as usual, important pieces of legislation being brought into force through Statutory Instruments and some really interesting case-law on topics across the board including the very important area of costs. Here we are at the tail end of 2014 and the future is as unpredictable as ever! We started the year (Edition No. 29) with the piloting of video recorded crossexamination under Section 28 of the Youth Justice and Criminal Evidence Act 1999. I have no doubt that they aim to roll this out nationally and I expect it to be with us in 2015. Very important parts of the Crime and Courts Act 2013 came into force and we have a new regime in relation to the retention/destruction of DNA/fingerprints as a result of the implementation of the Protection of Freedoms Act 2012. The Criminal Records Bureau was re-named the Disclosure and Barring Service and certain old and minor convictions/cautions will now be deleted from certificates. In relation to legal aid those defendants with a disposable household income of £37,500 a year or more became ineligible for Crown Court legal aid, even for matters on indictment! (Edition No. 30). The new Domestic Violence Protection Notices and Domestic Violence Protection Orders under the Crime and Security Act 2010 went live in March 2014. These were very successful in the pilot areas and do expect them to become a feature in your local Magistrates’ Court. Also, important procedural amendments were made in the Magistrates’ Court as a result of the implementation of Schedule 3 of the Criminal Justice Act 2003 (Edition No. 31). We still await our fate in relation to the future of criminal legal aid. Edition No. 32 was devoted to a summary of the main proposed changes outlined in the MOJ document published in the earlier part of the year.

Chapter 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has given us an entirely new Table at the back of the Rehabilitation of Offenders Act 1974. This Table sets out the rehabilitative period’s applicable dependent upon the sentence imposed. It is an important Table and practitioners need to be fully aware of the different periods. I also covered the interrelationship between the Table and Certificates issued by the Disclosure and Barring Service (Edition No.33). Important parts of the Anti-Social Behaviour, Crime and Policing Act 2014 came into force on 13th of May 2014. These included the somewhat bizarre alterations to theft by way of low- value shoplifting (Section 176). We also have to keep an eye on the Offender Rehabilitation Act 2014 which will change everything in relation to post release supervision of short-term offenders (i.e. those offenders serving less than two years). On the costs front the very important case of MacLaverty informing us that CCTV evidence does not fall within the definition of a ‘document’ and there is therefore no mechanism for remuneration! (Edition No. 34) BH (a child) v Llandudno Youth Court was a very interesting read in relation to the decision of a District Judge to send an 11-year-old to the Crown Court for trial on a serious and grave crime. The High Court gave some guidance as to the undesirability of people so young being sent to the Crown Court. The Judicial Review was granted and the sending quashed. Further amendments were made to the Victim Surcharge as a result of Section 179 of the Anti-Social Behaviour, Crime and Policing Act 2014. The possession of Khat was made a criminal offence. Concerns were raised about the amount of time suspects had to spend on pre-charged bail. Expect amendments in this area in 2015 (Edition No. 35). A new Practice Direction on costs was issued. The Criminal Practice Directions were updated. There was a review of the power of the Attorney General to refer to the Court of Appeal unduly lenient sentences (in the news at the moment). The pilots for the new Alcohol abstinence and monitoring requirement within a community order/ suspended sentence order started in July 2014 and will last for 12 months in Croydon, Lambeth, Southwark and Sutton. The defence of marital coercion was abolished. Four new toolkits were issued as a free resource on the Advocate’s Gateway. The penalties for possession of certain firearms were increased (Edition No. 36) Edition No. 37 was devoted to Section 56 and Schedule 22 of the Crime and Courts Act 2013 which will create a new offence of ‘driving, attempting to drive or being in charge of a motor vehicle with a specified controlled drug in the blood or urine in excess of the specified limit for that drug. The limits have now been published by way of a Statutory Instrument and expect this new offence to come into force in March 2015.

Anyone responsible for the billing of Crown Court work must read the very important case of R v Napper. It is all about claiming as PPE rather than as Special Prep where the evidence is served upon the defence by way of a disc. The Edition also details the extremely important costs case of R v Nutting in the same area. (Edition No. 38). Issue No. 39 covered the amendments to legal aid where the Representation Order is dated on/after the 2nd of October 2014. It also dealt with the new Guidance issued by the Justices clerks as to when defendants surrender to bail. Is there one continuous trial or a trial and a re-trial? See the case of R v Adil Khan. Understand the law in relation to Terminating Rulings â&#x20AC;&#x201C; R v B. What is the credit available on a mandatory minimum sentence case? â&#x20AC;&#x201C; R v Malkin. The very latest on the re-organisation of the probation Service (Edition No. 40)

Section 1 January 2014

Hello and welcome to this month’s edition of CrimeScribe. Last month I wrote a paper on the current position on the new Retention/Destruction of Samples regime and this month I have written a paper in relation to eligibility for a Crown Court Representation Order and the amendments coming in on the 27th January this year. It was my intention to write a paper on the new proposals concerning the payment of Criminal Legal Aid but the announcement seems to have been put back until the end of January. Let’s start off with the case of Barker & Another v Leicester Crown Court & Another [2012] EWHC4381 (Admin) Yet another example of youths and adults ending up at the Crown Court; the adult pleading guilty and the youths being remitted back to the Youth Court for trial. In this particular case the youths were tried and convicted. The High Court granted the Judicial Review and quashed the convictions. Just so that we are all clear on the point there is no power for a Crown Court Judge to remit a youth back to the Youth Court for trial purposes. The only power of a Crown Court Judge is to remit a youth back to the Youth Court for the area in which he or she is habitually resident for sentencing purposes post-conviction. If this means that the trial of the youths has to take place on indictment without any adult co-defendants being present then so be it. It is an unsatisfactory state of affairs as has been said previously. The High Court had held in the earlier decision of R (W a minor) v Leeds Crown Court [2011] EWHC 2326 (ADMIN) that the Recorder of Leeds was absolutely right to hold that there was no such power. Perhaps this is something that Parliament needs to look at afresh. It may be of little comfort to you as a Defence Lawyer that the only Court that can severe the youth from the adult and remit the youth to the Youth Court for trial is the Magistrates’ Court. The reality is that they might be very reluctant to do so where the adult co-defendant has elected trial by jury or where the Magistrates’ themselves have declined jurisdiction in relation to the adult co-defendant and he is being sent for trial. Severance is possible in the interest of justice but the defence are not likely to be successful in achieving severance at this stage in the proceedings unless they can indicate on behalf of their client a guilty plea.

R (Director of Public Prosecutions) v Swindon Magistrates’ [2013] EWHC4237 (Admin) was an interesting case concerning a committal to the Crown Court under the Proceeds of Crime Act 2002. Both defendants had been convicted on a joint charge of Converting Criminal Property contrary to Sections 327 (1) and 334 of the Proceeds of Crime Act 2002. They were convicted after a summary trial in the Magistrates’ Court in Swindon. Following the conviction the Prosecution wished to pursue the making of a Confiscation Order under Section 6 of the 2002 Act. The Magistrates’ Court has no power to make such an Order. Accordingly, the Prosecution triggered the provisions of Section 70 of the Act under which, if the Prosecutor asks the Court to commit the defendant to the Crown Court with a view to a Confiscation Order being considered under Section 6, the Magistrates’ must do so; see subsection (2) of Section 70. An Order was duly made committing each of the defendants to the Crown Court to be dealt with by the Crown Court in accordance with subsection (2) of Section 71. Under these provisions, the Crown Court is limited in its sentencing powers to those available to the Magistrates’ Court unless the Magistrates’ have stated, when making the Section 70 Committal Order, in accordance with subsection (5) of Section 70 that they would have committed the defendants to the Crown Court for sentence under Section 3(2) of the Powers of Criminal Courts (Sentencing) Act 2000. These are the provisions which enable a Magistrates’ Court to commit a defendant summarily convicted of an offence triable either way for sentence to the Crown Court so that the full range of sentencing powers of the Crown Court will be available to it, but it can only do so if the Magistrates’ Court is “of the opinion that the offence was so serious that greater punishment should be imposed for the offence than the Court has power to impose”; see subsection (2) and subsection (3). Under Section 70(5) of the Act, the Magistrates’ are obliged when making a committal under Section 70 to state whether it would have made a Section 3 committal. In the instant case, the Magistrates’ stated that they would not have committed the defendants for sentence, with the result that the Crown Court was limited in its sentencing powers when dealing with the two defendants. The DPP applied for Judicial Review in the High Court to seek to challenge this decision of the Magistrates’ to limit the powers of the Crown Court in this way. The High Court saying this at paragraph 51 “In all the circumstances, the Justices decision to commit with the declaration under Section 70(5) that they would not otherwise have committed for sentence was clearly wrong, given the nature of the case and the antecedents of the accused. The decision falls far outside the limits of any reasonable exercise of discretion.

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They further said this at paragraph 52 ‘That said, I accept that there has been unwarranted delay in this case, for the reasons analysed by My Lord. Whilst I would grant leave and would have been prepared to hold that the Justices’ decision was wrong, I would decline to quash the declaration made under Section 70(5) below, and thus these accused will be sentenced within those limitations when the case returns to the Crown Court next week’.

Statutory Instrument 2013 No.2774 is the Police & Criminal Evidence Act 1984 (Amendment: Qualifying Offences) Order 2013. It came into force on 11th November 2013. It inserts new offences into Section 65A(2) of the Police & Criminal Evidence Act 1984 (Qualifying Offences). As you know the significance of the list of “Qualifying Offences” in Section 65A of PACE is that it is for these offences that a Constable can require a person convicted of the offence to attend at a Police station for the purpose of taking his fingerprints or a non-intimate sample. Many offences are listed and I don’t propose to list them but they are all to be found in article 2 of the Statutory Instrument. We have a new document from the Attorney General in relation to Disclosure of Unused Material. It is available from the Attorney General’s website and is entitled Attorney General’s Guidelines on Disclosure. These new guidelines replace the 2005 and 2011 guidelines. The document was published in December 2013. It is a “must read” for all Criminal Practitioners involved in the Criminal Trial process. Paragraph 44 reads as follows: Magistrates’ Courts (including the Youth Court) ‘The majority of criminal cases are heard in the Magistrates’ Court. The requirement for the Prosecution to provide initial disclosure only arises after a not guilty plea has been entered but Prosecutors should be alert to the possibility that material may exist which should be disclosed to the defendant prior to the CPIA requirements applying to the case’.

To be read in conjunction with these guidelines is a document produced by the Judiciary of England and Wales entitled “Judicial Protocol on the Disclosure of Unused Material in Criminal Cases”. This document was also published in December 2013. As with the Attorney General’s document it is a must read for Criminal Practitioners involved in any aspect of the trial process. I am just going to quote one paragraph from it and it is paragraph 33 and reads as follows: ‘The case management forms used in the Magistrates’ Courts fulfil some of the functions of a defence statement, and the Prosecution must take in to account the information provided as to the defence case when conducting its ongoing review of unused material. As the Court of Appeal noted in R v Newell (supra), admissions can be made in the Trial Preparation Form and the defence is able to

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identify the matters that are not in issue. Admissions made in these circumstances may be admissible during the trial. However, other information on the form that does not come within the section relating to admissions should be treated in the same way as the contents of a PCMH form in the Crown Court and it should not generally be introduced as part of the evidence at trial. However, the contents of the Trial Preparation Form do not replace the need to serve a defence statement if the defendant seeks to apply for disclosure under Section 8 of the CPIA’.

Whilst on the subject of important documents do note that The Sentencing Council has published a new Sentencing Guideline for Sexual Offences which comes into force in Courts in England and Wales in April 2014. The document covers some 50 offences including rape, child sex offences, indecent images of children, trafficking and voyeurism. Key changes include: allowing proper consideration of the vulnerability of the victim such as through age or disability or a background of physical or emotional abuse; broadening the wording of various aggravating factors to ensure they cover the great range of offending, for example in relation to abuse of trust where an offender has abused the trust that may come with status or image; ensuring good character can now be an aggravating factor when it has facilitated an offence – such as when it leads a child to trust the offender, makes it harder to report an offence or be believed; and, adding various new aggravating factors. In relation to exploitation offences, “threats of exposure” to family or others is now included to cover situations where this is used as a further means of controlling victims. The guideline will replace existing guidance issued by the Sentencing Guidelines Council following the Sexual Offences Act 2003. Like all of these guidelines it is available on the Sentencing Council’s website. I have mentioned this in the past but it’s worth a mention again. The Criminal Records Bureau (CRB) is now to be known as The Disclosure & Barring Service (DBS). This is the body that is responsible for issuing Criminal Record Certificates to those organisations/employers wanting to know about a person’s history. As from 29th May 2013 the service has been removing certain old and minor offences from Criminal Record Certificates issued after that date changes as legislation was brought in on 29th May 2013 allowing the service to do so. Those changes were brought about as a result of the implementation of Part 5 Chapters 1, 2 and 3 of the Protection of Freedoms Act 2012. The relevant sections are 64-101. If you have to do any detailed research in this area please do check the Commencement Orders for this particular piece of legislation because not all of the sections are yet in force. What follows is a summary of what has been happening since May 2013: Filtering rules for Criminal Record check Certificates

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For those 18 or over at the time of the offence: An adult conviction will be removed from a DBS Certificate if: 11 years have elapsed since the date of conviction; and It is the person’s only offence, and It did not result in a custodial sentence Even then, it will only be removed if it does not appear on the list of offences which will never be removed from a certificate. If a person has more than one offence, then details of all of their convictions will always be included. An adult caution will be removed after six years have elapsed since the date of the caution - and if it does not appear on the list of offences that will never be removed. For those under 18 at the time of the offence; The same rules apply as for adult convictions, except that the elapsed time period is 5.5 years. The same rules apply as for adult cautions, except that the elapsed time period is 2 years. The term “caution” includes reprimands and warnings A conviction is a determination of guilt by a Court in relation to a specific offence. Multiple offences, whether arising from different occasions or from a single event, and in relation to which a Court on one or more occasions reaches a determination of guilt, are to be treated as multiple convictions for filtering purposes. Whether or not it was lawful for the Police to request fingerprints and a DNA sample was the subject of the recent case in the High Court – R (on the application of R) and a Chief Constable [2013] EWHC2864 (ADMIN). The High Court taking the view that so long as the procedural steps required by the legislation were taken and the relevant authorisation given by an Inspector then the process was a lawful one and proportionate despite, of course, the obvious interference with the private life of a subject. Those of you wishing to know more about the change in the law concerning the use of force in self-defence at a place of residence should go on to the Ministry of Justice website and read circular No.2013/02. The law is contained in Section 43 of The Crime in Courts Act 2013. Section 43 adding new subsections to Section 76 of The Criminal Justice & Immigration Act 2008. I have mentioned this in a previous edition

of CrimeScribe and at that stage I was not sure whether or not the amendments had been made. Apparently, reading paragraph 19 of this circular has informed me that the provisions in Section 43 of The Crime & Courts Act 2013 came into force on the day the Bill received Royal Assent on 25th April 2013. I get excited about a lot of legal things but even I thought that Statutory Instrument 2013 No.3183 entitled The Criminal Procedure (Amendment No.2) Rules 2013 would be a bit of a dry read. I could not have been more wrong! Article 6 of this Statutory Instrument (which comes into force on 7th April 2014) amends part 9 of the current Criminal Procedure Rules which refer to allocation and sending for trial. We will be given a new paragraph 6 in Rule 9.2. It is an important paragraph because it clarifies something which was not that clear in the amendments to the Magistrates’ Courts Act 1980 brought about by the implementation of schedule 3 of The Criminal Justice Act 2003 on 28th May 2013 (see Statutory Instrument 2013 No.1103 – The Criminal Justice Act 2003 (Commencement No.31 and Saving Provisions) Order 2013. In a nutshell the paragraph makes it abundantly clear that if one defendant is sent to the Crown Court for trial then the Court must send for trial in the Crown Court any of them who is charged with the same offence as the defendant sent for trial or with an offence which the Court decides is related to that offence unless that other defendant (or those other defendants) want to plead guilty in the Magistrates’ Court. Those of you who have been around for some time will fully appreciate that this is the end of the individual right of election. It was said long ago in the case of Brentwood Justices ex-parte Nicholls that if the Court agreed that the case was suitable for trial in the Magistrates’ Court then one co-defendant could elect trial by jury and the other co-defendant could decide to have their trial in the Magistrates’ Court. Alas, this is no more. Although the new rule will not come into effect until 7th April 2014 the legislation is already in force; being changed quite significantly by schedule 3 of The Criminal Justice Act 2003. Please forgive me if I have mentioned these documents in the past but I had cause to be reading them again this week. The Legal Aid agency has published new Crown Court fee guidance for litigators and new Crown Court fee guidance for advocates. The new guidance replaces the old guidance. The issue date was 26th April 2013. The Appendices to the document are also well worth a read. If your guidance documents are those relating to February 2011 may I suggest that you print off the new documents. The case of R v McCarthy [2013] EWCA CRIM2500 was yet another reminder to us that, absent exceptional circumstances, the mandatory minimum sentence, even on a guilty plea, to an offence contrary to Section 5(1A)(a) of The Firearms Act 1968

is 5 years imprisonment. The item in question in this particular case being a firearm disguised as another object namely a stun gun disguised as a mobile phone. The exceptional circumstances justifying a term less than 5 years may relate to the offence or the offender. There are many things for the lawyer to think about when dealing with historical sex matters. Near the top of your list should be the maximum penalty available for the offence at the time of its commission. We have had more than one case concerning this recently. The latest is R v Taylor (Barry) [2013] EWCA CRIM2398 None of the lawyers spotted it which was rather embarrassing but it was spotted by the staff in the Criminal Appeal office. A sentence of 9 years imprisonment had been imposed on a count of attempted rape. The sentence was unlawful because at the relevant time the maximum sentence for the offence of rape under The Sexual Offences Act 1956 would have been 7 years imprisonment. It was not until The Sexual Offences Act 1985 that the maximum sentence for rape was increased to life imprisonment. We have had The Sexual Offences Act 2003 for more than a decade and we seem to have taken our eyes off The Sexual Offences Act 1956. This is a piece of legislation still very much on the Statute Book and relevant for all sexual activity that occurred before 1st May 2004. If you’re dealing with old matters please do familiarise yourselves with the provisions of the 56 Act. Section 28 of The Youth Justice & Criminal Evidence Act 1999 came into force on 30th December 2013 in relation to relevant proceedings – see Statutory Instrument 2013 No.3236 Section 28 provides that where the video recorded evidence in chief of a witness has been admitted under Section 27 of the Act the Court may also direct that the video recorded cross examination of that witness may also be admitted as evidence. The procedure is the subject of a pilot at the following Courts: Kingston-upon-Thames, Leeds and Liverpool (Crown Courts) The case of DPP v Jarman is yet another reminder to us that where a Court dismisses the case for want of prosecution under Section 15 of The Magistrates’ Courts Act 1980 (the prosecutor not being present). This is not the same as a dismissal of information triable either way under Section 27 of the same Act. There could therefore be no question of a successful argument of “autrefois acquit” because the defendant was not at peril of conviction at the time of the dismissal under Section 15. The case was heard in December 2013. Eligibility for a Crown Court representation order – all change 27 of January 2014

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Pre the 27 January the position was very simple. Everyone facing a matter on indictment at the Crown Court was eligible for legal aid. The vast majority of representation orders were assessed at nil contribution but some, as we know, came with an income-based contribution payable each month for 6 months with the client not having to pay the final month where payments were regularly made. The income-based contributions were payable during the currency of the case and at the end of the case an assessment was made as to whether or not the client would have to pay the balance of the defence costs from capital. The first £30,000 of capital was protected with the rest ‘up for grabs’. It was never their intention to make a profit on the deal and the contribution payable would never be more than the actual defence costs (i.e. the costs of the litigator, advocate and any disbursements) The important point pre the 27 January was that everyone was entitled to a representation order. The client was automatically pass-ported through the interests of justice test for matters on indictment i.e. the only issue was whether or not the representation order was granted with or without a contribution payable. Where the matter was not a matter on indictment i.e. an appeal (against conviction or sentence) the interests of justice test prevailed and the client could be refused a representation order on that basis. Where a representation order was granted for an appeal it would come with a fixed contribution – £500 in the event of a re-trial and £250 in the event of an appeal against sentence. The Legal aid, Sentencing and Punishment of Offenders Act (Schedule 7) removed the power of a Crown Court Judge to grant a defendant’s costs order for a matter on indictment. This was because it was considered unnecessary to instruct a lawyer privately because everyone was eligible for a representation order with either a nilcontribution or a monthly income-based contribution. The only power available to a Crown Court Judge was to grant a defendant’s costs order to someone who was successful at the Crown Court in their appeal against either conviction or sentence and who had been refused a Crown Court representation order by failing the interests of justice test. The position with effect from 27 January 2014 is different and those of you with the stomach for such matters should consider reading the following Statutory Instruments: The Criminal Legal Aid (General) (Amendment) Regulations 2013 – Statutory Instrument 2013 No. 2790 The Criminal Legal Aid (Financial Resources) (Amendment) Regulations 2013 – Statutory Instrument 2013 No. 2791 (in particular paragraph 37 which deals with reviews of decisions)

The Criminal Legal Aid (Contribution Orders) (Amendment) Regulations 2013 – Statutory Instrument 2013 No. 2792 The Costs in Criminal Cases (General) (Amendment) (No. 2) Regulations 2013 – Statutory Instrument 2013 No. 2830 The Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013 – Statutory Instrument 2013 (no number as yet because I could only find the draft un-numbered Statutory Instrument) The website is legislation.gov.uk The Crown Court means test has been amended to introduce a FINANCIAL ELIGIBILITY THRESHOLD. This means that after this date not everyone will be eligible for a Crown Court representation order even though the matter is a matter on indictment. It will only affect a SMALL percentage of clients but for those affected by it, the results will be devastating! They will either be unrepresented in the Crown Court proceedings or paying their lawyers privately and that could be a very expensive undertaking! The process for applying for a Crown Court legal aid will not change in that the application will still have to be made in the Magistrates’ court where the first hearing of the case will take place using the normal CRM14 and, where applicable, CRM15 (financial statement). The figures that they use at the moment to assess annual household disposable income will not change. There will now be 2 tests which must be passed in order to become eligible for a representation order in Crown Court proceedings: The INTERESTS OF JUSTICE test – this is hardly going to be problematic bearing in mind the seriousness of the matter faced by the client. The MEANS TEST – this will involve the consideration of a person’s financial position, e.g. household income, capital and outgoings. In the past the means test has been used to decide whether or not the representation order comes with a nil-contribution or a monthly based income-contribution. It has been the case for some time now that where the client failed the test and the matter was being heard in the Magistrates’ court then the client would be ineligible for legal aid (in the Magistrates’ Court it being an ‘in’ or ‘out’ system). Not so where the matter was being heard in the Crown Court as a matter on indictment because the system was formally an ‘in with a contribution’ or ‘in with a nil contribution’.

From 27 January 2014 and beyond there will be no change whatsoever for those clients whose ANNUAL HOUSEHOLD DISPOSABLE INCOME is below the threshold i.e. the vast majority of clients. The new test will apply to all new applications for legal aid i.e. signed and dated on or after 27 January 2014. THE BAD NEWS FOR SOME IS THAT WHERE THE ANNUAL HOUSEHOLD DISPOSABLE INCOME IS £37,500 OR MORE THE APPLICATION WILL BE REFUSED. What advice can be given to a client whose application has been refused? Refer the matter back to the court staff if there has been some sort of mathematical or administrative error. A Review if the figures are all correct but the reality of the situation is that the client does not actually have the annual household disposable income assessed (see paragraph 37 of Statutory Instrument 2013 No.2791). This is going to crop up frequently because the client will have expenditure/liabilities that are simply not taken into account when the initial calculations are done. This has been the case, has it not, for many a year now in the Magistrates’ court. The application will be to the LAA on a CRM16 (no doubt we are all familiar with this hardship application) we will have to make out a case on the client’s behalf clearly detailing the expenditure not taken into consideration when the original calculation was done. We must also, as with the Magistrates’ court reassessment, give an estimate of the LIKELY PRIVATE COSTS to the client of the case. This might be a tricky calculation based upon the stage of the proceedings. All we will really know at this stage is the nature of the allegation(s). Our fee payable under any representation order will be dependent upon page count (PPE) and TRIAL LENGTH if there is to be a trial. Even though it will be a difficult calculation to make it is nonetheless a very important calculation because under paragraph 37 of Statutory Instrument 2791 the individual must supply –

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I know this is all very new but it would seem to me that it’s going to be quite difficult to estimate costs within 21 days of the initial refusal decision by the Director. All this will be done using a CRM16. As you know from your Magistrates’ Court experience the form requires us at Part 9 to give details of the Solicitors costs. The form will require amendment because at the moment it says ‘Solicitors costs (not applicable for Crown Court trials)’ Once the further information has been provided in relation to additional expenditure (not taken into account when the original decision was made) and our private costs, it may be that the client’s disposable income falls below the threshold i.e. below £37,500. If this is the case they may well be granted a representation order albeit subject to an income-based contribution with a further capital contribution at the end of the case if relevant. In deciding the level of any contribution payable the additional expenditure accepted by the Director would be taken into account to assess the level of any contribution but the estimated private legal costs are not included in calculating the level of any contribution (clearly they would not be relevant; the client is not paying the lawyer privately any longer) It’s good news if the additional expenditure takes the client below the threshold. Any contributions paid would automatically be refunded with interest in the event of an acquittal at the Crown Court. In the event of a partial acquittal at the Crown Court of some of the counts on the indictment it is incumbent upon the lawyer to apply to the Judge for what we call ‘judicial apportionment’. The Judge may ‘tinker’ with the contribution aspect of the representation order. If that application is not made on the day it should be made in writing to the Judge within 21 days of the conclusion of the proceedings. A client is always entitled to apply for a review at any time during the case if their financial circumstances change. A RE-APPLICATION (which is something quite different from a review of the original application) must be made in the form of the submission of a new CRM14 and, where appropriate CRM15 to the relevant Magistrates’ court. Do bear in mind that the order, if granted, will only operate from the point of application and not from the date of the original application which had been refused. I suppose there is a crumb of good news for the defendant who has to pay his lawyer privately in the Crown Court proceedings. In the event of ‘winning the case’ within the meaning of Section 16 of the Prosecution of Offences Act 1985 (and that includes getting the proceedings ‘stayed as an abuse of process’ – see the case of

R E Williams and Sons Ltd) the lawyer will be able to apply for a ‘defendant’s costs order’ and the Judge will have the power to grant such an order even though the matter was ‘a matter on indictment’. This change in the regulations is required and only applies to those defendants who were ineligible for legal aid at the Crown Court based on their means. The reason I call it ‘a crumb of good news’ is that the order made by the Judge will be taxed at legal aid rates and the client may have paid the lawyer an awful lot more than that! Remember that the person with a representation order subject to a contribution gets all of their contributions back in the event of being successful in their case. IT IS ALSO VERY IMPORTANT TO FULLY APPRECIATE THAT SUCH AN APPLICATION FOR A DCO CAN ONLY BE MADE WHERE LEGAL AID WAS APPLIED FOR AND REFUSED –SO NO MATTER HOW HOPELESS THE APPLICATION PUT ONE IN! My understanding is that the position is quite different where the matter at the Crown Court is the subject of an appeal from the Magistrates’ court. If that is the situation and the client passes the interests of justice test a representation order for Crown Court proceedings will be available subject to a fixed fee contribution of £500 for a re-trial and £250 for an appeal against the severity of the sentence. The 27th of January amendments only apply to proceedings which are categorised as ‘matters on indictment’.

