References to Criminal Law Week are abbreviated to CLW with the year, issue and paragraph number given. If a date is given this is the date of the judgment.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012

Anyone who hoped that lengthy criminal statutes that appear to simply chuck any old issues that appear to affect criminal law all together into one overly lengthy and complex Act of Parliament were a thing of the past will be dismayed to see the final version of the much trumpeted LASPO Act 2012. With 154 sections and no less than 27 schedules it is heavyweight stuff.Currently none of the important provisions are in force so for now we just flag up for attention that criminal legal aid is dealt with in section s 13 to 20. Apart from getting paid, of greatest interest to criminal practitioners will be the proposed changes to sentencing and especially the abolition of indeterminate imprisonment for public protection or IPPs. There a welcome return to more flexible suspended sentences. Section 189 of CJA 2003 is amended so that suspended sentences can now be any length from 14 days to two years and do not need to be accompanied by community requirements. Section 240 which deals with time spent on remand is replaced by a new s.240ZA which provides that this calculation will now be an administrative task rather than a matter for the sentencing court.

When the relevant provisions are implemented the parts of ss.225 and 226 of the CJA 2003 dealing with IPP and DPP sentences will be repealed along with ss. 227 and 228 (extended sentences). A new s.224A will provide that a court must impose a life sentence (unless it would be unjust to do so in all the circumstances) on a person aged 18 years or more who is convicted of an offence listed in Part 1 of the new Schedule 15B (including manslaughter, soliciting murder, s.18 GBH, firearms offences requiring a specific intent to be proved under ss. 16 to 18 of the Firearms Act, armed robbery and offences under any of ss. 1 to 15 of the Sexual Offences Act 2003 apart from ss. 3 and 13) for which the court would otherwise have imposed a sentence of 10 years or more provided that person has previously been convicted of a Sch 15B offence AND that person was sentenced to a term of life imprisonment or a term of more than 10 years.In contrast to the numbers who have been given IPPs under the 2003 Act the number who will qualify for life sentences under the new provisions would seem likely to be far fewer.

Extended sentences, requiring the court to make a finding of significant risk of serious harm by the commission of further specified offences, have however remained (see new s. 226A and B) and may be imposed on an adult previously convicted of a Sch 15B offence and on an adult or person under the age of 18 if the appropriate custodial term was to be at least 4 years. Extended licence periods remain the same as at present, namely five years for specified violent offences and eight years for specified sexual offences. GCN’s Sara Woodhouse Davie has produced a helpful summary of the main provisions of the Act which can be accessed here .

We will return to these and other provisions of the Act as and when they are implemented.

Undercharging by the prosecution

As all criminal practitioners know many of the Crown Courts around the country are little more than ghost towns. Where once advocates roamed in their dozens now many courts might as well close at lunchtime apart from the rare court still conducting a trial. Many of us have had our suspicions about the causes of this phenomenon for some time. Mark George Q.C. was recently interviewed on BBC radio and television on the issue of the inappropriate use by the police of the power to caution suspects when they ought to be charged . Apart from the effect of this on the victims of crime, many defendants who may well have had a plausible defence (e.g. self-defence to a complaint of assault) are likely to have accepted a caution for the sake of avoiding further inconvenience. The other side of this particular coin is the no less scandalous use by the CPS of under-charging defendants so as to deprive them of their right to jury trial, all allegedly in the name of saving costs.It may be thought therefore to serve the CPS right that in the case of Hughes v. D.P.P. [2012] EWHC 606 (Admin) (CLW 12/16/5) (31/01/2012) the Divisional Court held that where a man had been assaulted from behind in an unprovoked attack and knocked unconscious, there was no evidence on which the justices could properly have concluded [although obviously they still managed to do so!] that the defendant was guilty of an offence under Public Order Act 1986 s.4(1) because this requires the prosecution to prove that the defendant had intended that the victim would be caused to believe that immediate unlawful violence would be used against him. Being taken completely by surprise and rendered unconscious was a bit of bar to that particular thought process. Needless to say the appropriate charge of either s.47 A.B.H or s.20 malicious wounding would have entailed a possible election of jury trial which is evidently greatly to be avoided if at all possible. The other regret, noted by the editor of Criminal Law Week is that no wasted costs order agonist the C.P.S. seems to have been considered. A few of those on their doormat might work wonders when it comes to considering the appropriate way to deal with serious cases.

Custody time limits

As if to prove the “ghost town” point in the previous paragraph the High Court has had to set out the required procedure where the need to extend CTLs arises from a lack of money affecting “sitting day allocation” at a Crown Court centre.The Court held that a lack of money to provide a judge and court will rarely if ever justify an extension of the CTL. – see R (McAuley) v. Crown Court at Coventry [2012] EWHC 680 (Admin) (CLW 12/19/1) (20/03/2012) judgment

Aggravated Burglary

A secondary party to a burglary who is in possession of a firearm or other weapon of offence does not commit the offence of aggravated burglary (s.10 Theft Act 1968 – Archbold para. 21-129) if he remains outside the building as for example as a lookout and does not enter the building. See R.v. Wiggins [2012] EWCA Crim 885 (CLW 12/22/2) (27/04/2012) following R.v. Klass [1998] 1 Cr. App. R. 453 C.A.

