CRIMINAL LAW UPDATE

AUTUMN 2012

Anthony Edwards

TV Edwards LLP

www.tvedwards.com

September 2012 Edition 2

INDEX PART 1 Legislative Change PART 2 Pre-charge / Civil Jurisdiction PART 3 Procedure PART 4 Youth Justice PART 5 Criminal law PART 6 Sentencing PART 7 Evidence PART 8 Legal Aid and Costs APPENDICES 1 Form of appeal to the Court of Appeal 2 Guidance on the use of computers etc. at prisons and courts 3 CLSA Travel fees guidance 4 PACE Code G (in part) 5 MoJ Guidance on Defence Costs Orders 6 Mode of Trial Procedures 7 Guidance on the consideration of defence representation order applications (extract – prescribed proceedings)

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PART 1 Legislative Change LEGAL AID SENTENCING AND PUNISHMENT OF OFENDERS ACT 2012 This Act is substantially not yet in force. However the anticipated date of implementation for the legal aid changes is planned for 1st April 2013 The Act contains 154 sections and 27 schedules Part 1 Legal Aid The LSC is abolished and many changes are made to civil legal aid. Under schedule 3 some “legal persons” may be able to obtain legal aid In relation to crime S 3 allows for the Director to require accreditation to undertake identified work and to monitor work S 13 provides for “initial” advice and assistance to an individual arrested and held in custody if the Director determines that the individual qualifies. It appears there may be a greater use of call centres and duty solicitors. The possibility of financial contributions (for this work) has been removed S 14 provides for scope of criminal proceedings. The basics are covered but Regulations will be required for ASBOs etc. For current list see Appendix 7

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S 15 allows for advice and assistance for criminal proceedings including volunteers at the police station but financial contributions may be sought by Regulation S 16provides for representation in criminal proceedings S 17 reproduces the Widgery criteria S 20 allows Regulations to enable the making of provisional determinations to assist in negotiated outcomes especially in fraud See also s 27on choice of provider. This allows the Director to limit work to telephone or other electronic advice and to particular organisations. Only in relation to s 16 is there a choice of representative. if they are willing to hold a contract with the Agency Various offences are created with defined exceptions S 33 (either way 2 years) if improperly disclose financial information S 34(level 4 fine) Intentionally to fail to comply with a requirement to provide documents or information or to make a statement known or believed to be false(extended time limit provided) Note all the detail is left to Regulations but the government has taken power to limit the extent of cover and to require financial contributions as those regulations prescribe

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Part 2 Costs Implementation These provisions apply I to cases committed transferred or sent to the Crown Court on or after 1st October 2012 Ii to appeals and references to the Court of Appeal where the application for leave to appeal, appeal notice or notice of reference was served on or after 1st October 2012 Iii in all other cases to proceedings commenced on or after 1st October 2012 It is arguable that a case starts at the beginning of the investigation and not only on charge see R v Southport JJ ex p Hales S61 introduces schedule 7 (civilian) and 8 (military), amending the rules on costs from central funds. These changes also thus apply to courts martial The prosecution of Offences Act 1985 is amended so that s16A excludes legal costs from recovery unless an individual seeks to recover them for magistrates court proceedings; and appeals to the crown court; and cases at the crown court and Court of Appeal involving mental health issues; and Supreme Court proceedings Thus no company can recover costs from central funds

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The Government takes power to limit the amount that can be recovered This is to legal aid rates

Costs from central funds are removed from A-G references as to sentence and law ( but not it seems from, orders under Youth Justice and Criminal evidence Act—s19(3)(e) Prosecution of Offenders Act 1885) These changes also apply to extradition proceedings and courts martial For detail see APPENDIX 5

Part 3 Sentencing and punishment of offenders

Chapter 1 General S 63 Courts must consider compensation (s130 PCCSA 2000) S 64 Courts to give reasons in slightly simpler form and to apply guidelines (s172 CJA 2003) S 65 Aggravating factors (s 146 CJA 2003) extended to include discrimination on the grounds of transgender identity and Sched. 21 amended to provide 30 years minimum in such cases

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Community Orders S 66 Community Orders Courts may specify different end dates for different requirements (s177CJA 2003) S 67 More flexibility on penalties for breach- “may” and power to impose fine for breach (Schedule 8 CJA 2003) Suspended sentences S 68 Provides that sentences of 14days or more but not exceeding 2 years may be suspended (nothing ever changes for long)The court will not have to add “requirements” ( s189 CJA 2003) This also covers detention in a YOI. These powers apply to offences whenever committed S 69 The court will be able to fine for breach of a suspended sentence order Requirements to community orders and suspended sentences S 70 Changes to programme requirements(s 202 CJA 2003) allowing probation service to define detailed requirements S 71 Changes to curfew requirements (allowed for up to 16 hours in 24 and for 12months) (s 203 CJA 2003)

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S 72 Add a possible foreign travel restriction requirement for up to 12 months (s 206A CJA 2003) S 73 Amend mental health treatment requirements (s 207 CJA 2003). Can be made with consent without the an opinion from a mental health practitioner S 74 Allows greater flexibility in drug rehabilitation requirements including as to length (ss209- 211 CJA 2003) S 75 similarly for alcohol treatment (s 212 CJA 2003) S 76 Alcohol abstinence and monitoring requirement (s 212A CJA 2003) to be piloted – either complete or limited ban on alcohol for up to 120 days. Alcohol must be an element of the offence; or factor contributing to the offence but defendant not dependant on alcohol Youths S 79 A conditional discharge will be allowed instead of a referral order. Also greater use of referral orders if the court deems it appropriate on further offences regardless of the number previously made ( ss16-17 PCCSA 2000) S 80 New provisions on breach of Detention and Training Order To allow additional supervision periods and amends extent of powers on breach. Can impose penalties after the end of the order S 81-83 Same changes as to community order requirements are made to youth rehabilitation orders ( mental health/ flexibility/ curfew

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S 84 Increased powers on breach of YRO Magistrates Court powers S 85-87 removes the limitation of £5000 on magistrates’ court fines with powers to make changes and specify levels. Levels must continue to bear same ratio This does not apply to compensation s 89 Abolition of custody plus and intermittent custody Chapter 2 S 90 Changes to bail legislation are made by Schedule 11 .The definition of a young person is those under 18. 17 year olds will no longer be treated as adults for bail purposes .detailed amendments for electronic monitoring .Bail must be granted if there is no real prospect that the defendant will be sentenced to a custodial sentence .In summary only cases the exception to the right to bail if risk or fear of physical or mental injury to an “associated person” i.e. domestic violence

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.The Crown is given a right of appeal to the High Court against a grant of bail in the crown court case involving an imprisonable offence. Chapter 3 Youths S 91 Remand of those under 18 otherwise than on bail whether in criminal or extradition proceedings- to local authority accommodation or youth detention accommodation if conditions 1 or 2 of s98/99 met (repealing provisions of the Children and Young Person’s Act 1969) Ss 92-96 Detail of remands to local authority accommodation, ability to add conditions and provision for electronic monitoring S 97 power of arrest for those suspected on reasonable grounds to have broken their conditions

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Ss 98-101 Detailed requirements before remand to youth detention S 98/99 . age condition ( at least 12) . offence condition EITHER - violent or sexual offence or offence carrying 14 years or more in the case of an adult OR – there is a real prospect of a custodial sentence; and One of the offences is imprisonable; and The child has a recent history of absconding while subject to a custodial remand and the offence is committed whilst denied bail; or The offence would amount on conviction to a recent history of committing imprisonable offences whilst on bail or subject to a custodial remand AND . necessity condition (only such a remand adequate to protect the public from death or serious personal injury or to prevent further imprisonable offences); and .legal aid offered S 104 All youths detained will have “looked-after” status giving an entitlement to core needs assessment and care plan (for bail and sentence)

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Chapter 4 Amendments to provisions for time on remand counting towards sentence- discretion to disallow removed from s240. This becomes an administrative function under the new s240ZA. There are also amendments to s 240A under which the court will continue to define the period on qualifying curfew. Time on remand will count towards a suspended sentence at the time it is activated ( s240ZA(7)) It can only count towards offence for which remanded in custody Cannot count days when in custody for other reasons ( but this excludes remands ( s240ZA (10)) There are also proposed changes to the rules on the release and recall of prisoners especially around HDC . Those serving under 12 months will be released unconditionally at the half way date. This appears to dis-apply s 116 PCCSA 2000. .HDC not available to those serving 4 years or more .Amendments to supervision regime attached to youth sentences Chapter 5 Dangerous Offenders S123 IPP and DPP abolished (s221/226 CJA 2003) Note An issue will arise as to whether life sentences will now be more easily imposed rather than being limited as now to the most serious and grave crimes Cf Wilkinson 2012 Cr App R(S)100

S122 New Obligatory Life sentences A new s224A CJA 2003 for offences committed by adults listed in Sched 15B Pt 1. They apply if the court would otherwise have imposed a sentence of 10 years or

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more if the person has already been sentenced to life or 10 years or more for any offence in Sched 15B unless it would be unjust in all the circumstances The schedule includes offences which do not themselves carry life and problems are expected with armed robberies and what is covered S124 New forms of extended sentence These will apply to adults and youths They will apply when a person is convicted of an offence in Sched 15 and where the court considers that the offender presents a substantial risk of causing serious harm through reoffending (s226A and s226B CJA 2003) The sentence includes a custodial term with extension periods of up to 5 years for specified violent and 8 years for specified sexual offences. The total must be within the maximum term For adults there must be a crime worthy of at least four years or previous conviction for an offence in Sched 15B For youths only the former applies The extended sentence means release at two thirds point of the custodial term, but with parole board involvement in defined cases

Chapter 6 Prisoners Provisions for new rules for employment and payment of prisoners aged 18 or over including levies on such payments Chapter 7 Out of court disposals

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S132 introduces schedule 23 allowing for an “education option” to be added to penalty orders for disorder. It removes PND from those under 18 and allows those not in uniform to issue PNDs S 133 The need for CPS involvement in conditional cautions is removed S 134 allows the addition of a condition for foreign offenders to be removed from UK whether on making or variation S 135 introduces youth cautions and removes reprimands and warnings! They include a referral to the YOT They may be used , as may conditional cautions , whatever the previous including convictions. Limitation on use of conditional discharges after imposition of youth cautions continue Chapter 8 REHABILITATION

Section 139 introduces new and amended periods for convictions and diversions from prosecution

to become spent. They represent significant reductions in the relevant periods. A compensation

order will not be spent until paid, making it essential that courts have proper regards to means when

making the original order A new s. 8AA of the Rehabilitation of Offenders Act 1974 provides for

spent alternatives to prosecution so that they are immediately spent as if they were cautions.

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However convictions and alternatives to prosecution will not, under s.140 be spent for some

immigration and nationality purposes

Sentence Adult Under 18

A custodial sentence of more than 30 7 years from end of sentence 42 months

and up to and including 48 months

A custodial sentence of more than 6 48 months 24 months

And up to and including 30 months

A custodial sentence of 6 months or less 24 months 18 months?

A fine 12 months 6 months

A compensation order The date on which payment is made in full

Community/Youth rehabilitation Order 12months 6 months

A relevant order The end of the order or if no period specified

In the order of 24 months

The rehabilitation period is NIL for absolute discharge or any order not specified above . This also

applies to alternatives to prosecution

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Chapter 9

New Offences

The Prevention of Crime Act 1953 and Criminal Justice Act 1988 are amended to create new offences

in s.1A of the former and s139AA of the latter. It will be an either way offence for a person

“To have an offensive weapon or an article with a blade or point;( as appropriate under the

relevant statute)

• In a public place or school premises;

• unlawfully and intentionally to threaten another with the weapon;

• in such a way that there is an immediate risk of serious physical harm to that other

person.”

Defences to the new crimes are as for their basic versions namely that the defence show that there

was a lawful authority or reasonable excuse or that there was good reason, phases that under the

case law are virtually interchangeable. Harm is serious if it amounts to grievous bodily harm. A

conviction for the basic offence may be delivered as an alternative to the aggravated version. The

new offences are either way offences carrying a maximum of 4 years’ imprisonment and /or a fine

on indictment. Although this is the same maximum penalty as for the basic offences, the statute

provides for a new minimum sentence to be imposed on those who are 16 or over. Thus a custodial

sentence of at least 6 months, or a detention and training order of at least 4 months for 16 and 17

years old, must be imposed on a person convicted of one of these offences unless the particular

circumstances will make it unjust to do so in all the circumstances of the offence or the offender.

This is the mantra used for third time burglars or class A drug dealers.

A strange anomaly appears to have been introduced as it appears that the sentence on an

adult could be suspended whilst that outcome is not available for a youth. Defence lawyers will

argue that if an appropriate requirement can be attached to a youth rehabilitation order the young

person should be in no worse position than an adult. The provision requires the court have regard to

the welfare principle in s.44 of the Children and Young Persons Act 1933. However the coming of

minimum sentences will inevitably lead to more trials, notwithstanding a possible 20% discount for

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early guilty plea. Decisions such as that in R v Clancy 2012 EWCA Crim 8 requiring the court to have

regard to the subjective state of mind of the defendant in deciding whither there was a reasonable

excuse or good reason will assist many young people who carry knives through genuinely perceived

fear that they may be attacked by members of other gangs.

Amendments are also made to the Road Traffic Act 1988. A new s.1A is inserted to make it

an offence to cause serious injury to another person by driving a mechanically propelled vehicle

dangerously on a road or other public place1. This is an either way offence carrying a maximum

penalty on indictment of 5 years imprisonment or a fine or both. This fills a gap where a person

suffers severe and permanent injuries or is kept alive by the remarkable skill of doctors. Many judges

have regarded the 2 years maximum for basic dangerous driving as inadequate. The amendment

should remove the need to charge offences under s 20 of the Offences against the Person Act 1861.

Dangerously is defined in the same way as in the original statute and serious injury is identified as

grievous bodily harm- somewhat circular definition. Disqualification from driving will be obligatory

on conviction.

A new summary offence( level 5) of squatting in a residential building will be available under

s.144, if a person trespasses in a residential building by living or intending to live in the building

where he knows or ought to have known that he is a trespasser. The offence is not committed by a

person holding over after the end of a lease or licence. However, the offence is committed

whenever the trespasser entered the building including before the commencement of this provision.