Section 2 February 2014

Hello and welcome to this month’s edition of CrimeScribe. Still no news on our fate in so far as Transforming Legal Aid is concerned. As you know, the consultation ended on the 1st of November and we all thought that they would publish their findings in January but nothing so far and I now read that we can expect it at the end of February at the earliest. Apparently QASA is all lawful and so they will, no doubt, be pressing on with that and we must turn our attention to it. Please do not miss your window for registration. Looking on the Internet there doesn’t appear to be complete conformity in the timetable dates but I think these are the current dates, do check them! 30th of September 2013 – 30th of May 2014: Midlands and Western Circuit – Phase 1 13th June 2014 (some say 31st of May 2014) – 3rd of October 2014: South-Eastern Circuit – Phase 2 4th October 2014 – 31st of December 2014: Northeast, Northern, Wales and Chester Circuit – Phase 3 Later on in this edition of CrimeScribe I shall be dealing with Domestic Violence Protection Notices and Domestic Violence Protection Orders. These have been the subject of a trial period in the following areas: Greater Manchester Wiltshire West Mercia I mention them because my understanding is that they are coming to a Magistrates’ Court near you in March! I have just done some research to find out what the penalty is for being in breach of a DVPO and apparently it is to be treated as a breach of a civil order under Section 63 of the Magistrates’ Courts Act 1980 with the penalties being: A sum not exceeding £50 for every day during which he is in default or a sum not exceeding £5000; or

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Committal to custody until he has remedied his default or for a period not exceeding 2 months More of this later in the edition. R v Myers [2013] EWCA Crim 2423 This case re-visited a topic familiar to readers of CrimeScribe. The issue concerned the amendment of an information/charge for a summary only offence outside of the six-month limitation period – see Section 127 of the Magistrates’ Courts Act 1980. The Appeal Court taking the view that the amendment was unlawful because it did not continue to allege the same ‘misdoing’ as the original information/charge – the leading case in this area, as you well know, being R v Scunthorpe Justices. Just reminding you that we have new forms: CRM 14, CRM 15, CRM 15C and CRM 16

Nicholls v Director of Public Prosecutions [2013] EWHC 4365 (Admin) The question stated by the Justices for the opinion of the High Court was as follows: ‘What is the effect of the Justices making findings in a Newton hearing without reference to the basis of plea when announcing their findings on the disputed issue, where the findings alone mean that the offence of affray would not have been made out?’ The High Court saying at paragraph 10 – ‘.......there was no need for the Justices to make findings on undisputed facts’. The defendant, by his own plea, accepted that he was guilty of the offence albeit there were certain areas of factual dispute. I cannot help but feel that the Justices strayed into murky waters in this case when there was absolutely no need for them to do so. Perhaps it’s just me but I really couldn’t see what the appeal point was all about in the case of R v Leroy Lewis [2013] EWCA Crim 2596. The indictment consisted of attempted theft and two matters of common assault. They arose from the same facts as the attempted theft and common assault is mentioned as an offence within section 40 of the Criminal Justice Act 1988 which can be added to the indictment. There was nothing wrong therefore in the Crown Court continuing with the summary only offences to trial when the either way offence was dismissed.

Parts 1 to 3 and 5 to 7 of Schedule 16 of the Crime and Courts Act 2013 amended the law in relation to community orders where the offence was committed on or after 11 December 2013. The court is now required, when imposing a community order, either to include a requirement that fulfils the purpose of punishment, or impose a fine (or do both) unless there are exceptional circumstances that would make that unjust. Part 2 of Schedule 16 amends the Powers of Criminal Courts (Sentencing) Act 2000 to make it explicit that courts can use their existing powers to defer sentence to allow for a restorative justice activity to take place. Part 3 of Schedule 16 amends the Powers of Criminal Courts (Sentencing) Act to remove the limit of £5000 on a compensation order made by a Magistrates’ Court. Part 5 of Schedule 16 removes un-commenced provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) relating to breach of a community order. Section 150 of the Criminal Justice Act 2013 was amended by the Crime and Courts Act 2013 on 11 December 2013 to make it clear that a community order cannot be passed where the mandatory minimum sentence condition for certain knife crime offences is met (Section 1A Prevention of Crime Act 1953; Section 139AA Criminal Justice Act 1988). Leaving aside certain provisions of certain Acts (which allow for greater amounts) the maximum permissible fine in the Magistrates’ Court for an offence is currently £5000 – when section 85 of LASPO comes into force this limit will be removed. Section 57 of the Crime and Courts Act 2013 amended Section 5 of the Public Order Act 1986 on 1 February 2014 to delete the word ‘insulting’. We are left with threatening or abusive words or behaviour, or disorderly behaviour, causing harassment alarm or distress. Although not yet in force at the time these notes were written (January 2014) section 56 and Schedule 22 of the Crime and Courts Act 2013 will create a new offence of ‘driving, attempting to drive or being in charge of a motor vehicle with a specified controlled drug in the blood or urine in excess of the specified limit for that drug’ the new offence is inserted as a new Section 5A in the Road Traffic Act 1988. A controlled drug is defined in Section 11 of the 1988 Act, as amended by Subsection (2) (a), by reference to the Misuse of Drugs Act 1971. The definition of a controlled drug is set out in Section 2 of the Misuse of Drugs Act which in turn refers to drugs listed in Schedule 2 to that Act. As you know, it is already an offence under Section 4 of the 1988 Act to drive whilst impaired by drugs (or alcohol), and the Section 4 offence will remain in place alongside the new offence. Unlike the Section 4 offence, the new offence will not require proof of impairment. In this respect it is similar to the offence in Section 5 of the 1988 Act of driving, attempting to drive or being in charge

of a motor vehicle with an alcohol concentration above the prescribed limit. The penalties available for the new offence, set out in Subsection (4) (which amends Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988), are the same as those for the offence in Section 5 of the 1988 Act (i.e. the penalty is set out in Schedule 2 to the Road Traffic Offenders Act 1988). New section 5A (2) of the 1988 Act allows for different specified limits to be set for different controlled drugs. Specified limits could be set based on evidence of the road safety risk posed by driving after taking the drug, or based on an approach whereby it is not acceptable to drive after taking any appreciable amount of the drug (or somewhere in between). New Section 5A (9) provides that specified limits could be 0, though this does not mean that limits would in fact be set at 0. New section 5A (3) of the 1988 Act provides for a defence if a specified controlled drug is prescribed or supplied in accordance with the Misuse of Drugs Act and taken in accordance with medical advice. The offence in Section 4 of the 1988 Act would continue to be used to deal with those whose driving is impaired by specified controlled drugs taken in such circumstances. It would also continue to be used to deal with those whose driving is impaired by drugs which are not specified for the purposes of the offence (including other prescribed drugs and â&#x20AC;&#x2DC;legal highâ&#x20AC;&#x2122; cases). New Section 54(4) of the 1988 Act provides that the defence is not available if medical advice about not driving for a certain period of time after taking the drug has not been followed. New section 5A (6) of the 1988 Act provides for a defence for someone who is accused of being in charge of a motor vehicle with a specified controlled drug in the blood or urine above the specified limit for that drug, if it can be shown that there was no likelihood of the person driving the vehicle while over the specified limit. This is similar to the defence in Section 5(2) of the 1988 Act. Paragraph 3 amends Section 6C of the 1988 Act so as to allow up to 3 preliminary tests of saliva (or sweat) to be taken when testing for drugs. The current position is that one test can be taken, but this would be insufficient for the purposes of the new offence, given that current drug screening technology can test for a limited range of drugs only using a single preliminary test. Evidential testing for drugs would continue to be through blood or urine samples. Saliva or sweat tests would therefore not be used in the same way as evidential breath tests are for drinking and driving and indeed sweat tests are not under consideration even as preliminary tests. For drinking and driving, breath tests are the most frequent method used for both preliminary and evidential testing.

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Paragraph 4 amends Section 6D of the 1988 Act to allow for a power of arrest after a preliminary drug test relating to the new Section 5A offence. At the moment the government proposes a zero tolerance approach to 8 controlled drugs – Cannabis, MDMA (Ecstasy), Cocaine, Ketamine, Benzolecgonine (primary metabolite of Cocaine), Methamphetamine, Lysergic acid Diethylamide (LSD), 6-Monoacetyl Morphine (MAM-Heroine and Diamorphine). Large parts of Schedule 3 of the Criminal Justice Act 2003 came into force in May 2013. Schedule 3 is quite a read and runs to some 41 sides. Schedule 3 Paragraph 10 has inserted a new section 24A into the Magistrates’ Courts Act 1980. Section 24A (1) and (2) requires that, unless the charge is homicide or a minimum sentence charge relating either to firearms or the minding of Violent Crime Act weapons, the youth must be asked to enter a plea. This would appear to be the case whether the youth is appearing alone in the youth court or jointly with an adult in the adult court. If the plea is guilty then the youth is either sentenced in the Adult Court (with its limited sentencing powers) or remitted to the Youth Court for sentence or committed to the Crown Court for sentence under either Section 3B potential sentence under Section 91 ‘Grave Crimes’ or Section 3C (Dangerousness) Powers of Criminal Courts (Sentencing Act) 2000. This is a really important amendment to the law. It enables the court to take a plea of guilty from a youth in a serious and grave crime and thereafter to commit for sentence to the Crown Court if it considers its sentencing powers are insufficient – section 3B. If the plea is not guilty then section 24A falls by the wayside (section 24A (8) says so) and the court is thrown back to the provisions of the Crime and Disorder Act 1998. This means that where the youth is jointly charged with the adult, then if the adult is to be sent for trial under section 51 (it might be purely indictable or it might be either way and an election or jurisdiction declined) then the youth is sent for trial too if it is ‘in the interests of justice’ to do so, which is the test within section 51(7) of the Crime and Disorder Act 1998. Presumably, if that test is not satisfied then the youth will be remitted for trial in the Youth Court and then there is the potential for 2 separate trials (a Crown Court one for the adult and a Youth Court one for the youth) – I doubt the Magistrates’ are going to go along with the argument that it is not in the interests of justice for them both to be sent for trial at the Crown Court.

Imagine that there are 3 adults facing the same charge in the Adult Magistrates’ Court. One of the adults wants to elect Crown Court trial but the other 2 want to stay in the Magistrates’ Court and enter guilty pleas. You would think it obvious that this

should be allowed to happen. I am reliably informed that some people are taking the view that, on their interpretation of section 50A that all 3 adults on these facts should be sent and the guilty pleas ignored! That cannot be right but it just shows you how torturous section 50A is. Fortunately, some light has been cast into this area by Statutory Instrument 2013 No.3183 – The Criminal Procedure (Amendment No. 2) Rules 2013. Rule 6 (which comes into force on 24 February 2014) should clarify the position once and for all. Rule 6 adds a new Paragraph to Part 9 of the Criminal Procedure Rules 2013. Part 9 deals with Allocation and Sending for trial. It explains in some detail the circumstances in which all defendants must be sent for trial but, fortunately, we have these words: ‘(ii) Who does not wish to plead guilty to each offence with which he or she is charged’

This makes it abundantly clear that those who do wish to plead guilty can do so and then it is a matter for the Magistrates’ as to whether or not they want to sentence in their court or commit to the Crown Court for a higher sentence under Section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. Again, imagine that there are 3 adult defendants all facing the same charge in the Adult Magistrates’ Court only this time defendant number 1 would wish to elect Crown Court trial whereas the other 2 defendants would wish to have their trial in the Magistrates’ Court (this is a case suitable for summary trial). The former legal position was that it was an individual right of election and it mattered not that one defendant wanted a Crown Court trial; the other 2 could have their trial in the magistrates court. This meant to trials with the same witnesses being called twice but so be it – Nicholls v Brentwood Justices [1991] 3 ALL ER 359. Alas, this case has not survived the amendments to the relevant Sections of the Magistrates’ Courts Act 1980 (17 – 24 A) and (50A, 51 and 51A) of the Crime and Disorder Act 1998. Schedule 3 gives us a new section 51(5) which reads as follows:

(5)

Where –

(a) The court sends an adult (A) for trial under Subsection (1) or (3) above;

(b) Another adult appears or is brought before the court on the same or

a subsequent occasion charged jointly with a with A with an either way

offence; and

which A was sent for trial under subsection (1) or (3) above,

The court shall, where it is the same occasion, and may where it is a subsequent occasion, send the other adult forthwith to the Crown Court for trial in the either way offence. New Sentencing Guidelines for sexual offences have been published by the Sentencing Council and come into force in April 2014. Like all of the Guidelines they are available from the Sentencing Council website. There are many things of interest within the Guidelines not least the fact that the good character of the offender may be treated as an aggravating factor where it leads a child to trust the offender and makes it harder for them to report wrongdoing. Domestic Violence Protection Notices and Orders On 25 November 2013, it was announced that Domestic Violence Protection Orders would be rolled out across England and Wales from March 2014. This followed a successful one-year pilot across 3 police areas (greater Manchester, West Murcia and Wilts). Dealing with Notices first – a police officer (of the rank of Superintendent or higher) may issue a Domestic Violence Protection Notice the purpose of which is to secure the immediate protection of a victim of domestic violence from future violence or the threat of violence from a suspected perpetrator. A Notice prohibits a person from molesting another and, where they co-habit, may require that suspect to leave those premises (Crime and Security Act 2010, Section 24) A Notice (under section 15A) may only be issued where the officer has reasonable grounds for believing that the suspect has been violent or has threatened violence towards an ‘associated person’ and the issue of a notice is necessary in order to secure the protection of that ‘associated person’ (the victim) from violence or the threat of violence A notice –

(a) Must contain provision to prohibit the suspect from molesting the victim.

If the suspect and the victim live in the same premises, it may also contain provision to prohibited the suspect from –

(b) Evicting or excluding the victim from the premises;

(d) Being at the premises; or

(e) Coming within such distance of the premises as may be specified in the

Notice. 34

Before issuing a Notice, the officer must consider –

(f)

The welfare of any person under the age of 18 whose interests the officer considers relevant to the issuing of the Notice (whether or not that person is

an associated person);

(g) The opinion of the victim as to the issuing of a Notice (although a Notice

can be issued without their consent);

(h) Any representations made by the suspect as to the issuing of the Notice;

and

(I)

Where any of (b) to (e) above are included in the notice, the opinion of any other associated person who lives in the premises to which the provision

would relate. A Notice must be in writing and must be served on the suspect personally by a constable. It must state the grounds on which it has been issued, that a constable may arrest the suspect without warrant if there are reasonable grounds for believing that he is in breach of the notice (if the person does not follow the conditions of the notice he may immediately be arrested and held in custody and must be brought in front of the Magistrates’ Court where the application for an order will be heard within 24 hours – excluding Sundays/bank holidays), that an application for a Domestic Violence Protection Order will be heard within 48 hours of the time of service of the Notice which will continue in effect until that application has been determined (Sundays/bank holidays are excluded from the 48-hour period), that a notice of the hearing will be given to him, and the provisions that may be included in a Domestic Violence Protection Order. On serving the Notice, the suspect must be asked for an address for the purposes of being given the notice of the hearing of the application for the Domestic Violence Protection Order (Section 25). Once a Domestic Violence Protection Notice has been issued under Section 15A, the police must apply to a Magistrates’ Court for a Domestic Violence Protection Order (section 15B) and the Court must hear the application within 48 hours of the time the Notice was served (Crime and Security Act 2010, Section 27). Where the suspect has given an address for service of the notice, then it is deemed given if it is left at that address. When no address has been given the court must be satisfied that reasonable efforts had been made to give notice of the hearing. The Court may make an Order if (Section 28) –

(a) It is satisfied on the balance of probabilities that the suspect has been

violent towards, or has threatened violence towards, an associated person;

and

(b) It thinks that making the Order is necessary to protect that person from

violence or the threat of violence by the suspect.

An Order must contain provision to prohibit the suspect from molesting the victim and, if he lives in premises which are also lived in by a person for whose protection the Order is made, it may also contain provision relating to those premises (see the earlier note in relation to Section 15A Domestic Violence Protection Notices). The Order must state that the suspect may be arrested without warrant if there are reasonable grounds for believing that he is in breach of the order. An Order may be in force no fewer than 14 and no more than 28 days. The consent of the victim is not needed for an Order to be made. If the person does not follow the conditions of the Order they can be arrested and held in custody. He/she can be brought in front of the Magistrates’ Court where they may have to pay a fine or be imprisoned. If you have a 2010 Standard Crime Contract you can represent eligible clients in receipt of a DVPN. There are several routes by which clients will access advice; Following arrest and having been taken to the police station (from where the DVPN is almost always served), police station advice and assistance will apply and the solicitor can apply for a representation order for the DVPO hearing at the Magistrates’ Court. Having been issued with a DVPN, the client may approach a 2010 Crime Contract holder who could provide free standing advice and assistance away from the police station. This is subject to a means and eligibility test as set out in the Contract Specification (part B, section 9). The firm can subsequently apply for a representation order which will be subject to the usual ‘interests of justice’ test and means test. The Magistrates’ Court Duty Solicitor scheme is available for clients who arrive for their court hearing without any prior representation in place. DVP’s have been added to the list of ‘prescribed proceedings’ for which the Court Duty Solicitor can advise.

In the event of either a breach of the DVPN or DVPO, police station advice and assistance and the Magistrates’ Court Duty Solicitor scheme would apply in the usual way. A Conditional Caution may now contain Sobriety Requirements – those of you wishing to know more about this should go on to the Home Office website and read the document that was issued in November 2013 entitled ‘Using Conditional Cautions With Sobriety Requirements’ Section 76 of LASPO inserts a new section 212A into the Criminal Justice Act 2003. This has the effect of creating a new ‘alcohol abstinence and monitoring requirement’ which may be imposed as a requirement of a community order or suspended sentence order. Section 77 requires the provisions creating the new alcohol abstinence and monitoring requirement to be commenced initially for the purposes of a pilot so it’s really a question of ‘watch this space......’ The Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005 are quite clear and where the defendant has been on remand and during the same period he has been a serving prisoner he is not entitled to the days spent on remand during the period in which he was a serving prisoner – the Court has no discretion in the matter – see the case of R v Leacock and Others [2013] EWCA Crim 1994 A sentence can now be deferred to allow for ‘restorative justice activities’ to take place – this amendment was brought about by Part 2 of Schedule 16 of the Crime and Courts Act 2013 amending the PCC(S)A 2000.

Section 3 March 2014

Hello and welcome to this month’s edition of CrimeScribe. At last the Ministry of Justice has published its document – Transforming Legal Aid – Next Steps: Government Response. It was published on the 27th of February 2014. As it is the topic exercising the minds of all of us I thought it was important enough to devote the whole of this month’s edition of CrimeScribe to it. What follows is a summary of the ‘essence’ of the document. I shall give you the little that happened in the area of legislative and case-law update for this month in next month’s edition. 525 Duty Provider Work Contracts An unlimited number of Own Client Work Contracts (with agents allowed to do 25% of the work) For Own Client work, there will be no restriction on the number of contracts across England and Wales – see Annex C on page 52 For Duty Provider work, applicants will be able to compete to deliver services in one or more Procurement Areas. The number of contracts will be limited and vary by Procurement Area, but the minimum will be 4. The former document said that a bid could be made for a contract in any Procurement Area but this latest document says this on page 55 at para15 ‘However, there will be some restrictions on the number of bids that any bidder can submit either as LEAD CONTRACTOR or as DELIVERY PARTNER in any single Procurement Area. Full details will be provided by the LAA in the tender documents’. A word or two about LEAD CONTRACTORS/DELIVERY PARTNERS The document says this on page 59 at para 19 ‘We will not limit the types of organisation that may bid for either contract provided that they meet the applicable Requirements of the Tender Process (including the required quality standards) in this regard. Any applicant applying for a contract and not already regulated, must ensure that it has applied for appropriate regulation in order to be regulated by the

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contract start date. Applicants will need to check with their regulatory body with regard to what is required in order to apply for regulation and how long this process will take (which may be a number of months). For duty Provider Work applicants will need to be a legal entity and have applied for appropriate regulation by the close of the invitation to tender (currently anticipated to be September 2014). And on page 59 at para 20 ‘Under the final model applicants for either contract can be individual organisations, joint venture or an Alternative Business Structure. For Duty Provider Work, a partnering arrangement with a lead contractor (who will hold the contract and be responsible for delivery of all services under the contract) and up to 3 delivery partners (restricted to 2 delivery partners in urban procurement areas) would also be permissible provided they can demonstrate that they meet the requirements of the tender process and have a formal agreement between them that covers certain key aspects of service delivery. The model will not preclude any new entrant to the market, provided they were appropriately regulated. And on page 59 at para 21 ‘Under the model, applicants can choose to deliver the service themselves (or with delivery partners in the case of Duty Provider Work) or through the use of agents who will be permitted to deliver up to 25% of contract value UNDER BOTH the Own Client work or Duty Provider Work contracts. 97 Procurement Areas 32 Procurement Areas in London – aligned to current Police Station Duty Schemes/or Boroughs 65 outside of London The tender process is anticipated to start in April 2014 See Annex C –page 51 for Complete Summary of Final Model of Procurement/ Procurement Process Apply for an Own Client contract first If awarded an Own Client contract – apply to take part in a competition to be awarded one of a limited number of contracts to deliver Duty Provider Work in a Procurement Area (s) – see Annex C on page 53 of the document Both Duty and Own Client contract to last for 4 years – Government option to extend for 1 year Tendering process to start in all procurement areas – April 2014 for Own Client work and in July 2014 for Duty Provider work

The Government’s current intention – both Own Client and Duty contracts to commence in June 2015 Page 55 – a ‘no fault’ termination clause exercisable by the Lord Chancellor There will not be a ‘no fault’ termination clause exercisable by the provider! Areas of criminal legal aid not in the contract – Crown Court Advocacy/VHCC/ DSCC/CDDS All of the Procurement Areas are set out on pages 56 – 59 The final model – a total reduction in fees by 17.5% – June 2015 A reduction of 8.75% on new cases starting on or after 20th of March 2014 across all criminal litigation services and Magistrates’ Court Advocacy fees (page 61) See the new Funding Order – Statutory Instrument 2014 No. 415 – Article 3 – ‘relevant determination’ The current system of case allocation by Duty Rota Slots (Police Station and Court) to be retained but with ONE HUGE DIFFERERENCE! The firm is to ‘OWN THE SLOTS’– both the police station and court This will finally address the issue of ‘ghost solicitors!’ The document says this at Power 41 on page 45: ‘The government is pleased that the approach for allocating cases has been welcomed by a number of respondents and acknowledged that the modified model addresses the concerns raised with regard to ‘ghost solicitors’. The modified model allocates to firms, not individual solicitors, and therefore breaks the link between a firm’s number of solicitors and the amount of work they receive.’

