Monday 18 March 2013 by Anthony Edwards
On 1 September 2012 it became an offence under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) for a person to trespass in a residential building by living or intending to live in the building when he knew or ought to have known that he was a trespasser. The offence is not committed by a person holding over after the end of a lease or licence.
For a summons or requisition issued, charge laid, case sent or appeal lodged on or after 1 October 2012, significant changes were made as to when defence costs orders might be made and the value of those orders which remain available. Orders remain available in the magistrates' court and on appeal from that court; in mental health cases in the Court of Appeal; and in the Supreme Court. Companies may only recover costs from central funds in the Supreme Court. Where orders are available they are limited to legal aid rates.
1 October 2012
The Criminal Procedure Rules 2012 came into effect. New forms on which to make bail applications were brought into force on the same day. A court is given power, following the sending of a case to the Crown court, to ask for an indication of plea. New rules were introduced in relation to reporting restrictions as, on 1 October, it became unlawful to name any teacher given anonymity by section 141F(7) of the Education Act 2002, when a child accuses a teacher of an offence, but with a right to apply for them to be named in defined circumstances.
Part 34 is amended so that hearsay notices are required under section 116; section 114(1)(d) and under section 117 business documents. Furthermore, a notice of opposition to hearsay must be served giving reasons, whether or not a notice of intention to use hearsay evidence has been served by the opposing party. The danger of failing to serve such a notice of opposition is that its failure may amount to an agreement under section 114(1)(a) as interpreted in Williams v VOSA 172 JP328.
12 November 2012
Significant changes were made to PACE code G. These make it extremely difficult for an arrest to be justified if a person surrenders for interview at a police station. Guidance is given as to when each of the six statutory grounds for an arrest is made out and in particular in relation to when an arrest will ensure a prompt and effective investigation. The word 'prompt' indicates that the progress of the investigation should not be delayed to the extent that it would adversely affect its effectiveness. Before an arrest should be made, the police are required to pursue all reasonable lines of enquiry in accordance with paragraph 3.5 of the code made under the Criminal Procedure and Investigations Act 1996.
25 November 2012
Harassment by stalking became a specific criminal offence under the Protection of Freedoms Act 2012. This introduces two new offences into the Protection from Harassment Act 1997, making it an offence to pursue a course of conduct that amounts to harassment of another that amounts to stalking and an aggravated offence of pursuing such a course of conduct, either causing a person to fear on at least two occasions that violence will be used against them or causing another serious alarm, harassment or distress which has a substantial adverse effect on their usual day-to-day activities.
3 December 2012
Significant parts of LASPO were brought into force. This includes the general provisions and the amendments introducing change and greater flexibility to 'requirements' for both community orders and suspended sentences. These include an increase in the availability of a curfew requirement for up to 16 hours a day and for a period of 12 months. Suspended sentences became available, for crimes whenever committed, sentenced to 14 days or more but not more than two years. A 'requirement' no longer has to be added.
Significant changes were made to the bail legislation. Bail must be granted if there is no real prospect that the defendant will be sentenced to a custodial term. However, in summary only cases, the exception to the right of bail is extended if there is a risk or fear of physical or mental injury to any person 'associated' with the complainant. The Crown has been given a right of appeal to the High Court against the grant of bail by the Crown court in indictable proceedings involving an imprisonable offence.
For youths, substantial changes were made. Seventeen-year-olds will no longer be treated as adults for bail purposes. A new regime is introduced for youths refused bail. The power to remand to local authority accommodation with or without conditions is re-enacted, but for a youth to be remanded to youth detention a series of conditions are very clearly laid out in sections 98 and 99 of LASPO. The youth must be at least 12 years of age and it must be necessary to order a custodial remand, as only such a remand is adequate to protect the public from death or serious personal injury or to prevent further imprisonable offences.
In addition, there are requirements that relate either to the nature of the offence alleged or to the offending and bail history of the defendant following the repealed sections of the Children and Young Persons Act 1969. A conditional discharge may now be imposed instead of an otherwise compulsory referral order. If a youth is already the subject of a referral order and the court deems it appropriate a further order may be made, regardless of the number previously in existence.
Time on remand will be deducted from prison sentences by the prison service, but a court order will still be required where time should be allowed for a qualifying curfew imposed as a condition of bail. Orders for imprisonment or detention for public protection are abolished from 3 December but not those previously imposed. There is a new form of extended sentence. A new obligatory life sentence becomes available on or after that date for offences listed in schedule 15B, part 1 of the Criminal Justice Act 2003. They apply if the court would otherwise have imposed a sentence of 10 years or more and only if the person has already been sentenced to life or 10 years or more for an offence in schedule 15B. The sentence need not be imposed if it is unjust in all the circumstances.
For crimes committed on or after 3 December, aggravated forms of possession of offensive weapons and having in a public place a bladed article are introduced. The offences arise if in a public place or on school premises a defendant has unlawfully and intentionally threatened another person with a weapon in such a way that there is immediate risk of serious physical harm to that other person.
While the maximum penalty for these offences is the same as for the basic crime, they carry an obligatory six-month sentence in the case of an adult or a four-month detention and training order in the case of 16- or 17-year-olds, unless it would in either case be unjust in all the circumstances. This leads to a number of anomalies as a sentence of that length can be suspended for adults but not for youths, and the statute confirms a discount of 20% is available for a guilty plea but a sentence of detention and training of under four months is not available.
For crimes on or after 3 December, a new section 1A is introduced into the Road Traffic Act 1988 making it an offence to cause serious injury to another person by driving a mechanically propelled vehicle dangerously on a road or other public place. This makes a maximum sentence of five years available in such circumstances.
Part 1 of this review can be viewed at tinyurl.com/bmmz93z
Anthony Edwards, TV Edwards