THIS PROVISION IN FORCE FOR OFFENCES ON OR AFTER 1st

SEPTEMBER 2012

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Amendments are introduced to deal with the recent outbreak of metal thefts. This is

handled by increases to existing penalties under the Scrap Metal Dealers Act 1964 and by the

toughening of obligations under that Act. The fine for offences under s.1(7) (dealers failing to

register), 2(dealer failing to record dealings), 3(itinerant collector failing to collect receipts) and 4

(convicted dealer failing to meet requirements)are increased from level 3 to level 5 and for offences

under s.1(8) (dealer failing to give notice of cessation of business 5 (dealer acquiring metal from a

person under 16 / selling metal to a dealer under a false name or address)and s 6

(obstructing entry and inspection)from level 1 to level 3. A new summary only offence level 5 is

inserted as s.3A making it an offence for scrap dealers to buy scrap metal except by cheque or

electronic transfer of funds or such other payment as the Secretary of State may by order permit. A

person who makes the payment acting for the dealer or a manager who fails to take reasonable

steps to prevent the payment being made will also be guilty of the offence with the exception of

itinerant collectors. This offence is to be reviewed within 5 years. The record keeping requirements

for scrap dealers are also made more onerous.

The law of self defence is further “clarified” under s.148 by changes to s.76 of the Criminal Justice

and Immigration Act 2008. The amendment makes clear that the possibility of retreat does not give

rise to a duty to do so, but is merely a factor to be taken into account in deciding in the

reasonableness of the force used. The amendment also includes in the list defences the common law

defence of defence of property2. Section 76(9) makes clear that the section (even in its amended

form) is not intended to amend the common law but merely to clarify it. Such further clarification is

probably only required for political reasons.

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Domestic Violence Crime and Victims (Amendment) Act 2012 These provisions are effective for crimes on or after 2nd July 2012

Adds to the existing offence to include serious harm as well as death with a maximum penalty of 10 years Thus “A person is guilty of an offence if a) a child or vulnerable adult(V) dies or suffers serious injury as a result of an unlawful act of a person who i) was a member of the same household as V and ii) has frequent contact with him b) D was such a person at the time of that act c) at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person; and d) either D was the person whose act caused V’s death or- i) D was or ought to have been aware of the risk mentioned in c ii) D failed to take such step a she could reasonably have been expected to take to protect V from the risk and iii) the act occurred in circumstances of the kind that D foresaw or ought to have foreseen. The same evidential restrictions on the early termination of the case apply. This extends to offences against the person or of attempted murder arising from the same serious physical harm

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Protection of Freedoms Act 2012

Sections IN FORCE are shown in individual descriptions

Part1 Regulation of biometric data

Chapter 1 Finger prints and DNA profiles

Additional powers to take fingerprints from those cautioned etc. (s 27 PACE) IN

FORCE 1.7.2012

New sections s 63D- 63U PACE 1984

These prints and profiles must be destroyed if it appears to the Chief Officer of

Police that:

1 The taking of the sample was unlawful

2 The arrest leading to the sample was unlawful or based on mistaken identification

In all other cases the samples must be destroyed unless retained under s63E to

63U) which make complex provision for a variety of different situations. These

include the seriousness of the offence and the age and record of the offender. The

Act also establishes a Commissioner for the retention and use of biometric material

These authorise retention pending the conclusion of an investigation or proceedings.

Otherwise samples must be destroyed before the end of 3 years from the date they

were taken. This period may be extended by a district judge for periods of 2 years.

The grounds are that the sample is likely to be needed in any proceedings for

disclosure to or use by a defendant or responding to an application to exclude

material

DNA samples must be destroyed within 6 months but this can be extended by 12

months by a district judge and this order may be renewed

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Footprint impressions may be kept for the purposes of prevention or detection of

crime; investigation of an offence and conduct of a prosecution

But must otherwise be destroyed

Material required to be destroyed may not be used in evidence against the person to

whom it relates or for the purposes of any investigation

For the purposes of Pt V PACE robbery is added as a qualifying offence

Section 19 and Schedule 1 amend other similar provisions including Terrorism Act

2000 sched.; 8; Counter Terrorism Act 2008 ; and Terrorism Prevention and

Investigation Measures Act 2011 Sched 6.

Provision is made for there to be binding guidance on the destruction of DNA profiles

Part 2 Regulation of surveillance

Chapter 1 regulation of CCTV and other surveillance camera technology

Code of practice for surveillance camera systems to be issued Powers to write codes

are in force. The various codes are admissible in evidence and may be taken in to

account in determining any question in criminal proceedings

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Chapter 2 Safeguards for certain surveillance under RIPA 2000

IN FORCE 1st NOV 2012

A judicial authority (a JP) is required for a local authority to obtain communication

data or to disclose such data;; directed surveillance and covert human intelligence

s22 s28 s29

Part 3 Protection of property from disproportionate enforcement action

Chapter 1 Powers of entry

Restrict such powers and provide for a code of practice IN FORCE 1.7.2012

Chapter 2 Vehicles left on land

IN FORCE 1st October 2012

Either way offence without lawful authority to immobilise a motor vehicle Regulations

may provide for the removal of vehicles other than from a road

Part 4 Counter Terrorism Powers IN FORCE 10.7.2012

Sched. 8 Terrorism Act 2000: reduced maximum pre-charge detention to 14 days(

emergency powers to extend to 28 days)

Note No longer so greatly needed as there can be post charge interviews

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Amended power to stop and search (reflecting the Remedial Order) but increasing

powers when searching a vehicle to search anyone in it. So must be reasonable

suspicion to stop a person and in specifying an area there must again be reasonable

suspicion that a terrorist act will take place and reasonably considers that the order

is necessary, the area is no greater than necessary and the duration is no longer

than is necessary

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Part 5 Safeguarding Vulnerable Groups, Criminal/ Records etc.

Chapter 1 Safeguarding of vulnerable groups

Barred list rules amended (for non- automatic entries) to make it relevant only to

regulated activities and to receive representations before entry. New powers to

review all lists. IN FORCE 10.9.12

Chapter 2 Criminal records

Unspent conditional cautions will appear on conviction certificates

Chapter 3 Disclosure and Barring Service

Replaces the Independent Safeguarding Authority (IN FORCE 10.9.12)

Chapter 4 Disregarding certain convictions for buggery( IN FORCE 1.10.12)

Application may be made for offences to be disregarded if the other person

consented and was 16 or over and was not in a public toilet

Part 6

Freedom of information and data protection

Extends meaning of a publicly owned company and public authority

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Part 7

Miscellaneous and General (new offences)

S 59A Sexual Offences Act is inserted to replace offences under ss57-59 to create a

single crime of trafficking people for sexual exploitation. Now covers trafficking in to,

within, and out of the UK for sexual exploitation. Either way offence carrying 14 years

Similar amendment to Asylum and Immigration (Treatment of Claimants) Act 2004

on trafficking people for labour and other exploitation

2 new offences inserted to the Protection from Harassment Act 1997 relating to

stalking IN FORCE 25th NOVEMBER 2012

S2A makes it an offence to pursue a course of conduct that amounts to harassment

of another that amounts to stalking

It amounts to stalking if it amounts to harassment, the acts or omissions are ones

associated with stalking and the person committing the course of conduct knows or

ought to have known that the course of conduct amounts to harassment. Examples

are in s2(3)

Following a person

Contacting a person

Publishing any statement or other material

Monitoring the use by a person makes of the internet etc.

Loitering in any place

Interfering with any property in the possession of a person

Watching or spying on a person

Summary only 6 months and /or level 3

A like aggravated offence is created by s 4A (either causes to fear on at least two

occasions that violence will be used against him or caused another serious alarm

harassment or distress that has a substantial adverse effect on his usual day to day

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activities ( either way 5 years) Defences if to prevent or detect crime; pursued under

an enactment; or pursuit of the course of conduct was reasonable for the protection

of the defendant or another; or of their property

Power to try fraud case without a jury repealed IN FORCE IMMEDIATELY

AND COMING NEXT The Crime and Courts Bill 2012

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PART 2 PRE-CHARGE / CIVIL JURISDICTION

New PACE etc. codes

Code C effective 10th July 2012

“Implements improvements and safeguards in care and treatment of suspects and

right to legal advice”

Generally introduces the Equalities Act; the use of the Welsh language (notably for

cautions); and introduces Annex L on establishing gender for the purposes of

searches

Allows for the delegation of custody duties to delegated staff with a report to the

custody officer; subject to the custody officer being satisfied on their training (3.5)

Risk assessments are not to be disclosed but 3rd parties, including lawyers, must be

told of any risks to themselves (3.8A)

Rights to legal advice are extended to the police station and other location where an

interview takes place. When this at home the right to leave the interview is handled

by giving a right to withdraw consent to the police presence (3.21 ;3.22)(Also 6BA

and 10.2))

If arrested during interview need to be advised of rights under Code G(3.21)

Restriction on communication rights if produced from prison to police station (5.7B)

Changes to rules if change mind about legal advice (6.6(d)

Before an interview can be started or continued

A An Inspector or above must speak to suspect as to the reasons for his change of mind

AND make reasonable efforts to ascertain the solicitor’s time of arrival and inform the

solicitor of the suspect’s request

B the reason must be recorded

C After being told of the outcome of the enquiries with the solicitor the suspect must confirm

in writing that the interview is to proceed

D The officer must be satisfied that it is proper for the interview to proceed

Full records are required

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Once the reason for delay in access to lawyers has ceased, there must be no further delay

(6.7)

No officer, save in response to a direct question, shall indicate the period for which a suspect

is likely to be detained if they ask for legal advice (6ZA))

The code is amended to allow for the existence of DSCC and CDS Direct explaining when

the telephone only limitations do and do not apply (6B)

Consent to interviews continuing following cancellation may be given by telephone (6I)

Increased requirement to note records with reasons for allowing urgent interviews of

vulnerable suspects (11.20)

Time on bail does not county towards detention time (Note 15.16)

Trigger offences extended to cover the Fraud Act (17E)

Annex E4 No appropriate adult required where there isa s 136 MHA 83 detention for

assessment

Annex F removed. Those countries with bilateral consular arrangements now dealt with by a

website reference

Code G effective midnight 12th November 2012

“To clarify and emphasise the application of the statutory necessity criteria in s24 (5)

and to reflect court judgments”

The changes place additional emphasis on consideration by a police officer of two

key elements of a lawful arrest They must have reasonable grounds to (1) suspect

that an offence has been committed and that the person has committed it and (2)

believe that an arrest is necessary for one or more of the reasons specified in s24

PACE

These changes complement the changes enacted by LASPO 2012 to protect

householders and others from unnecessary arrest when they use force in the belief

that they are acting in self-defence. In order to establish grounds to suspect a person

has committed an offence, officers should consider facts and information which tend

to indicate the person’s innocence as well as their guilt and take account of the

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circumstances under which the law allows the use of reasonable force. The

considerations also apply to the power given to school staff ( s93 Education and

Inspections Act 2006 to use reasonable force to prevent their pupils from committing

offences causing personal injury or damaging property and to maintain good order

and discipline. Other changes arise from the need to clarify and expand support for

each of the statutory reasons for arrest (s24(5) in particular the need to arrest for

interview, arrests for continuing offences and emphasising that arrests may not be

made solely to obtain biometric data.

See Appendix 4

Code H effective 10th July 2012

Similar amendments to Code C on general issues; and interpreter provisions brought

in to line with Code C (and in both codes requirement to comply with guidance on

interpreters from the Secretary of State (13)

Clarification that arrest and detention under s 41 TACT override PACE which comes

back in to play if released from TACT detention (1N)

New provisions introduced to deal with post charge interviewing (2.1)(15);

Clarification of grounds for extension of detention in paragraph 14

References to changes to detention legislation; and bizarre reference to the

Detention of Terrorist Suspects (temporary extension) Bill when the relevant powers

have been enacted by s57 Protection of Freedoms Act 2012 by amendment to

paragraph 36 of Schedule 8 TACT 2000. Powers to transfer to prison after 14 days

all moved to new annex J as this requires emergency Orders to be made

Code of practice: stop and search under ss 43 and 43A Terrorism Act 2000 and the

authorisation and exercise of stop and search powers relating to s47A and Schedule

6B

Effective 17th July 2012

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Code of practice for video recording with sound of interviews of persons detained

under s41 or Schedule 7Terrorism Act 2000 and post charge interviewing of

terrorism suspects( s22/23 Counter Terrorism Act 2008

Effective 10th July 2012

EFFECTIVE 10th July 2012

Post charge interviewing in terrorist cases

S22 Counter Terrorism Act 2008 allows for the post charging interviewing of terrorist

suspects if authorised by a crown court judge. Questioning can only take place in

relation to the offence with which charged

This applies to a terrorism offence or when it appears to the judge that the offence

has a terrorist connection

The judge must specify the period during which questioning is authorised and may

impose such conditions as are necessary in the interests of justice including as to

the place of interview

There is a 48 hour time limit from when the authorised questioning begins( whether

or not the questioning is continuing) Further authorisations can be granted

To authorise questioning after charge the judge must be satisfied that

A It is necessary in the interests of justice

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B the investigation is being conducted diligently and expeditiously

C what is authorised will not interfere unduly with the preparation of the person’s

defence to the charge or other charges

Ss 34 36 and 37CJPOA is applied allowing inferences from silence

Attendances to advise at the place of investigation will not attract fixed fees but

rather hourly rates including for travel and waiting

Mental Disability

It would be difficult for a court to find that a person understood the caution and other

police station procedures if, absent any evidence of deterioration, they were unfit to

plead at trial

R v B 2012 EWCA Crim (19.6.12)

Investigation Procedure

Delay in the transport of a prisoner to the police station in breach of s30 PACE 1974

may if deliberate result in the exclusion of evidence but on the facts the 2 defendants

chose to discuss matters in the back of a police car. There was no encouragement to

do so

R v King 2012 EWCA Crim 805

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Caution (right to silence)

The test whether there were grounds to suspect is objective and does not depend on

the personal knowledge of the individual officer but on information available to the

police generally

R v Williams 2012 EWCA Crim 264

Right to legal advice

A waiver of the right to legal advice must be voluntary informed and unequivocal(

see Jude v HM Advocate 2011UKSC 55).The suggestion by the police officer that

the practice of disclosure is essentially for a purpose of a solicitor and not for the

purpose of a defendant, was too rigid and inflexible a proposition

There may well be cases where fairness demands that a detainee is afforded pre

interview disclosure, so that he knows sufficiently the nature of the police enquiry

and is placed in a position to know whether legal advice would assist or not. An

inflexible practice of never making any disclosure to a suspect in person runs a

serious risk of depriving a detainee of information he needs before deciding whether

to waive or not. The approach adopted by the police needs to be flexible so that they

can be sensitive to the different needs of different detainees

Note The court sought to scotch the suggestion that detainee should not have been

warned that asking for a legal representative might cause a delay while he was kept

in the cells There may be cases where to say that it will take time and the way in

which it is said might amount to a suggestion not to wait. But it can hardly be fair for

a police officer to refuse to say how long it may take to wait and merely to confine a

detainee without any warning of how long that might be

R v Saunders 2012 EWCA Crim 1380

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Identification procedures

Spontaneous responses made by a suspect (in this case cautioned ) at a witness

identification procedure, which were highly relevant, were admissible

Brown (Nigel) v State of Trinidad and Tobago 2012 UKPC 2

In the absence of objection at the time of the identification procedure (and at trial) a

failure to hide a distinguishing feature did not make the trial unfair, subject to the

quality of the summing up. To cover up a distinguishing mark could defeat the

purpose of the identification

R v Pattinson 2012 EWCA Crim 1069

Drug testing procedures

See HO circular 015/2012

All substances suspected to be controlled drugs must be sent for forensic analysis

unless they are

Cannabis including resin but excluding hash oil if dealt with in the magistrates’ court

and identified by an experienced law enforcement personnel and there is no dispute(

bearing in mind the need for the matter in issue to be identified)

Seizures of suspected Class A drugs of cocaine heroin, amphetamine or morphine

which have given a positive result on local test and the following criteria are met:

Suspect admits possession, its identity and agrees for personal use; and

Amount is small and consistent with personal use; and

32

Local testing rules apply:

Or if purpose is to assist Crown in objections to unconditional bail but lab test must

follow as soon as possible

Provided the circumstances allow local drug tests results to be used, the Crown may

accept those results as evidence if case dealt with in the magistrates’’ court; or

where guilty pleas are entered in the MC or where committal for sentence; or where

issue not in dispute in Crown Court cases; or for purposes of objections to

unconditional bail

Full testing is required if the substance is not listed above; the result of the local test

(which the circular acknowledges can be wrong) is disputed after consideration of

CPR or admission of the drug’s identification or possession is withdrawn

Police Powers

Search warrant

To be valid a warrant must be based on information that is not misleading and

incomplete and disclosure must be full complete and frank

G v MPC 2011 EWHC 3331

Retention of property

O had a video film that was seized by the police in a criminal investigation. The court

confirmed that on the facts it should be returned under the Police (Property) Act

1897.