It’s very simple – there are 5 contracts up for grabs in Lincolnshire. The 5 successful contractors will each have a 5th of the Lincolnshire cake. They would each have a 5th of the Police Station and Court Duty slots in any given year. The rotas will merely be there to allocate the duties. New Fixed Fees for police station work Rather than each police station having its own individual Fixed Fee there will be 2 fees Cases originating in London – £200.93p – Escape Fee Case Threshold – £602.79p Cases originating outside London – £156.19p – Escape Fee Case Threshold £468.57p

These new Fixed Fees are EXCLUSIVE of VAT and Travel and Subsistence Disbursements These new Fixed Fees will only come in with the new contract – June 2015 The ESCAPE MECHANISM IS BACK! – Therefore we will be able to claim hourly rates again once we have done more than 3 times the value of our Fixed Fee. Meanwhile the hourly rates for police station work will be reduced by 8.75% – 20th of March 2014 – see the new Funding Order for the amended police station fees and amended escape thresholds Page 15 of the document says this ‘Retain the current hourly rates scheme for those cases where the Escape Fee Case Threshold (equal to 3 times the fixed fee for that area) has been reached, albeit with the hourly rate reduced by 17.5% below current rates’ In so far as Magistrates’ Fees are concerned we shall get, from the start of the new contract (June 2015), the following: The removal of the distinction between the Designated areas and Undesignated areas The removal of the concepts of the Lower Standard Fee and Higher Standard Fee The retention of the different case types The introduction of the concept of a Fixed Fee and a Non-Standard Fee Threshold The new figures (see table C4 on page 63 of the document) to be as follows:

Category 1a – Fixed Fee – £236.56p – Non-Standard Fee Threshold – £426.61p

Category 1b – Fixed Fee – £196.28 – Non-Standard Fee Threshold – £426.61p

Category 2 – Fixed Fee – £449.45p – Non-Standard Fee Threshold – £704.88p

Category 3 – Fixed Fee £336.1p – Non-Standard Fee Threshold – £651.34p

The above Fees are exclusive of VAT and Travel and Subsistence Disbursements Insofar as Magistrates’ Court Duty Work is concerned we get the following from para 42 on page 63 of the document: ‘We will maintain the Magistrates’ Court Duty Provider Scheme under this model. This work will continue to be remunerated by way of hourly rates and providers will be paid based on the number of hours in attendance at the Magistrates’ Court. However, this work will only be conducted by those providers awarded a Duty Provider Contract and they will be remunerated for this work at the current rates reduced by 17.5%’

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We know that the first part of this reduction i.e. 8.75% will come about for Duty Solicitor at Court work from 20th of March 2014 – see the amendments to the Funding Order contained in Statutory Instrument 2014 No. 415. Whilst in the area of Magistrates Court/Crown Court work, we, as advocates, will not have to claim the fixed fee of £194 where the client has elected trial by jury on a matter triable either way and the case cracks at the Crown Court. The document says this at page 7 para 11: ‘We are also restoring the cracked trial fees for elected either way cases which crack because the prosecution offers no evidence on all counts. This means that defence advocates will no longer lose out when a case cracks for this reason, in circumstances beyond their control.

I wasn’t sure whether all not their term ‘defence advocates’ incorporated litigators as well? I.e. would the litigator still get the Fixed Fee of £362 in these circumstances? – I then came across this on page 49 at para 129 ‘However, there is a small proportion of cases where it is clear that the prosecution offer no evidence on all counts. Given the particular circumstances of those cases are beyond the control of the defence; we consider that the graduated fee for a cracked trial is more appropriate so we intend to revert to the pre-2011 position. We are therefore re-introducing graduated cracked trial fees, for both litigators and advocates, for those elected either way cases that currently attract a fixed fee where the Judge directs acquittal following the prosecution offering no evidence on all counts against the individual’.

Crown Court work – payment to the litigator A distinction is drawn between those cases where the PPE is 500 or fewer and those cases where the PPE is 501 or greater I suspect that some 95% of our Crown Court billing involves cases where the PPE is 500 or fewer There will be 3 variables (AND ONLY 3 VARIABLES) when billing a Crown Court case with a page count of 500 or fewer and those 3 variables are as follows: Case type – guilty plea – cracked trial – trial Classification of the offence A – K 5 different Fees dependent upon the amount of PPE 0 – 100, 101 – 200, 201 – 300, 301 – 400, 401 – 500 This is all set out on a very readable TABLE C5 in Annex C on page 65

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An example of each: A guilty plea on classification of offence type E in the PPE band O – 100 pays £189.13p A cracked trial on classification of offence type G in the PPE band 201 – 300 pays £1110.93p A trial on classification of offence A in the PPE band 401 – 500 pays £5888.45 The length of the trial becomes IRRELEVANT – it is not something that determines the Fee For the avoidance of doubt all the Fees in TABLE C5 in Annex C are EXCLUSIVE of VAT Travel and disbursements are claimable in addition to the Fee Crown Court work – payment to the litigator with a PPE of 501 or more All of the current tables will be retained subject to an overall reduction in the Fees payable of 17.5% for both Own Client and Duty Provider Work. The first 8.75% of this reduction will come about for all new proceedings from 20th of March 2014 onwards (see page 66 of the document) The remaining 8.75% will come into play with the new contracts awarded in June 2014 The reductions apply equally to prison law and appeals and reviews work but not to any associated civil work.

Crown Court work – payment to the Advocate Very simply, 2 options were suggested in the consultation document and the government has decided upon option number 2 It consists of just 1 table and is set out in Annex E of page 73 of the document It gives the fees payable to Lone Juniors, Led Juniors, Leading Juniors and QC’s All the fees in the table relate to trials Guilty pleas are paid at 45% of the trial rate Cracked trials are paid at 80% of the trial rate The advocate is paid either a Standard Fee or an Enhanced Fee This is determined by a PPE cut-off point

For example, the Standard Fee for classification E – burglary – PPE 500 or fewer – £700 The Enhanced Fee for classification E – burglary – PPE 501 or more – £1,740 The Standard Fee/Enhanced Fee pays for the first 2 days of trial Days 3 and beyond for trials are remunerated at a daily rate set out in the table There is a witness uplift fee (only applies to prosecution witnesses and no fee for the first 10) There doesn’t appear to be any page uplift fee in the table at all Remember that guilty pleas are paid at 45% of the trial rate Remember that cracked trials are paid at 80% of the trial rate Where it is a guilty plea or a cracked trial forget the witness uplift The document says this on page 21 at paragraph 83 ‘....... we also intend (as set out in Annex E) to vary one aspect of the model to exclude witness numbers from the formula for calculating the fee for cracked trials and guilty pleas, in line with how the defence scheme currently operates in order not to create a new burden on advocates who would be required to provide evidence of the number of witnesses. In relation to the changes to advocates fees the document says this on page 21 at para 84 ‘It is intended that the revised framework and rates will be implemented, subject to Parliamentary approval, by way of secondary legislation in the summer (2014)’ Finally, you may want to read something about interim payments for both litigators and advocates in Crown Court proceedings and early payments for some disbursements in Magistrates’ Court cases – see Annex F of the document at pages 75 – 77

Section 4 April 2014

Hello and welcome to this month’s edition of CrimeScribe. In last month’s edition I gave a summary of the main changes to criminal legal aid anticipated as a result of the Ministry of Justice document – Transforming Legal Aid – Next Steps: Government Response. The following is Just a short update. We now have Statutory Instrument 2014 No. 415 which is entitled ‘The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2014’. This Statutory Instrument imposed an interim fee cut of 8.75% in relation to all criminal litigation services (including those advisory services set out in the Standard Crime Contract 2010 but excluding VHCC’s) and Magistrates’ Court advocacy services. The cut applies to all new business starting on or after the 20th of March. As you all know it is intended that a further reduction is planned with the introduction of the new 2015 crime contracts. At the moment the timetable for these is June/July 2015 and the proposed reduction is a further 8.75% on the same areas of work. In relation to police station work all of the fees have been reduced by 8.75% but the ‘escape mechanism’ has been retained at 3 times the value of the fixed fee. As mentioned in last month’s edition, this is not to be confused with the new proposed national and London fixed fees which are due to come in with the new crime contracts. The report proposed a new table of fees for advocates in relation to Crown Court work. This has all been put ‘on hold’ and we wait and see whether or not the advocates’ fees are reduced. The reduction was going to take place by way of a Statutory Instrument in the summer of this year but that has all been scrapped and, for the time being, it is ‘as you were’ with regard to the payment of advocates’ fees for Crown Court work. The final thing to say in this area is that the LAA published a comprehensive crime tender data document on the 16th of April. 3 new Sentencing Guidelines come into force this year and are all available from the Sentencing Council website. The first, for offences by those 18 and above sentenced on or after the 1st of April 2014 relate to sexual offences (some 50 in total). 48

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7850

The second deals with Environmental offences. The third, for offences sentenced on or after the 1st of October 2014, relate to fraud, bribery and money laundering by corporate offenders. The Council has also announced a new draft guideline covering a wide variety of types of theft such as pick-pocketing, shop theft, handling stolen goods, car theft, leaving a restaurant or petrol station without paying and stealing by employees or care workers. It also includes the abstraction of electricity. The consultation started on the 3rd of April and closes on June the 26th We are likely to find far more clients being disqualified in their absence as a result of the recent amendments to the Magistratesâ&#x20AC;&#x2122; Courts guidelines in this area. The current advice is that there should be a disqualification in absence if there is no reason to believe that the defendant is unaware of the proceedings and that the statutory notices have been served. This will no doubt cause problems in the future with clients saying that they were unaware of the fact that they had been disqualified in their absence. The legal position is that the disqualification will still be valid even though the defendant may actually have been unaware of it. There may well be an application to re-open the conviction/sentence or a Statutory Declaration under the Statutory Declarations Act 1835 but it will not alter the fact that these re-openings/ declarations take effect from the date upon which they were made and do not apply retrospectively i.e. he will still have been disqualified on that previous date and may still have to enter a guilty plea unless the Crown are prepared to re-consider the charge. It may well be good mitigation saving him from a prison sentence but may not form the basis of a defence. Perhaps the most important news of the whole month are the major changes to the Rehabilitation of Offenders Act 1974. These changes came into effect on the 10th of March 2014. Over the years I have found that this area of law causes a great deal of problems for practitioners. On the Internet I found an incredibly useful guidance document applicable from the 10th of March 2014. I know not who produced this document but Iâ&#x20AC;&#x2122;m very grateful to them and I hope they do not mind the fact that I have summarised this very useful document in this monthâ&#x20AC;&#x2122;s edition of CrimeScribe. The Rehabilitation of Offenders Act 1974 primarily exists to support the rehabilitation into employment of reformed offenders who have stayed on the right side of the law. Under the 1974 Act, following a specified period of time which varies according to the disposal administered or sentence passed, cautions and convictions (except those resulting in prison sentences of over 4 years and all public protection sentences) may become spent. As a result the offender is regarded as rehabilitated.

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For most purposes the 1974 Act treats a rehabilitated person as if he or she had never committed, or been charged with or charged and prosecuted for or convicted of or sentenced for the offence and, as such, they are not required to declare their spent caution or conviction for example, when applying for most jobs or insurance, some educational courses and housing applications. All cautions and convictions may eventually become spent, with the exception of prison sentences, or sentences of detention for young offenders, of over 4 years and all public protection sentences regardless of the length of the sentence. There are exceptions whereby people may have to declare spent cautions and convictions and these are listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. The Act applies to everyone convicted of a criminal offence or a service disciplinary offence (four example absence without leave) by either a civilian court (in the cases of criminal offences) or a Service court or the Commanding Officer (in the cases of criminal or Service disciplinary offences). The same rehabilitation periods apply to sentences which are imposed in the service justice system as imposed by the civilian justice system (for example a fine imposed by a Magistratesâ&#x20AC;&#x2122; Court and the fine imposed by a Court Martial, would each have the same rehabilitation period of a year beginning with the date of conviction). The 1974 Act covers simple cautions (which are spent immediately) and conditional cautions (which become spent after 3 months or, if earlier, when the caution ceases to have effect). Reprimands and Warnings were abolished in April 2013 and a reprimand or warning given before that date is now treated as a youth caution which, as with adult cautions, is spent immediately. Fixed Penalty Notices and Penalty Notices for Disorder do not constitute a conviction or caution (though they may be recorded on local police systems should the force consider it necessary to do so) and they therefore are not covered by the 1974 Act. The rehabilitation period (the length of time before a caution or conviction becomes spent) is determined by the type of disposal administered or the length of the sentence imposed. Rehabilitation periods that run beyond the end of a sentence are made up of the total sentence length plus an additional period that runs from the end of the sentence (this period is referred to as the â&#x20AC;&#x2DC;bufferâ&#x20AC;&#x2122; period). Other rehabilitation periods start from the date of conviction or the date the penalty was imposed.

The ‘buffer periods’ are halved so those who are under 18 at the date of conviction (save for custodial sentences of 6 months or less where the ‘buffer period’ is 18 months). The rehabilitation periods for sentences with additional ‘buffer periods’ which run from the end date of the sentence are all shown in the new table. The new table was enacted as a result of the implementation of Section 139 of The Legal Aid, Sentencing and Punishment of Offenders Act which brought into force the table contained in Chapter 8 of the Act. For the avoidance of any doubt this new table replaced the existing table at the back of the Rehabilitation of Offenders Act 1974. It was brought into force on the 10th of March this year. I don’t propose to go through the whole table but I shall just give a couple of examples of disposals which have a buffer period and a couple of examples of disposals which do not. Buffer periods for adults (18 and over at the time of conviction or the time the disposal is administered). This applies from the END DATE of the sentence including the LICENCE PERIOD Custodial sentence of over 6 months and up to and including 30 months – the rehabilitation period for an adult is 4 years – an offender given 12 months (of which 6 months would be served and 6 months would be on licence) would be rehabilitated once a further 4 years had elapsed following the end of the licence period. Buffer periods for young people (under 18 at the time of conviction or the time the disposal is administered). This applies from the END DATE of the sentence (including the LICENCE PERIOD). Using the same example as given above the offender would be rehabilitated once a further 2 years had elapsed following the end of the licence period. A financial penalty – the rehabilitation period for an adult (18 and over at the time of conviction or the time the disposal is administered) is 1 year A financial penalty – the rehabilitation period for a young person (under 18 at the time of conviction or the time the disposal is administered) is 6 months. As mentioned earlier the full table is to be found in Chapter 8 at the back of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 For the avoidance of doubt a custodial sentence includes a sentence of imprisonment (both an immediate custodial sentence and a suspended sentence), a sentence of detention in a young offender institution, a sentence of detention

under Section 91 of the Powers of criminal Courts (Sentencing) Act 2000, a detention and training order, a sentence of youth custody, a sentence of corrective training and a sentence of Borstal training. In relation to any community or youth rehabilitation order which has no specified end date, the rehabilitation period is 2 years from the date of conviction. We learn from the table that a compensation order will never be spent until the date on which the final payment is made. It is therefore very important that individuals’ obtain proof of payment from the court and keep this document as proof of the fact that the compensation order has been paid in full There are some sentences which are not covered by the Act at all and from which the offender will never be rehabilitated – these sentences are as follows:

• A sentence of imprisonment for life

• A sentence of imprisonment, youth custody, detention in a young

offender institution or corrective training of more than 4 years

• A sentence of preventative detention

• A sentence of detention during her Majesty’s pleasure for life

• A sentence of custody for life

• A public protection sentence (imprisonment for public protection,

detention for public protection, extended sentences of imprisonment or

detention for public protection and extended determinate sentences for

dangerous offenders). Q where do motoring offences fit into all of this? An endorsement for a road traffic offence listed in Schedule 2 to the Road Traffic Offenders Act 1988, imposed either by the court or by means of a fixed penalty notice (FPN) is a sentence for the purposes of the 1974 Act and may become spent after 5 years (or 2 ½ years where the offender is under 18). Road traffic legislation specifically provides for a FPN in these circumstances to be treated as a conviction and dealt with as such under the 1974 Act. Penalty points and a driving disqualification imposed by the court on conviction may become spent when they cease to have effect (penalty points have effect for 3 years as set out in road traffic legislation). Where the court imposes more than one sentence or penalty for the offence than the longest rehabilitation period determines when the conviction may become spent.

A fixed penalty notice (FPN) which may be issued for example in a case of not having a valid MOT is not a criminal conviction or caution and the 1974 Act does not apply. Example – an adult is convicted of a road traffic offence, and the court imposes a fine (rehabilitation period 1 year), an endorsement (rehabilitation period 5 years), penalty points (rehabilitation period 3 years) and driving disqualification for 1 year (rehabilitation period 1 year); the rehabilitation period for this conviction will be 5 years because the endorsement carries the longest rehabilitation period. As we know, it becomes slightly problematic where a client may have an unspent conviction and gets a further caution or conviction before the first one has been spent. In these circumstances neither conviction will become spent until the rehabilitation periods for both offences are over. This applies to summary offences as well as offences either way and indictable only offences. Another variation on the above theme is the client who gets another conditional caution or conviction before the first conditional caution becomes spent. In these circumstances if the latter conditional caution or conviction is separate to the earlier conditional caution (i.e. not for the offence in respect of which the caution was given), then neither rehabilitation period will be affected. The conditional caution for the earlier offence will become spent at the end of 3 months from when it was given, and the caution or conviction for the later offence will become spent after the normal period. Once a conviction becomes spent, it remains spent, even if a person is convicted of other offences later. What about the client who was sentenced for more than one offence at the same time? Will the rehabilitation periods run concurrently or consecutively? The answer is that the total rehabilitation period will depend on whether the sentences run concurrently or consecutively. If concurrent sentences of imposed, then the longest applicable rehabilitation period will apply to or sentences. If, however, consecutive sentences imposed, then the sentences will be added together to calculate the rehabilitation period for example a 4 month and 6 month prison sentence running consecutively will count as a 10 month sentence (carrying a ‘buffer period’ of 4 years from the end of the sentence, giving a total rehabilitation of 4 years and 10 months before the convictions can be considered spent). As mentioned earlier there are some jobs or activities which will require the disclosure of both spent and an unspent cautions and convictions – these exceptions are

set out in the Rehabilitation of Offenders Act (Exceptions) Order 1975 which lists exceptions to the 1974 Act in recognition of the fact that there are certain activities for which full disclosure of a person’s criminal record history is relevant. When an exception exists the person concerned must disclose their cautions and convictions even if they are spent other than what we call ‘protected cautions’ and ‘protected convictions’. Where an exception exists, the employer or licensing body will be eligible for a standard and in some cases an enhanced criminal records disclosure certificate from the Disclosure and Barring service (DBS) formerly known as the criminal records bureau (CRB) containing details of all ‘unprotected cautions’ and ‘convictions’. The main exceptions are listed in Annex A of the order and I don’t propose to list them here but they relate to particularly sensitive areas such as work with children or other people in vulnerable circumstances, work in law enforcement and the legal system and high level financial positions. Changes were made in this area in that since the 29th of May 2013 amendments have been made to the Exceptions Order so that certain old and minor cautions and spent convictions are ‘protected’ and are not subject to disclosure under the Exceptions Order, nor will they appear on a standard or enhanced disclosure certificate issued by the DBS. In addition employers will not be able to take these ‘protected cautions’ and ‘convictions’ into account when making decisions about any individual. There are a small number of circumstances in which ‘protected cautions’ and ‘convictions’ do still need to be disclosed and can be taken into account, for example in relation to national security related positions. The term that the DBS uses to describe the process which will identify ‘protected convictions’ and ‘cautions’ and ensure that they are not disclosed on DBS certificates is known as ‘filtering’. The rules as to when a conviction or caution will be filtered are set out in legislation (see the Protection of Freedoms Act 2012). This states that a standard or enhanced disclosure certificate MUST include the following: All cautions/convictions given for a specified list of offences – if you go onto the DBS website there is a spreadsheet containing a huge list of all of the offences which must ALWAYS appear on a certificate – the specified list of offences includes a range of offences which are serious and which relate to sexual offending, violent offending and/or are relevant to safeguarding people in vulnerable circumstances. Cautions and convictions given for these offences will always be subject to disclosure. 56

Cautions given less than 6 years ago (where the person was 18 or over at the time of caution) Cautions given less than 2 years ago (where the person was under 18 at the time of the caution) All convictions that result in a custodial sentence Convictions given less than 11 years ago (where the person was 18 or over at the time of conviction) Convictions given less than 5 ½ years ago (where the person was under 18 at the time of conviction) Where the person has more than one conviction then all convictions will be included on the certificate (no conviction will be ‘filtered’) Where a person is convicted of multiple offences, then the conviction will be included on the certificate, as each offence is treated as if it were a separate conviction. A person wants to get a job with a particular employer. To what extent can that employer ask the individual to declare the details of all convictions and cautions? The 1974 Act places limits on what convictions and cautions an employer can ask an individual about and what they can take into account. Any employer can ask a person to disclose unspent convictions and take these into account. Where the job or activity is listed in the Exceptions Order, a standard or (where the role is listed in Regulations made under the Police Act 1997) an enhanced disclosure certificate can be requested, and an employer can ask the person about any unprotected spent convictions and cautions – that means those spent convictions and cautions which are not protected and would be disclosable on the DBF certificate. If the employer were to ask about any cautions and convictions and the Exceptions Order does not apply to the job or activity, only those which are unspent need to be disclosed.

Clearly if the Exceptions Order does apply a person would need to disclose cautions and convictions which are not protected (which will mean disclosing certain spent convictions and spent cautions). There are a small number of defined positions where details of ALL convictions and cautions, including otherwise protected cautions and convictions, may be taken into account. These positions include national security and police posts, where disclosure of criminal records is not provided by the disclosure and barring service. 57

Standard disclosures (Criminal Records Certificates) are available from the DBS and contain details of all unprotected convictions and cautions, both spent and unspent. These certificates are available for jobs and activities listed on the Exceptions Order. Enhanced disclosures (Enhanced Criminal Record Certificates) are also available from the Disclosure and Barring Service and contain details of all unprotected convictions and cautions, both unspent and spent, and also any intelligence information which a chief officer of police reasonably believes to be relevant to the application. These certificates are only available for certain jobs and activities listed on the Exceptions Order, usually involving regular contact with children and other people in vulnerable circumstances. The certificate, would you believe, is sent to the individual who must then hand it to the employer. Q Will the conviction be removed from criminal records once it is spent? Current policy is to retain all caution and conviction information until the subject reaches 100 years of age, for police operational reasons and in the interest of the prevention and detection of crime. Breach proceedings As you know, The Legal Aid, Sentencing and Punishment of Offenders Act (Section 67) gave the court a new power to deal with breach of an adult community order by way of the imposition of a fine and allowing the order to continue. There was another power in the Section which would have allowed the court to take no action on the breach and simply allow the order to continue. This part of Section 67 was never brought into force. It never will be brought into force. The Crime and Courts Act 2013 has changed the law in this area yet again in that in relation to breach proceedings, the option to take no action is removed and, if an order is allowed to continue, its terms must be made more severe. The Criminal Procedure Rules 2013 continue to cause problems between the lawyer and the client. Remember that the client is still permitted to put the Crown to proof of its case. The rules, however, stipulate that we must assist the Court in the management of the case. Where there is an issue, or deficiency in the prosecution case, on which the defendant wishes to rely, but he or she does not wish to give the Court advance notice of this there is a requirement that the defence must identify the issue, even if the technical defence is lost, or the deficiency is rectified because the prosecution is put on notice.