Plea and Case Management Forms

In R.v. Newell [2012] EWCA Crim 650 (CLW 12/15/2) (30/03/2012) judgment the Court of Appeal has confirmed that whilst information given by a defence advocate in a PCMH form is technically admissible under the common law rules, it would normally be right for a judge to exercise his discretion under s.78 of PACE 1984 to exclude such information being used against an accused at trial.

It is good to see common sense prevailing for once. If the court had decided the case the other way the disclosure process involved in requiring advocates to explain the issues in the PCMH forms would have been likely to have broken down entirely. The court noted also that in the magistrates’ court the same principles should apply to information given in the trial preparation form. See also on this same issue R. (Firth) v. Epping Justices [2011] 1 W.L.R. 1818 D.C.

Unrepresented Defendants

It may not happen very often these days but the Court of Appeal gave a welcome reminder that where a defendant is unrepresented and calls no evidence it was inappropriate for the prosecution to make a closing speech. See R.v. Williams (James) [2012] R.T.R. 240 C.A. (CLW 12/15/6) (28/06/2011)

Evidence - Bad Character

Almost any evidence of bad character could be said to be of assistance to the jury in understanding the background to a case so the decision of the Court of Appeal in R.v. Lee (Peter Bruce) [2012] EWCA Crim 316 (CLW 12/16/1) (16/02/2012) is a welcome reminder that when considering an application under s. 101 (1) (c) the court must also consider the terms of s. 102 which requires that the evidence should not only be such that without it the jury would find it impossible or difficult properly to understand other evidence in the case but also that the value of such evidence for understanding the case as whole is substantial.Just because there is evidence about the background of a case does not necessarily mean that it should be admitted.If it is admitted it is important that the jury should be directed as to the use they can properly make of the evidence rather than them just being left to make of it what they will.

Sentencing guidelines - Dangerous Dogs

The Sentencing Council for England & Wales has issued a definitive guideline applying to all offenders aged over 18 who are sentenced on or after August 20, 2012 even if the offence was committed before that date.The guideline is digested at CLW 12/19/20 and can be found at www.sentencingcouncil.org.uk Garden Court North’s Lucy Mair recently wrote an article on the new sentencing guidelines which can be found here .

Evidence – Hearsay

The case of R.v. Saunders [2012] EWCA Crim 1185 (01/06/2012) judgment is an interesting example of evidence of a dying declaration being admitted under the well known common law “res gestae” rule established in Ratten v. The Queen [1972] A.C. 378 preserved by s.118 (1) of the CJA 2003. The case is also noteworthy as an example of s.114 (1) (d) (not s.114 (2) (d) as the report suggests) in action. The Crown wanted to adduce evidence of what a witness had said to others about a murder she had apparently witnessed but was too scared to tell eh police about. She was not too scared to give evidence and did so, but she was not prepared to tell the police or the court all that she had seen. The judge went through the criteria set out in s. 114 (2) and ruled that her evidence was admissible but only if she was called to give it. That ruling was upheld by the Court of Appeal.

Sentencing for child sex offences

In Att-Gen’s References (Nos. 11 and 12 of 2012) (R.v. Channer; R.v. Monteiro) [2012] EWCA Crim 1119 judgment the Court of Appeal gave guidance on appropriate sentences in cases of rape of a child under the age of 13, contrary to s. 5 of the Sexual Offences Act 2003. The need for deterrence was a factor in such cases and defendants could derive little mitigation from a mistaken belief as to the age of the victim. Her willingness to engage similarly afforded little mitigation. The starting point in this case (Ds aged 20 at time of offence) could not properly have been below 11 years. Accordingly sentences of detention for 3 years 4 months were unduly lenient and were increased to 7 years in each case.

Terminating rulings and prosecution appeals

Where following a ruling that there is no case to answer the prosecution wishes to appeal that decision sections 58 (4) and (8) of the Criminal Justice Act 2003 and rule 67.2 of the Crim Proc Rules 2011 (Archbold para.7-266) make it clear that either an adjournment must be sought immediately following the ruling or the decision to appeal and the acquittal agreement must be notified to the court immediately following the ruling. “Immediately” in rule 67 (2) means “there and then” and in any event before anything important has happened. In this case the court had adjourned for the jury to be assembled to acquit the defendant before the Crown said anything about an appeal and where the jury had been discharged without the defendant having been formally acquitted before the prosecutor even attempted to notify the court of the acquittal agreement the conditions set out in ss. 58 (4) and (8) had not been fulfilled and the prosecutor’s right to appeal has expired. See R. v. M [2012] EWCA Crim 792 (CLW 12/22/1) (26/04/2012) judgment .

Mark George Q.C.

26th June 2012