1 S 22 PACE (anything which has been seized may be retained so long as

necessary in all the circumstances)allowed retention for the minimum time necessary

for investigative purposes and not for other purposes

2 It might be retained to prevent crime (revenge by O)in its discretion but evidence

beyond the belief of a police officer was required, sufficient to satisfy the court

Chief Constable of Merseyside v Owens 2012 EWHC 1515 (Admin)

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Retention of samples etc. Where a case was NFAd the Metropolitan police policy on retention of custody photographs was found to be unlawful but not the retention of PNC details which could be relevant in the future. This was proportionate within Art 8. Time was allowed for a review of the photograph retention policy R v (RMC and FJ) v Metropolitan police Commissioner 2012 EWHC 1681 (Admin) Enhanced Criminal Record Certificates The disclosure of all convictions and cautions in enhanced certificates is compatible with Art 8 and the exclusion of their becoming spent in defined cases is equally compatible Applying R (R) v MPC 2010 AC 4190 R (T) v Chief Constable of Greater Manchester 2012 EWHC147(Admin) Harassment Warnings Comprehensively if confusingly considered On the individual facts no illegality found in either the issue or storage of such notices but judgment given that 1 Notice should not be issued without the suspect having a chance to comment to see if the complaint is incapable of belief 2 Notice does not amount to a warning for CRO purposes The purpose is to provide evidence of a course of conduct and to deny the defence that the suspect was unaware of the effects of their actions It appears notices are held for 7 years R(T) v MPC R(R) v MPC 2012 EWHC 1115 (Admin)

34

Pre-charge bail conditions A condition not to live at the suspect’s home address was disproportionate even in a case involving a neighbour dispute because on the facts A There was inevitably not yet a charge B there was no allegation of violence or damage- it was based on abuse C the likely length of the bail period D exclusion from a home would be serious even if there was a conviction R (Carson) v Ealing MC 32102 EWHC 1456 (Admin) CIVIL JURISDICTION Cash forfeiture At the hearing of an application to forfeit cash the court need not be satisfied that the investigator could show a reasonable grounds for suspicion( as the statute requires at the time of seizure) The court was limited to s 298 to deciding if the cash was obtained through or intended to be used in unlawful conduct Secretary of State for the Home Dept. v Tuncel 2012 EWHC 402(Admin)

35

Closure Orders The closure of premises under s 2 ASB Act 2003 requires that the court be satisfied that the premises have been used for the unlawful use or supply of Class A drugs, that the premises are associated with disorder or nuisance, and that the order is necessary to prevent it. Where the address is a home Art 8 ECHR is engaged (R(Cleary) v Highbury Corner MC (Practice Note ) 2006 EWHC 1869(Admin) However the police do not have to show that the closure order is an act of last resort; and there is no midway position of preventing visitors whilst leaving the premises open R (Leary) v West Midlands Chief Constable 2012 EWHC 639 (Admin) Civil Orders in relation to sexual offences New guidance has been issued by the Home Office

36

PART 3 PROCEDURE Statutory Change 18th June 2012 Start of the abolition of committal proceedings and change of procedure in the youth court (Sched. 3 CJA 2003) Summary: The detail is set out diagrammatically in Annex 6 A Abolish committal proceedings B Change plea before venue procedure C Crown may introduce the defendant’s previous convictions D Allow defendants who plead NG or give no indication may request an indication whether the court is considering custodial sentence E Introduces plea before venue to the youth court Removal of restriction on magistrates hearing cases after disclosure of previous convictions when making decisions on bail (s42 MCA 1980) Impose reporting restrictions on new form of sendings Allocation Procedure The Sentencing Council consultation response confirms “a small number of respondents raised concerns that the requirement for the court to take a balanced view could lead to a preliminary litigation of issues of fact where a dispute arose between the prosecution and the defence. The Council considered the issue very carefully but decided to retain the approach proposed in the draft guideline. This was for two reasons; first the statutory provisions dealing with allocation provide “that the court shall give the prosecutor and the accused the opportunity to make representations as to which court is more suitable for the

37

conduct of the trial(the approach in the draft guideline reminds the judiciary of this duty and rebalances the weight to be to be given to the prosecution case); secondly the Council has faith in the courts’ ability to achieve a proper balance between the prosecution and the defence case because this is the approach the court successfully adopts when deciding bail applications. Given the strong support for the proposed approach, the Council will retain it in the definitive guideline” Abuse of Process In a fleeting glance identification case a critical defence witness had earlier given evidence at the related inquest into the death without sight of his witness statement, the CPS having decided not to prosecute for manslaughter. It was an abuse to proceed with the trial, following a change of mind, where the witness was, two and a half years after the incident, challenged by the Crown using his inquest evidence, although his evidence was consistent with his original statement. The initial decision not to prosecute was plainly wrong and the defence case had been prejudiced by the course of events R v Davies (Aaron Lee) 2011 EWCA Crim 871 Decisions over the prosecution of persons particularly children and young people who might have been the victims of trafficking for labour exploitation and who had been coerced into criminal activity should not inappropriately criminalise them but this was a matter of prosecutorial discretion. The common law defence of duress may apply and the court might if there was a conviction decide that punishment was inappropriate and impose a discharge and so implement The Council of Europe Convention on Action against Trafficking in Human Beings 2005 R v N(A) : R v E 2012 EWCA Crim 189

38

Case management In considering an application for an adjournment of a trial, because of the absence of the defendant, the court must have regard not only to the authorities such as Picton 2006 EWHC 1108(Admin) and Nadour v Chester Magistrates 2009 EWHC1505 (Admin)- the latter on the need among other issues to check the next available trial date-but to the decision of the House of Lords in Jones 2002 UKHL 5. The discretion to try a person in their absence must be exercised with great care and it is only in exceptional cases that it should be exercised- such as cases where the absence was a deliberate absconding R (Drinkwater) v Solihull MC 2012 EWHC 765 (Admin) Criminal Procedure Rules 2012 In to force 1st October 2012 New Rules (but no substantive changes) Pt 19 and 20 Bail application and appeals/ custody time limits However there are important new forms to be used for appeals against police bail; applications for bail; and appeals for bail Pt 64 Case Stated to the High court Amendments Pt4 Service Pt6 applications for investigation orders including local authorities obtaining JP authority Pt9 Sendings The court may ask for an indication of plea but only after the decision on sending has been made Pt16 Reporting restrictions ( on appeals by teachers against being named) s141F(7) Education Act 2002 NOTE The new rules on anonymity when a child accuses a teacher at the investigative stage in force on 1st October 2012 but with right o apply to name them in defined circumstances

39

Pt27 Written witness statements Either a s9 statement or an authenticated copy may be used in evidence Assists email communication and consistent with s133 CJA2003 allowing authentication Pt34 advance notice of hearsay evidence Notice required of intention to use hearsay in a statement prepared for purposes of criminal proceedings or of business documents ss116 and 117 CJA 2003 In addition it is made clear that a notice of opposition to hearsay must be served giving reasons whether or not notice has been given of an intention to use it NOTE this may amount to agreement under s114(1) a Williams v VOSA 172 JP328 Pt37 Introducing separate rules for oral and written evidence at trial in the magistrates court Pt 42 notices about sentencing “requirements” Pt 63 Appeals to the crown court An application for bail pending appeal must be lodged with the appeal notice with reason Reopening cases S 142 (2) MCA 2000 might be used to set aside an inappropriate yet unequivocal guilty plea but not where the allegation was of professional impropriety by the defendant’s legal advisers which did not fall within the word “mistake” 5 ways it seems exist to reopen a guilty plea I if it had been an equivocal plea Ii it was now equivocal Iii it was entered under duress Iv autrefois acquit or convict V CCRC referral Williamson v City of Westminster MC 2012 EWHC 1444 (Admin)

40

Disclosure A conflict between the Crown’s duty to protect an informer and its obligations under the CPIA 1996 must be resolved by the Court R (WV) v CPS 2011 EWHC 2480 (Admin) Note on disclosure If there has been a failure by the Crown to give initial disclosure or to comply with a sensible direction on disclosure, they are not ready to proceed to trial. They are in breach of paragraphs 41-44 of the Attorney- General’s guideline on disclosure The crown must apply for an adjournment (which is likely to be refused) Under those paragraphs the prosecution advocate has a duty to ensure that there can be a fair trial and that all that should be disclosed , is disclosed Defence Case statements In the crown court the judge must indicate whether he intends to leave the s11 inference to the jury. He must then either give the direction( indicating that the jury must be satisfied that the statement is that of the defendant- here the DCS was unsigned by the defendant- or indicate that no inference should be drawn. It cannot be left in a void. The Crown had cross examined on the DCS without notice Obiter comments on the fact that questions about the DCS are likely to pass the jury by R v Haynes 29011 EWCA Crim 3281 Procedural time limits For the purposes of signing a certificate as to the date at which a prosecutor first had knowledge of relevant facts Prosecutor includes a private prosecutor The way to challenge a certificate is by way of an application to stay for abuse Lamont-Perkins v RSPCA 2012 EWHC 1002 (Admin)

41

Custody time limits The meaning of “routine case” considered. It is to be distinguished from one of “real complexity” or one that required a specially authorised judge. A case that could be tried by an experienced crown court judge was not exceptional. The existence of some expert evidence was not enough. Cell site and DNA evidence are common. It is for the defence to raise the issue R v(Raeside) v Luton CC 2012 EWCHC 1064 (Admin) Unfit to plead S4A (2) criminal procedure (Insanity) Act 1964 In considering the “act charged” in the offence of voyeurism the jury had to consider whether the act was “for the purposes of sexual gratification” not just whether the defendant deliberately observed boys undressing The relevant act is the deliberate observation of another doing a private act for obtaining sexual gratification. It excludes only the issue of knowledge of lack of consent to such observation. A SOPO was inappropriate as no sexual deviancy was found which might lead to serious sexual physical or psychological harm” R v M Burke 2012 EWCA Crim 770 Case to answer The unexplained presence in a car of a defendant’s house keys and DNA on a mobile telephone create a case to answer of TWOC and justify conviction in the absence of defence evidence K v DPP 30.3.12(DC)

42

Witnesses:Alibi Where a defence alibi witness appeared for the first time after the close of the defence case to give evidence, not having been named in the defence statement, the judge was seriously wrong to prevent that witness being called. It was not for the judge to decide on credibility and the only sanction for failing to mention an alibi witness was inference under s11 CPIA 96 R v Ullah 2011 EWCA Crim 3275 Jury ballot Any objection to a jury member must be made at the time of selection and not later-certainly on appeal is too late R v M 24.7.12 Indictment An amendment to an indictment to add an additional count after the close of the defence case should not be allowed if it was prejudicial to the defence. An allegation of robbery allowed an alternative conviction for common assault but here the judge allowed an allegation of a s47 assault to which the defendant had no chance to plead R v B (JJ) 2012 EWCA Crim 677 Judicial review Where a highly technical defence would not have succeeded had it been raised at trial, even though prevented by the lower court from doing so,jjudicial review may in the court’s discretion be refused Santos v Stratford MC 2012 EWHC 752 (Admin)

43

Appeal For the additional form to use for notices of appeal see Annex 1 The time for presentation of expert evidence was at trial. Absent developments in the relevant science, matters could not be reopened on appeal (DNA Transfer) R v Cleobury 2012 EWCA Crim 17 And see also R v Mungai ( on medical evidence) 2012 EWCA Crim 1983 Contempt of court An appeal does lie in relation to contempt of court from the Court of Appeal to the Supreme Court OB v SFO 2012 EWCA Crim 901 Appeal against a terminating ruling There were two pre-conditions to such an appeal There must be an immediate application to appeal or to adjourn to consider the matter and Immediate notice must be given of an acquittal agreement should the appeal not succeed R v M 2012 EWCA Crim 792 Retrial The addition of a new count, involving a new complainant, was permitted provided it was not an abuse of process even where the relevant evidence became available after the original trial R v F 2012 EWCA Crim 720

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Application for retrial After a successful appeal, it was too late for the Crown to seek a retrial after the Crown court had been notified of the successful appeal as s2(3) Criminal Appeals Act 1968 meant there had been an order at the Crown Court of acquittal R v Blackwood (Romaine) 2012 EWCA Crim 390 Time limit When seeking to extend the two months time limit to re-arraign a defendant or the retrial the Crown did not act with due expedition when there had been a miscommunication within the CPS R v Pritchard 2012 EWCA Crim 1285 Retrials (Double jeopardy) Evidence met the test as being “new” even though it had been available at the original trial but (wrongly) excluded on that occasion by the trail judge R v B 2012 EWCA Crim 414

45

PART 4

YOUTH JUSTI CE S39 CYPA 1933 An order was upheld in relation to a 16 years old who had admitted a single arson notwithstanding that there had been a number of arsons in the area ; the relevant issues were nicely balanced Applying McKerry v Teeside and Weir Valley JJs 2001 EMLR 5 When a young person is the defendant: 1 The defendant had to satisfy the court that there was a good reason for restriction 2 The good reason for a young person would in most cases be his or her welfare. Publicity would have significant effects on their prospects and opportunities 3 The court must have regard to Art 10. A restriction order must be necessary and proportionate and for a pressing social need. There was a public interest in knowing the outcome of proceedings 4 There is a balance to be struck. Prior to conviction it was unlikely that there should be publicity. After conviction the age of the defendant and seriousness of the crime would be particularly relevant 5 partial publicity was possible 6 If there was an even balance there should be no publicity R(Y) v Aylesbury CC 2012 EWHC 1140 (Admin)

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Young offenders : s91 Detention

All the defendants were under 15 years of age and were not persistent offenders.