It may be that the defendant has no defence in law but simply refuses to plead guilty. In these circumstances there is nothing wrong with indicating to the court that the Crown is put to proof of its case and the defendant does not admit the offence (or the relevant parts of it) but in addition it should be stated that no positive case will be advanced on the part of the defendant i.e. he has no defence but wishes to maintain his right to have the evidence challenged by way of cross-examination. The third scenario is the client who refuses to let us know what his defence is. Apparently in these circumstances under the rules there is a positive duty imposed upon us to pass on the information to the court! We should inform the court that the defendant refuses to permit us to disclose the defence and it is then for the Court to decide how best to proceed! It’s not going to put is in very good humour with our client is it. No doubt the court would enter a not guilty plea on the register and there would be a trial at some point. We cannot be the subject of any criticism because we were not made aware of his defence. It’s going to be a rather strange trial isn’t it because we are not going to be in a position to put the various challenges to the prosecution witnesses. Section 144 of the Anti-social Behaviour Crime and Policing Act 2014 inserts a new Section 22A into the Magistrates’ Courts Act 1980. When in force, the effect of this provision will be that shoplifting below the value of £200 will only be tried summarily – unless the accused elects trial by jury – and will fall within the ‘plea by post’ provisions in the Magistrates’ Courts Act 1980 Section 12. Is this the thin end of the wedge! Is it the start of the process whereby low value theft becomes summary only. We must watch this space. I have mentioned in previous editions of CrimeScribe the new offence of ‘Driving, attempting to drive or being in charge of a motor vehicle with a specified controlled drug in the blood or urine in excess of the specified limit for that drug. The new offence is inserted as a new Section 5A into the Road Traffic Act 1988 as a result of Section 56 and Schedule 22 of the Crime and Courts Act 2013. The new offence is not yet with us. However, the government has announced new recommended limits for 16 different drugs that have now been approved and will see 8 generally prescripted and 8 illicit drugs added into new regulations coming into force in the autumn of this year. The new rules will mean it will be an offence to be over the generally prescribed limits for each drug (as is the case now with alcohol). Clearly, it is only a matter of time before this new offence becomes law. Ketamine has been upgraded to be a class B banned substance after the advisory Council on the misuse of drugs, the government’s advisory body, said new evidence had shown frequent Ketamine use could cause ‘severe and disabling’ bladder 59

damage. The drug, designed as a horse tranquilliser has been used as a party drug for several years and re- classification will now mean the maximum penalty for unlawful possession of the drug will increase from 2 to 5 years in jail, while the maximum penalty for trafficking offences will continue to be 14 years imprisonment. We have had a very recent and sensible decision on costs. It is the case of R v JALIBAGHODELEHZI SCCO reference: 354/13 – dated 2nd of April 2014 It re-visited the well-worn issue of evidence being served on CD’s i.e. in a non-paper format. There was a dispute between the LAA and the solicitors as to the appropriate page count and in their letter accompanying the request for a re-determination the solicitors explained that they had printed out all of the pages served on disk as that was necessary for the proper preparation of the case. The material largely consisted of downloads from mobile phones and was crucial evidence in the case, as was clear from the prosecution case summary. Enquiries between the LAA and the CPS revealed that the evidence had only ever existed in electronic format. The LAA therefore took the view that the electronic evidence could not be remunerated as PPE. Their view was that documentary and pictorial exhibits that had only ever existed in digital format had to be claimed as Special Preparation at hourly rates. They were, of course, referring to their own guidance but their own guidance says ‘..... documentary and pictorial exhibits that have only ever existed in digital format should be remunerated as Special Prep unless the appropriate officer decides it would be appropriate to include it in the pages of prosecution evidence, i.e. because it would previously have been served in paper format. The solicitors argue that the LAA had not followed its own guidance. It was clear from the wording of both the Funding Order and the guidance that there is a discretion to include in the pages of prosecution evidence exhibits which have never existed in paper form. The guidance suggests that the discretion should be exercised if the evidence would previously have been served in paper format. It was contended that the evidence would previously have been served on paper. The prosecution printed some of it for the jury and the defence printed all of it so that the client’s instructions could be obtained. The costs Judge said this at paragraph 10: ‘Clearly, this evidence was served by the prosecution. The discs were exhibited to the statements of Mr Jennings. In my view this is the sort of evidence which would previously have been served in paper format. Following the LAA’s own guidance it should have been included in the page count.

Very helpfully the Judge went on to say this at paragraph 11:

‘While that is enough to decide this appeal in the solicitors favour, I would add this, as appeals on this issue are now numerous. The Funding Order requires the Agency to consider whether it is appropriate to include evidence which has only ever existed electronically ‘taking into account the nature of the document and any other relevant circumstances’. Had it been intended to limit those circumstances only to the issue of whether the evidence would previously have been served in paper format, the Funding Order could easily so have provided. It seems to me that the more obvious intention of the Funding Order is that documents which are served electronically and have never existed in paper form should be treated as PPE if they require a similar degree of consideration to evidence served in paper. So in a case where, for example, thousands of pages of raw telephone data have been served and the task of the defence lawyers is simply to see whether their client’s mobile phone number appears anywhere (a task more easily done by electronic research), it would be difficult to conclude that the pages should be treated as part of the page count. Where, however, the evidence served electronically is an important part of the prosecution case, it would be difficult to conclude that the pages should not be treated as part of the page count’.

I have been waiting for a costs Judge to say this for some time! Hurrah! Whilst on the subject of costs I did say in an earlier edition of CrimeScribe that it was only a matter of time before someone made an application for the prosecution to pay the costs on the basis that the prosecution should never have been brought in the first place! Particularly relevant where one is at the Crown Court in a case where there is no power for a Judge to make a ‘defendants costs order’. Well, it happened recently in the case of R v James Binning – 20th of March 2014 at Oxford Crown Court. Remember, that if you are successful in getting costs under Section 19A of the Prosecution of Offences Act 1985 then those costs are not in any way limited to legal aid rates but rather the actual costs incurred by your client. Remember also that the test is that the other party has been guilty of an unreasonable or improper or negligent act or omission and that the bar is set very high and the test will rarely, if ever, be met! Do be aware of the fact that the Lord Chief Justice has authorised the use in Magistrates’ Courts of an amended form for preparation for trial, where the defendant pleads not guilty, and new notes for guidance on using the form. The changes are designed to help courts, and the parties, avoid unnecessary hearings and to help make sure that the trial takes place on time and effectively. We have a new LAC1 form. Please get it from the LAA website.

Section 5 May 2014

Hello and welcome to this month’s edition of CrimeScribe. So much has happened during the last month that it is difficult to know where to start! On the basis that we have to start somewhere a good a place as any is a mention of the fact that it seems to be ‘all systems go’ in relation to applications for own client contracts. The ‘portal’ closed at noon on Friday, 23rd of May. Why does my heart sink when I see the word ‘portal’ in the same sentence as LAA. Having said that, I was assured by the boss that it was a relatively painless experience. I hope I’m right in thinking that just about everyone who applies for an own client contract will be successful. We must now turn our thoughts to the far more challenging task of applying for a Duty Contract. The latest seems to be that there will be 525 such contracts up for grabs. It will be interesting to see how many applications there are from outsiders who have not traditionally offered criminal legal aid services. It occurred to me that the contracts might seem less attractive now that firms can retain their own client base. I read in the Gazette the other day that One Legal will tender for legal aid contracts. I wonder how many sets of chambers will apply for a contract? I wonder, also, what restrictions will be placed upon the number of contracts that could be applied for by the same entity within any given procurement area and the number of procurement areas in which such applications could be made. All very interesting and we won’t have to wait very long because the tendering process is all due to happen this July. I keep being asked whether or not it will all go ahead but it seems to me that the juggernaut shows no signs of slowing down or stopping! This is a topic I shall return to in future editions of CrimeScribe once we know more about these Duty Contracts. Just before I leave this area I hope you got the opportunity to read the FAQ document published by the LAA in relation to the tendering process. There are 51 Q&A’s in the document and I just want to pick out 3 of them: Q16. Can an Agent be a Designated Fee Earner for more than one own client contract holder? A. Agents and Designated Fee Earners are mutually exclusive terms. Agents are other Own Client contract holders you instruct and are subject to the 25% cap on the value of the contract work they undertake on your behalf. Designated Fee Earners are individuals you deploy on contract work and whom you directly supervise, file

review etc. Use of Designated Fee Earners (who may be your directly employed staff or self-employed police station representative etc.) is not considered to be use of Agents and does not count towards the 25% cap. Individuals may be Designated by any number of contract holders (provided each contract holder actively supervises, file review etc) their work as they would do for their directly employed staff. For example; a self-employed police station representative may be designated by 5 own client contract holders in a town. When used by one of the contract holders they are treated as if a directly employed staff member. Each of the 5 contract holders must undertake supervision and file review activities should they actually instruct this representative. Q38. Would a junior barrister instructed to represent a client at a Magistrates’ Court hearing but not as assigned counsel, be regarded as an Agent thus requiring either that individual barrister or the set of chambers of which he/she is a member to hold a 2015 own client contract? A. As set out in the definitions section at Annex B of the IFA, an agent is not an individual but another own client contract holder you instruct. Barristers instructed to provide representation at court hearings do not fall within the term of ‘Agent’ – see Clause 3.2 (c) of the Contract Standard Terms. The barrister, or their chambers, would not need to hold a 2015 Own Client Contract in order to act in this capacity. A barrister instructed to represent a client at a Magistrates’ Court hearing but not as assigned counsel would be regarded as unassigned counsel for the purposes of the 2015 Own Client Contract (see the definitions under section 1, and sections 9.24 to 9.33 of the draft 2015 Own Client Crime Contract Specification, which is available on the website. Such a barrister may also fall under the definition of Designated Fee Earner under section 2.24 to 2.29 of the draft specification. There are also some very useful Q and A’s in relation to mergers/status changes/the creation of new legal entities/organisations and structures etc which are well worth a read. On a totally different point the Legal Aid Agency (LAA) has changed its position and will now pay solicitors a fixed fee for attendance at a police station where they are called out by an Appropriate Adult to advise a child or vulnerable adult even if that person chooses not to see the solicitor. This was an important point taken by the National Appropriate Adult Network (NAAN) together with the Law Society. The LAA have said this: ‘The LAA accepts that, in some circumstances, the solicitor will attend a police station in good faith having been contacted by the DSCC. Where a solicitor responds to a call from the DSCC but, for circumstances out of the solicitor’s control, no attendance takes place, a fixed fee is still claimable. A note should be kept on the file detailing the particular circumstances’

Furthermore, the 2015 Own Client Crime Contract Specification will explicitly enable solicitors to take instructions from AA’s on behalf of a child or protected party (paragraphs 4.26 (c) and 8.20 (b)). Meanwhile, back at the law, let’s have a brief look at the Anti-Social Behaviour, Crime and Policing Act 2014 and the provisions of relevance which came into force on the 13th of May 2014:

Section 106 (keeping dogs under proper control)

Section 107 (whether a dog is a danger to public safety)

Section 119 (violent offender orders)

Sections 144 to 146 (personal samples and DNA profiles)

Section 153 (use of amplified noise equipment in vicinity of the Palace of

Westminster)

Section 176 (low-value shoplifting)

Changes to the Dangerous Dogs Act mean that dog owners can now face prosecution if their dog attacks a person in their home or on any private property, except if they attack a trespasser. The maximum prison sentences in England and Wales are now:

Up to 14 years, from 2 years, for a fatal dog attack

Up to 5 years, from 2 years, for injury

Up to 3 years if an assistance dog is attacked.

For the first time, the Dangerous Dogs Act includes a specific offence to protect assistance dogs from attacks. The changes will also see new preventative powers for the police and local authorities so that they can act early to stop dog attacks before they occur. I now turn to Section 176 of the Act. They have done something rather strange with theft by way of shoplifting where the value is £200 or less. It seems to me that with such a charge the defendant can either plead guilty or not guilty. If he pleads not guilty he should then be asked whether or not he wants to have his trial in the Magistrates’ Court or elect to go to the Crown Court. The power of election has been retained but the power on the part of the court to decline jurisdiction has gone. No doubt if the Magistrates’ take it by way of a guilty plea they were still have the power to sentence to a term of imprisonment in their court but with no power to commit to the Crown Court for sentence.

Statutory Instrument 2014 No. 1229 is The Prosecution of Offences Act 1985 (Specified Proceedings) (Amendment) Order 2014 coming into force on the 9th of June 2014. As you know Section 3 of the Prosecution of Offences Act 1985 sets out the functions of the Director of Public Prosecutions. These include taking over the conduct of all criminal proceedings instituted on behalf of a police force, unless the proceedings are specified in an order made by the Attorney General under Section 3 (3). The Prosecution of Offences Act 1985 (Specified Proceedings) Order 1999 specifies certain such proceedings. Article 2 of this Order amends the 1999 Order by adding a further offence, proceedings for which will be specified proceedings. That offence is the offence of theft, contrary to Section 1 of the Theft Act 1968, in the circumstances where it is the prosecutor’s case that the offence constitutes ‘low-value shoplifting’ within the meaning of Section 22A of the Magistrates’ Courts Act 1980. I wonder what that makes it in terms of claiming a fee for the case? Is it a triable either way matter for which we may claim a greater fee or is it summary only? I’d like to think it’s still triable either way in that the defendant may still elect. No doubt they will give some thought to it. It may be that it is to be treated as an either way matter where he elects and to be treated as a summary only matter where he pleads guilty and the matter is dealt with in the Magistrates’ Court. Whilst in this area I mention that there is a new LAC1 form published by the LAA. We became aware of this on the 10th of April. Section 177 of the same Act will abolish the defence of marital coercion but the Section is not yet in force. I have mentioned Domestic Violence Protection Notices and Domestic Violence Protection Orders before. Statutory Instrument 2014 No.478 which is The Crime and Security Act 2010 (Commencement No. 7) Order 2014 brought sections 24 – 30 into force on the 8th of March 2014 across police forces throughout England and Wales. Previously, Sections 24-30 had been commenced, but only in relation to 3 specified police areas. These provisions include the power for an authorising officer to issue a Domestic Violence Protection Notice to an alleged perpetrator of domestic violence, and the power for a Magistrates’ court, on an application made by complaint by a constable, to make a Domestic Violence Protection Order.

Statutory Instrument 2014 No. 423 is entitled The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 9 Saving Provision and Specification of Commencement Date) Order 2014 and brought into force on the 10th of March Sections 139 and 141 (1) to (6), (10) and (11) together with Schedule 25 to that Act (with the exception of paragraph 4). Those provisions make amendments to the Rehabilitation of Offenders Act 1974. We now have a new Schedule to that Act. Article 3 of the Statutory Instrument makes saving provision for an endorsement given by a court for an offence mentioned in Schedule 2 to the Road Traffic Offenders Act 1988. Such an endorsement is a sentence in relation to which the last entry in Table A in Section 5 (2) of the 1974 Act applies. The principal effect of this saving provision is that such an endorsement continues to attract of rehabilitation period of 5 years.

Offender Rehabilitation Act 2014 The government has been concerned for some time now about the re-offending rates. Therefore the policy behind the Act (by way of amendment to the Criminal Justice Act 2003) is the imposition of rehabilitative supervision and mentoring support for 12 months upon release for all offenders serving less than 2 years. It is important to note that this is not yet in force. We are awaiting the relevant Commencement Order by way of a Statutory Instrument. Licence provisions remain as before for those adult prisoners serving a sentence of imprisonment of 12 months or more. The new concept will involve support and preparation for release during the prison sentence and upon release the prisoner will be met at the prison gate by men tour and for the next 12 months will be supervised by a ‘supervising provider’ The provision of probation and supervision services will also undergo a major restructuring. The 35 existing probation trusts are being abolished and replaced by a National Probation Service (NPS). 21 Community Rehabilitation Companies (CRC’s) are being established and they will manage 70% of the supervision for the less serious offenders by sub-contract, mostly with the private sector, charities and voluntary and independent bodies. The remaining 30% of supervision for the more serious offenders will be managed by the NPS. All advice to the court will be given by NPS. All breaches referred to the court will be for the NPS. The CRC’s and their subcontractors will operate on a ‘payments by result’ system i.e. the offender must be kept from the re-offending for at least 12 months. There have been pilots at Peterborough and Doncaster.

In summary an offender serving less than 2 years will be released at the halfway mark and then subject to supervision for 12 months. The offender serving less than two years on release will be subject to conditional release, namely supervision subject to requirements imposed by a notice from the Secretary of State, delegated to the NPS. It would appear that the same provisions apply for those sentenced to a term of detention in a young offender institution (18, 19 and 20-year-olds) it would also appear that a young offender who has been sentenced to a detention and training order will also be subject to the 12 months supervision if they have attained the age of 18. No doubt there will be many breaches of this supervision order. In the event of there being a breach the person will be brought back to court and the court may impose up to 14 days imprisonment or a level 3 fine or make a Supervision Default Order which may contain a number of elements including 20 – 60 hours of unpaid work. It would seem that a breach may also occur where there is a new criminal offence. Where there is a breach of a Supervision Default Order the court will return to the original offence and may sentence as if no supervision order had ever been made for the original offence. We must keep an eye on all of this and return to the subject in the future once we have the relevant commencement orders in place. Still on the subject of legislation the Justice Secretary has announced that drivers who cause death or serious injuries on the roads when they have been disqualified from driving will face longer jail sentences. It always struck me as rather odd that the offence of causing death whilst unlicensed, uninsured or disqualified only carries 2 years on indictment whilst the offence of causing death through careless driving carries 5! The law will be changed so that disqualified drivers will face up to 10 years imprisonment if they cause death and up to 4 years imprisonment if they cause serious injuries. At the moment there is no specific offence of causing serious injury by driving was disqualified. Expect the new changes to come about in early 2015. Criminal practitioners should now be aware of the pilot scheme for pre-recorded cross-examination of vulnerable witnesses. There are currently 3 pilot schemes in operation in the 3 Crown Courts of Leeds, Liverpool and Kingston-upon-Thames with the first cross-examinations about to take place. If the scheme is successful it is intended to implement it throughout England and Wales. The law in this area is contained within Section 28 of the Youth Justice and Criminal Evidence Act 1999. Pre-recorded cross-examination is the final special measure to be implemented. A witness becomes eligible for such if they are under 16 years of age at the time of the special measures hearing or they have a mental disorder or they suffer from a ‘significant impairment of intelligence and social functioning or they have a physical disability or a physical disorder’. 67

The court will also need to find that the quality of evidence given by the witness is likely to be diminished in the absence of such a measure. A key change for Advocates will be the impact of Section 28 on case preparation. Two hearings of considerable substance will take place prior to the PCMH and the trial itself; (a) the ground rules hearing and (b) the Section 28 hearing during which the witness will be cross-examined. The Section 28 hearing will denote the ‘first day’ of the trial both for the purposes of the brief fee and credit for guilty pleas (a 10% discount for a guilty plea will apply if it is entered at the PCMH). This is presumably because the witness has been put through the ordeal of giving evidence. More about this when the system goes ‘live’ nationwide. I mention, almost in passing, Statutory Instrument 2014 No. 1106 – The Misuse of Drugs Act 1971 (Ketamine etc.) (Amendment) Order 2014 which amended the classification of certain drugs including Ketamine (which is now class B) and came into force on the 10th of June 2014. Again, just a brief mention that The Sentencing Council has published a new guideline covering offences of fraud, bribery and money laundering. It takes effect on the 1st of October 2014 for all offenders sentenced on or after that date. As with all these Guidelines they are available from their website. Revised Codes C and H come into force on the 2nd of June 2014. The purpose of the revisions to Code C is to implement obligations arising out of an EU Directives on the right to information in criminal proceedings. In particular, Code C now requires that every detainee must be given a revised written notice setting out their rights and entitlements whilst they are in custody, which has been updated to reflect the new substantive rights conferred by the Directive. The revisions to Code H simply follow the changes being made to Code C. The Jeffrey Review has been published. It was an independent Review commissioned by the Justice Secretary to look at the provision of independent criminal advocacy services. The final report on the Review with recommendations was published on the 7th of May 2014. Concerns rumble on about advocacy competence. The Review’s remit did not include consideration of remuneration rates for criminal advocacy or the requirements for public funding. Reductions across the board in payment rates for criminal legal aid services will do little to raise advocacy competence!

CASE-LAW I’m sure none of us were too surprised that the Court of Appeal reversed the decision by HHJ Leonard QC at Southwark Crown Court to stay the case as an ‘abuse of process’ where lawyers were simply unwilling to take on the case because of the awful fees – R v Crawley and others (Operation Cotton). We have not heard the last of this by any means! MacLaverty Cooper Atkins v The Lord Chancellor [2014] EWHC 1387 (QB) was an appeal on costs relating to a large amount of work that had been done concerning CCTV evidence. The court merely confirmed previous decisions that CCTV evidence does not fall within the definition of documentary or pictorial exhibits under the Funding Order and therefore cannot be remunerated. The court rejected the appeal but at paragraph 24 they did say that Parliament could never have had in mind the exceptional circumstances raised by the facts of this case. They therefore invited the Lord Chancellor, in the exceptional circumstances of the case, to consider ways of providing appropriate recompense to the lawyers involved albeit on an ex-gratia basis R (Singh) v Ealing Magistrates’ Court and another [2014] EWHC 1443 (Admin) is an interesting read. 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. I cannot think of a more appropriate case involving a negligent act than for one party to arrive at court without the papers! Where the State is prosecuting an individual and that individual is paying his lawyer privately it must surely be the case that if the state makes a mistake then they must bear the costs rather than the costs falling upon the individual who is paying the lawyer privately. That would seem to me to be basic and fair. 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 simply wrong. They also said that it was not appropriate for the matter to be returned to the Magistrates’ Court for the issue to be decided properly and that the court itself would decide the issue. A mistake may well form the basis for an application under Section 19. 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 defendants costs incurred in respect of the aborted hearing in the sum of £864. Do remember that we are always under a duty to protect our client in costs and, in factual scenarios similar to the above, we have no choice other than to seek an application against the other party to the proceedings. I remember putting in an earlier edition of CrimeScribe that as a result of the amendments to defendant’s costs orders made under Schedule 7 of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 that we, as a profession, would have to give an awful lot more thought to making such applications under Section 19 in appropriate cases. Remember that even if the client is successful at the end of the case and manages to obtain a defendant’s costs order those costs will be capped by the National taxing team at legal aid rates. It is therefore very important that if there are hearings at which the Crown are to blame than an application for wasted costs should be made and those costs claimed being the actual costs incurred by the client for that abortive court hearing – there is no question here of such amount being limited to legal aid rates. It is to be hoped that the Crown pay the sum due. One hopes that there will be no question of bringing a civil action in order to recover the costs ordered by the court. Whilst I fully appreciate that the Crown are under enormous pressure in terms of resources/caseload it is still incumbent upon them to ensure that cases are prepared and the more so when an individual is paying a lawyer privately. It’s nothing personal, it’s just a professional duty on our part. Those of you who have read CrimeScribe Edition number 33 will remember that I visited the same topic and mentioned the case of R v Binning – 20th of March 2014 at Oxford Crown Court. R v Ellis [2014] EWCA Crim 593 was an appeal against the period of disqualification from driving that was imposed on a guilty plea of causing serious injury by dangerous driving contrary to Section 1A of the Road Traffic Act 1988. The period appealed against was one of 8 years. The offence is a relatively new one and only came into being on the 3rd of December 2012 as a result of Section 143 of The Legal Aid, Sentencing and Punishment of Offenders Act 2012. There are presently no sentencing guidelines for the offence. Reference was therefore made to those issues mentioned in cases of causing death by driving and dangerous driving. Cases referred to were R v Woolston [2009] EWCA Crim 1295, R v Cooksley [2004] 1 CR APP R (S) 1 and the more recent case of R v Backhouse [2010] EWCA Crim 111. The disqualification in the case was reduced from 8 years to 5. 70

I seem to be spending more time than I have ever spent in the past dealing with the Rehabilitation of Offenders Act and Criminal Records Certificate issues. A recent case in this area was that of R (on the application of ‘P’) v Chief Constable of Thames Valley Police [2014] All ER (D) 78 (May). In this case the claimant applying for Judicial Review in the High Court was working at a residential community drugs stabilisation and structured treatment program. He was asked not to return because an allegation of a sexual nature had been made against him. He was arrested by the police and cautioned under interview about the matter. He was then informed that no further action would be taken. He was given an unsatisfactory Enhanced Criminal Records Certificate (ECRC) detailing the alleged sexual assault. Some months later he was offered a job conditional upon receipt of a satisfactory certificate. Solicitors wrote on behalf of the claimant to Thames Valley police asking for the adverse entry to be removed and a further ECRC was issued in which reference was made to ‘inappropriate and sexual comments’. Judicial Review was sought against the defendant’s decisions to include such information in the ECRC and to refuse to amend or remove the information. It was argued that such information was a disproportionate interference with his rights under Article 8 of the ECHR and the High Court agreed saying that the certificate would have a ‘killer blow’ on the claimant’s future employment prospects and that this was a disproportionate interference with his rights under Article 8 of the Convention. Hardly a month seems to go by without a challenge in the High Court against a decision of a Crown Court Judge to refuse bail. This month’s contribution is R (on the application of I) v Wood Green Crown Court [2014] All ER (D) 71 (April). The High Court holding in the case that the reasons given by the Judge for refusing bail could not reasonably have been relied upon to deny C bail. The Judge had taken into account matters which ought not to have been taken into account at all. The decision was therefore ‘Wednesbury unreasonable’. A bail address was proposed outside of the area in order to keep C away from any contact with the victim. The Judge merely speculated upon what might happen. The reasons had not been aired by the prosecution and had never put to the defence. The decision would be quashed and it would be directed that bail be granted upon stringent conditions.

We all know that court may decide to take away a defendants bail even though the prosecution are not applying for a remand into custody. Bail is essentially a matter for the court but it seems to me that there are 2 principles that must always be observed to avoid the Judge falling foul of the Judicial Review. These principles are as follows: The objections held by the court must be based upon substantial grounds for believing that one or more of the Exceptions to bail apply (those Exceptions being listed in the Schedule at the back of the Bail Act) The parties (and particularly the defence) must be given a right to be heard and to make representations before the final decision is made. A recent interesting case on the power of the Crown court to impose a disqualification from driving for any offence whatsoever under section 147 of the Powers of Criminal Courts (Sentencing) Act 2000 was that of R v Penson [2014] EWCA Crim 602. The Judge at Lincoln Crown Court sentenced the defendant to 2 years imprisonment and, in addition, disqualified him from driving for a period of five years under the Section. A hire car was used for the purposes of committing these offences. The Judge, in his sentencing remarks, referred to the appellant as a person who â&#x20AC;&#x2DC;drives around stealing from peopleâ&#x20AC;&#x2122;. The Court of Appeal considered that the Judge was fully justified to disqualify the appellant. They did, however, reduce the period from 5 to 3 years. R v Hackney [2013] EWCA Crim 1156 concerned the issue of credit for a guilty plea following a Goodyear indication. The Court of Appeal saying this at paragraph 10: â&#x20AC;&#x2DC;The Judge was, in our judgement, wrong in principle to be influenced in any way as to the extent of the credit to which this applicant was entitled by the fact that he had exercised his right to seek a Goodyear indication from the court. That was in our judgement a legitimate use of court procedure designed to enable defendants to make informed decisions about their plea and a procedure which is designed to assist in the administration of justice and avoid unnecessary trials. In our judgement, it should not result in any loss of credit to the defendant invoking it in the way this applicant did. It was however the case that the applicant pleaded guilty only at the plea and case management hearing and it is now fairly widely accepted that that can be expected to be rewarded with a 25% reduction rather than one third. We see no reason to depart from that in this case.

