The 2015 statutory onslaught on criminal lawyers continued through the summer. On 17 July, section 28 and schedule 5 to the Criminal Justice and Courts Act 2015 were brought into force.
These require the imposition of an obligatory minimum sentence for any person over 16 years of age who is convicted, on or after that date, of a second or subsequent ‘offensive weapon or bladed-article’ offence, whenever the first was committed.
Any combination of convictions, in a school or public place, for offensive weapons (section 1 of the Prevention of Crimes Act 1953), aggravated offensive weapon (section 1A of the 1953 act), bladed article (sections 139 and 139A of the Criminal Justice Act 1988) or aggravated bladed article (section 139A of the 1988 act) will suffice.
For those under 18, the obligatory sentence is four months’ detention and a training order; for adults, the minimum sentence is six months’ imprisonment, unless, in each case, it would be unjust in all the circumstances – the same test as for third-time burglars or drug dealers. When a guilty plea is entered at an early stage, a discount of up to 20% may be given. For adults, a suspended sentence remains a custodial sentence within these provisions. But for youths the discount for guilty plea means that a youth rehabilitation order would have to be imposed. Mental Health Act disposals are excluded from these requirements.
The Specialist Printing Equipment and Materials (Offences) Act 2015 came into force on 26 May creating an indictable-only offence, carrying 10 years, of supplying specialist printing equipment knowing it will be used for criminal purposes.
The major new statute is the Modern Slavery Act 2015, substantially coming into force on 31 July. This creates offences (some replacing earlier offences), a new series of sentences, and prevention and risk orders (all covered by criminal legal aid under regulation 9).
With regard to the Criminal Legal Aid (General) Regulations 2013, special measures are available and a specific defence which will be of relevance beyond this statute alone.
An offence is committed if a person holds another in slavery or servitude, and the circumstances are such that the person knows or ought to have known that the person is held in slavery. Similarly, an offence is committed if the person requires another person to perform forced or compulsory labour, and the circumstances are such that the person knows, or ought to know, that the other person is being required to perform forced or compulsory labour (section 1(1)). These are therefore crimes of negligence – and this may explain why they are either-way offences carrying a life sentence on indictment.
Section 2 creates an offence of arranging or facilitating the travel of another person with a view to that person being exploited. Exploitation is defined as being slavery, servitude, forced or compulsory labour; sexual exploitation; removal of organs; securing services etc. by force threats or deception; or securing services etc. from children and vulnerable persons. The consent to any act of the person, whether an adult or a child, does not preclude a determination that any of these offences may be committed.
These offences are lifestyle offences for the purposes of the Proceeds of Crime Act 2002. The act creates special regimes for reparation orders and forfeiture of land vehicles, ships and aircraft, but these seem to add little to general powers that are already available to the courts.
Particular regard should be paid to the new general defence (to any offence) created by section 45 of the Modern Slavery Act. It appears to be a specific statutory enactment of the common law of duress. A person aged 18 or over, at the time of the act, is not guilty of an offence if the person does the act because they are compelled to it do it, and that compulsion is attributable to slavery or to relevant exploitation. A reasonable person in the same position – and with that person’s characteristics – would have no realistic alternative to doing that act.
A person under 18, at the time of the act, is not guilty of an offence if they do that act as a direct consequence of being a victim of slavery, or of relevant exploitation, and no reasonable person in the same situation and having the same characteristics (age, sex, and physical or mental illness or disability) would do that act.
It must be noted that this defence will not be available if the alleged offence is one of the group of violent or sexual offences listed in schedule 4. The common law defence of duress, however, will remain in those cases.
Solicitors will wish to make careful checks on the background of their clients to identify if this defence is available.
The 2015 Criminal Procedure Rules 2015 (SI 2015/1490) and the 2015 Criminal Practice Directions 2015 EWCA Crim 1567 all came into force on 5 October. The Practice Direction (Costs in Criminal Proceedings) 2015 has also been reissued as 2015 EWCA Crim 1568.
The primary changes to part 3 give effect to the recommendations of the Leveson report requiring communication between the parties and early identification of guilty pleas or the issues in the case. Solicitors have become used to this regime in the magistrates’ courts. Rule 8(3) identifies the information that is required at the first magistrates’ court hearing. This is very limited indeed in custody cases, being too dependent on a police summary.
Solicitors will wish to be aware of Practice Direction 3A that requires that the Crown serve ‘sufficient information for the defendant and the court to make informed decisions on plea, venue, case management and sentence’.
The direction also requires magistrates to order pre-sentence reports in appropriate cases that are being committed or sent to the Crown court (3A.9) The very wasteful preliminary hearing in the Crown court should be removed by 5 January 2016 with pre-trial preparation hearings replacing plea and case management hearings (PCMHs). In the Criminal Legal Aid (Remuneration) Regulations 2103, references to the ‘first hearing at which a plea is entered’ is substituted for PCMH. Further management hearings may only take place in defined circumstances and these will often be undertaken by telephone or email.
Solicitors should note Practice Rule 46.2 identifying the steps required of solicitors when acting for private-paying clients and particularly the detailed information required by rule 46.3 whenever an application is made to transfer legal aid. This emphasises the importance of the decision in R (Sanjari) v Birmingham Crown Court 2015 EWHC 2037 (Admin) that solicitors seeking a transfer must exercise a proper and independent judgement when considering whether the applicant’s grounds were justified, even when the solicitor is content to release the case.
Solicitors seeking an adjournment properly to prepare a defence, and in the absence of full prosecution disclosure, should note the decision in R (Anderson) v Guildford MC 2015 EWHC 2454 (Admin). The case emphasises the significance of a draft or preliminary defence case statement even when the Crown has not yet given initial disclosure. The court also made clear that it was not for magistrates to prejudge the relevance of possible expert evidence that the defence needed additional time to commission.
The Sentencing Council has announced that on 1 February 2016 a new guideline for theft offences will take effect.
It cannot be used until that date but once in force will apply to all offences, whenever committed. The crimes covered are general theft, theft from a shop or stall, handling stolen goods, going equipped for theft or burglary, abstracting electricity and making off without payment. These are far more detailed than the existing guidelines, even though it is not intended to increase general sentencing levels.
The guideline treats as part of the assessment of harm not only the financial harm but also inconvenience and stress. More detailed categories of culpability are introduced for each offence.