They took part in a robbery involving an air weapon at a newsagents. The judge

found a YRO was inappropriate and a DTO could not lawfully be made. 18month

sentence upheld

R V Q 2012 EWCA Crim 296

Note There is a strong presumption against sending young offenders to the Crown court

unless that course and a sentence approaching two years was required

See R(W) v Southampton YC 2002 EWHC 1640 (Admin)

R(W) v Thetford YC 2002 EWHC 1252 (Admin)

A 14 year old who committed 3 offences of robbery on 6.3.12 within a very short space of

time of each other, who had a reprimand for theft of a bicycle in June 2011, and also for

possession of an imitation firearm on 27.7 2011, was not a persistent offender

Applying R v G 2004 EWCA Crim 3086

R v L 2012 EWCA Crim 1336

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PART 5

CRIMINAL LAW

Professional Practice

For use of computers etc. in courts and prisons see Appendix 2

Co-conspirators

The acquittal of a defendant at the original trial did not prevent the Crown

maintaining that the defendant was in fact involved in the conspiracy at a retrial of a

different defendant. The acquitted person has no right to intervene in the retrial

R V Sam Cook 2012 EWCA Crim 6

Voyeurism

For aspects of the offence see R v M Burke in procedural section above

Robbery

The mere taking of an item( a cigarette) from a person’s hand was not enough to

support a charge of robbery where there is no contact between victim and defendant.

Force had not been used “on” a person. It was analogous to pick- pocketing

P v DPP 2012 EWHC 1657(Admin)

48

Aggravated Burglary

The secondary party to a burglary who is outside the premises and has a firearm or

weapon of offence cannot be convicted of aggravated burglary if the person who

entered is not so armed

R v Wiggins 2012 EWCA Crim 27

Firearms

A starting pistol was not a prohibited firearm. It was however an imitation firearm

capable of being “readily converted”

The case contains a detailed consideration of Firearms legislation

R v Bewley 2012 EWCA Crim 1457

Permitting premises to be used for supply of class A drugs

S8(6) Misuse of Drugs Act 1971

To establish the offence the Crown must prove not only that the defendant knowingly

permitted the supply of the drugs but that a supply of the drugs had actually taken

place on the premises

R v McGee 2012 EWCA Crim 613

Confirms R v Auguiste (on (d) for cannabis) 2003 EWCA Crim 3329

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Child Abduction

The offence of taking or sending a child under 18 out of the jurisdiction without

consent is not a continuing offence and refers only to the original taking. A keeping

of the child beyond the agreed times falls outside the offence

R (Nicolaou) v Redbridge MC 2012 EWHC 1647 (Admin)

Execution of Duty

Stop and search

The test of lawfulness is the same as for arrest i.e. the officer must suspect the

presence of stolen or prohibited articles and there are reasonable grounds for so

suspecting and he has exercised his discretion reasonably.

If a group are together it is not necessary to have a belief in relation to each

individual in the group

Howarth v MPC 2011 EWHC 2818(Admin)

The principle in Howarth justified the stop and search of 2 vehicles of hunt protesters

when there was intelligence that weapons would be found in one of them and the

whole group engaged in aggressive behaviour even though there was no information

on the van being used by a particular individual

Tuthill v DPP 2011 EWHC 3760 (Admin)

50

After an officer carried out a pat down search he saw that there were drugs under

the defendant’s tongue. The officer placed his hand on the defendant’s neck and

asked him to spit them out. The defendant tried to swallow the drugs at which the

officer applied force to prevent his swallowing them. This was a lawful exercise of the

powers under s 23 Misuse of Drugs Act 1971 and Code A PACE 10984. A forcible

search only began on the attempt to swallow. The officer had no alternative

James v DPP 2012 EWHC 1317 (Admin)

Although an initial search was unlawful, sufficient time had passed during which the

police were assisting a member of the public (Bitten by a police dog!) for them again

to be in the execution of their duty when assaulted

Sobczak v Brighton MC 2012 EWHC 1319 (Admin)

Where premises comprised separate locked rooms with a communal area a warrant

will only authorise entry to the specific bedroom of the person identified. However

whilst officers went outside their duty by entering another room they acted lawfully

once back in the communal area and could exclude the defendant from the room

being searched as he had no right to enter it

Thomas v DPP 2009 EWHC 3906 (Admin)

Acting on instructions

For the extent to which officers may rely in making arrests on information from other

officers and “orders” from superior officers

See R(Hicks and others) v MPC 2012 EWHC 1947

Note: An application for a search warrant must be specific when this is possible-

reference to paint bombs rather than “criminal damage”

51

Breach of the Peace

A person willing to leave premises but who an officer believed would return to cause

violence gave rise to a reasonable basis for fearing imminent violence, the more so

in a domestic situation

Demetriou v DPP 156(18) SJ 31

Malicious communication

It is an offence to send by public electronic communication network a message of a

menacing character (s127(1)a (3) Malicious Communications Act 2003 but the

mental element requires that the sender intended that the message be of a

menacing character or if is proved to have been aware or to have recognised the risk

that it might create fear or apprehension in any reasonable member of the public

who reads or sees it. If the message was intended as a joke, however poor, the

offence will rarely be made out.

Chambers v DPP 2012 EWHC 2157(QB)

Public Order

To make out an offence under s4 Public Order Act 1986 to Crown must prove that

the defendant intended the victim to fear immediate unlawful violence and that is not

possible where it was the intention of the defendant to take the victim by surprise so

that he did not know he would be assaulted until the act had occurred (should have

been charged with assault)

Hughes v DPP 2012 EWHC 606 (Admin)

52

Aggravated Trespass

DPP v Barnard 2000 Crim LR 371 confirmed that s 68 CJPOA 1994 had three

elements

1 Trespass

2 doing some act which must be an act distinct from the trespass

3 intention by the second act to intimidate obstruct or disrupt

The mass invasion of a building followed by a “particular persistence” in remaining in

the building while the lawful occupants had to leave , their business disrupted and

considerable damage was done met those requirements. On the facts there was no

issue of whether there was a mere presence rather than encouragement

Peppersharp v DPP 2012 EWHC 474(Admin)

The protection of the Act extended to a company carrying on a lawful activity which

could also be “intimidated obstructed or disrupted”

A criminal prosecution should not explore the nature of the activities of the company

unless it was inherent to its trade ( here a normal retail trade)

Protesters tying themselves together who could not leave until untied left “as soon

as practicable”

Richardson and another v DPP 2012 EWHC 1238(Admn)

53

Money laundering

It is not an offence under s328 POCA 2000 to facilitate if all that has happened is

that people have agreed to meet to discuss a purchase of a stolen car which is

clearly criminal property. It is too preparatory. The defendant had not agreed a price

or found the person to whom he would sell on as part of his purchase arrangement.

If the car had been handed over and price agreed it would have facilitated the future

acquisition by that other of criminal property

Dare v CPS 2012 EWHC 2074 (Admin)

Fraud

Tax Credit Act

Passive receipt of moneys and failure to report did not amount to “ fraudulent

activity” which requires a positive act of misrepresentation with a view to gain. The

statute requires behaviour calculated to achieve, rather than capitalise on what had

already been achieved

R v Nolan and Howard 29012 EWCA Crim 671

Immigration

The offence under s25 Immigration Act 1971 of facilitating a breach of immigration

law by a non EU citizen is limited to law determining whether a person is lawfully or

unlawfully in the UK. It does not extend to other offences such as not having an

immigration document( s2 Asylum and Immigration(Treatment of Claimants etc.) Act

2004)

R v Kapoor 2012 EWCA Crim 435

54

Health and Safety

Offences under ss 2 and 3 Health and Safety Act 1974

Foreseeability of danger of risk is relevant to whether a risk exists. Risk assessments

involve an exercise in foresight. The Crown does not have to prove the accident was

foreseeable. The extent to which the injury is foreseeable is part of the enquiry into

the level of risk of the possibility of injury. This is not limited to obvious risks. The

principal relevance of foreseeability will be to the defence of all reasonable

precautions having been taken, The duty to take reasonably practical precautions

depends on the circumstances of the case, principally the degree of foreseeable risk

of injury, the gravity of the injury and the implications of suggested methods of

avoiding it

R v Tangenne Confectionery Ltd and Veolia ES (UK) Ltd 2011 EWCA Crim 2015

ROAD TRAFFIC

S 172 notices

A single notice under s 172 may validly be served on the two joint keepers of a

vehicle. The decision does not indicate how many replies are required

Lynes v DPP 2012 EWHC 1300 (Admin)

55

PART 6

SENTENCING

Legislative change

General Principles

Guidelines

Specific orders

Particular offences

Legislative change

Victim Surcharge

With effect from 1st October 2012, for offences after that date, courts are required to

apply the following financial surcharges. Transitional arrangements

Offences either side of 1/10/12 If fine £15 i.e pre change position

Any one offence as a youth- youth charges apply

Original law under s161A and B CJA 2003- if insufficient for surcharge and

compensation the latter takes priority. Otherwise only ordering a day in lieu can

avoid the charge

56

Sentence adult youths company

Conditional discharge £15 £10 £15

Fine 10% in range £15 10% in range £20

£20 to £120 to £120

YRO/Referral Order £15

Custodial at Crown court £20*

Community Order £60

Suspended sent £80 if 6 months or less

Suspended sent £100 if over 6 months

£20

Immediate custody if

By crown court £80 if 6months or les

£100 if over 6 and 24 or under

£120 if over 24 months

One surcharge(at the highest rate) payable if more than one sentence( including

more than one fine). Immediate custodial sentences in the magistrates court at

present escape the surcharge because government does not want court use power

to give additional time in lieu

57

Sexual Offenders registration

Significant changes in registration requirements in two stages

30th July 2012

Indeterminate notification provisions amended to comply with ECHR following R(F)v

SSHD 2011 1 AC 331 Procedures introduced to apply to the police for removal after

15years (8years if under 18 at outset) then every 8 years Police must make decision

with in 6 weeks if satisfied by the applicant that registration not necessary to protect

the public from him Right of appeal to the magistrates court within 21dyas of the

determination There will be guidance to the police published by SSHD

13th August 2012

Police must be notified of any intended travel outside the UK. not less than 7 days

before travel or exceptionally not less than 12 hours.

Those who have no sole or main residence have to notify where they can regularly

be found every 7 days instead of annually

Must notify police if they stay for at least 12 hours in the same household as a child

under 18

Requirement to notify details of bank and credit card accounts

Required to provide detailed information on passports and identity documents

General principles

Mitigation

Committing crime to pay off a drug debt provided little mitigation when charged with

robbery or burglary or offences of violence

R v Mullally 2102 EWCA Crim 687

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Art 8 ECHR (by analogy with this extradition case)

In extradition the best interests of the child must be a( but not the ) primary

consideration but may ne outweighed by countervailing factors. It is not enough to

dismiss them in a simplistic way (by suggesting that child’s interests will always be

harmed ) but accepting that the public interest in extradition is almost always strong

enough to outweigh it. There is no substitute for a careful examination of the facts

The courts will need to know

whether there re dependent children;

whether removal will be harmful to their interests;

and what steps can be taken to mitigate this

In both parents or the sole carer are to be extradited the court will also need to know

of the availability of alternative measures

That similar considerations apply to sentencing decisions is confirmed by Lord Judge

at paragraphs 126-131

“131 The starting point in the sentencing decision involves an evaluation of the seriousness

of the crime or crimes and the criminality of the offender who committed them or participate

in their commission, and a balanced assessment of the countless variety of aggravating and

mitigating features which almost invariably arose in each case./ In this context the interests

of the children of the offender have for many years commanded principled attention, not for

the sake of the offender, but for their own sakes , and the broader interests of society in

their welfare, within the context of the overall objectives served by the domestic criminal

justice system. Sadly the application of this principle cannot eradicate distressing cases

where the interests even of very young children cannot prevail;”

HH v Deputy Prosecutor of Republic Genoa 2012 UKSC 25

59

Guilty plea discount

The court noted that the appellant did not plead guilty when the mater came in front

of the judge but attached importance to the fact that at that stage all the relevant

documents had not been served on him and that it was after those documents had

been served and when the matter came back before the court that he pleaded guilty.

The court took the view that the did so at the first reasonable opportunity giving a

one third discount

The court said “We must stress how important it is for a judge to carry out the

exercise that ascertains whether or not the plea was in fact entered at the first

reasonable opportunity. It cannot be the invariable rule that that must be when the

defendant is interviewed at the police station, because in many cases that will be at

a later time depending on what documents have been served and a number of other

factors

R v Thompson 2012 EWCA Crim 1431

As the early guilty plea scheme spreads it will be increasingly difficult to argue that

that the PCMH is the first reasonable opportunity to enter agility plea and only a 25%

discount will be allowed at PCMH. A discount of less then one third is already proper

but not in this case where the Crown accepted that it is was the first reasonable

opportunity

R v Chaytors 2012 EWCA Crim 1810

Specimen counts (repeated sexual offences)

The normal rule applies (R v Canavan and others 2005 EWCA Crim 1025) to such

offences and an indictment could only be treated as such with the agreement of the

defendant. In this case counsel had given consent.