The issue of credit on a guilty plea raised its head again in the case of R v Goodale [2013] EWCA Crim 1144. This was a third relevant conviction for supplying class A drugs and therefore the court was required to pass a sentence of at least 7 years imprisonment pursuant to Section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 unless it would be unjust to do so. The Judge took the statutory minimum of 7 years as the starting point and said that she was going to give the applicant the full credit of 20%, the maximum available in the circumstances. If the Judge had applied the 20% reduction to a sentence of 7 years, as she clearly intended to do, the result would have been a sentence of 5 years and 219 days and not the 5 years and 8 months (8 months being 243 days) actually passed. The court said that normally the sentencing decision does not represent a mathematical exercise, nor does it result from an arithmetical calculation. However, the court can and should take a different approach where the 2 variables are not ones of the Judgeâ&#x20AC;&#x2122;s choosing but fixed by statute. In this case the 7 year minimum term and the 20% maximum credit for a guilty plea. If the Judge is intending to adopt each of those variables then the result is simply a matter of arithmetic. The Judge cannot lawfully pass a sentence less than the one produced by the arithmetic and the defendant is entitled to receive a sentence that is no longer than the one produced by the arithmetic. They added that it is the experience of the Recorder of Bristol, who was sitting as a member of the court, that in the case of fixed minimum sentences, such as 3 strikes burgers, it is not uncommon to see sentences recorded in days so that the necessary precision is achieved. The case of JC and RT v Central Criminal Court and Others [2014] EWHC 1041 (QB) concerned the question of whether or not an order made under Section 39 of the Children and Young Persons Act 1933 prohibiting the identification of a defendant under the age of 18 years could last indefinitely or whether it automatically expired when that person attained the age of 18 years. The court held that an order made by any court under Section 39 of the Act cannot extend to reports of the proceedings after the subject of the order has reached the age of majority at 18.

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Section 6 June 2014

Hello and welcome to this month’s edition of CrimeScribe. There’s a rumour going around that the Duty Contracts may not come about. I have absolutely no idea of the truthfulness or otherwise of this but it would be nice if they left us alone and let the marketplace sort out who wants to stay and who has had enough. Whatever happens in 2015 I suspect that part of the changes will involve further cuts in the payment of criminal legal aid. We can barely cope with the cut of 8.75% that was introduced for new business with effect from the 20th of March 2014. I don’t know whether or not I mentioned this in last month’s edition but the Sentencing Council has published a new guideline covering offences of fraud, bribery and money laundering. It takes effect on the 1st of October 2014 for all offenders sentenced on or after that date. As with all of these guidelines, they are available to view on the Sentencing Council website. The guidelines increase the emphasis on the effects on victims of fraud in the sentencing process. This may mean higher sentences for some offenders compared to the current guideline, particularly where the financial loss is relatively small but the impact on the victim is high – the unscrupulous builder and the elderly victim would be a classic example. The Magistrates’ Court Disclosure Review was published in late May. The Review was carried out by the Senior District Judge and Chief Magistrate Howard Riddle and the resident Judge at Woolwich Crown Court, His Honour Judge Kinch QC. Well worth the read. The Review concludes that there should be a change of emphasis, with much earlier consideration of the case and disclosure by the prosecution and earlier provision of material to the defence. Implementation of the Review is due to start this September. We know that we become entitled to the evidence upon which the Crown would seek to convict the defendant once a not guilty plea has been entered in the Magistrates’ Court. We also know that we become entitled to the unused material which meets the test once our client has entered a not guilty plea in the Magistrates’ court. The problem is actually getting the material. Earlier provision of the material to the defence is to be welcomed if it happens. I hear that it is not uncommon to get the unused material disclosure schedule a few days prior to the trial or even on the trial date itself. Evidence as well is sometimes served on the very day of the trial. As I understand it there are no formal time periods for the provision of

evidence and the disclosure of unused material within the Criminal Procedure Rules 2013 and although there are protocols in this area they are often not fully complied with. Hardly a week goes by these days without an appeal to the Appeal Court in relation to the issue of credit. Do be aware that where the evidence is ‘overwhelming’ the full one third need not be given even though there has been an indication of guilt at that first early listing in the Crown Court. The Sentencing Council has suggested that something in the region of 20% is appropriate in an ‘overwhelming evidence’ case. In the very recent case of R v Kadiri [2014] EWCA Crim 1106 the Appeal Court took the view that whilst the evidence was strong it was not an ‘overwhelming evidence’ case whereby the credit should be reduced. I read in my Gazette that there should be mandatory specialist training for criminal lawyers working with children. A recent report highlights a lack of specialist professionals, with many practitioners, including lawyers and Judges, insufficiently trained to recognise young offender’s needs, and lacking knowledge specific to young defendants and youth court law. The article says that Youth Court law is mistakenly perceived as less complex and important than Adult Court law. I would say from my experience that Youth Court law is a great deal more complex than Adult Court law. Serious and Grave Crime issues, Persistent offenders being but 2 of a whole host of considerations that need to be addressed in the Youth Court but having no relevance in the Adult Court. The report calls on the 3 main regulators to introduce ‘without delay’ a requirement for all practitioners representing children at the police station and practising in youth proceedings to be accredited to do so. For new entrants into youth proceedings, this would take the form of an initial spell of at least 10 hours of Continuing Professional Development – Accredited Youth Training and an annual 2 hour refresher. All this at a time when they are doing away with the need for compulsory CPD training! All sounds very strange. Those of you who are a little concerned about your Youth Court practice and procedure could do a lot worse than read the very interesting recent case of the BH (A child) v Llandudno Youth Court [2014] EWHC 1833 (Admin). This was a claim for Judicial Review of the decision of the District Judge to ‘commit’ him for trial to the Crown Court, pursuant to what is now section 51A (3) (b) of the Crime and Disorder Act 1998 (I wonder whether or not the word ‘commit’ there should have been ‘sent’). The claimant was in 11 at the time of the offence which was inciting a boy under the age of 13 to engage in sexual activity of a nonpenetrative nature. There was a co-defendant who was also aged 11 and the complainant was aged 10. The co-defendant had already been committed (sent) to the Crown Court on the same and another more serious offence. 75

The statutory framework for sentencing juveniles requires the court to have regard to the principal aim of the youth justice system, which is to prevent offending by children and young people, but also to have regard to the welfare of the offender. There are sentencing guidelines which have been promulgated to assist the court in this difficult balancing exercise. You will find them on the Sentencing Council website in the document entitled ‘The ‘Overarching Principles of Sentencing Youths’. Parliament has determined that an offender who is 14 or under should be sentenced to detention only where it is necessary for the protection of the public either because of the risk of serious harm from future offending or because of the persistence of offending behaviour. A detention and training order is not an available sentence where the child is under 12. Where the offence that is committed is a grave offence, the court has power, under Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 to impose a custodial sentence. It is clear that the court may impose a custodial sentence of less than two years under that provision, but in practice the power to do so is rarely exercised – please note that where such a period of detention is imposed it is not by way of a detention and training order where the child is under 12 – a child under 12 cannot be given a detention and training order. The correct term for such an order is ‘long term detention’. The court said this at paragraph 12 of the judgement: ‘in my judgement, the effect of Section 24 of the Magistrates’ Courts Act 1980 is that a Magistrates’ Court should not decline jurisdiction unless the offence and the circumstances surrounding it and the offender are such as to make it more than a vague or theoretical possibility that a sentence of detention for a long period may be passed. Although under Section 91 and pursuant to recent authority, it is no longer necessary for a court to pass a sentence of at least three years, in my judgement Section 91 is primarily applicable to cases of such gravity that the court is or may be considering a sentence of at least two years. Anything less, it seems to me, falls primarily to be dealt with as a detention and training order’(NB. the reference to Section 24 of the Magistrates Courts Act 1980 must now be taken as a reference to Section 51 of the Crime and Disorder Act 1998 simply because committals have been abolished and replaced with sendings).

The general policy of the legislature is that those who are under 18 years of age, and in particular children of under 15 years of age should, wherever possible, be tried in the youth court. It is that court which is best designed to meet their specific needs. 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. It is a further policy of the legislature that, generally speaking, first-time offenders aged 12 to 14 and all offenders under 12 should not be detained in custody and 76

decisions as to jurisdiction should have regard to the fact that the exceptional power to detain for grave offences should not be used to water down the general principle. Those under 15 will rarely attract a period of detention and, even more rarely, those who are under 12. The application for Judicial Review was granted and the sending was quashed. (Being fair to the Judge, he was probably trying to wrestle also with the position as to whether or not there should be 2 trials – remember the co-defendant had earlier been sent for trial) In the recent Supreme Court decision of T v The Secretary of State for the Home Department and another [2014] UK SC 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. Hardly a month goes by without a mention of the Rehabilitation of Offenders Act 1974, the Disclosure and Barring service (formerly known as the Criminal Records Bureau) and criminal records checks/enhanced criminal records checks. Do be aware of the fact that Chapter 8 of LASPO came into force in March of this year and has given us an entirely new Schedule of rehabilitation periods at the back of the Rehabilitation of Offenders Act 1974. If you haven’t read it yet, may I urge you to go to Chapter 8 of LASPO and read the new Schedule. My understanding is that it is retrospective. The appeal related to whether the Rehabilitation of Offenders Act 1974 (Exceptions) order 1975 (SI 1975/1023) and Part V of the Police Act 1997 is incompatible with Article 8 of the European Convention on Human Rights (right to respect for private and family life). 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 ‘74 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 PMC, 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 41-year-old woman him 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 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. They did, however, allow the appeal in T against the decision that the 1975 Order was ultra vires. Although all of this is not in force yet I just flag up for your attention the fact that we will have new fine levels in the Magistrates’ Court. As you know, we currently have levels 1 – 5. The proposals are that the figures within each level are quadrupled so level 1 goes from £200 to £800 and level 4 goes from £2500 to £5000. The £5000 limit for a level 5 fine will be removed and will become an unlimited amount. It makes for a good read in the press but I doubt whether or not in practice it will alter things very much. Fines are imposed relative to income no matter what the theoretical maximum is. See Statutory Instrument 2014 No. 1291 headed ‘The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 10) Order 2014 for further information in relation to those parts of Section 85 of LASPO which are in force. Not all of it is in force. Section 179 of the Anti-social Behaviour, Crime and Policing Act 2014 came into force on the 1st of June. The Section is all about the victim surcharge. You probably know that where the victim surcharge is ordered by the Crown Court Judge on the imposition of a custodial sentence there is no facility whereby the defendant may serve days in default and the sum, therefore, has to be paid. Ridiculous, but that’s the law. The position was different in the Magistrates’ Court because there was a power within Section 82 (1) of the Magistrates’ Courts Act 1980 which sets out the limited circumstances in which an offender may be committed to prison in default of payment of certain financial provisions. These included payment of the victim surcharge under section 161A of the Criminal Justice Act 2003. It was all change on the 1st of June in that section 179 (1) inserts a new-subsection (1A) into Section 82 of the 1980 Act to prevent Section 82 (1) (c) from applying to the victim surcharge. This will ensure that the victim surcharge may not be discharged as extra days added to an immediate sentence of imprisonment. In other words, the position is exactly the same now in the Magistrates’ Court as it has been for some time in the Crown Court 78

– the surcharge must be payable even where an immediate custodial sentence has been imposed. There has also been an amendment in relation to the position over the remittal of financial penalties. Where a fine has been imposed following conviction in either a Magistrates’ Court or the Crown Court they can currently use their powers to remit the whole or any part of the fine where the court takes the view that a change in the circumstances of the offender warrant it. New Section 85 (3A) of the 1980 Act and new section 165 (5) of the Criminal Justice Act 2003 direct the court when remitting a fine to make a consequential adjustment of the previously ordered surcharge. As you know the amount of the surcharge is dependent upon the level of the fine – the surcharge is 10% of the fine with a minimum of £20 and a maximum of £120. Thus where the court had originally ordered a fine of £500 and a corresponding surcharge of £50 the amount of the surcharge would be reduced to £25 where £250 of the £500 was being remitted. It is a must, not a may. The amount of the surcharge must be reduced by the corresponding percentage of the amount of the reduction in any fine. 2 new offences came into force on the 16th of June 2014 Breaching a forced marriage protection order – see Section 63CA Family Law Act 1996, as inserted by Section 120 of the Anti-Social Behaviour, Crime and Policing Act 2014 The offence of forced marriage – See Section 121 of the Anti-Social Behaviour, Crime and Policing Act 2014 Forced marriage in England and Wales is now a criminal offence. The Act also makes forcing a UK national into marriage outside the UK an offence under domestic law for the first time. The offence is triable in courts in England and Wales. The maximum penalty for the new offence of forced marriage is 7 years imprisonment. The new criminal offence will work alongside existing civil legislation (Forced Marriage Protection Orders – FMPO’s) allowing victims to pursue a civil or criminal option. FMPO’s can already be made by a civil court against any individuals suspected of trying to force a victim into marriage. From June 16th the breach of an MFPO is a criminal offence with a maximum penalty of 5 years imprisonment and/or an unlimited fine. It was still be possible for victims to seek enforcement for breach of a Forced Marriage Protection Order by way of the civil court’s contempt powers as an alternative to reporting the breach to the police. Statutory Instrument 2014 No. 1383 deals with ‘The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2014 79

This order amends the Table in Part 2 of the Schedule to the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002/1837). It provides that the offence of possession of Khat under Section 5 (2) of the Misuse of Drugs Act 1971 attract a penalty of £60. The order came into force on the 24th of June. I must confess to not knowing what Khat was! I therefore looked it up on the Internet and am reliably informed that it is a flowering plant native to the Horn of Africa and the Arabian Peninsula and, amongst communities from these areas, the taking of Khat, by way of chewing it, is quite popular. I know that I have mentioned this in previous editions but the view that it is simply unacceptable for suspects to be on bail interminably is gaining momentum. We all know of the ‘celebrity suspects’ who have been on bail for between 1 and 2 years prior to a decision being made in their case. Richard Atkinson, chairman of the Law Society’s Criminal Law Committee, reports that ‘such delays are a growing feature of investigations.’ The police might need to extend the period because for example, they need to look at electronic equipment. Computers are seized in almost every case now he reckons. ‘It is taking 9 to 12 months to look at someone’s computer’. The Law Society’s position is that there should be a 28 day statutory limit on police bail after which the police have to apply to the court to extend the period in the same way that they apply for a warrant of further detention.

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Section 7 July 2014

Hello and welcome to this month’s edition of CrimeScribe. It is now late July and we still do not know whether or not they plan to implement the Duty Contract Scheme. The latest I hear is that we shall know, one way or the other, in early August. Some people seem to think that it’s not going to come in. Others think that it will be implemented but only in urban areas. I shouldn’t really try to second-guess what the Ministry of Justice will do but my view, for what it’s worth, is that it will come in. Hopefully, I shall be able to say something more definitive in next month’s edition of CrimeScribe. If it is implemented I shall give a resume of all the important proposals. The most important document of the month was the issue of the new Practice Direction (Costs in Criminal Proceedings) [2013] EWCA Crim 1632. It is a MUST READ for all criminal practitioners. It’s not the longest document in the world and runs to 51 pages. It sets out the circumstances in which a defendant’s costs order should be made both in the Magistrates’ and Crown Court and gives the test for the court to apply in deciding whether or not to make such an order. It sets out the circumstances in which a Crown Court Judge could make a defendant’s costs order even though the matter is one on indictment. A Crown Court Judge could make such an order in the event of a successful appeal against conviction or sentence or after the 27th of January 2014 in other relevant Crown Court proceedings provided that the Director of Legal Aid Casework has made a determination of financial ineligibility in relation to the defendant. In other words it has been determined that your client has a household annual disposable income of £37,500 a year or more and is therefore ineligible for legal aid. Please don’t forget to apply for legal aid as a determination must be made and it must be refused before the client becomes eligible for a defendant’s costs order if successful at the Crown Court. The document sets out the circumstances in which the Magistrates’ Court or Crown Court could order the payment of any costs incurred as a result of any unnecessary or improper act or omission by or on behalf of any party to the proceedings – see Section 19 of the Prosecution of Offences Act 1985. The document sets out the 3 stage approach to deciding whether or not any costs should be made under this Section. Section 19 relates to an order being made against the defendant. There is also guidance on the much more important Section 19A which deals with, as

you know, a wasted costs order being made against the representative in the proceedings i.e. you! We know from recent case law that wasted costs applications are far more prevalent than they used to be; partly due to the fact that more clients have to pay privately because of their ineligibility for public funding. So, whether you are making the application or on the receiving end of it, the document is well worth the read. Another important document published this month is the updated Criminal Practice Directions [2013] EWCA Crim 1631. Much as with the Practice Direction on Costs, this is another document that should be scanned. I am sometimes asked about the authority of the Attorney General to refer cases to the Court of Appeal where the sentence is considered to be unduly lenient. We have just had Statutory Instrument 2014 No. 1651 The Criminal Justice Act 1988 (Reviews of Sentencing) (Amendment) Order 2014 which came into first force on the 21st of July 2014.This order amends the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006. Part 4 of the Criminal Justice Act 1988 empowers the Attorney General, with leave, to refer the case to the Court of Appeal where the Attorney General considers that the sentence in that case was unduly lenient. Paragraph 2 of Schedule 1 to the 2006 Order sets out a list of offences, the sentences for which are capable of being referred to the Court of Appeal under Part 4 of the 1988 Act. This Order adds the offences of holding a person in slavery or servitude and requiring a person to perform forced or compulsory labour under Section 71 of the Coroners and Justice Act 2009 to that list. This Order also amends paragraph 4 of Schedule 1 to the 2006 Order. This amendment ensures that the power to refer a case under Part 4 of the 1988 Act applies also to attempts, incitement and encouraging or assisting in relation to the Section 71 offences. Statutory Instrument 2014 No. 1777 is The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Alcohol Abstinence and Monitoring Requirements) Piloting Order 2014 subject to articles 3 and 4 (1), Section 76 of the Act (alcohol abstinence and monitoring requirements) comes into force on the 31st of July 2014 for all purposes other than application by the Armed Forces Act 2006 Section 76 of the Act comes into force ONLY in relation to the South London local justice area (comprising Croydon, Lambeth, Southwark and Sutton) The requirement is being piloted in that one area for a period of 12 months beginning the 31st of July 2014

Section 76 inserts a new Section 212A of the Criminal Justice Act 2003 which gives the court power to impose an alcohol abstinence and monitoring requirement as part of a community order or suspended sentence order. As with all these things we watch this space to see whether or not such orders will be rolled out nationwide once the pilot has been evaluated. I’m not quite sure what the good people of south London have done to deserve this pilot being foisted upon them but no doubt the people at the Ministry of justice do! Statutory Instrument 2014 No. 1787 is The Criminal Justice Act 2003 (Alcohol Abstinence and Monitoring Requirement) (Prescription of Arrangement for Monitoring) Order 2014 and comes into force on the 31st of July 2014.We know from the previous Statutory Instrument that such a monitoring requirement can be imposed as part of a requirement of a community order or suspended sentence order. This order prescribes that the monitoring of compliance with the obligations of alcohol abstinence monitoring requirement that has been imposed as part of the pilot scheme provided for by that Order will be through a transdermal electronic tag. This is a tag fitted to an offender to measure the level of alcohol contained in their sweat at set points throughout a 24-hour period. The tag provides data to a central monitoring point where it is analysed to check for compliance. If there are indications that a breach has occurred or should be considered then the enforcement authority is advised accordingly. There are four conditions before such a requirement can be imposed:

• Consumption of alcohol must be an element of the offence or the court

must be satisfied that consumption of alcohol was a contributing factor to the

commission of the offence

• The court must be satisfied that the offender is not dependent on alcohol

• The court must not include an alcohol treatment requirement (under Section

212 of The 2003 Act) in the order

• The court must have been notified by the Secretary of State that arrangements

for monitoring have been made in the local justice area

The Court has the power to order an offender either to abstain from consuming alcohol for a specified period or not to consume alcohol so that during a specified period they have a level of alcohol higher than a level specified by the order in their body. An offender on whom such a requirement is imposed would have to submit to monitoring for the purposes of ascertaining whether they were complying with the requirement under the new Section – 212A (1) (a)

Under section 212A (2) the maximum period of the new requirement is 120 days. I didn’t know about this until very recently but apparently in March the defence of Marital coercion was abolished by the Anti-Social Behaviour, Crime and Policing Act 2014. The defence was to be found in Section 47 of the Criminal Justice Act 1925. As you know, the defence was argued by Vicky Pryce at her trial for perverting the course of justice. I don’t think many lawyers had been aware that it was still available until we were all reading about it in the national newspapers. I think it’s a shame that it’s been abolished. I don’t think it could have stood as purely a defence for a married woman but it could easily have been amended to become one of ‘intimate partner’ rather than marital. Its abolition leaves the client without an appropriate defence in certain circumstances. Duress comes to mind but the test for duress is very high i.e. threats of serious injury or death. The latest on QASA – the very latest is that the criminal bar has launched its latest challenge to the introduction of the scheme by way of an appeal of the High Court’s dismissal of the bar’s Judicial Review of the Legal Services Board’s decision to proceed with the scheme has recently begun in the Court of Appeal. I shall keep you updated. CPD is the subject of much debate at the moment. It is important for solicitors to remember that the current regime is still very much in place and that they therefore must complete their minimum 16 hours CPD by the end of this October. It may well be all change next year with the publication of a ‘Competence Statement; guidance on how to identify training needs; tools to help with the process; examples of good practice; suggestions on how to record and reflect on training’. It is anticipated that by the spring of 2015 firms can start opting into the new competency system and that the new regime should be with us by the 1st of November 2016. I shall keep you updated. It’s an ever-changing legal world. Legal executives and barristers have taken a step closer to setting up their own client-facing businesses in competition with solicitors. The Bar Standards Board in June revealed it has submitted its application to regulate new business entities, albeit not alternative business structures. The move will allow BSB – regulated barristers to set up companies or partnerships and enable publicly funded barristers to contract directly with the Legal Aid Agency, taking control of work away from solicitors. In addition the Legal Services Board super-regulator has proposed granting legal executives powers to set up their own stand-alone firms. Currently, CILEx (Chartered Institute of Legal Executives) members can conduct many reserved legal activities only under the supervision of an authorised person, most commonly a solicitor.

I did mention in last month’s edition of CrimeScribe that the possession of Khat is now a criminal offence. I have just read an article about a man in Folkestone who is believed to be the first person in the UK to have been arrested. Khat is a class C drug. The person concerned was stopped at the Channel Tunnel with about £15,000 worth of the stuff in pillow cases in the boot and back seat of his car. R (on the application of Director of Public Prosecutions) v Sheffield Crown Court [2014] All ER (D) 167 (June) was a strange case on its facts in relation to the application of Section 19 of the Prosecution of Offences Act 1985. G, the driver of a bus and two other drivers were involved in an accident in which a pedestrian was killed. It was decided that G should be prosecuted for causing death by careless driving. At trial G was acquitted. The Judge determined that the failure to prosecute one of the other drivers involved in the collision and the decision to only prosecute G were ‘improper acts or omissions’ and he ordered the CPS to pay costs incurred by G under Section 19 of the 1985 Act. Not unsurprisingly the DPP sought Judicial Review of this order and the Judicial Review was allowed. The court taking the view that it was not the Judge’s role to discipline the DPP for what he considered had been the wrong exercise of a prosecutorial discretion. There was no power of a Judge to make such an order on these facts and therefore no question arose about the High Court’s ability to look at the order and set it aside. As mentioned in previous editions of CrimeScribe the High Court have to be very careful when dealing with matters relating to an indictment. Section 28 (2) of the Senior Courts Act 1981 precludes the High Court from interfering with decisions made by a Crown Court Judge if those decisions relate to ‘a matter on indictment’. The High Court, quite rightly in my opinion, taking the view that, in these circumstances, Section 28 (2) was not even engaged because the order of the Judge had not been lawful and therefore had to be quashed. I know it’s not just me who thinks that the whole area of expert evidence is fraught. There has always been real concern about the use of unreliable or in appropriate expert evidence. In the recent case of R v H (Stephen) [2014] EWCA 1555 the Court of Appeal held that the Judge had been correct not to admit evidence relating to ‘false memory syndrome’. Please do be aware that Part 33 of the Criminal Procedure Rules has been revised (the new Rule will come into effect on the 6th of October this year) and there is to be a new Practice Direction issued which will incorporate the reliability factors recommended by the Law Commission for the admission of expert evidence.

