New offences and sentencing
Topics: Criminal justice
Two further significant provisions of the Serious Crime Act 2015 have been brought into force. First, on 10 November 2015, section 79 created section 40CB of the Prison Act 1952, which provides for an offence of throwing any article or substance into a prison without authorisation.
The offence does not apply where the article or substance in question is specified in lists A, B or C, as that is already an offence under sections 40A to 40C of the act. Articles or substances that may be caught by the new offence include new psychoactive substances not already controlled under the Misuse of Drugs Act 1971.
It is a defence if a suspect reasonably believes that they had authorisation to throw the article or substance into prison, or that there was an overriding public interest which justified the act.
Second, on 29 December 2015, section 76 of the Serious Crime Act 2015 came into force. This section creates the offence of controlling or coercive behaviour in an intimate or family relationship.
It is an either-way offence carrying five years’ imprisonment on indictment.
The Home Office has issued substantial guidance on the rationale for the new offence.
A person (A) commits an offence if:
(a) ‘A’ repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive;
(b) At the time of the behaviour, A and B are personally connected;
(c) The behaviour has a serious effect on B; and
(d) A knows, or ought to know, that the behaviour will have a serious effect on B.
The section identifies those who are ‘personally connected’.
However, A does not commit an offence under this section if, at the time of the behaviour in question, A has responsibility for B, for the purposes of part 1 of the Children and Young Persons Act 1933 and B is under 16.
A’s behaviour has a ‘serious effect’ on B if:
(a) It causes B to fear, on at least two occasions, that violence will be used against B; or
(b) It causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.
It is a defence for A to show that, in engaging in the behaviour in question, A believed that he or she was acting in B’s best interests, and the behaviour was in all the circumstances reasonable. However, this defence is not available in relation to behaviour that causes B to fear that violence will be used against B.
Amendments to the Criminal Procedure Rules 2016 take effect on 4 April 2016. Two are of particular significance to practitioners.
Rule 21.4 is amended to require a defendant: (i) to give notice of the introduction of evidence of his or her own bad character; and (ii) in the Crown court, at the same time to give notice of any requested direction to the jury about the significance of that evidence (following the case of R v Hunter and Others  EWCA Crim 631).
Rule 24.3 is amended to provide for the identification of issues by the Crown and defendant at the beginning of trial in a magistrates’ court. The defence is not bound to assist if it is not in their client’s interests.
‘(a) The prosecutor may summarise the prosecution case, concisely identifying the relevant law, outlining the facts and indicating the matters likely to be in dispute;
(b) To help the members of the court to understand the case and resolve any issue in it, the court may invite the defendant concisely to identify what is in issue.’
The Sentencing Council has issued a number of significant guidelines that come into force in early 2016. They apply from their date of implementation at whatever date the criminal offence was committed. An outline of the new ‘theft’ guidelines (theft – general, theft from a shop or stall, making off, abstracting electricity, going equipped and handling), which came into force on 1 February 2016, has already been provided.
On the same day, new guidelines took effect for health and safety offences; corporate manslaughter; and food safety and hygiene offences. Separate provision is made for larger organisations and for individuals. Fines should be fair and proportionate to the seriousness of the offence and the means of offenders. It will be important for clients to understand the importance of providing suitable accounts or evidence of their business income.
In practice, the most significant change is to the allocation guideline which comes into force on 1 March 2016. It strengthens the presumption in favour of summary trial:
‘It is important to ensure that all cases are tried at the appropriate level.
1. In general, either-way offences should be tried summarily unless:
- the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or
- for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown court. This exception may apply in cases where a very substantial fine is the likely sentence. Other circumstances where this exception will apply are likely to be rare and case-specific; the court will rely on the submissions of the parties to identify relevant cases.
2. In cases with no factual or legal complications the court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers.
Where the court decides that the case is suitable to be dealt with in the magistrates’ court, it must warn the defendant that all sentencing options remain open and, if the defendant consents to summary trial and is convicted by the court or pleads guilty, the defendant may be committed to the Crown court for sentence.’
The case law on expectation in sentencing appears to be overridden by these provisions. The council also provides new guidance to discourage the trial of youths in the Crown court.
‘The proper venue for the trial of any youth is normally the youth court. Subject to statutory restrictions, that remains the case where a youth is charged jointly with an adult.
1. If the adult is sent for trial to the Crown court, the court should conclude that the youth must be tried separately in the youth court unless it is in the interests of justice for the youth and the adult to be tried jointly.
2. Examples of factors that should be considered when deciding whether it is in the interests of justice to send the youth to the Crown court (rather than having a trial in the youth court) include:
- whether separate trials will cause injustice to witnesses or to the case as a whole (consideration should be given to the provisions of sections 27 and 28 of the Youth Justice and Criminal Evidence Act 1999);
- the age of the youth: the younger the youth, the greater the desirability that the youth be tried in the youth court;
- the age gap between the youth and the adult: a substantial gap in age militates in favour of the youth being tried in the youth court; and
- the lack of maturity of the youth.’
On 1 April 2016, a new guideline for robbery comes into effect, covering all types of robberies committed by adults in England and Wales. The law is unchanged for young offenders.