R v BDG 2012 EWCA Crim 1283

60

Prosecution assistance s73 SOCPA

Allegation of murder. The discount of 50% to 67% for those who by giving evidence

placed themselves in danger of retribution would be greater than in other cases. The

fact that assistance was given to lower the sentence they themselves received

should not reduce the additional discount. The court should have regard to the

significance of the evidence (7 year reduction in sentence to 22 years allowed

R v Peter Hood 2012 EWCA Crim 1260

See also R v McGary 2012 EWCA Crim 255 where 10% was insufficient because

public policy required more even when the value of the evidence was less than might

have been expected and though the defendant acted in good faith he was not called

to give evidence 20% was required

Leading authority is R v Blackburn 2007 EWCA Crim 2290

Sentencing those with many previous convictions

Whilst those who calculate their careers on the basis that they are willing to cope

with whatever the courts will see as being necessary for the reduction of crime and in

the interest of justice and may step outside the range that would otherwise apply, a

sentence, for an offender with a serious criminal record must be in some

proportionate relationship to the offence committed and the circumstance of the

offender

R v Langley 2011 EWCA Crim 2471

Applied in R v Bryne 2012 EWCA Crim 418

See also R v Neasham 2012 EWCA Crim542

61

Even thought he offender has a poor criminal record for similar offences he was

being sentenced for the particular offence of which he had been convicted on this

occasion Relevant previous convictions are a statutory aggravating factor but there

is still a need for the punishment to be proportionate

Most recent authority is R v Muat 2012 EWCA Crim 1068

Powers of the Crown court

A crown court in proceedings for breach of a magistrates’’ court community order

could not impose a longer sentence than was available to the magistrates

R v Brzezinski 2012 EWCA Crim 198

On new offence in breach of crown court suspended sentence

It is important to check the provision used as s6 PCC(S)A 2000 limits the court to

magistrates court powers on the new offence

For guidance see

R v Morgan 2012 EWCA Crim 1939

Activation of suspended sentence

A failure to comply with all the requirements imposed may enable a judge to activate

the whole sentence though some requirements have been met

R v Finn 2012 EWCA Crim 881

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Minimum Sentences

Exceptional circumstances

The fact that a defendant has no intention to use a firearm to harm anymore or for

criminal purposes could not of itself amount to exceptional circumstance

AG Ref No 23 of 2009 2009 EWCA Crim 1687

R v Welsh 2012 EWCA Crim 1331

On very particular facts where the crown had facilitated as to the level of charge and

the charge carrying the minimum term had been added on the judge’s “insistence”

there were exceptional circumstances

1 In an inconsistent and arbitrary prosecution policy

2 The change of mind raised expectations

3 Fact that magistrates court had in same initial proceedings imposed a separate

prison sentence (note: although criticised for accepting jurisdiction the magistrates

actually had no discretion) which was virtually complete by the time of crown court

sentencing on the matter carrying the minimum sentence.

R v Brereton (Mathew) 2012 EWCA Crim 85

Unduly lenient sentences

Effective 6th August 2012

There will be power to refer the following additional cases

I any case tried on indictment following a notice of transfer under s51B Crime and

Disorder Act1998 ((serious or complex fraud)

Ii An offence under s4 Asylum and Immigration (treatment of claimants etc.) Act

2004 (trafficking people for exploitation)

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Iii Paragraph 4 of Schedule 21 to the 2006 Order replaced by a new provision adding

to attempts or incitement to commit an offence to include the offence of encouraging

or assisting under ss 44 and 45 Serious Crime Act 2007

Enforcement

It was wrong in principle to impose a custodial sentence for non payment of

compensation when a confiscation order resulted in there being no available money

and it was similarly wrong to refer to the moneys of the husband who was not the

defendant

Evans v North Somerset MC 2012 EWHC 2382(Admin)

Guidelines

Guidelines, even if published, do not take effect until their commencement date. The

rule established by R v Graham 1999 2 Cr App R (S) 312 that sentencing changes

do not apply retrospectively applies to Guidelines also

R v Boakye and others 2012 EWCA Crim 838

Drugs

Under the new guidelines the purity of the drug is not relevant until stage 2 as an

aggravating or mitigating factor

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The existence of others not before the court does not prevent a defendant playing a

leading role. The characteristics are not exclusive and are to be given a broad

meaning

The new guideline does not make any dramatic shift in sentencing levels (save as to

certain “drug mules”) 1 There were couriers at different level of seriousness

2The guideline relied on the gross weight of the drugs and not purity though

information on purity may be taken in to account at stage 2

3 The quantities of drugs stated were indicative upon which starting points were

based and not themselves thresholds

A-G Ref 15, 16, 17 2012 EWCA Crim 1414

Cultivating cannabis

For an application of the guideline see R v Bamford 2012 EWCA Crim 820 on levels

and on lesser or significant role

“in assessing culpability the sentencer should weigh up all the factors in the case to

determine their role, Where there are characteristics present which fall under

different role categories the court should balance these categories to reach a fair

assessment of the offender’s culpability

See also( with slightly different outcome R v Healy 2012 EWCA Crim 1005

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Dangerous dogs

Definitive guideline now available effective from 20th August 2012

The guideline also assists with the additional powers available to courts so that

owners who put the public at risk can be banned from keeping dogs, genuinely

dangerous dogs can be out down and compensation can be paid to victims Thus

A Dogs dangerously out of control in a public place, injuring any person, or allowing

a dog to enter a private place where a dog is not permitted to be, where it then

injures any person

The court shall consider whether to make a compensation order and/or other ancillary

orders. The court may disqualify the offender from having custody of a dog, the test being

whether the offender is a fit and proper person to have custody of a dog. The court shall

make a destruction order(after giving the owner, where not the offender, an opportunity to be

present and make representations) unless satisfied that the dog would not constitute a

danger to public safety. In reaching a decision , the court should consider the relevant

circumstances, which include I the incident-what degree of harm was caused by the dog’s

behaviour ii past behaviour of the dog-whether this was an isolated incident or whether there

have been previous warnings or incidents and iii the owners character- whether the owner is

a fit and proper person to own the particular dog. If satisfied that the dog would not constitute

a danger to public safety , the court shall make a contingent destruction order imposing

certain conditions. Where the court makes a destruction order it may order the offender to

pay reasonable expenses

B Dog dangerously out of control in a public place or allowing dog to enter a private

place where the dog is not permitted to be where there are grounds for reasonable

apprehension that it will injure any person

Same as above except the court is permitted (rather than required) to make a destruction

order or contingent destruction order.

C Possession of a prohibited dog, or breeding selling exchanging or advertising a

prohibited dog

The court may disqualify the offender from having custody of a dog, the test being whether

the offender is a fit and proper person to have custody of a dog. The court shall make a

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destruction order unless satisfied that the dog would not constitute a danger to public

safety/. If the court does not make destruction order it shall make a contingent destruction

order providing that unless the dog is exempted from the prohibition within two months it

shall be destroyed. Where the owner of the dog is the offender it will not normally be

appropriate to make a contingent destruction order with a disqualification order. The court

must not transfer ownership of the dog.

Specific orders

Compensation

There is no absolute rule on the maximum period for repayment though guidance

was given in R v Olliver 11 Cr App R (3). Where professional qualifications were

achieved with fraudulently obtained bursaries the order could last many years. The

court had to consider whether the order was oppressive or unduly burdensome

whether repayment is realistic and accords with the nature of the offence and

offender

R v Ganyo 2011 EWCA Crim 2491

Whilst an order for compensation could be made for physical damage caused by a

car owing to its presence on a road (such including car running off the road and not

being covered by the MIB agreements) when the offence fell outside the Theft and

Fraud Acts the court must comply with the essential principles

I the court should avoid cases where there was an issue as to the extent of the loss.

There must be evidence of loss

Iii the court should avoid complex cases (here as to the application of the MIB

agreements

Iii there must be realistic prospect of compliance

Iv orders should not be protracted in effect

V the means of the defendant must be taken in to account

Vi compensation is not paid for distress and general inconvenience

R v Stapylton 2012 EWCA Crim 728

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Confiscation

Benefit

The costs of committing the crime could not reduce the amount of the benefit but did

not form part of the benefit (MTIC Fraud) overruling Weller 2008 EWCA Crim 2037

R v Ahmad and Ahmed 2012 EWCA Crim 391

The extent of the jurisdiction involving regulatory offences depends on the wording of

the relevant Act read with POCA. A confiscation order cannot be made following

conviction for owning rented property without a licence where one is required (s95

Housing Act 2004). The rent was not obtained from the commission of crime. The

Housing Act provided the right to recover rent and has other sanctions including a

rent repayment order

Summary only offences may be committed to the Crown court to consider a

confiscation order order s70 POCA

R v Sumal & Sons (Properties) Limited 2012 EWCA Crim 1840

Disclosure orders and search warrants may be used in a ”confiscation investigation”

not only to assist in the making of an order but also to identify the extent and

whereabouts of the benefit attributable to the defendant- but not in relation to issues

around available assets. The court had to identify the dominant purpose

R(Horne) v CCC 2012 EWHC 1350 (Admin)

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There was no breach of Art 6 ECHR when the crown sought to rely on unproved

allegations as part of the benefit nor in the reversed burden of proof when a criminal

lifestyle had been established

R v Bagnall 2012 EWCA Crim 677

Available assets

In identifying available assets it is necessary for the judge to determine the beneficial

ownership of each defendant in jointly held assets. The order cannot be made

against the whole

R v Ganger 2012 EWCA Crim 1378

- Enforcement (1988 Act)

There was an order for £3m and a default term

In fixing the term:

1 All the circumstances of the case were relevant

2 The purpose of the default term is to secure payment; not punishment

3 There need be no mathematical match between an order and the term

4 Totality with the original sentence is not relevant

5 In any given band the court should have regard to

A the maximum

B the maximum amount of the confiscation order within the band

C the maximum default term in the band

6 Where there was no maximum confiscation order regard must be had to the

requirement for proportionality

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On the facts (defendant would return to Spain where the proceeds might be) the

default term was reduced from 10 to 9 years as there was little room for

proportionality

R v Castillo 2011 EWCA Crim 3173

Note One half of the default term is served)

Enforcement

A defendant could not fail to take any steps to recover his available assets and then

claim that there was no wilful refusal or culpable neglect; and that other methods

than imprisonment should be tried( s82(4)(b) MCA 1980) especially if he would leave

the jurisdiction

R (Johnson) v Birmingham MC and CPS 2012 EWHC 596(Admin)

Because a confiscation order is deemed to be a fine deemed to have been imposed

by a magistrates court and such a fine may be treated as a civil debt it is possible to

enforce by a charging order without seeking the appointment of a receiver

Designated Officer for Sunderland MC v Krager 2011 EWHC 3283 (Ch)

The High Court has no power under POCA to freeze assets, make a civil recovery

order or make a disclosure order effective outside the jurisdiction

Perry v SOCA 2012 UKSC 35

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Restraining Order

A court should not make an order preventing contact with a complainant who had

capacity to decide and who genuinely (and not in fear) wished , notwithstanding a

course of violence against her, the relationship to continue

R v Brown 2-1102 EWCA Crim 1152

Even though the defendant had been convicted of a s3 SOA2003 offence against a

neighbour, an order excluding him for 5 years from his home, where he cared for

elderly parents, could not be justified. The order already prevented him from

contacting the neighbour directly or indirectly and the mere fact of knowing he was

living next door or the anxiety from knowing there might be a sighting of him, did not

make this part of the order necessary for the protection of the victim from conduct of

the defendant which would cause fear of violence

R v M 2012 EWCA Crim 1144

ASBO

Graffiti could cause harassment alarm or distress and a judge could deal with that

issue without specific evidence This applied particularly to heavy and extensive

graffiti so that it is intimidating A blighting of the environment may cause distress

R v Brzezinski 2012 EWCA Crim 198 (“explaining” earlier decisions)

SOPO

The burden of proof for obtaining a SOPO is the criminal standard

MPC v Ebanks 4th July 2012 (DC)

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Football banning Orders

There are two requirements which if met require the mandatory imposition of an

order (s14A Football Spectators Act 1989)

1 Conviction of a relevant offence I(Schedule 1) These must “relate” to football

matches which is an issue of fact-one match will suffice. Merely being on a journey

to a match is not enough Groups of fans will more easily meet the test. It is not

enough that the violence would not have occurred “but for” the joumey to the football

match.

2 There are reasonable grounds to believe that the making of an order would help to

prevent violence or disorder at or in connection with a regulated football match. One

match can raise an enquiry but there must be a risk of repetition

R v Doyle 2012 EWCA Crim 995

Serious Crime Prevention Order

For breach of an order the relevant considerations for sentence include:

1 Time since imposition of the order

2 Any history of non compliance

3 Whether breach deliberate or inadvertent

4 Whether breach involved further serious offences or the risk of their commission

5 Harm caused by breach especially where the order was designed to provide

protection

The fact of recall from licence was not relevant

R v Koli 2012 EWCA Crim 1869

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Financial Reporting Order

In making a financial reporting order the court may have regard to general lifestyle as

well as the facts of the offence if it suggested there is a risk of further specified

offences

R v Bagnall 2012 EWCA Crim 677

Particular Offences

Attempted Murder

Pending any change as a result of the Legal Aid sentencing and Punishment of

Offenders Act 2012 (involving the abolition of IPPs) life imprisonment should be

reserved for the most dangerous offenders for whom an IPP was not appropriate.

However the guideline for attempted murder should be applied with an allowance for

the introduction in to Schedule 21 of a minimum 25 year sentence for deaths

involving a knife

R v Barnaby 2012 EWCA Crim 1327

Rape of a child

See for :

A consenting child under a13 but treated as 14

AG Ref 11 and 12/2012 2102 EWCA Crim 1119

And where believed to be over 16

R v C 20-11 EWCA Crim 2153 (suspended sentence imposed)

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Forgery

In deciding the sentence for a conspiracy to commit forgery the court should have

regard to

I the role of the offender in the operation

Ii its scale

Iii the sophistication of the products

Iv the type of false document

V the damage caused i.e. the extent of the distribution

Vi income generated

6 and a half years on a guilty plea upheld for a defendant near to the top of a major

organisation distributing high quality documents that could assist unlawful

immigration

R v Mussa 2012 EWCA Crim 693

Social Security fraud

A custodial sentence was not appropriate for an offence under s 112(1A) (2) ( failing

to notify change of circumstances) Social Security Amendment Act 1982 by a

woman of good character involving £12500 over nearly five years. The committal to

the crown court had only been for the purposes of confiscation. There is NO

sentencing guideline for this offence

R v Noel 2012 EWCA Crim 956

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PART 7

EVIDENCE

Hearsay

The effect of the decisions in R v Horncastle and Al-Khwaja v UK are that

1 There must be proper justification for admitting the evidence (effectively s 116 CJA

2003)

2 There must be an enquiry as to whether the evidence is reliable. It is a

precondition that untested hearsay is potentially reliable

3 There must be counterbalancing measures including statutory and common law

safeguards

In total there must be a fair trial

In making these judgments it is important to assess the importance of the untested

hearsay – the more central it is, the greater the need that the tests are met

If evidence is not shown to be reliable and it is critical it will be unconvincing within

the meaning of s125(1)b CJA 2003 allowing the case to be stopped (though not this

is a crown court provision)

R v Ibrahim 2012 EWCA Crim 837

And see R v Riat Wilson Doran Clare and bennett 2012 EWCA Crim 1509

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Where two witnesses gave evidence of a phone call with the victim when he said he

had been stabbed by S, this was admissible as res gestae ( whether or not reliable

and subject to s 78)

Two other witnesses said that a third person had told them that she saw the stabbing

but was too afraid to tell the police. This was admissible under s 114(1)d even

though there was authority that the provision should be narrowly construed ( R v Z

2009 1 Cr App R 34) However the witness was willing to give evidence but not

through fear to tell the whole truth and so did not fall within s 116 (2)e The judge had

considered the factors under s 114(2)

R v Saunders 2012 EWCA Crim 1185

s114(1)d

The Court of Appeal would not interfere with a judge’s decision under s 114(1)d who

had properly considered the criteria in s114(2). In this case the evidence was not

crucial or decisive. It comprised the wife’s original statement to the police and diary

entries. She was not compellable for the Crown ( this was not a case of domestic

violence) It was immaterial that the husband was thereby forced to give evidence or

had to call his wife, who was for him compellable.