Advocates Gateway – New toolkits – 4 new Toolkits have just been issued and are available as a free resource on the Gateway – the titles of the toolkits are as follows:

Toolkit 9 Planning to question someone using a remote link

Toolkit 10 Identifying vulnerability in witnesses and defendants

Toolkit 11 Planning to question someone who is death

Toolkit 12 General principles when questioning witnesses and defendants with

mental disorder

The toolkits are available on The Advocacy Training Council website and are well worth the read. The following Sections of the Antisocial-Behaviour, Crime and Policing Act 2014 came into force on the 14th of July:

Section 108 (offence of possessing firearm for supply etc);

Section 109 (functions of Scottish Ministers under Firearms Acts);

Section 110 (possession of firearms by persons previously convicted of crime);

Section 111 (increased penalty for improper importation of firearms etc)

All of the sections are well worth the read. The only one I want to mention is the one concerning possession of firearms by persons previously convicted of crime. The new law is that a person who has previously served a custodial sentence of between 3 months and 3 years cannot now possess a firearm for a period of 5 years. Persons who have served custodial sentences of more than 3 years are permanently prohibited. Section 110 extends the definition of a prohibited person to include persons with suspended sentences of 3 months or more. As well as having to keep an eye on the Anti-social Behaviour, Crime and Policing Act 2014 we also have to keep up to date with The Crime and Courts Act 2013 – the latest on this is The Crime and Courts Act 2013 (Application and Modification of Certain Enactments) Order 2014 which will come into force on the 4th of August and, as a result, National Crime Agency officers will be designated as persons having the powers and privileges of a Constable, the customs powers of an officer of Revenue and Customs and the powers of an immigration officer – they are clearly people not to be messed with!

I draw to your attention that the very latest guideline from the Sentencing Council relates to Environmental Offences. The new Guideline will apply to all offenders aged 18 or over and organisations convicted of the offences on or after the 1st of July regardless of the commission date of the offence. I’m sure you know this anyway but just a reminder that the Criminal Procedure Rules are updated every April and we have a new version every October. The Criminal Procedure Rules 2014 will come into force on the 6th of October this year. I say this in virtually every month’s edition of CrimeScribe; they are well worth the investment of reading! If you have ever wondered precisely what the duties of the CPS/Police are in relation to helping you when you are pursuing an appeal against a conviction, you should read the case of R (Nunn) v Chief Constable of Suffolk Constabulary and another [2014] UKSC 37 I think my most enjoyable read recently has been the case of R (on the application of T and another) v Secretary of State for the Home Department and another. You may well have read it yourself. It concerned the Rehabilitation of Offenders Act 1974. As you know where a person is asked about his criminal record the question will be treated as not extending to ‘spent’ convictions. Consequently, he is entitled not to disclose these and cannot be liable for a failure to do so. Equally, a prospective employer is not entitled to make any decision prejudicial to the individual by reference to spent convictions or to any failure to disclose them. This applies equally to cautions, warnings or reprimands, which are spent as soon as they are given (but not conditional cautions which are not spent until 3 months have elapsed or the caution ceases at an earlier date – see the new Schedule at the back of the Rehabilitation of Offenders Act which came into force on the 10th of March 2014 as a result of the implementation of Section 139 of LASPO which brought into force Chapter 8 (it was Chapter 8 that contained the new Schedule). The appeal was concerned the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and Sections 113A and 113B in Part V of the Police Act 1997. The Order makes certain questions exempt from the above provisions of the 74 Act, including where they relate to specified 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 when 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. 88

T was getting just a little bit fed up with the fact that the police had issued warnings in 2002 to him as an 11-year-old boy in respect of the theft of 2 bicycles. The warnings were disclosed in 2008 under Part V when T applied for a part-time job with a football club which possibly involved contact with children. They were disclosed again in 2010 when he applied for a place on a sports studies course which again might have brought him into contact with children. The â&#x20AC;&#x2DC;anotherâ&#x20AC;&#x2122; referred to in the case with JB. She had received a caution as 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 Enhanced Criminal Record Certificate and it disclosed the caution. The training organisation told her that it felt unable to put her forward for employment in the care sector. The challenge in the High Court was that the revealing of such information violated their right to respect for private life under Article 8 of the ECHR. It was also argued by T that the fact that he had an obligation to disclose the warnings violated the same right. They were both successful in the Court of Appeal which made declarations that the relevant provisions of the 1997 Act were incompatible with Article 8.The Court of Appeal went further in the case of T and held that the 1975 Order was also incompatible with Article 8 and ultra violate in that it went beyond the powers set out in the 1974 Act. The Secretary of State was unhappy with the decision in the Court of Appeal and went to the Supreme Court which unanimously dismissed the appeal of the Secretary of State against the declarations of incompatibility that had been made by the Court of Appeal. The Supreme Court was, however, with the Secretary of State and agreed that the declaration that the 1975 order was ultra vires was wrong.

Section 8 August 2014

Hello and welcome to this month’s edition of CrimeScribe. August is traditionally a very quiet month for lawyers and this month has been no exception. I therefore intend to open this month’s edition by re-visiting a topic I have mentioned in an earlier edition. Although not yet in force at the time these notes were prepared (August 2014) Section 56 and Schedule 22 of the Crime and Courts Act 2013 will create a new offence of ‘driving, attempting to drive or being in charge of a motor vehicle with a specified controlled drug in the blood or urine in excess of the specified limit for that drug’ I don’t have a crystal ball but everything I have read tells me that the new offence will come in August of this year. You may have heard about it here first but there is going to be a communications campaign to alert the public at large to the new law prior to its implementation. If one of your recreational activities at the weekend involves putting a small amount of white substance up your nose then please do take all of this very seriously – you may not consider yourself impaired to drive in any way but the consequences for you will be disastrous! The new offence is inserted as a new Section 5A into the Road Traffic Act 1988. A controlled drug is defined in Section 11 of the 1988 Act, as amended by Sub-section (2) (a) of the Misuse of Drugs Act 1971. The definition of a controlled drug is set out in Section 2 of the Misuse of Drugs Act which in turn refers to drugs listed in Schedule 2 to that Act. As you know, it is already an offence under Section 4 of the 1988 Act to drive whilst IMPAIRED BY DRUGS OR ALCOHOL and the Section for this offence will remain in place alongside the new offence. Unlike the Section 4 offence, the new offence will not require proof of IMPAIRMENT. In this respect it is similar to the offence in Section 5 of the 1988 Act of driving, attempting to drive or being in charge of a motor vehicle with an alcohol concentration above the prescribed limit.

The penalties available for the new offence are set out in Sub-section (4) which amends Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988. It will not surprise you to learn that they are the same penalties as those for the offence in Section 5 of the 1988 Act. The new section 5A (2) of the 1988 Act allows for different specified limits to be set for different controlled drugs. Specified limits will be based on evidence of the road safety risk posed by driving after taking a particular drug or based on an approach whereby it is not acceptable to drive after taking any appreciable amount of the drug. A new 5A (3) of the 1988 Act provides for a defence if a specified controlled drug is prescribed or supplied in accordance with the Misuse of Drugs Act and taken in accordance with medical advice. The offence in Section 4 of the 1988 Act would continue to be used to deal with those whose driving is impaired by specified controlled drugs taken in such circumstances. It would also continue to be used to deal with those whose driving is impaired by drugs which are not specified for the purposes of the offence (including other prescribed drugs and â&#x20AC;&#x2DC;legal highâ&#x20AC;&#x2122; cases). New Section 5A(4) of the 1988 Act provides that the defence is not available if medical advice about not driving for a certain period of time after taking the drug has not been followed. New section 5A (6) of the 1988 Act provides for a defence for someone who is accused of being in charge of a motor vehicle with a specified controlled drug in the blood or urine above the specified limit for that drug if it could be shown that there was no likelihood of the person driving the vehicle while over the specified limit. This is similar to the defence in Section 5 (2) of the 1988 Act. Paragraph 3 of Schedule 22 amends Sections 6C of the 1988 Act so as to allow for up to 3 preliminary tests of saliva (or sweat) to be taken when testing for drugs. The current position is that one test can be taken but this would be insufficient for the purposes of the new offence given that current drug screening technology can test for a limited range of drugs only using a single preliminary test. Evidential testing for drugs would continue to be through blood or urine samples. Saliva or sweat tests would therefore not be used in the same way as evidential breath tests are for drinking and driving and indeed sweat tests are not under consideration even as preliminary tests. For drinking and driving, breath tests are the most frequent method used for both preliminary and evidential testing. Paragraph 4 of Schedule 22 amends Section 6D of the 1988 Act so as to allow for a power of arrest after a preliminary drug test relating to the new Section 5A offence.

New Section 5A (9) provides that specified limits could be 0, although this does not mean that limits will in fact be set at 0. The whole issue of whether or not there should be a Zero tolerance to certain controlled drugs went out to consultation and on the 27th of March this year the Government produced its response. Drivers will be allowed to get behind the wheel if they have traces of illegal drugs such as cocaine or cannabis in their system under new drug driving limits. Motorists who exceed certain thresholds of 8 prescription and 8 illicit drugs including cannabis and cocaine will be prosecuted for being ‘over the limit’ in the same way as those who drive with an amount of alcohol in their system over the limit. The limits for each individual drug reflect the speed at which they are broken down by the body and are designed to prevent people being prosecuted for taking medically approved quantities of prescribed drugs or having tiny traces of illegal substances in their body. If you think about it, a Zero limit for illegal drugs would have risked people being penalised for accidental exposure such as inhaling cannabis smoke in a public place (and we have all been to those parties!) Or for having traces of the substance in their system long after the effects have worn off – smoking that joint a couple of weeks ago with friends seemed like such a good idea! The recommended limits for 16 different drugs have now been approved and will see 8 general prescription and 8 illicit drugs added into new regulations that will come into force in the autumn of 2014. The new limits set by the government following the consultations include the following:

10 µg of cocaine per litre of blood

2 µg of cannabis per litre of blood

1 µg of LSD per litre of blood

For prescription drugs, limits include:

80 µg of morphine per litre of blood

500 µg of methadone per litre blood

550 µg of diazepam per litre of blood

I just thought you might be interested to know that the legal limit for alcohol is

80 milligrams of alcohol per 100 millilitres of blood – the equivalent of 800,000 micrograms per litre! The Government were thinking of a limit on amphetamine of 50 µg per litre of blood but may re-visit this as concerns were raised from doctors who feared that patients taking medically approved levels of Attention Deficit Hyperactivity Disorder medication may inadvertently cross this proposed threshold. Is it just my warped legal thinking or am I going to have far more clients with ADHD! – Not to mention all of those people covered in tattoos who suddenly develop a phobia towards needles! (You will already have noted that there are many references to blood!) The full list is as follows:

Illicit drugs

Benzoylecgonine, 50 µg per litre of blood

Cocaine, 10 µg of cocaine per litre of blood

Delta –9 –Tetrahydrocannabinol

(cannabis and cannabinol), 2 µg per litre of blood

Ketamine, 20 µg per litre of blood

Lysergic Acid Diethylamide (LSD), 1 µg per litre of blood

Methylamphetamine, 10 µg per litre of blood

6 Monoacetylmorphine

(6 – MAM – Heroin and Diamorphine, 5 µg per litre of blood)

General prescription drugs

Clonazepam, 50 µg per litre of blood

Diazepam, 550 µg per litre of blood

Flunitrazepam, 300 µg per litre of blood

Lorazepam, 100 µg per litre of blood

Methadone, 500 µg per litre of blood

Morphine, 80 µg per litre of blood

Oxazepam, 300 µg per litre of blood

Temazepam, 1000 µg per litre of blood 93

THOSE OF YOU WHO, LIKE ME, USE VOICE-RECOGNITION SOFTWARE CAN IMAGINE THE JOY I HAD WITH THAT LITTLE LOT! Do you think your local Magistrates’ Court will grant the defendant a representation order for this new offence? I think probably not if it’s going to be a guilty plea. I suspect they will direct the defendant towards the Court Duty Solicitor. It may be that the client would fall foul of the means test anyway and so either go it alone or instruct a lawyer privately on the new offence – as they say, ‘every cloud............!’ Speaking of instructing a lawyer privately, I was informed recently that a certain Magistrates’ Court has decided to pay only at legal aid rates where the court appoints the lawyer to represent the defendant under Section 38 (4) of the Youth Justice and Criminal Evidence Act. I don’t think this can be right. When the rates were capped at legal aid amounts for proceedings commencing on or after the 1st of October 2012 there were certain exceptions to this and they were outlined in a document published by the Ministry of justice. The exceptions were: Proceedings that commenced prior to the 1st of October 2012 The costs of a private prosecutor The costs payable to an Appointee of the court as the legal representative under the Youth Justice and Criminal Evidence Act and The Criminal Procedure (Insanity) Act. All I would say is that if you find yourself in this position you should challenge the matter and seek an authority from the court by which only legal aid rates payable. I say that the rates payable are the costs from central funds rates that were last set in 2010 and are clearly set out on Her Majesty’s Court Service Website. Apparently we now should have a right to be forgotten in the sense that our past crimes and misdemeanours should not easily be accessible on the Internet via a search engine –Google v AEPD and Costeja-Gonzalez C-131/12, May 2014 ECJ. Googles search engines process personal data within the meaning of EU Directive 95/46/EC and the Data Protection Act 1988 and Google must therefore draw a balance between the rights of the individual to privacy (removal) and the rights of the public to access information (no removal) It remains to be seen the extent to which the private citizen will be able to require Google to remove entries regarding spent convictions and indeed unspent convictions. What about all of the press reports written at the time in relation to the case? A very close friend of mine had a very serious allegation made against her and had to go to trial at the Crown Court. She was acquitted. This was more than 10 years ago. I googled her name to see whether or not all of the information surrounding the case was still in the public domain and it was! 94

The Victim Surcharge - The very latest The victim’s Minister has announced that criminals will pay up to £1.5 million more per year to help victims by way of the victim surcharge. This surcharge has already raised around £51 million since 2010. It has been extended so that offenders given a custodial sentence in the Magistrates’ Court will now be ordered to pay the surcharge. You may have wondered where the money goes. The money raised is used to help victims of rape, domestic violence, families bereaved by murder and fatal road traffic crimes. As you know, it was first introduced way back in 2007 at a flat rate of £15 for any one given a financial penalty. In October 2012 it was increased and extended up to a maximum of £120 to reflect the seriousness of the sentence. In July 2013, Penalty Notices for Disorder (PND’s) were also increase by £10 with the additional revenue contributing to victim services. Where an offender is under 18, at the time the offence was committed, and sentenced to a custodial sentence of any length by Magistrates, the 2012 Order sets the surcharge at £20. In the case of an immediate custodial sentence being imposed for offenders 18 years or over, at the time the offence was committed, the amount is £80 where the sentence is 6 months or below and £100 if the sentence is over 6 months and up to and including 2 years Previously offenders sentenced in the Magistrates’ Court could be given extra days in prison instead of paying the surcharge but the Anti-Social Behaviour, Crime and Policing Act 2014 changed this whereby it is now payable; it was always payable whenever a custodial sentence had been imposed at the Crown Court because the Crown court had no power to give extra days in prison in lieu of paying the charge. Statutory Instrument 2014 No. 2120 is ‘The Criminal Justice Act 2003 (Surcharge) (Amendment) Order 2014 and comes into force on the 1st of September 2014. This order amends the Criminal Justice Act 2003 (Surcharge) Order 2012. Section 161A (1) of the Criminal Justice Act 2003 requires a court when dealing with a person for one or more offences to order the person to pay a surcharge. The 2012 Order prescribes those cases where the court is not required to order a surcharge. It also prescribes the amount of the surcharge in those cases where a surcharge is payable. The Schedule to the 2012 Order provides that in certain cases involving custody, a surcharge is only payable in relation to sentences imposed ‘by the Crown Court’. Article 2 of this order omits these references to the Crown Court so that a surcharge is now payable on imposition of an immediate custodial sentence by a Magistrates’ Court.

Article 3 provides that the amendment this Order makes to the 2012 Order will not apply where a Magistrates’ Court deals with a person for a single offence committed before the 1st of September 2014 or, where a Magistrates’ Court deals with a person for more than one offence, if at least one of those offences was committed before the 1st of September 2014. And still we wait! The Ministry of justice has announced that tendering for duty contracts will not now happen this summer and the process has been put back until October. The draft versions of the Duty Provider Contract standard terms and the Duty Provider Contract specification are available on the website together with a summary table of changes in the new draft contract compared with our current 2010 contract. You can read these documents if you like and I suspect you probably have. They are merely draft versions and the clauses may well be changed before the final contracts are published. Statutory Instrument 2014 No. 2125 is ‘The Anti-Social Behaviour, Crime and Policing Act 2014 (Commencement No. 5) Order 2014. This order brings certain provisions of the 2014 Act into force on the 1st of September 2014 – there was not much of interest to criminal practitioners in this latest Commencement Order but I would point out that the Order brings into force Sections 116 to 118 which relate to child sexual exploitation in hotels. Statutory Instrument 2014 No. 2122 is ‘The Police Act 1997 (Criminal Records) (Amendment) (No.3) Regulations 2014 and comes in to force on the 1st of September 2014. These regulations amend the Police Act 1997 (Criminal Records) Regulations 2002 to add to the list of prescribed purposes for which an enhanced criminal record certificate may be required in accordance with a statement made by a registered person under Section 113B (2) (b) of the Police Act 1997.Regulation 2 (3) of these Regulations amends the 2002 Regulations to provide for applicants to apply for an enhanced criminal record certificate in relation to registration as a childminder agency. The amendments also provide for applicants to apply for an enhanced criminal record certificate in relation to considering their suitability to manage a childminder agency and also to consider their suitability to work for a childminder agency in circumstances where the applicant is required to enter childcare premises and, in the normal course of his or her duties, to have contact with children for whom childcare is provided or access to sensitive or personal information about children for whom childcare is provided.

Magistrates’ Courts trial preparation form The Lord Chief Justice has authorised an amendment to the list of standard trial preparation time limits at page 7 of the Magistrates’ Courts trial preparation form. Time limit (d) (Application for disclosure) has been re-written to clarify the obligation on the defendant when making an application for prosecution disclosure. It now reads as follows: Application for disclosure (Criminal Procedure Rules, 22.2 and 22.5; Criminal Procedure and Investigations Act 1996, Section 8) ‘the defendant must serve an application for an order for prosecution disclosure as soon as reasonably practicable after the prosecutor complies with the initial duty of disclosure – under Section 8 of the Criminal Procedure and Investigations Act 1996, no such application may be made unless a defence statement has been served.

The prosecutor must serve any representations in response within 14 days after that. Whilst in this area of the Criminal Procedure Rules I simply mention that the new Criminal Procedure Rules 2014 will be operative from the 6th of October.

Section 9 September 2014

September 2014 Hello and welcome to this month’s edition of CrimeScribe. The first thing that I want to mention is that the LAA has updated its Litigator and Advocate Fee Guidance. You may be working from the June Guidance document (or one produced even earlier!) The latest Guidance is August 2014. Might I suggest that you go onto their website and download the current Guidance. August is traditionally a quiet month for lawyers and not a great deal has happened. We still await the decision concerning our fate – the very latest is that they will let us know at some point in October......... Watch this space! We have just had a very important costs case and I make no apologies for going into it in a little more detail than would normally be the case in CrimeScribe. It is a ‘must read’ for anyone concerned with the billing of Crown Court cases. REGINA v Napper Luton Crown Court SCCO Reference: 160/14 Dated: 4 September 2014 Just to set the scene, it was all about whether or not the LAA should have paid the solicitors by way of Special Prep or by way of PPE in relation to electronically served material. It was an appeal by the solicitors against the decisions made by Determining Officers at the Advocates Graduated Fee team and the Litigator Graduated Fee team at the Legal Aid Agency to reduce those parts of their respective AGF and LGF claim that related to electronically served pages of prosecution evidence (PPE) on the grounds that the time spent for considering this evidence should be claimed as Special Preparation. The case is important for a number of reasons, not least the fact that a Senior High Court advocate had been instructed to act on behalf of the Lord Chancellor. Mr Andrew Keogh of Counsel appeared for the solicitors. 98

As you know, the definition of PPE appears within Schedule 2 of the Criminal Defence Service (Funding) Order 2007. That definition has undergone several amendments in its lifetime. FOR REPRESENTATION ORDERS GRANTED ON OR AFTER THE 1ST OF APRIL 2012 the current definition of PPE is contained in Statutory Instrument 2012/750 The new words appearing for the first time related to documentary/pictorial exhibits and the relevant part of the Regulations reads as follows:

(2B) subject to Paragraph (2C) a document served by the prosecution in

electronic form is included in the number of pages of prosecution evidence.

(2C) a documentary or pictorial exhibit which –

(a) has been served by the prosecution in electronic form; and

(b) has never existed in paper form,

is not included within the number of pages of prosecution evidence unless the appropriate officer decides that it would be appropriate to include it in the pages of prosecution evidence taking into account the nature of the document and any other relevant circumstances.’ THE ABOVE REFERENCES ARE TO THE LGFS BUT EXACTLY THE SAME PROVISIONS APPLY IN RESPECT OF THE AGFS. Guidance was issued by the then Legal Services Commission ‘......... despite the change in the manner of service (i.e. digitally), if EVIDENCE is relied upon that would previously have been served on paper it should be included in the PPE count’ (Let’s face it, if they hadn’t issued this Guidance there would have been complete non-co-operation in digitalisation!) In relation to documentary and pictorial exhibits the guidance informs us that where the prosecution served this digitally (and it has never previously existed in paper form) the appropriate officer will assess whether this would previously have been served in digital form or printed out. If it would formerly have been printed out then it is PPE (I say this because they got very confused about this in the case of JACKSON) The guidance gives an example of where the evidence might be served upon us digitally. The prosecution may obtain telephone records or financial records on a disc, extract the relevant material i.e. the material UPON WHICH THEY RELY (this may or may not be produced as an exhibit to the statement of a prosecution witness in a statement) 99

The relevant material would be payable as PPE (i.e. the bit upon which the Crown relied) but the underlying source material, which may be Voluminous, but is not SPECIFICALLY relied upon by the prosecution, would not count as PPE if the appropriate officer decides that it would not previously have been printed out and served in paper form. It would instead be subject to an assessment under the Special Preparation provisions (assuming it is not unused material – if it is unused material then, as you know, it is not a determinate of our fee). The problem with this Guidance was that it only guided the Determining Officer to consider paying PPE if the material would previously have been served as PPE – no mention in the guidance of ‘unless the appropriate officer decides that it would be appropriate to include it in the pages of prosecution evidence taking into account the nature of the document and any other relevant circumstances’– Parliament had clearly intended to put those words in for a purpose i.e. for the Determining Officer to exercise discretion and pay out as PPE where it would be appropriate. This omission on the part of the Determining Officer has led to an awful lot of appeals – one such case was that of R v Jalibajhodelehzi (SCCO Reference: 354/13) in which Master Gordon-Saker said the following: ‘I would add this, as appeals on this issue are now numerous. The Funding Order requires the Agency to consider whether it is appropriate to include evidence which has only ever existed electronically ‘taking into account the nature of the document and any other relevant circumstances’. Had it been intended to limit those circumstances only to the issue of whether or not the evidence would previously have been served in paper format, the Funding Order could easily so have provided. It seems to me that the more obvious intention of the Funding Order is that documents which are served electronically and have never existed in paper format should be regarded as pages of prosecution evidence IF THEY REQUIRE A SIMILAR DEGREE OF CONSIDERATION TO EVIDENCE SERVED ON PAPER.

So in a case where, for example, thousands of pages of raw telephone data have been served and the task of the defence lawyers is simply to see whether their client’s mobile phone number appears anywhere (a task more easily done by electronic research), it would be difficult to conclude that the pages should be treated as part of the page count. Where however, THE EVIDENCE SERVED ELECTRONICALLY IS AN IMPORTANT PART OF THE PROSECUTION CASE, it would be difficult to conclude that the pages should not be treated as part of the page count’ The thrust of the Lord Chancellor’s argument during the NAPPER case was that the Funding Order was ‘no support for the contention that the Determining Officer should make any decisions about the importance of the evidence in the case’ (paragraph 15)

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The Lord Chancellor also argued that the Advocate and the Litigator in this case was one and the same person and yet 2 claims are being made! – Reference was made to the decision of R v Gillett (SCCO Reference: 185/14) dated 5th of August 2014 where the court expressed concern whether the Advocate and litigator within the same firm should both receive the higher fee for carrying out the same work. Mr Keogh’s submission, as set out in his skeleton argument, was that in both cases as these documentary exhibits previously existed in paper form, they should be included as the PPE. In the alternative, he submitted that it is appropriate to include them as PPE, taking into account the nature of the documents and any other relevant circumstances. With regard to these appeals, it was clear from reading the prosecution case summary that the entire case was pinned on the telephone data and connections of time, place and people, made as a result of the analysis of the data. The costs Judge in the case said this at paragraph 29: ‘........ The wording of the Regulations was clear in that it permitted the Determining officer to ‘take into account the nature of the document and any other relevant circumstances’. The effect of these words is that the Determining Officer MUST CONSIDER WHETHER THE EVIDENCE IS PIVOTAL, whether the evidence underpins the understanding or admissibility of any other piece of evidence, and whether the volume of evidence disrupts the fair and predicted economic balance of the remuneration paid for a case in the light of the Legal Aid Agency’s position statement that the statutory changes were not designed to disrupt the status quo’.