R v Horsnell 2012 EWCA Crim 227

Admissibility under s 116 CJA 2003 is a matter of fact not of discretion

The provisions of s 116 CJA 2003 preventing a witness giving hearsay evidence if

their unavailability was caused by the defendant, applied in proceedings which did

not exist at the time the fear was created. The conduct must be an effective cause

albeit not the only cause

R v Rowley 2012 EWCA Crim 1434

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s 120(3) CJA 2003 will not admit a statement as to its truth of its content if the

witness , though refreshing his memory under s 139 CJA 2003, still cannot

remember what was said. Thus a document which is used to refresh memory while

giving evidence is of no value if the memory is not refreshed

It may be admissible under s 120(4)(5) when one of the three statutory conditions is

met and the witness indicates that it is his best belief that he made the statement

and it states the truth

The conditions are

1 The statement identifies or describes a person object or place; or

2The statement was made when the matter stated was fresh in his memory and he

does not remember and could not reasonable be expected to remember them well

enough; or

3 Recent complaint by a victim

Decisions on the criteria set in s 120(6) are to be made objectively by the judge i.e.

that matters were fresh in his mind of the witness; they cannot now remember and

cannot reasonably be expected to remember the matter stated in the previous

statement, bearing in mind the characteristics of the witness the nature of the

particular incident the circumstances in which it occurred and factors such as what

happened to the witness between the incident and the trial

R v Chinn 2012 EWCA Crim 501

Note s78 PACE 1984 may still exclude material

Under s 122(2) CJA2003 a jury may not retire with such a document unless the court considers it

appropriate or the parties agree

The circumstances in which the statement was taken may need comment by the judge

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Bad Character

Matter in issue: Gateway d

Where the defendant alleged that his fingerprints and DNA were found on a gun and

packaging without his touching them, the court correctly admitted under s101 (1)d

1 A warning for being in a group that discarded a ball bearings gun in 2007 aged 14

and

2 A shooting of the defendant in 2009 in the same area as the gun was found( this

giving a possible motive for having the gun)

Each reduced the chance of the defence of accidental transfer and rebutted a

suggestion of innocent association. S 101(1) d was about more than propensity

R v Cambridge (Connor) 2011 EWCA Crim 2009

S98 CJA 2003

When considering whether conduct is “bad character” within s 98 a temporal

connection is not essential for it to be “to do” with the offence if the evidence goes to

provide the motive. It may be otherwise if it is being used as evidence of propensity.

This evidence would have gone in under gateway c in any event. Falling outside the

definition of bad character removes the procedural requirements

R v Sule 2012 EWCA Crim 1130

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Gateway c

Evidence is important explanatory evidence if

A without it the court would find it impossible or difficult properly to understand other

evidence in the case and

B its value for understanding the case as a whole is substantial

(s102)

A case which is truly one of propensity cannot and must not be dressed up as a case

of important explanatory evidence. To say the evidence fills out the picture is not the

same as saying that the rest of the picture is either impossible or difficult to see

without it. That the court might wonder about the delay in reporting the incident is not

a sufficient basis for the admission of bad character evidence via this gateway (e.g.

where the complainant says that an incident that has not been charged but occurred

many years after the incident prompted her to go to the police

R v Lee (Peter Bruce) 2012 EWCA Crim 316

Gateway e

Under this gateway bad character is admissible if it has substantial probative value in

relation to a matter in issue between defendant and co-defendant. An important

matter is a matter of substantial importance in the context of the case as a whole

(2112(1))

Separate consideration should be given to

A: whether the evidence has an enhanced capability of proving or disproving a

matter in issue between the defendants. The threshold is set high to avoid unfairness

B assess the importance of the issue between the defendants in the context of the

case as a whole

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Once the criteria are met there is no discretion to exclude on case management or

other grounds unless there has ben a wilful refusal to comply with notice provisions

of the CPR

The approach if admitted is then to proceed as follows

A Is the evidence true

B does it establish the propensity claimed

C does it assist in resolving the issue between the defendants

D does that resolution assist with the ultimate issue

R v Phillips (Paul) 2011 EWCA crim 2935

Cross admissibility

The evidence of different complainants may be cross admitted to disprove the

possibility of coincidence in the nature of their complaint once there is expert

evidence that false memory syndrome following the administration of anaesthetic is

very rare.

There must be a warning that this did not mean the defendant had committed all the

offences (i.e. a blanket admissibility- the jury must not jump from the position that all

were suffering from false memory syndrome to the belief that none of them were) but

that the evidence of each complainant (supported by the cross admitted evidence )

must be consider in its own turn

R v Nicholson 2012 EWCA Crim 1568

Compellability (s80PACE1984)

For compellability the offence charge d must involve an assault etc. It was not

sufficient that the evidence disclosed an assault. It was sufficient if the offence

encompassed the real possibility of an assault. This case involved an allegation of

criminal damage and fell outside the rule

BA v R 2012 EWCA Crim 1529

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Special measures

The absence of an intermediary though ordered for a defendant who was fit to plead,

did not prevent there being a fair if carefully controlled trial

If a suitable intermediary for a defendant cannot be found, it thus does not follow

that the trial should be stayed The judge should first decide if a fair trial is possible by

modified procedures frequent breaks, simple questions, identifying speech patterns

by playing the interview tape, intervening as necessary and controlling questions. A

stay should be most unusual

R v Cox 2012 EWCA Crim 549

Restrictions on traditional methods of cross examination of a vulnerable young

witness are appropriate provided the defence case is understood and the jury are

advised of any disadvantages caused to the defence

R v Willis 2011 EWCA Crim 1938

R v E 2011 EWCA Crim 3028

Identification evidence

The normal and proper practice should be to hold an identification procedure. But

each case depended on its own facts and a dock identification was not always

unlawful ( this was recognition case) subject to proper judicial warnings as to the

risks involved

Neilly v R 2012 UKPC 12

Expert Evidence

A court should not exclude expert evidence of an established scientific test even if it

is to be used for a novel purpose. That goes to weight not admissibility

R v I 2012 EWCA Crim 1288

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PART 8 LEGAL AID AND COSTS

Wasted Costs

A wasted costs order for the representative of a defendant with the benefit of a

representation order could not exceed the costs payable under the order (late NEO)

R v FitzGerald 2012 Costs LR 437

Advocacy

A failure by an advocate to appear at the listed time and place does not make a

wasted costs order inevitable but no advocate should accept instructions in two

cases on the same day in geographically distant locations where there is a real risk

of a hold up at the first court. The undertaking of that risk and failure to instruct

another advocate met the test for negligence

R v Henrys Solicitors 2012 EWCA Crim1480

Costs from central funds

For changes under LASPO Act 2012 see Part 1 At the time of an appliaction for costs from central funds the applicant must under CPRule 76.4 b indicate the type of cost the amount and whether they are to be assessed

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Grant of legal aid The LSC and HMCTS has reissued in July 2012 “Guidance on the consideration of defence representation order applications” See www.legalservices.gov.uk > criminal defence service >criminal legal aid eligibility > interests of justice test > documents See Appendix 6 in relation to presrcibed proceedings Legal aid applications In an extradition case the following points, of general application, arose 39 The policy of presuming that a person remanded (under a EAW) will continue to receive his pay is irrational (in extradition cases) where the requested person is in custody. It has the consequences that the only option left is to trigger the hardship review procedures. This requires a fresh application and evidence The requested person is in effect back at square one As time is of the essence it is inexplicable that Forms CDS14 and !5 cannot be filled in and submitted on line but are merely electronically downloadable; require physical signatures rather than electronic signatures and are unnecessarily complex and non user friendly 46 Delays occasioned by means testing which are not occasioned by the fault of the requested person or his legal advisers cannot be held against the requested person. Indeed it would be unjust where the initial advice of a duty solicitor is insufficient to proceed…..unless and until the means testing procedure is completed and adequate time to advise and obtain evidence has been afforded 47 The effect of Ministry of Justice’s current scheme is in practice to stop the clock as regards the position of the requested person. Until means testing is complete it is unreasonable to expect the legal adviser to advise. 49 If the legal adviser requested more time it is for the court to consider whether it is in the interests of justice to grant it. It is for the lawyer for the requested person to justify more time The lawyer must demonstrate that there is an issue that can properly be argued and explain why time is needed . The lawyer can anticipate that the request will be subject of robust and rigorous scrutiny by the judge 54 There is however a further difficulty arising from the way in which the legal aid scheme operates. There are two ways in which a solicitor may recoup the cost of obtaining independent medical evidence after the grant of legal aid

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I A solicitor can apply for prior authority If granted this gives the solicitor assurance that expenditure in commissioning a report will be reimbursed; the evidence of Mr Rimer of the LSC was that the LSC was committed to processing 90% of these within 5 working days. We were told by Mr Summers and accept that the funding process is a rigorous one; counsel’s advice is invariably required as are competing quotes We were told that delays are often substantial Ii a solicitor can self certify The solicitor claims for the cost once the case is concluded; in assessing a claim the LSC conducts a range of checks including according to the written evidence of Mr Rimer “verification that the expert report was beneficial to the client’s case (if not payment may be declined) This evidence was corrected in the oral submissions and the correction confirmed by a written note. The LSC had a discretion to allow the costs if the expenditure was reasonably incurred, that is to say it was reasonable to obtain the opinion and the cost was reasonable 55 The LSC made it clear that if the district judge gives an indication that an expert report is required the LSC would almost invariably regard the cost as reasonably incurred The LSC maintained that the judge could not bind the LSC on costs of the report. We do not understand this It would in our view be irrational for the LSC to decline to reimburse the solicitor for the reasonable costs of a report if a district judge said a report was required ; it would self evidently be reasonable for a solicitor in those circumstances to obtain one However the reasonable cost of a report is not a matter for the district judge ; that is a matter between the expert the solicitor and the LSC Stopya v District court of Lublin Poland 2012 EWHC 1787 (Admin) Amendment of Orders As long as the original case continures there is no need to amend Crown court orders; Magistrates court orders should be amended to reflect any changes ( as it can affect the category) and this can be done orally as well as in writing (Update 30.8.12) Fees Magistrates’ court fees The provisons of paragraph 10.60 of the contract that a single claim must be submitted where more then one case is joined is inconsistent with paragrpah 10.68 and does not mean joined for sentence but means there isa “joinder” for trial (Decision of the LSC to solicitor T 23.5.2012)

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Graduated fees Classification The classification schme is rigid When the Order provides that specific proceedings fall in a category, conspiracy to commit that crime must be in the same category. It could not be classified as an offence of dishonesty instead or because the defendant might have been charged with a different offence Conspiracy to convert criminal property was in Cat B and not F or K merely because dishonesty was involved R v O’Donnell and Fawley (SCCO) 2012 Costs LR 431 Graduated fees may be claimed for the offence giding the highest payment and this includes offences not proceeded with before PCMH (being stayed) A draft indcitemnt served on the Crown court became an indictment on service Note also that different iterations of the same indictment will be a single case L.C v McCarthy 2012 EWHC 2325(QB) PPE The phrase “served prosecution documents” includes prosecution documents which should have been accompanied by a NAE but were not,through no fault of the defence.As the documents were also served on the court they counted towards PPE R v QU and others SCCO 2012 Costs LR 599 Compare R v Ward 2012 Costs LR 605 where there was no evidence that the Crown intended to rely on the relevant pages PPE includes pages served after a guilty plea but befoe senetence because solicitors continued to act in the case until that time R v Debenham SCCO 10th December 2011

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Enhancement Enhancement is not available for special preparation (but only for confiscation proceedings) R v Brandon 2012 Costs LR 424 Travel Expenses The public transport rate of 25p per mile will be paid unless the use of private tansdport is justified as being actually and reasonably incurred Parking costs wll not be met if the public tranmsport rate is appropraie For guidance see Appendix 3 (CLSA guidance)

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OCTOBER 2012 ANNEX Grounds of Appeal against Sentence In relation to appeals to the Court of Appeal in relation to sentence, the grounds for appeal should incorporate the following grid: Count on Indictment

Offence (state statutory provision/common law)

Pleaded guilty or convicted

Sentence Consecutive or Concurrent

Maximum

Total sentence:

Minimum Term if applicable:

Time to count towards sentence under s.240/s.240A Criminal Justice Act 2003

Other relevant orders:

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APPENDIX 2 MINISTRY OF JUSTICE NATIONAL OFFENDER MANAGEMENT SERVICE Conveyance and Possession of Prohibited Items and Other Related Offences Reference

PSI 10/2012

Issue Date Effective Date Expiry Date 26 March 2012 26 March 2012 26 March 2016 Special Cases

Solicitors/Legal Advisers 5.19 Sound Recording Devices: Solicitors and other legal advisers to prisoners

have been issued with central authority to bring and/or possess in prison sound recording devices to allow them to record interviews with their clients. They have also been given central authority to take sound recordings out of the prison. There is, therefore, no need for prisons to issue local authorisations for these devices. These recording devices can be digital or mechanical devices. They must not contain a camera, video recorder or mobile phone. These devices must not be passed to prisoners. They must be logged on entry and again on exit to the prison to ensure that they are not left behind. The Law Society and Criminal Bar Association has been informed of this authorisation and associated restrictions.

5.20 Mobile Telephones: Solicitors do not have central authority to bring in and/or

possess mobile telephones other than at open prisons and only then if the local open prison regulations allow this.

5.21 Computer/IT Equipment: It is a criminal offence to possess within a prison

without authorisation computers/IT equipment which have the potential to transmit or receive images, sounds, or information by electronic communications. It is also a criminal offence to possess component parts of such equipment without authorisation. While many items of IT equipment include capabilities which may pose a security risk, including in-built cameras and/or internet connectivity, legal advisers have been given central authorisation to bring such items into prisons when visiting clients given that (a) they will be used in a controlled environment and within the general sight of staff and (b) the Criminal Justice System as a whole is now moving towards

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a paperless system – it is no longer realistic to expect legal advisers to print off all documents that their clients may need to consider at legal visits.

5.22 The central authorisation (at Annex 2, section B) allows legal advisers to bring

into legal visits IT equipment that is necessary for consultation with their clients and on those cases on which they are engaged with that particular client. This is provided that there is no intention on the part of the legal adviser for the prisoner to retain any part of the equipment or component part or data once the visit is concluded. It is not, therefore, a criminal offence for legal advisers to convey or possess a laptop, or associated computer media (ie: data sticks, CDs) within a prison for these purposes. Annex 2, section B sets out the various restrictions on the types of computer equipment that can be brought into legal visits and the way it is used. Note that it is still a criminal offence for legal advisers to use such equipment in order to transmit in or out of the prison images, sounds or information by electronic communication or to take photographs or video images whilst in prison.