And at paragraph 33 of the judgement: ‘In my judgement, the wording of the Regulation is quite clear. If the electronically served evidence had previously existed in paper form, then it can be included as PPE. The difficulty is not only to decide whether or not the electronically served evidence previously existed in paper form, but also as to whether or not it existed in paper form prior to April 2012. I consider this to be an almost impossible task. I have heard a great number of appeals on this issue, and what is abundantly clear is that the practice of serving evidence of this nature electronically or in paper form or both varies considerably. I have seen cases where the printout of the electronically served evidence has been endorsed by the Crown Prosecution Service with the date of the printing. I have been shown evidence of cases where telephonic evidence of this nature has been served electronically both before and after April 2012 and cases where similar evidence has existed in paper format both before and after April 2012. As there has been such a wide variation in practice, how can a Determining Officer determine whether particular evidence in a particular case would have been served in paper or electronic format prior to April 2012?’

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With regard to this particular appeal, I have sufficient evidence to me to make a finding that the electronically served evidence originally existed in paper format.

And at paragraph 40: ‘In my judgement, the Determining Officers are required to and should have considered the nature of the documentation and all of the relevant circumstances. In their submissions to the Determining Officers made with their requests for redeterminations, the solicitors went into considerable detail as to the necessity for the analysis of the telephonic evidence. They stated that the evidence was INTEGRAL TO THE CASE against the defendant, and the Crown, in reliance upon that evidence, produced Schedules to the Court comprising of almost 300 pages (wow! – And they were merely the Schedules). During the middle of the trial further Schedules were then prepared to show links with other co-conspirators. Following an analysis of the material, the solicitors concluded that it was necessary to instruct their own telephonic expert in order to provide evidence of interaction between Napper’s phone and the phones of the co-conspirators in order to show that Napper’s phone was in fact his own personal phone and that the majority of calls were made to family, friends, etc. The solicitors also state that the telephone evidence on the disc contains data from the co-conspirators, and therefore detailed analysis of the contents of the disc was necessary to show that there was little or no contact between Napper and the other co-conspirators’.

APPEAL ALLOWED NB – the judge was concerned though that the solicitors had not satisfied him that there had been no duplication between advocate and litigator and consequently took the view that it would not be appropriate for both advocate and litigator to make a claim for PPE – the appeal was therefore only allowed in relation to the litigator claim – the appeal was dismissed in relation to the advocate claim Interesting, this last point – perhaps we are now moving towards the situation whereby PPE will not be claimable where the person acts as both Litigator and Advocate – it will be interesting as to how this ‘pans out’ when 2 different people are involved – I can see a little bit of friction here for the future – even more important perhaps to get the Higher Rights and to get the Advocates fee as well (albeit probably wearing just the 1 hat for the PPE) Where you are contesting that you should be paid on a PPE basis rather than Special Prep it will probably be useful to use both strands of the argument i.e. that these documents would have existed in a paper format prior to April 2012 and, even if they didn’t, the evidence was so integral to the Crown’s case that it required significant analysis by the defence and should be payable on a PPE basis rather than the much lower Special Prep at hourly rates fee. As mentioned in this particular case, it will often be very difficult to decide whether or not prior to April 2012 the document would have been served in paper format. 102

Another very interesting case in this area is that of R v Nutting [2013] Costs LR 1037 S.C.C.O. When the prosecution served material electronically on which they base SCHEDULES OF EVIDENCE than that material must be served as part of the prosecution case and included in the page count whether or not the documents themselves were ever printed out. And still on the issue of costs I understand that Statutory Instrument 2014 No. 2422 ‘The Criminal Legal Aid (Remuneration) (Amendment) (No.2) Regulations 2014 will come into force 2nd of October which will re-introduce cracked trial fees for both Litigator and Advocate where there has been an election of the accused for Crown Court trial and the case cracks because the Crown offer no evidence. At the moment, as you know both Litigator and Advocate are on a fixed fee when this happens. I don’t believe there has been any change to the situation in which there is an election and then the defendant pleads guilty on indictment – in these circumstances both Litigator and Advocate are on a fixed fee rather than a cracked trial (payment on a page count) fee. Allowance is also made in the same Statutory Instrument for interim payments to be made to solicitors and barristers undertaking lengthy cases in a bid to help with their cash flow. They will also be able to claim some of their fees at the beginning of the trial. The Ministry of Justice has taken the view that currently lawyers in trials that last more than 10 days have to wait too long in some instances for fees to be paid as bills are submitted, at the moment, at the end of a trial. The explanatory note to the Statutory Instrument reads as follows: ‘Regulation 2 (3) and the Schedule introduce interim payment of fees for litigators in proceedings in the Crown Court. Effectively, a litigator may make a claim for an interim payment at one or both of two stages in proceedings. The first is where a not guilty plea is entered following a plea and case management hearing (Regulations 17A (2) (a) as set out in the Schedule), or alternatively, where a retrial is ordered and representation has been transferred to a new litigator (paragraph (2) (b)). However, an interim fee is not available at this stage in cases committed or sent for trial to the Crown Court on the election of a defendant (paragraph (3)). The second stage is where the trial is listed for 10 days or more and the trial has commenced (paragraph (2) (c)). ‘The fee regime for certain cracked trials and guilty pleas is amended for advocates and litigators. Regulation 2 (6) and (7) excludes from the fixed fees applicable to cases committed or sent for trial to the Crown Court on the election of a defendant a case where the trial is a cracked trial because the prosecution offer no evidence on all counts and the Judge directs that a not guilty verdict be entered. The graduated fee scheme will apply in these cases.’

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‘The amendments made by these Regulations apply to criminal proceedings in which a determination under Section 16 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is made on or after 2nd of October 2014’.

Hardly a month goes by without a case from the Court of Appeal on the issue of credit. The very latest case in this area is R v Cody [2014] EWCA Crim 1819. The defendant pleaded guilty to causing death by dangerous driving, causing death by driving whilst uninsured, causing death by driving whilst unlicensed, failing to stop after an accident and using a vehicle without insurance. A terrible case on its facts involving the death of a police officer conducting speed checks with handheld laser equipment. The defendant was given 20% rather than the usual one third upon indicating an early guilty plea. This was clearly an overwhelming evidence case. The argument from the defence was that it was a strong case but that it was not an overwhelming one. It was argued on appeal that if there should be some reduction the credit afforded should have been something in the region of 25% rather than 20%. The argument was rejected by the court. R v Ward [2014] 1 CR.APP.R.(S) Where an offender pleads guilty after having initially failed to answer police bail, he cannot expect to receive the same credit for a plea as he would have done had he not absconded. R v Wilson (Lee) [2014) 1 CR.APP.R.(S) A defendant who offers to plead guilty to a lesser offence, conditional upon the prosecution not proceeding with a more serious offence, should expect no credit for the offer where it is rejected by the prosecution and a plea of not guilty is entered or maintained, even if the end result is that the defendant is convicted only of the lesser offence. An interesting case on the relatively recent new offence of causing serious injury by dangerous driving is that of Regina v Michael Dewdney [2014] EWCA Crim 1722.

It is important to appreciate that this type of offending is very ‘fact specific’ and it is a question of fitting the facts of any particular case into a particular level where level 3 is the least serious and level I is the most serious. ‘This relatively new offence reflected a decision by Parliament to meet a gap identified by both in judgements of this Court and in public concern between the maximum sentence of 2 years for

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dangerous driving and the maximum sentence of 14 years for causing death by dangerous driving. It had been felt for many years that legislation failed to provide for circumstances in which not only had the driving been of a character likely to cause injury to life and limb, but had actually caused serious and significant injury to others. The result has been this new offence carrying a maximum of 5 years’ (paragraph 20) ‘There is of course no sentencing guideline in place for this offence. However, there is a guideline of the Sentencing Guidelines Council relating to causing death by dangerous driving. We think it helpful to have regard to that guideline in relation to the levels of offending identified there’ (paragraph 21)

Under those guidelines the least serious is level 3 (driving creating a significant risk of danger); level 2 (driving that creates a substantial risk of danger); level I (dealing with the most serious offences, encompassing driving that involves a deliberate decision to ignore all the rules of the road) The Court of Appeal decided that on the facts of the particular case the Judge was right to regard this offence as falling within the range of the most serious offences of this kind i.e. level I. And finally, in terms of cases for this month’s edition I just want to briefly mention the case of Hamill and The Chelmsford Magistrates’ Court and Chief Constable of Essex Police [2014] EWHC 2799 (Admin) This was a claim for Judicial Review of a decision of a bench of the South Essex Magistrates’ Court to dismiss an appeal against the decision of the Chief Constable of Essex police that the appellant should continue to be subject to the notification requirements as set out in Part 2 of the Sexual Offences Act 2003, as amended. The claimant had been convicted of rape in 1994. Since the Sex Offenders Act 1997 had come into force he was obliged, as a result of his conviction and sentence, to notify the police of his address and other details and had to do so for ‘an indefinite period’. After amendments to the SOA 2003 came into force in 2012, the claimant apply to the Chief Constable under Section 91B of the amended SOA 2003 to be relieved of these obligations of notification. The Detective Superintendent who dealt with the case on behalf of the Chief Constable determined that the complainant should not be relieved of his obligations. The claimant’s appeal to the Magistrates’ was dismissed. Permission to bring the claim for Judicial Review was granted. Neither the defendant, the Chelmsford Magistrates’ Court nor the interested party, the Chief Constable of Essex police, appeared or was represented at that hearing. At the end of the argument put before the High Court they announced that they would grant Judicial Review, quash the decision of the Magistrates’ Court and remit the matter to another Magistrates Court to hear a fresh appeal.

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They also indicated that it might be more appropriate for such matters to be listed before a District Judge and said this at Paragraph 79 ‘We understand that this was one of the first appeals to the Magistrates’ under Section 91E, and we sympathise with the bench who had to hear it. Dealing with a new and complex statutory regime is never easy. Although it is not within our power to prescribe the composition of the court, we venture to suggest that in the circumstances of this case it might be thought appropriate for the remitted hearing to be listed before a District Judge.

I don’t want to go into the facts of the particular case but I just flag it up so that you know that if you have a client who wishes to be relieved of their notification requirements the first application must be to the Chief Constable and the appeal thereafter lies, somewhat surprisingly you might think, to the local magistrates court. Important provisions of the Anti-Social Behaviour, Crime and Policing Act 2014 will come into force in October. ASBO’s will be abolished and replaced by Criminal Behaviour Orders. These orders are fully set out in Part Two of the Act. The new Order will replace both ASBO’s and Drinking Banning Orders. In brief, where a person is convicted of an offence and a Court has either imposed a sentence in respect of the offence or discharged the offender conditionally, it may make a Criminal Behaviour Order on the application of the prosecution if

(i)

It is satisfied beyond reasonable doubt that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to

any person, and

(ii)

It considers that making the Order will help prevent the offender from engaging in such behaviour.

The Order may contain both prohibitions and requirements. For offenders who have not reached the age of 18 before the Order is made the overall period must be a fixed period of between 1 and 3 years. Where the offender has reached the age of 18 the overall period must be a fixed period of not less than 2 years or an indefinite period (so that the Order has effect until further Order) It will be on either way offence (maximum penalty, on conviction on indictment, 5 years imprisonment, or a fine, or both) for a person without a reasonable excuse to do anything he is prohibited from doing by a Criminal Behaviour Order or to fail to do anything he is required to do (Section 30). Where a person is convicted under Section 30 it is not open to the Court to discharge the offender conditionally. 106

A number of amendments to the Consolidated Criminal Practice Directions have been approved by the Lord Chief Justice and come into force on the 6th October 2014. By far the most significant of all of the amendments is the new section on medical certificates. This provides that the minimum standards a medical certificate should set out are:

a) The date on which the medical practitioner exam in the defendant

b) The exact nature of the defendant’s ailments

c) If it is not self-evident, why the ailment prevents the defendant attending court;

and

d) An indication of when the defendant is likely to be able to attend court or

when the current medical certificate expires.

Doctors will also need to be aware of the new rule 5C.6 which states: Medical practitioners should be aware that when issuing a certificate to a defendant in criminal proceedings they make themselves liable to being summoned to court to give evidence about the contents of the certificate and they may be asked to justify their statements.

A new rule 33A deals with the admission of expert evidence. This identifies in Rules 33A .5 and 33A.6 a long list of factors that a court will need to consider before allowing expert evidence to be adduced. You are no doubt, well aware that courts have been concerned for some time about the ‘expertise’ of so-called experts. There was a case only the other day in which the Judge refused to allow evidence of ‘false memory syndrome’ to be admitted. A new section is added to the Practice Direction regarding listings. The most significant issue here is to restrict the Judges who can try sexual cases. Judges trying sexual cases will need to be on an approved list.

The Legal Aid Agency has published a document entitled ‘Example Duty Solicitor Rotas’ This is just one of a number of documents being published at the moment in anticipation of the Duty Provider Crime Contracts coming into force in July 2015. I don’t know whether or not it’s ever going to happen but you might care to keep abreast of these documents just in order to know their current thinking.

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Section 10 October 2014

Hello and welcome to this month’s edition of CrimeScribe. I opened last month’s edition with the important costs case of Regina v Napper – Luton Crown Court – SCCO Reference: 160/14 – Dated: 4th of September 2014. I open this month’s edition with the very latest case in this area which is that of the Regina v Murray – Minshull street Crown Court – SCCO: Reference: 233/14 – Dated: 22nd of September 2014 The 3 appeals in this case related to the same issue as to whether or not the Appellants should be remunerated under the appropriate Graduated Fee Scheme for the number of pages of prosecution evidence or whether, as contended by the Legal Aid Agency, the remuneration should be by way of special preparation. The solicitors represented a number of defendants who were all charged with conspiracy to supply Class A drugs and other related offences. The solicitors also acted as advocate for one of the defendants. The dispute was, as always, the usual one. 28,888 pages of telephonic evidence had been served electronically on disc and the LAA said that this material could not be PPE because it would not have been provided in paper format prior to the 1st of April 2012. Accordingly, in each case, payment was made based on 1,811 PPE. We know from the amended Funding Order (Statutory Instrument 750/2012) that the above is not the full test! They conveniently forget the part of the Funding Order which reads as follows ‘unless the appropriate officer decides that it would be appropriate to include it in the pages of prosecution evidence, taking into account the nature of the document and any other relevant circumstances’ i.e., in other words, whether or not it had existed in paper format prior to the 1st of April 2012 is only part of the test! The argument was advanced that prior to the implementation of the current regulations on 1 April 2012 telephonic evidence of this nature would have been served in paper format. It should therefore have been payable as PPE. The other argument put forward was that the Determining Officer had failed to take into account the nature of the document.........

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The Determining Officer should have done so because this was a case where the evidence was pivotal to the prosecution and that careful analysis of this documentation was required to be carried out by the defence teams. The costs Judge said at paragraph 8 ‘In my judgement, the regulation is quite clear in that the nature of the documentation and all of the relevant circumstances have to be taken into account and the narrow interpretation made by the Determining Officers is incorrect’. The costs Judge went on at paragraph 9 ‘I am satisfied that the nature of the evidence in this case was important....... I have seen evidence.... careful analysis of the telephonic evidence. The time recorded for carrying out this work was 58 hours, 36 minutes, and there were 84 pages of notes prepared by the solicitors in connection with this telephonic evidence. And at paragraph 10 ‘....... taking into account the nature of the documentation and all of the relevant circumstances, I am satisfied that in respect of the solicitors Litigator Fee claim it would be appropriate to include the material in the PPE. Consequently, the solicitors appeal in respect of the Litigator Fee claim succeeds and I direct the Determining Officer to remunerate the solicitors on the basis that the electronically served telephonic evidence is included as PPE (subject to the maximum allowed)’.

We all know that the maximum PPE claimable now as litigator is 10,000. I don’t know whether or not you’re aware of how much 10,000 pages in a trial on a conspiracy to supply Class A drugs is worth but I can tell you it is £67,000! You may care to compare this with 58 hours of special prep remunerated at between £25 and £50 an hour – you will see that this is a fee of approximately anything between £1500 and £3000. I think you would agree with me that this is well worth the £100 fee it is going to cost you to appeal and the fight! Remember that if you win you can also claim all of the costs of the preparation of the appeal and the hourly rates are very good. I believe that 10,000 pages on a guilty plea in such a case is worth about £16,000. The costs Judge said this at paragraph 11 ‘the position with regard to the Advocate Fee claims is different. The advocates clearly benefited from the detailed analysis carried out by the appropriate fee earner. I have no evidence before me as to the extent of the analysis that was carried out by the advocates. I accept that the advocates do have a separate role to that of the litigator, but it would not be appropriate for the advocate to receive the higher rate of payment for duplicating the work that had already been carried out by a litigator. I have no doubt that the advocates did consider the telephonic evidence, but there is no evidence to suggest that they analysed this evidence in the same degree of detail as did the litigator. Furthermore, I am mindful of the fact that the Defendants all entered guilty pleas well in advance of any trial. These are circumstances that I should, and do, take into account’.

The advocates were therefore left with making a claim under special prep. This is clearly something which is going to provoke conflict between the solicitors and the

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advocates. Precisely the same thing was said in the case of Napper. In my view, this issue needs to be the subject of an appeal in itself. Whilst dealing with the issue of costs it is appropriate to mention Statutory Instrument 2014 No. 2422 – headed ‘The Criminal Legal Aid (Remuneration) (Amendment) (No. 2) Regulations 2014. THESE REGULATIONS APPLY WHERE THE REPRESENTATION ORDER ID DATED ON OR AFTER 2ND OF OCTOBER 2014. The first thing to say is that the first point applies to both litigators and advocates whereas all of the subsequent points apply to litigators only. Where the defendant ELECTS CROWN COURT TRIAL in the Magistrates’ Court in a matter triable either way and it is sent to the Crown Court for trial and the Crown offer no evidence on the counts at the Crown Court and the Judge directs a not guilty verdict both the advocate and the litigator can claim a cracked trial fee based on a page count and not the fixed fee that has been claimable in the past. Where the defendant ELECTS CROWN COURT TRIAL and then pleads guilty the fixed fee is payable rather than payment on a page count. There has been no change to the position where JURISDICTION IS DECLINED. In these circumstances the advocate and the litigator will always be paid on a page count regardless of what happens to the matter on indictment does not whether it is a guilty plea or a cracked trial. It hardly needs saying that it matters not either where it is a trial. It was always payable as a page count on a trial and still is. Here’s an interesting question for your consideration. What fee do you think the LAA will pay us where we elect trial by jury but the prosecution discontinue the proceedings shortly after that? It is clearly not a guilty plea but they are surely not going to pay us a cracked trial fee in such circumstances. It would be wonderful if they did. I suspect they will say that the cracked trial fee will only be payable in the limited circumstances where the Crown offer no evidence on the indictment and the Judge thereafter directs a not guilty verdict. They will either say that we are on something like 100% of a guilty plea fee if papers are served and 50% of a guilty plea fee if papers are not served, or, more probably, that we simply fall back on the fixed fee. I don’t have a definitive answer. We wait and see. The second Amendment applying to litigators is in relation to interim fees. Once a not guilty plea has been entered at an effective PCMH and the Judge has given directions re the trial the litigator can put in an interim claim for 75% of a cracked trial fee. This will not apply on a matter triable either way where the defendant elected. Those of you who know a thing or two about the billing of Crown Court work will immediately appreciate that once the matter gets past the PCMH then the 110

very worst fee we can claim is 100% of a cracked trial fee. They are therefore losing nothing by paying us 75% of a cracked trial fee early. It is simply meant to help with cash flow. If the trial does crack we will subsequently claim the remaining 25% of the cracked trial fee. If the trial goes ahead as a trial we will claim the trial fee deducting from our claim the earlier 75% of the cracked trial fee that has already been paid to us. The fee will be based upon the PPE that we have at that particular time together with any additional defendant uplift. No travel may be claimed as part of an interim payment. The second interim claim for litigators applies where a trial is fixed that is due to last 10 DAYS OR MORE. From the point of the trial commencement, i.e. you must wait for the trial to start, the litigator could claim the trial fee based upon the PPE and a 1 day trial. Again, those of you who know about these things will readily appreciate that in the vast majority of instances this will mean that you will be claiming the whole fee because the page count is a material factor dictating your Crown Court fee. There is nothing to stop the litigator putting in a claim at both stages where you know you have a case where the trial is going to last 10 DAYS OR MORE. Interim fees are also claimable in certain instances on re-trials. Where there is a re-trial and the litigator is the same as on the original trial there can be no claim for an interim fee. Where there is a re-trial and a new litigator, that litigator will be able to apply for 50% of a cracked trial fee once it is decided that a re-trial will take place. The representation order having been granted to the new litigator. The date for the retrial must have been set. Where the re-trial has commenced and it is a new litigator, that litigator will be able to apply for a 1 day trial fee based upon PPE and any defendant uplift. These interim claims must be made on form LF3 and sent to Nottingham. And still in this area I am sure you are aware of the changes afoot regarding the processing of criminal legal aid applications. Providers in the West Midlands and Warwickshire will be able to use the CRM 14 e-Forms from September 8, 2014, as the LAA assumes responsibility for processing criminal legal aid changes in that area. A Criminal Applications Team (CAT) processing team in Birmingham will be established. This will be for providers to submit their criminal legal aid applications.

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xProviders will be able to access the CRM14 eForm at the following Magistrates’ courts: • Birmingham • Wolverhampton

• Warwickshire Justice Centre (Leamington spa)

• Coventry • Walsall • Dudley

• Sandwell (Warley)

The rest of the Midlands will move across to the LAA on October 6th, as part of the national roll-out programme which will continue next year. By June 2015 the LAA will be responsible for processing work across the whole of England and Wales. I can hardly wait!!!!! I want to turn now to the subject of bail and, in particular, the defendants surrender to bail at court. The Justices Clerks Society has just published a very recent document entitled ‘Adopting a Consistent Approach to Surrendering to Bail – Guidance’. ‘Case-law and practice allow of 2 points at which a defendant in criminal proceedings could be said to have surrendered to bail, either when they actually appear before the Tribunal or when they book in with a court official. This in turn leads to 2 different legal situations if a defendant on bail leaves a court house, having attended. Where booking in is the surrender point, defendants who then wilfully absent themselves will not be guilty of an offence, while in other courts, they would be’. ‘...... It was also agreed that the better course was to treat surrender as occurring when the defendant appeared in court, not when booking in, in order to provide better deterrence’ ‘We therefore recommend that those clerkships which still treat booking in with the Usher as the surrender point now change their practice so that surrender is treated consistently in all criminal courts throughout England and Wales’ ‘The cases of Richards and Scott Evans leave the decision up to individual courts. In the Crown Court in practice that would be the direction of the Resident Judge, as was the case in Birmingham Crown Court in Evans’

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‘Section 6 of the Bail Act 1976 provides that ‘if a person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody he shall be guilty of an offence’. The issue in question is, when does a defendant surrender?’ ‘In Magistrates’ courts the position is set out in DPP v Richards. The defendant booked in according to instructions and, his case not having been called on by 12 noon, left without permission. He was charged with failing to surrender to bail, the Magistrates’ acquitted and the CPS appealed to the High Court who dismissed the appeal’. ‘Glidewell LJ giving the judgement of the court said ‘what precisely constitutes the person or body to whom a person on bail is to surrender depends upon the procedure followed at the particular court and the directions given in accordance with that procedure to the person who is coming to surrender… I take the view that if a court provides a procedure which, by some form of direction, by notice or orally, instructs a person surrendering to bail to report to a particular office or to a particular official, when he complies with that direction he surrenders to his bail’. ‘The position was explored again by the Court of Appeal in R v Scott Evans in relation to the Crown Court, where the facts were broadly similar save that in this case the defendant was convicted. The Court of Appeal reviewed Richards and noted that arrangements in Magistrates’ courts were often very different from those in Crown Courts. Not all Magistrates’ courtrooms have docks, for example’. ‘The court concluded that ‘in the absence of special arrangements either particular to the court or particular to the individual case, surrender to the Crown Court is accomplished when the defendant presents himself to the custody officers by entering the dock or where a hearing before the Judge commences at which he is formally identified as present. Secondly...it is also accomplished by arraignment. Thirdly, the position in the Magistrates’ court may be the same, but may easily differ as explained in DPP v Richards’ ‘Thus in both cases, the court held that the point at which the defendant surrenders is determined by the procedure in the individual court. In Scott Evans the Court of Appeal was clear that in the Crown Court it should be when the defendant formally appears before a Judge but, as with the court in Richards, left the situation in the Magistrates’ Court open to individual courts’. ‘Changing surrender to the point when the defendant appears before the Tribunal changes the significance of booking in times. While it remains highly desirable that defendants are directed to attend early, defendants will hardly ever actually surrender at the booking in time as their case will be called on at least half an hour after that, and often much later indeed’. 113

‘For co-operative defendants that is not a problem, because clearly the failure of the court to call the case on at 9.30 (say) furnishes them with a reasonable excuse for not surrendering then. A more significant issue is where the defendants attend late. Often, when a defendant arrives late, their case is not called on until they arrive, as the court has other business to do’. ‘However there are steps courts can take to deal with the situation. For example courts might adopt an early point (say 10.30) to call on all the cases where defendants are absent. Once they have been called into court to surrender and have failed to do so, the offence would be made out’. We can probably therefore expect to see a change in our local Magistrates’ court procedure if the procedure has not changed already. I anticipate that notices will probably be posted up to the effect that the surrender has not truly taken place until the case has been called into court. Incidentally, there is no problem with issuing a warrant under the Bail Act 1976 for the arrest of the individual who is not there at the time he is called into court. A warrant, as you know, is merely a piece of paper to a Constable directing him to arrest the person and bring them before the next available Magistrates’ Court. The next available Magistrates’ Court is that determined by the Justices Clerk and this may well involve a defendant not being produced in the afternoon session but rather held in the cells overnight and produced at court in the morning. A very unsatisfactory situation and perhaps the Justices Clerks should consider some guidance in this area as well. And finally, before I leave the area of bail, the Home Secretary has responded to concerns about the amount of time that individuals spend on pre-charge investigative bail. This matter has come to a head recently with a number of high profile celebrities being on bail for some considerable time and then no further action being taken. Consideration is being given to the necessity for the court to become involved after a passage of time. I have heard the period of 28 days mentioned. We wait and see. Statutory Instrument 2014/2522 brought into force Section 181 (2) of the AntiSocial Behaviour, Crime and Policing Act 2014 on the 18th of September. Anyone convicted of a criminal offence who receives a SUSPENDED sentence of a minimum of 3 months will have the right to apply to a court to remove the 5-year prohibition on obtaining of firearm from September 18th, 2014 Existing firearms legislation prohibits individuals sentenced to imprisonment for a term of between 3 months and 3 years from possessing firearms for a period of up to 5

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years. Those sentenced to a term exceeding five years are permanently prohibited. The Firearms Act 1968 Section 21 (6) is amended to ensure that those who received wholly suspended sentences have the right to apply to a court to remove the prohibition of being unable to possess a firearm, including an antique firearm, for 5 years. As you all know, we have now had the judgement handed down in the case of R (on the application of London Criminal Court Solicitors Association and another) v Lord Chancellor [2014] all ER (D) 145 (Sep)-Legal aid This was a challenge, by way of judicial review, of the Lord Chancellorâ&#x20AC;&#x2122;s proposals to introduce 525 Duty Contracts and the reduction in the fees of 8.75% for new work generated on or after 20th of March 2014.Quite simply the argument was that the Lord Chancellor had made a number of assumptions, not identified in a consultation paper, relating to the likely behaviour of firms of solicitors when adapting to the proposed new legal aid arrangements. These assumptions were based upon reports received from Otterburn (which said that a 5% profit margin was the minimum needed for a firmâ&#x20AC;&#x2122;s financial viability) and KPMG (its report was produced following financial modelling based on those assumptions to inform the question of how many Duty Provider work contracts should be made available from a range between 432 and 525). The judicial review was sought in order to quash the decision on the number of Duty Provider work contracts to enable further consultation to take place on those 2 reports and, furthermore, to quash the order in relation to the fee reduction. The application for judicial review was allowed in part. The failure to consult had been unfair. The profession should have been given an opportunity to comment upon the information contained in those 2 reports. The consultation paper had not identified the assumptions or even the nature of the assumptions that would lead to the decision on numbers. The failure had been so unfair as to result in illegality. The reason the application for judicial review was only allowed in part was because the court took the view that it was unrealistic to suppose that the question over the contract numbers, if consulted upon in the way that it should have been, would have led to a different decision on the phased reduction in criminal legal aid fees. The reduction in the fees was therefore not illegal. As a result of the judgement there has been another short consultation process which ended at midnight on the 15th of October. We wait and see how this will all unravel. I am not terribly optimistic at the moment!

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Criminal Behaviour Orders Anti-social Behaviour, Crime and Policing Act 2014 – Sections 22 – 33. These new orders came into force where the proceedings are commenced on or after 20th of October 2014 (Section 33 (1) (b). The order replaces ASBO’s. ASBO’s remain in force and the court can, on application, vary and discharge them. In variation proceedings the terms can be varied but the court cannot lengthen an order (Section 33 (2) and (4). Breach proceedings remain unaffected (Section 33 (1) (b). 3 new civil orders also came into force on the 20th October 2014 and they are as follows: Dispersal powers (Sections 34 – 42) Community protection orders (Sections 43 – 58) The possession of dwelling houses on anti-social behaviour grounds (Sections 94 – 97).

Detention and Training Orders As you know, this is the custodial sentence available in the Youth Court. The defendant is detained for half of whatever period of the order is specified by the court (fixed periods ranging from a minimum of 4 months to a maximum of 24 months) and trained for the remaining half. As part of the training the youth may be put under intensive supervision and surveillance (ISS) which involves 25 hours of specified activities a week, electronic monitoring and a curfew. I only mention this because I suspect there are some lawyers who don’t really appreciate what the training aspect of a Detention and Training Order actually involves. QASA This has most certainly has not gone away. Only recently the Master of the Rolls Lord Dyson dismissed the appeal against the decision to proceed with the Quality Assurance Scheme for Advocates (QASA) holding that the decision was lawful and proportionate. Watch this space! On the subject of exercising rights of audience in the Crown Court I did enjoy the letter written by David Kirwan (Senior Partner, Kirwans, Merseyside) and published in the 6th of October edition of The Law Society Gazette. In the letter he quite properly pointed out that in 1974, with the abolition of the Assizes and the Quarter Sessions and the introduction of the Crown Court in their place, all solicitors who had appeared as advocates in magistrates’ courts automatically retained, on behalf of their clients, rights of audience in Crown courts on committals for sentence

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and appeals against both conviction and sentence. He also made reference to something that I had heard others say in the past; namely, that in certain very restricted circumstances a solicitor advocate was able to appear in the Crown Court in a case where a defendant had been sent for or elected jury trial. This tradition apparently had subsisted from the old assizes. As there was deemed to be no local bar a right of audience had existed for solicitors in 3 court centres in England and Wales. One of these was at Caernarfon in North Wales and another at Bodmin in Cornwall. Mr Kirwan did his first jury trial at Caernarfon Crown Court in the mid-1980s. There you are, solicitors exercising their Higher Rights of audience in the Crown Court are not, after all, such ‘new kids on the block’. ‘Hats off’ to Mr Kirwan for a most enjoyable read and I hope he will forgive me for reproducing parts of his letter in this month’s edition of CrimeScribe. R v French and others [2014] 4 costs LR 786 was an appeal against the decision of the Determining Officer not to pay 182 hours of special preparation to an advocate. The Determining Officer allowed rejected the total claim as the advocate had not provided a detailed work log. The advocate had claimed 144 hours of pre-trial work and 38 hours of conferences. Although the full amount was allowable on appeal the case is useful in that it gives some guidance as to the level of detail required by the LAA. They are looking for dates/times/details of the work undertaken/page count etc etc. Although this was an appeal in relation to an advocate’s application for special prep the same information would be equally applicable to litigators. I have mentioned this before. There is a need to keep detailed notes of precisely what work was done and what flowed from the work being done in order to have a cast-iron claim for special prep that is not going to be rejected. The recent costs case of R v Banfield is illustrative of an important principle. Where the Court of Appeal had granted legal aid for an advocate only, following a successful renewal of an application to appeal, it was not possible for the solicitor to enter into a private funding arrangement with the appellant in order to pay for his services as this breached the terms of our contract.

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Section 11 November 2014

Hello and welcome to this month’s edition of CrimeScribe. I mentioned, at some length, in CrimeScribe number 37, the new offence created by Section 56 and Schedule 22 of the Crime and Courts Act 2013. We will have a new Section 5A of the Road Traffic Act 1988 which will create the new offence of ‘driving, attempting to drive or being in charge of a motor vehicle with a specified controlled drug in the blood or urine in excess of the specified limit for that drug’. The latest news on this is the publication of Statutory Instrument 2014 No. 2868 which is entitled ‘The Drug Driving (Specified Limits) (England and Wales) Regulations 2014. These regulations will come into force on the 2nd of March 2015. These regulations specify the controlled drugs and the limit for each expressed as a concentration in blood. I did give you all of those limits in the earlier edition of CrimeScribe. I think we can now safely say that it would not be unreasonable to expect that this new offence is going to come in around March 2015. The other Statutory Instrument of note in the last month is 2014 No. 2704 which is entitled ‘The Offender Management Act 2007 (Dissolution of Probation Trusts) order 2014 and came into force on the 31st of October 2014. This order dissolves all 35 existing probation trusts across England and Wales. Contractual arrangements for the provision of probation services between the Secretary of State and each of the trusts named in the order made under Section 3 (2) of the 2007 Act ceased on 31 May 2014. Staff and property transfer schemes in connection with the determination of those arrangements and the entering into of new arrangements for the provision of probationary services by 21 Community Rehabilitation Companies and the National Probation Service were made on 29th of May and came into effect on 1 June 2014 under powers in Section 11 of, and Schedule 2 to, the 2007 Act. (The 2007 Act referred to is the Offender Management Act 2007). Those of you wishing to know more about the future of the probation service should read CrimeScribe number 34 in which the changes were set out in some detail. How up-to-date are you on your duties as a solicitor? Have you read any guidance issued by the SRA in the last 12 months? Let’s just remind ourselves of the SRA’s 10 Mandatory Principles.

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Solicitors must:

• Uphold the rule of law and the proper administration of justice;

• Act with integrity;

• Not allow their independence to be compromised;

• Act in the best interests of each client;

• Provide a proper standard of service to clients;

• Behave in a way that maintains the trust the public places in them and in the

• Comply with their legal and regulatory obligations and deal with their regulators

provision of legal services;

and ombudsmen in an open, timely and co-operative manner;

• Run their business or carry out their role in the business effectively and in

accordance with proper governance, and sound financial and risk

management principles;

• Run their business or carry out their role in the business in a way that encourages

equality of opportunity and respect for diversity;

• Protect client money and assets.

Always a pleasure to read Anthony Edwards legal update in the law society Gazette and his contribution in the 3rd of November edition was no exception. I learnt 3 important points which were as follows: Although the new offence (low value theft by way of shoplifting) is described as summary only, solicitors should claim the larger of the two standard fees available for either way offences in the Magistrates’ Court. The offence remains indictable for the purpose of the Criminal Attempts Act 1981 and the Police and Criminal Evidence Act 1984. More significantly, defence solicitors will still have to advise on the mode of trial as they would for any other either way offence. (Interesting to read Anthony’s view because I know that others had held the opposite view) Criminal Behaviour Orders replaced ASBO’s on the 20th of October 2014. From June 13th under Section 139 of the Anti-Social Behaviour, Crime and Policing Act 2014 the ability to impose days in lieu of payment of the victim surcharge was removed and the surcharge therefore became payable on immediate sentences of imprisonment in the Magistrates’ Court (this had always been the case in the Crown Court) Anthony makes the point that the power to detain for a day under Section

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135 of the Magistrates’ Courts Act 1980 appears to remain. It would therefore seem sensible where the client is sent into custody by the Magistrates’ and the victim surcharge is ordered that the advocate simply request that a day’s detention in default be imposed in lieu of payment pursuant to this Section. As we all know the Legal Aid Agency has a programme to move criminal applications and billing online. The agency is in the process of rolling out the new CRM14 eForm as part of this programme. The eForm requires a legal representative to sign a declaration that they have ‘gone through the questions on the interests of justice and financial assessment aspects of the application with the applicant and shown them what I have recorded’. In reality this will not be happening because the client will not actually be there at the time of the completion of the form. The LAA has agreed to amend the wording of the form.

Case-Law I have now had the opportunity of reading the full judgement in the case of R and Frank Maxwell Clifford [2014] EWCA Crim 2245 I don’t want to go into the facts and the reasons why the sentence imposed by the Crown Court Judge was upheld on appeal. Instead I want to deal with the Appeal Courts approach to Bad Character and how the Judge was in error according to the Court. Bad character evidence was admitted during the course of the trial. The evidence consisted of a number of instances involving young women of a similar age to the victims in this case who gave evidence of sexual assaults of a similar type. The Crown had not included this bad character evidence in the indictment because it accepted it would be unable to prove that the appellant did not believe that any of the complainants was consenting to the sexual acts that took place. The evidence was admitted to rebut his defence that all of the allegations were totally untrue and to demonstrate a propensity on his part to commit the type of offences contained in the indictment. In addition, the judge admitted evidence of a complaint of an indecent assault on a 12-year-old said to have taken place in Spain. That count would have been on the indictment but for the fact that it could not be tried here until the coming into force of Section 72 of the Sexual Offences Act 2003 (paragraph 45). The Judge said this when sentencing ‘.... So long as I am sure that the events took place, as I am, I can take them into account as far as the evidence informs me as to the offences for which you are to be sentenced’ and later ‘I have already explained why I feel able to take into account as context to the offences which I am to sentence you for, the other matters about which the jury heard convincing evidence’ (paragraph 46).

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The Court of Appeal saying this at paragraph 53 ‘In the present case the Judge did not specifically say that he was treating the bad character evidence as an aggravating feature; he said he would take it into account insofar as it informed him as to the offences for which he had to pass sentence. However the Judge had also said in terms that he rejected Mr Horwell’s submission that this behaviour should be ignored entirely in the sentencing exercise, and he did set out at some length in his sentencing remarks the details of the bad character evidence. He devoted almost as much time to that as he did to the Indictment. We think that the Impression given must have been that the judge regarded this evidence as aggravating the case to some extent, albeit he did not say so in terms. What he did not do was explain what place it had had in the case. If he had said that it confirmed that the appellant was a serial predatory offender who abused his position in order to offend, that could not have been criticised. However the judge did not say that or anything similar; nor did he make clear that the bad character evidence would have no effect on the level of sentencing.

And finally at paragraph 54 ‘In the circumstances we consider that the judge’s comments fell foul of the principle established in the case of Canavan and reiterated in subsequent decisions of this Court including R v Hartley [2012] 1 Cr App R 7. However, it is clear to us that, working on the assumption that the judge did aggravate the sentence to some extent to reflect the bad character matters, he cannot have done so to any significant extent as the wording used in passing sentence demonstrates. Having found that the judge was in error we have to approach the question of sentence afresh and consider whether it follows that the sentence passed was manifestly excessive. However, before we do that, it is necessary to turn to another aspect of this appeal.’

The ‘another aspect of the appeal’ referred to in the previous paragraph related to the comments made by the sentencing judge in relation to ‘certain behaviour of the appellant’. This behaviour fell within 3 headings as follows: Behaviour prior to the trial in which the appellant had informed reporters that the whole thing was a complete nightmare and that he was totally innocent of the allegations. Furthermore he commented upon the anonymity of his accusers whilst he had none. These comments were widely reported by the press. The Court of Appeal taking the view that his comments were no more ‘a forceful claim of innocence’ Behaviour during the course of the trial ‘reports of your attitude during the trial, laughing and shaking your head in the dock at the accusations made against you’ The Court of Appeal taking the view that the Judge himself had made no finding that the appellant had behaved as alleged, he merely referred to the victim as

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being very upset by the press reports. In those circumstances we think there is justification in the complaint that this was a matter which should not have been taken into account. Behaviour in which the appellant had apparently stood behind a TV reporter outside the court whilst the reporter was on camera, making gestures which mimicked the reporter’s actions. The Court of Appeal taking the view that this clowning should not have been reflected in sentencing save in relation to withholding mitigation. The Court of Appeal, whilst taking the view that the judge had wrongly treated the above matters as impacting upon sentence, was also of the view that it was ‘a just and proportionate sentence’ in all the circumstances – appeal against the severity of the sentence refused. We seem to be getting quite a few cases in the Court of Appeal in which the appellant is arguing that insufficient credit was given upon sentence by the Crown Court judge. The very latest in this area is that of R v Creathorne [2014] EWCA Crim 500. The trial judge had given only 25% rather than the full one third upon the basis that there had been an earlier hearing when a trial date was set, where not guilty pleas had been entered. At that point in time there was, in the judge’s view, some information available to the appellant and to his legal advisers upon which he could have decided to enter a guilty plea. On this basis the judge decided that it was not justified to give the full one-third credit because the pleas had not been entered at the very earliest opportunity (Paragraph 13). The Court of Appeal saying this at paragraph 31 ‘In the course of oral submissions counsel for the appellant has explained in greater detail the evidence that was available as of the date of the hearing to fix the date of the trial and the nature of the advice given to the appellant. In this case, applying principles discussed in Caley, we start with the proposition that the appellant was suffering from amnesia at the time of the hearing. This is not challenged. Accordingly his ability to form a considered decision as to whether or not to plead guilty depended upon the ability of his legal advisers to review sufficient evidence to proffer sensible advice. As to this, as at the date of the hearing, when the trial date was set, the appellant’s legal advisers did not have the collision report, information about the state of the tyres or the toxicology evidence. The evidence was clearly incomplete.

And at paragraph 34 of the judgement

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‘In these circumstances, and with respect to the judge whose sentencing remarks were otherwise careful and considered, we believe that he did in this one respect err. We have formed the judgement that the appellant was entitled to the full one-third discount, upon the basis that his plea was tendered at the first reasonable opportunity.’

The other matter concerned the victim surcharge. The transitional provisions of the Criminal Justice Act Surcharge Order 2012 make clear that the order does not apply where the court deals with an offender for more than offence where any of the offences were committed before 1 October 2012. In the present case the sentencing court was also sentencing the appellant for an offence committed prior to 1 October 2012, this being in relation to the breach of the suspended sentence. Accordingly there was no power to impose the surcharge and that part of the sentence was therefore set aside. In the case of R v Connors [2014] 5 Costs LR 942 counsel appealed the decision of the Legal Aid Agency to apply a 20% reduction to the re-trial in circumstances where he contended that the full amount should have been paid. It was common ground between both the LAA and counsel that there had been a trial and a re-trial in this case. The cost judge said that guidance is not a source of law and it follows that in the absence of any requirement to do so in the Funding Order it is not incumbent on the Advocate to delay submitting his claim form AF1 for the first trial until after the second trial has concluded. Secondly, where, as here, there is a long delay between the first trial and the second trial, counsel cannot reasonably be expected to wait until the conclusion of the latter (1) to be paid for the former, and (2) to make the election. Thirdly, in the event that there is an overpayment, the LAA can recoup without time limit any sum paid in excess of the correct amount. Those of you who do crown billing will appreciate that where the same counsel is involved in both trials then counsel can claim both trial fees but with a 20% reduction in the fee as regards one of those trials and counsel (assuming the trial will start later than one calendar month from the conclusion of the first trial) must make the election as to which trial the reduction applies. As to whether or not there is one continuous trial or a trial and a re-trial (and the difference in the fees payable may be considerable!) one must look to the circumstances to see whether or not the ‘procedural and temporal matrix has been broken’ a recent case on this very point was that of R v Adil Khan (Liverpool Crown Court) SCCO Ref: 316/13 Dated: 19th August 2014 123

The Court saying the following: ‘The LAA has stated that the issue of whether or not one trial has concluded and the court has ordered a new trial is a matter of fact and that the Agency is bound by the facts of the specific case. There is no discretion to decide whether one or two fees are payable: it is all a matter of fact.

In the present appeals, I give weight to the following as factors in favour of a finding that there were 2 trials and not 1, as the LAA has contended A submission had been made to the judge that the trial should continue as soon as replacement counsel had worked up the case. That point was lost as the judge ruled against him. He accepted replacement counsels’ submissions that they needed more time and he discharged the jury and directed that a new trial should begin on 20 February 2012. These factors all militate in favour of the submission that this was not a continuation of the same process but, on the contrary, was a different process with changed counsel and a fresh jury. The prosecution applied to the trial judge for permission to introduce further forensic evidence. After the end of the ‘first’ trial, the prosecution had then served further evidence consisting of almost 200 pages relating to DNA which changed the prosecution case upon which instructions had to be taken. Replacement barristers were appointed. There were emails from the clerk of the court indicating that it was best at this stage to discharge the jury and start the trial again with a new jury. The cases were then listed for a new trial. This was clearly a trial and a re-trial. Those of you who practice in the Crown Court must ensure you have a working knowledge of how Terminating Rulings operate. A recent case in which it all went horribly wrong for the Crown is that of R v B [2014] EWCA Crim 2078. Terminating Rulings are a creature of Part 9 of the Criminal Justice Act 2003. The Act provides for an additional avenue of appeal available only to the Crown in circumstances where the Judges’ rulings are adverse to the Crown and effectively ‘terminate’ the prosecution. The Crown has an opportunity to have such rulings tested in the Court of Appeal and, if successful, the result might be that the case is remitted back to the Crown Court for continuation. The Terminating Ruling in this particular case was a refusal on the part of the Judge to adjourn the trial of the defendant B who was charged with two offences of rape. The reason the Crown lost in the Court of Appeal was because they were unable to

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satisfy the specific jurisdictional requirement posed by Section 58 (4) of the 2003 Act in order to launch such an appeal because the court below was not immediately informed of the prosecution’s intention to seek leave to appeal the ruling or otherwise to seek an adjournment in order to consider whether they wished to do so (see paragraph 2 of the judgement). Verdicts of not guilty were entered under Section 17 (presumably of the Criminal Justice Act 1967) and the court rose at 14.02. Subsequently at 15.39 that day the Crown Prosecution Service sent an email to the court notifying its intention to seek permission to appeal and giving the acquittal undertaking required by Section 58 (8) of the Act. HHJ Barrie had left court at that stage and the matter was directed to be listed before him the following morning. Mr Bradley was briefed on behalf of the prosecution on 14 August 2014. B and his counsel were also in attendance. HHJ Barrie refused permission to appeal, citing the Criminal Procedure Rules, Part 67 and a lack of ‘immediate’ application by the prosecution and that ‘not guilty’ verdicts had been entered with no disagreement from prosecution counsel. The Registrar at the Court of Appeal referred the application for leave to appeal to the full court which held that ‘The need for strict compliance is born from the creation of the prosecution’s right of appeal where non-previously existed. Procedural safeguards are imperative and the procedure to be followed by the prosecution patently clear’. The Court of Appeal could do nothing for the Crown. Application dismissed. In these days of prosecutions being brought relating to sexual offences committed many years ago the lawyers’ first thought is often that the very prosecution is an abuse of process due to the delay. Always bear in mind that delay of itself may not render the proceedings an abuse. The test is ‘unconscionable delay whereby a fair trial is no longer possible’ A very recent case in this area is that of R v Halahan [2014] EWCA Crim 2079 where the Court of Appeal held that the conviction was safe despite prosecution some 40 years after the offending and loss of documents which may have been of assistance. The recent case of R v Salaam All Hilly [2014] EWCA Crim 1614 was a reminder of an important evidential point that crops up occasionally. The defendant was convicted of rape and appealed both the conviction. In the course of her ABE interviews, and also through the ordinary and proper disclosure process, it was disclosed to the defence that the complainant had made

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previous allegations of sexual assault by men other than this appellant. Before any evidence was heard counsel raised with the judge whether he might be permitted to cross-examine her about those matters. The judge gave an initial ruling that since there was no evidence that the allegations were false, such cross-examination should not take place. However, the judge indicated that he would leave the matter open and would hear further argument if need be. The complainant’s evidence in chief consisted of her ABE video interviews, which had been edited by agreement. The allegations of earlier sexual abuse by others were excluded, although the jury did hear brief reference to the fact that the victim had been abused in the past by her father. In the course of the victim’s cross-examination, she volunteered that she had been abused in the past by three men..... this was an observation made by the victim in cross-examination voluntarily. This information had not been adduced in chief by the Crown and formed no part of the Crown’s case as presented to the jury. In the light of what had happened, Mr Edie (defence) again applied to be permitted to cross- examine the victim about those allegations. The judge again ruled against Mr Edie on the basis that there was no evidence that any of the allegations was false. It is clear that the restrictions on questions about the complainant’s sexual history set out in Section 41 of the Youth Justice and Criminal Evidence Act 1999 do not apply to previous false complaints of sexual assault. Cross-examination is permitted since such complaints are not about any sexual behaviour of the complainant within the meaning of Section 42 (1)(c) of the Act. However, before any such questions are permissible, the defence must have a proper evidential basis for asserting that any such statement was (a) made, and (b) untrue. In dismissing the appeal against the conviction the Court of Appeal said this at paragraph 19 ‘We have come to the conclusion that the judge properly came to the decision that the material relied on did not satisfy the necessary evidential test. The mere fact that a complaint is raised and is not pursued does not necessarily mean that a complaint is false. Courts should be ready to deploy a degree of understanding of the position of those who have made sexual allegations. Failure to pursue the complaint does not of necessity show that it is untrue. A rather closer examination of the circumstances is required.

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R v Malkin [2014] EWCA Crim 1937 was a recent appeal case in relation to 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 have 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 had shortened the shotgun; it was an item he had inherited. He used it to shoot rats out of the window. The Judge could find no reasons for not imposing the mandatory minimum sentence as 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 taking 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. R v De St Aubin [2014] EWCA Crim 1921 was another case in which the Court of Appeal had to concern itself with the credit applicable for someone sentenced 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 that plea at that stage. The prosecution indicated that the Judge could give up to 20% discount for the plea of guilty on the sentence. This 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 out where the 3 strikes provisions apply. 127

Hence, if the Judge was in this case to have passed a 3-year sentence or to have taken as a starting 3 years imprisonment as stipulated as the minimum by the statue, the maximum reduction he could then make was 20%. Given that he took a much higher starting point, it was open to him to reduce the sentence by 25% to reflect the time at which the plea was offered. The sentence was reduced by the Court of Appeal as the court took the view that the starting point as taken by the Judge was too high and the credit should have been 25% rather than 20%.

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