5.23 Legal Advisers must not attempt to bring in any other items apart from the

single computer and any necessary data media. Any spare SIM cards or other computer items must be left outside the prison. To do otherwise will risk the items being seized by the prison and it is also possible that the items may not be covered by the authorisation at Annex 2 and the conveyance and possession might then constituted a criminal offence.

5.24 However, the presence of an authorisation to bring such equipment into legal

visits does not infer an automatic right to do so. It simply means that it is not a criminal offence to do so. Prisons may still impose additional administrative restrictions on items allowed into the prison where there are reasonable grounds to believe that these restrictions are necessary to prevent unauthorised communications to prisoners or other security breach. Unless there is good reason to suspect that this is the case then prisons should allow solicitors to bring necessary IT equipment into legal visits or implement alternative arrangements which allow solicitors to properly brief their clients electronically (such as use of specialised HMP laptops or remote docking points for solicitor laptops.

5.25 Prisons should put measures in place to minimise any associated risks where

required. Any action taken should be proportionate to the potential risks in bringing the equipment into legal visits, taking into account factors such as the prisoner type involved and the category of prison in question. Any action must be defensible in case of legal challenge.

5.26 Legal visitors must check in advance of any prison visit to confirm local

restrictions on items allowed in the prison in question. Prisons should be clear of any local regulations and must check all items in and out of the prison at the gate. Legal advisers are responsible for all equipment brought into the establishment and should ensure they have all items with them when they leave. Any requests for data, or IT equipment to be passes permanently to the prisoner should be declared to the prison and considered under “Access to Justice Laptop” arrangements within the prison.

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5.27 Any disagreements between legal advisers and prison staff about authorised

items at legal visits, and which cannot be resolved at the time, should be put in writing to the Governor/Director of the establishment concerned. Any complaints that still cannot be resolved at local level may then be escalated to the Deputy Director of Custody or equivalent. The Law Society holds details of DDC offices and the prisons they cover. General queries on national policy in these areas can be made to NOMS headquarters (Emma.Prince@noms.gsi.gov.uk)

5.28 Solicitors and barristers will face increasing difficulty in court in producing

printed copies of documents for purpose of consultation with their clients. Because of this it has been agreed to allow legal advisers to bring laptop computers or equivalent into court cells or holding areas. PECS escort contractors have been instructed to facilitate this from 1 March 2012. Similar restrictions and conditions to those applying in legal visits have been set out for court cell visits – see Annex 9.

B) Authorisations For Conveyance and Possession Offences – Legal

Advisers On behalf of the Secretary of State, Legal Advisers are provided with a central authorisation under section 40E of the Prison Act 1952 to bring the following specified items into, possess in, and take out of any prison or Young Offender Institute for the sole purpose of advising their clients on the matter for which they are so engaged:

• Laptop computers or equivalent complying with the specifications set out at notes 1 to 4 below

• Data media such as CD disks or data sticks containing material to be viewed by the prisoner or which is otherwise necessary for the purposes of the consultation.

This authorisation is subject to notes 1 to 8 below. The term prison below also refers to Young Offenders Institutes. Notes 1. Computers should be small, self-contained portable devices such as laptop

computers or tablets. External devices such as external keyboards, printers, or mice etc are not authorised other than that external data media set out in the authorisation above.

2. Computer equipment which has built in Wi-Fi, 3G or other networking

capabilities is allowed provided that the network capability is switched off, any external 3G dongle or SIM card is removed where practical and no attempt is made to transmit or receive images, sound or information in or out of the prison by electronic communications. Deliberate breach of this regulation will be considered a criminal offence.

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3. Computer equipment may contain built in cameras but if so fitted the camera

may not be used to take photographs or video within any prison. Deliberate breach of this regulation will be considered a criminal offence.

4. Computer equipment may contain a sound recording device. Legal advisers

are authorised to make sound recordings of their clients for the purposes of advising them on the matter for which they are so engaged (and to take such recordings out of the prison with them), and in doing so may use computer equipment for this purpose rather than bringing in a separate sound recording device.

5. No data or items of equipment may be passed to the prisoner with the

intention of this remaining in the possession of the prisoner. Separate procedures exist under “Access to Justice” laptop arrangements to enable the prisoner to have possession of IT equipment and legal documents in electronic format. Authorisation under these separate procedures must be obtained in advance by the legal adviser before any item is passed to the prisoner for purposes of the prisoner retaining this within prison.

6. The above authorisation relates only to the lawfulness of the conduct for the

purposes of the offences in the Prison Act 1952. Individual prisons or groups of prisons may impose additional administrative restrictions on items allowed into the prison on grounds of security. Legal Advisers must check in advance with the prison they are visiting for details of items not allowed into that particular prison.

7. All items must be checked in and out of the prison at reception. Legal

Advisers remain responsible for the safe keeping of items taken into a prison. Loss of such items within the prison is a serious matter and all losses must be reported to the prison immediately.

8. Any complaints about the operation of this process in particular prisons must

be made in the first instances to the Governor of the prison concerned. If legal advisers remain dissatisfied disagreements may be escalated to the regional manager (Deputy Director of Custody or equivalent). General queries on national policy in these areas can be made to NOMS headquarters (Emma.Prince@noms.gis.gov.uk).

IT Equipment – Legal Advisers at Court While many items of IT equipment now include capabilities which may pose a security risk, including built-in cameras and/or internet connectivity, legal advisers have been given authorisation to bring such items into court holding cells/areas when visiting clients given that the Criminal Justice System as a whole is now moving towards a paperless system – it is no longer realistic to expect legal advisers to have paper copies of documents that their clients may need to consider at court. Legal advisers are authorised therefore to bring into court holding cells/areas IT equipment that is necessary for consultation with their clients and on those cases on

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which they are engaged with that particular client. This is provided that the equipment and the use of it complies with terms set out in notes 1 to 7 below. Note – separate procedures for allowing electronic briefing of prisoner clients at court may apply for Category A prisoners. Legal advisers should check with escorting staff. The presence of an authorisation to bring such equipment into court holding cells/areas does not infer an automatic right to do so in all cases. Staff supervising prisoners at court may still impose additional administrative restrictions on items allowed into court holding cells/areas where there are reasonable grounds to believe that these restrictions are necessary to prevent unauthorised communications by prisoners or other security breach. Unless there is good reason to suspect that this is a case then legal advisers will be allowed to bring necessary IT equipment into prisoner holding cells/areas at court or alternative arrangements will be implemented locally which allow solicitors to properly brief their clients electronically. Staff supervising prisoners at court should put into place measures to minimise any associated risks where required. Any action taken should be proportionate to the potential risks in bringing the equipment into prisoner area, taking into account factors such as the prisoner type involved and the category of prison in question. Any action must be defensible in case of legal challenge. Staff should be clear of any local arrangements for monitoring such equipment or any alternative procedures and must brief legal advisers appropriately. Staff must ensure that all items electronic equipment are checked in and out of the prisoner area. Notes: 1. Computers should be small, self-contained portable devices such as laptop

computers or tablets. External devices such as external keyboards, printers or mice, etc are not authorised other than that external data media set out in the authorisation above.

2. Computer equipment which has built in Wi-Fi, 3G or other networking

capabilities is allowed provided that the network capability is switched off, any external 3G dongle or SIM card is removed where practical and no attempt is made to transmit or receive images, sound or information by electronic communications.

3. Computer equipment may contain built in cameras but if so fitted the camera

may not be used to take photographs or video within the court cell/holding area.

4. Computer equipment may contain a sound recording device. Legal advisers

are authorised to make sound recordings of their clients for the purposes of advising them on the matter for which they are so engaged and in doing so may use computer equipment for this purpose rather than bringing into the cell/holding area a separate sound recording device.

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5. No data or items of equipment may be passed to the prisoner with the

intention of this remaining in the possession of the prisoner. Separate procedures exit under “Access to Justice” arrangements to enable the prisoner to have possession within prison of IT equipment and legal documents in electronic format. Any requests for data, or IT equipment to be passed permanently to the prisoner should be declared to the holding prison, and not NOMS staff or contractors at court, and then considered under “Access to Justice Laptop” arrangements within the prison.

6. Legal advisers are responsible for all equipment brought into the court holding

cells/areas and should ensure they have all items with them when they leave. Loss of such items in prisoner areas is a serious matter and all losses must be reported to NOMS staff or contractors immediately.

7. Any complaints about the operation of this process that cannot be resolved

with the Senior Custody Officer at court should be made via the appropriate escort contractor Regional Operational Manager. General queries on national policy in these areas can be made to NOMS headquarters.

(Emma.Prince@noms.gsi.gov.uk)

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APPENDIX 3

CLSA GUidance

Home » Travel Guidance

Travel Guidance

This CLSA Guidance is aimed at assisting firms in ensuring they are paid appropriately for

travel claims on Litigators Graduated Fees in the Crown Court.

Background

Following National Audit Office review, the LSC has been required to examine travel claims

for LGFS claims. The CLSA has discussed the consequent increased vetting of claims and how

best to submit them with the LSC. We are assured that there is no intention on the part of

the LSC to reduce travel claims where they are appropriate but that there must be proper

justification. We are grateful for that clarification.

LF1 Claims

LF1 travel claims should be made against the following criteria:

• The basic assumption is that public transport will be used where possible. It is

recognised that for many reasons this may not be possible.

• If private travel is used and mileage is claimed then the payment will be made at the

‘experts’ rate of 25p per mile; unless,

• The ‘standard’ rate of 45p per mile is justified. The standard rate will only be paid

where there is appropriate justification on the claim form for deciding to use private

travel instead of public transport.

There are many circumstances (possible the vast majority of cases) where it will be entirely

appropriate to claim (and be paid) mileage at the standard rate of 45p per mile. Both the

LGFS guidance and the Criminal Bills Assessment Manual (paragraph 4.13.6 – reproduced

below) are helpful.

You may care to use a standard check list to include in your claim which is attached as an

example.

CBAM 2008Paragraph 4.13.6. Travelling expenses may be allowed to reimburse the fare

actually paid. First class travel rates for a solicitor or other professional or expert may not be

claimed. There is a presumption that the most economical form of transport will be used

taking into account the combined costs to the fund of the disbursement and the time taken

at the profit cost travel rate. Both elements need to be borne in mind e.g. whilst travelling

by coach may be cheaper than the train in terms of the fare, the total cost to the fund of the

former might be greater in the particular circumstances if one adds in the extra time the

journey will take at the hourly travelling time rate. Private transport may be more

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economical bearing in mind the additional time taken if public transport is used. If the

journey could have been made by public transport, but a private car was used instead and

that is less economical, the assessor should allow the notional travelling time (where

standard fees apply only) and costs that public transport would have taken. Where a less

economical method of transport has been used, then the costs may be reduced to the level

that would have been incurred had the more economical method been adopted. Assessors

should note that on occasions a fee-earner may have to travel with bulky case papers and

reference books. There is also a security and confidentiality issue in that solicitors must keep

safe from interference or theft the client related material that they carry. In such

circumstances it may not be reasonable to expect a solicitor to use public transport. The

onus is on the solicitor to provide relevant justification on file.

CRIMELINE’S CCOMMENT:-

Litigator Graduated Fees – travel expenses

Solicitors will have noted, and will my now be experiencing the effects of the recent

notification from the LSC in relation to LGF travel expenses. The LSC has indicated that it will

only pay the ‘public transport rate’ of 25 pence per mile (and no parking etc), unless the

private transport rate (45 pence) is justified.

The basic rule

Disbursements are claimable by virtue of The Funding Order 2007, Art 16, which states:

(1) Subject to paragraphs (2) to (5), the appropriate officer must allow such disbursements

claimed under article 6(2) as appear to him to have been reasonably incurred.

Public transport rate v private transport rate

The reference to a public transport rate can first be found in the 1977 legal aid regulations,

not of course defunct. The 1986 regulations empowered the Lord Chancellor to issue

guidance to taxing officers, and the Determining Officers Notes for Guidance makes

reference to the 2 rates. It is notable that the present 2007 Funding Order finds it origins in

the Access to Justice Act 1999, and to date the Lord Chancellor has issued no guidance in

relation to that order. It is therefore questionable whether the guidance on DONG still

applies.

However, the concept of public vs private transport can be found in a number of taxation

documents and cases and it is therefore prudent to proceed on the basis that the distinction

is still a valid one

Essentially:

If private transport is justified then 45 pence per mile AND parking etc will be paid.

If public transport is appropriate and used, the cost will be refunded.

If public transport is appropriate but the solicitor elects to use his own private transport, a

rate of 25 pence per mile will be paid. Parking etc will be refused. (See also: R v Conboy,

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SCCO, unreported, January 1990).

The rate of 25 pence per mile is a notional rate and is used in order to prevent the

determining officer having to calculate the actual equivalent cost of public transport. This

approach is consistent with normal principles of taxation.

On the face of it therefore, the LSC’s approach is simply now to enforce what has always

been the case.

Justifying private transport

As an immediate first step solicitors should ensure that:

1. Any transportation is justified in the first place (ie that attendance at court was necessary)

2. That any claim for the private mileage rate is justified when the claim is submitted

In R v Slessor (SCCO, unreported, October 1984) the Costs Judge ruled:

(a) prima facie the amount to be allowed is the cost of the time expended on and the

expenses incurred in making the journey by public transport, provided that public transport

is available and is reasonably convenient, having regard to the relevant circumstances in

each case;

(b) a solicitor is not entitled to claim the cost of the time spent or cost incurred in travelling

to his office from his home; the journey should be deemed to start from the solicitor's

office, unless he in fact started from his home and that was nearer to the court than his

office;

(c) allowance made should include the time spent and expense incurred in getting from the

starting point to the railhead or coach station and also the time spent and expense incurred

in getting from the terminus to the court;

(d) a solicitor travelling by train may claim the cost of first class travel if he has actually

incurred that expense; [Note that in the Lord Chancellors guidance issued under the 1986

regulations first class travel is ordinarily not allowed].

(e) if the journey is one which could have been made by public transport, but is

accomplished by motor car purely as a matter of preference, then the allowance to be made

for travelling time should be the notional time which would have been taken by public

transport, or the time actually spent, whichever is the less: expenses should be calculated

on the basis of the "public transport" mileage rate (that rate is calculated by reference to

the average cost of public transport per mile) which is prescribed pursuant to the 1977

Regulations;

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(f) if public transport is not available or not reasonably convenient, the actual time spent in

travelling should be allowed and the expenses should be calculated on the basis of the

standard mileage rate prescribed by the 1977 Regulations;

(g) what may be "not reasonably convenient" is a matter of discretion, dependent upon the

relevant circumstances of each case, and what is reasonably convenient in one set of

circumstances may not be in another; a factor which is always relevant is the time which

may have been spent in getting from the starting point to the railhead, and from the

terminus to the court; if it is considerable, the use of a car may be justified - the taxing

master urged determining officers to adopt a flexible and broad approach to the problem.

In addition to the general points above, the following may well be reasons to justify private

travel rate:

1. Not able to attend court on time if public transport is used (bear in mind that most

solicitors start work at 9am and attendance at the crown court is required by 9.30 at the

latest).

2. No public transport available at all for the journey.

3. The cost of public transport would be greater than the cost of private transport.

4. Travel by public transport would mean travelling at an unreasonable hour.

5. Necessary by reason of disability.

6. Transportation of heavy case papers.

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Appendix 4

POLICE AND CRIMINAL EVIDENCE ACT 1984

(PACE)

CODE G

REVISED

CODE OF PRACTICE FOR THE STATUTORY

POWER OF ARREST BY POLICE OFFICERS

This Code applies to any arrest made by a police officer after midnight on 12 November 2012

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2. Elements of Arrest under section 24 PACE 2.1 A lawful arrest requires two elements:

A person’s involvement or suspected involvement or attempted involvement in the commission of a criminal offence;

AND

Reasonable grounds for believing that the person’s arrest is necessary.

• both elements must be satisfied, and • it can never be necessary to arrest a person unless there are reasonable

grounds to suspect them of committing an offence. 2.2 The arrested person must be informed that they have been arrested, even if this fact

is obvious, and of the relevant circumstances of the arrest in relation to both the above elements. The custody officer must be informed of these matters on arrival at the police station. See paragraphs 2.9, 3.3 and Note 3 and Code C paragraph 3.4.

(a) 'Involvement in the commission of an offence'

2.3 A constable may arrest without warrant in relation to any offence (see Notes 1 and

1A) anyone:

• who is about to commit an offence or is in the act of committing an offence; • whom the officer has reasonable grounds for suspecting is about to commit

an offence or to be committing an offence; • whom the officer has reasonable grounds to suspect of being guilty of an

offence which he or she has reasonable grounds for suspecting has been committed;

• anyone who is guilty of an offence which has been committed or anyone whom the officer has reasonable grounds for suspecting to be guilty of that offence.

2.3A There must be some reasonable, objective grounds for the suspicion, based on

known facts and information which are relevant to the likelihood the offence has been committed and the person liable to arrest committed it. See Notes 2 and 2A.

(b) Necessity criteria

2.4 The power of arrest is only exercisable if the constable has reasonable grounds for

believing that it is necessary to arrest the person. The statutory criteria for what may constitute necessity are set out in paragraph 2.9 and it remains an operational decision at the discretion of the constable to decide:

• which one or more of the necessity criteria (if any) applies to the individual;

and • if any of the criteria do apply, whether to arrest, grant street bail after arrest,

report for summons or for charging by post, issue a penalty notice or take any other action that is open to the officer.

2.5 In applying the criteria, the arresting officer has to be satisfied that at least one of the

reasons supporting the need for arrest is satisfied.

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2.6 Extending the power of arrest to all offences provides a constable with the ability to

use that power to deal with any situation. However applying the necessity criteria requires the constable to examine and justify the reason or reasons why a person needs to be arrested or (as the case may be) further arrested, for an offence for the custody officer to decide whether to authorise their detention for that offence. See Note 2C

2.7 The criteria in paragraph 2.9 below which are set out in section 24 of PACE as

substituted by section 110 of the Serious Organised Crime and Police Act 2005 are exhaustive. However, the circumstances that may satisfy those criteria remain a matter for the operational discretion of individual officers. Some examples are given to illustrate what those circumstances might be and what officers might consider when deciding whether arrest is necessary.

2.8 In considering the individual circumstances, the constable must take into account the

situation of the victim, the nature of the offence, the circumstances of the suspect and the needs of the investigative process.

2.9 When it is practicable to tell a person why their arrest is necessary (as required by

paragraphs 2.2, 3.3 and Note 3), the constable should outline the facts, information and other circumstances which provide the grounds for believing that their arrest is necessary and which the officer considers satisfy one or more of the statutory criteria in sub-paragraphs (a) to (f), namely:

(a) to enable the name of the person in question to be ascertained (in the case

where the constable does not know, and cannot readily ascertain, the person’s name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name): An officer might decide that a person’s name cannot be readily ascertained if they fail or refuse to give it when asked, particularly after being warned that failure or refusal is likely to make their arrest necessary (see Note 2D). Grounds to doubt a name given may arise if the person appears reluctant or hesitant when asked to give their name or to verify the name they have given. Where mobile fingerprinting is available and the suspect’s name cannot be ascertained or is doubted, the officer should consider using the power under section 61(6A) of PACE (see Code D paragraph 4.3(e)) to take and check the fingerprints of a suspect as this may avoid the need to arrest solely to enable their name to be ascertained.

(b) correspondingly as regards the person’s address:

An officer might decide that a person’s address cannot be readily ascertained if they fail or refuse to give it when asked, particularly after being warned that such a failure or refusal is likely to make their arrest necessary. See Note 2D. Grounds to doubt an address given may arise if the person appears reluctant or hesitant when asked to give their address or is unable to provide verifiable details of the locality they claim to live in. When considering reporting to consider summons or charging by post as alternatives to arrest, an address would be satisfactory if the person will be at it for a sufficiently long period for it to be possible to serve them with the summons or requisition and charge; or, that some other person at that address specified by the person will accept service on their behalf. When considering issuing a penalty notice, the address should be one where the

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person will be in the event of enforcement action if the person does not pay the penalty or is convicted and fined after a court hearing.

(c) to prevent the person in question:

(i) causing physical injury to himself or any other person;

This might apply where the suspect has already used or threatened violence against others and it is thought likely that they may assault others if they are not arrested. See Note 2D

(ii) suffering physical injury;

This might apply where the suspect’s behaviour and actions are believed likely to provoke, or have provoked, others to want to assault the suspect unless the suspect is arrested for their own protection. See Note 2D

(iii) causing loss or damage to property;

This might apply where the suspect is a known persistent offender with a history of serial offending against property (theft and criminal damage) and it is thought likely that they may continue offending if they are not arrested.

(iv) committing an offence against public decency (only applies where

members of the public going about their normal business cannot reasonably be expected to avoid the person in question); This might apply when an offence against public decency is being committed in a place to which the public have access and is likely to be repeated in that or some other public place at a time when the public are likely to encounter the suspect. See Note 2D

(v) causing an unlawful obstruction of the highway;

This might apply to any offence where its commission causes an unlawful obstruction which it is believed may continue or be repeated if the person is not arrested, particularly if the person has been warned that they are causing an obstruction. See Note 2D

(d) to protect a child or other vulnerable person from the person in question.

This might apply when the health (physical or mental) or welfare of a child or vulnerable person is likely to be harmed or is at risk of being harmed, if the person is not arrested in cases where it is not practicable and appropriate to make alternative arrangements to prevent the suspect from having any harmful or potentially harmful contact with the child or vulnerable person.

(e) to allow the prompt and effective investigation of the offence or of the conduct

of the person in question. See Note 2E. This may arise when it is thought likely that unless the person is arrested and then either taken in custody to the police station or granted ‘street bail’ to attend the station later, see Note 2J, further action considered necessary to properly investigate their involvement in the offence would be frustrated, unreasonably delayed or

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otherwise hindered and therefore be impracticable. Examples of such actions include:

(i) interviewing the suspect on occasions when the person’s voluntary

attendance is not considered to be a practicable alternative to arrest, because for example:

• it is thought unlikely that the person would attend the police

station voluntarily to be interviewed. • it is necessary to interview the suspect about the outcome of

other investigative action for which their arrest is necessary, see (ii) to (v) below.

• arrest would enable the special warning to be given in accordance with Code C paragraphs 10.10 and 10.11 when the suspect is found: ∼ in possession of incriminating objects, or at a place

where such objects are found; ∼ at or near the scene of the crime at or about the time it

was committed. • the person has made false statements and/or presented false

evidence; • it is thought likely that the person:

∼ may steal or destroy evidence; ∼ may collude or make contact with, co-suspects or

conspirators; ∼ may intimidate or threaten or make contact with,

witnesses. See Notes 2F and 2G

(ii) when considering arrest in connection with the investigation of an indictable offence (see Note 6), there is a need:

• to enter and search without a search warrant any premises

occupied or controlled by the arrested person or where the person was when arrested or immediately before arrest;

• to prevent the arrested person from having contact with others; • to detain the arrested person for more than 24 hours before

charge.

(iii) when considering arrest in connection with any recordable offence and it is necessary to secure or preserve evidence of that offence by taking fingerprints, footwear impressions or samples from the suspect for evidential comparison or matching with other material relating to that offence, for example, from the crime scene. See Note 2H

(iv) when considering arrest in connection with any offence and it is

necessary to search, examine or photograph the person to obtain evidence. See Note 2H

(v) when considering arrest in connection with an offence to which the

statutory Class A drug testing requirements in Code C section 17 apply, to enable testing when it is thought that drug misuse might have caused or contributed to the offence. See Note 2I.

(f) to prevent any prosecution for the offence from being hindered by the

disappearance of the person in question.

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This may arise when it is thought that:

• if the person is not arrested they are unlikely to attend court if they are

prosecuted; • the address given is not a satisfactory address for service of a

summons or a written charge and requisition to appear at court because the person will not be at it for a sufficiently long period for the summons or charge and requisition to be served and no other person at that specified address will accept service on their behalf.

2 Facts and information relevant to a person’s suspected involvement in

an offence should not be confined to those which tend to indicate the person has committed or attempted to commit the offence. Before making a decision to arrest, a constable should take account of any facts and information that are available, including claims of innocence made by the person, that might dispel the suspicion.

2A Particular examples of facts and information which might point to a person’s

innocence and may tend to dispel suspicion include those which relate to the statutory defence provided by the Criminal Law Act 1967, section 3(1) which allows the use of reasonable force in the prevention of crime or making an arrest and the common law of self-defence. This may be relevant when a person appears, or claims, to have been acting reasonably in defence of themselves or others or to prevent their property or the property of others from being stolen, destroyed or damaged, particularly if the offence alleged is based on the use of unlawful force, e.g. a criminal assault. When investigating allegations involving the use of force by school staff, the power given to all school staff under the Education and Inspections Act 2006, section 93, to use reasonable force to prevent their pupils from committing any offence, injuring persons, damaging property or prejudicing the maintenance of good order and discipline may be similarly relevant. The Association of Chief Police Officers and the Crown Prosecution Service have published joint guidance to help the public understand the meaning of reasonable force and what to expect from the police and CPS in cases which involve claims of self defence. Separate advice for school staff on their powers to use reasonable force is available from the Department for Education

2B If a constable who is dealing with an allegation of crime and considering the need to

arrest becomes an investigator for the purposes of the Code of Practice under the Criminal Procedure and Investigations Act 1996, the officer should, in accordance with paragraph 3.5 of that Code, “pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances.”

2C For a constable to have reasonable grounds for believing it necessary to arrest, he or

she is not required to be satisfied that there is no viable alternative to arrest. However, it does mean that in all cases, the officer should consider that arrest is the practical, sensible and proportionate option in all the circumstances at the time the decision is made. This applies equally to a person in police detention after being arrested for an offence who is suspected of involvement in a further offence and the necessity to arrest them for that further offence is being considered.

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2D Although a warning is not expressly required, officers should if practicable, consider whether a warning which points out their offending behaviour, and explains why, if they do not stop, the resulting consequences may make their arrest necessary. Such a warning might:

• if heeded, avoid the need to arrest, or • if it is ignored, support the need to arrest and also help prove the mental

element of certain offences, for example, the person’s intent or awareness, or help to rebut a defence that they were acting reasonably.

A person who is warned that they may be liable to arrest if their real name and address cannot be ascertained, should be given a reasonable opportunity to establish their real name and address before deciding that either or both are unknown and cannot be readily ascertained or that there are reasonable grounds to doubt that a name and address they have given is their real name and address. They should be told why their name is not known and cannot be readily ascertained and (as the case may be) of the grounds for doubting that a name and address they have given is their real name and address, including, for example, the reason why a particular document the person has produced to verify their real name and/or address, is not sufficient.

2E The meaning of "prompt" should be considered on a case by case basis taking

account of all the circumstances. It indicates that the progress of the investigation should not be delayed to the extent that it would adversely affect the effectiveness of the investigation. The arresting officer also has discretion to release the arrested person on ‘street bail’ as an alternative to taking the person directly to the station. See Note 2J.

2F An officer who believes that it is necessary to interview the person suspected of

committing the offence must then consider whether their arrest is necessary in order to carry out the interview. The officer is not required to interrogate the suspect to determine whether they will attend a police station voluntarily to be interviewed but they must consider whether the suspect’s voluntary attendance is a practicable alternative for carrying out the interview. If it is, then arrest would not be necessary. Conversely, an officer who considers this option but is not satisfied that it is a practicable alternative, may have reasonable grounds for deciding that the arrest is necessary at the outset ‘on the street’. Without such considerations, the officer would not be able to establish that arrest was necessary in order to interview.

Circumstances which suggest that a person’s arrest ‘on the street’ would not be necessary to interview them might be where the officer: • is satisfied as to their identity and address and that they will attend the police

station voluntarily to be interviewed, either immediately or by arrangement at a future date and time; and

• is not aware of any other circumstances which indicate that voluntary attendance would not be a practicable alternative. See paragraph 2.9(e)(i) to (v).

When making arrangements for the person’s voluntary attendance, the officer should tell the person:

• that to properly investigate their suspected involvement in the offence they

must be interviewed under caution at the police station, but in the

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circumstances their arrest for this purpose will not be necessary if they attend the police station voluntarily to be interviewed;

• that if they attend voluntarily, they will be entitled to free legal advice before, and to have a solicitor present at, the interview;

• that the date and time of the interview will take account of their circumstances and the needs of the investigation; and

• that if they do not agree to attend voluntarily at a time which meets the needs of the investigation, or having so agreed, fail to attend, or having attended, fail to remain for the interview to be completed, their arrest will be necessary to enable them to be interviewed.

2G When the person attends the police station voluntarily for interview by arrangement

as in Note 2F above, their arrest on arrival at the station prior to interview would only be justified if:

• new information coming to light after the arrangements were made indicates

that from that time, voluntary attendance ceased to be a practicable alternative and the person’s arrest became necessary; and

• it was not reasonably practicable for the person to be arrested before they attended the station.

If a person who attends the police station voluntarily to be interviewed decides to leave before the interview is complete, the police would at that point be entitled to consider whether their arrest was necessary to carry out the interview. The possibility that the person might decide to leave during the interview is therefore not a valid reason for arresting them before the interview has commenced. See Code C paragraph 3.21.

2H The necessity criteria do not permit arrest solely to enable the routine taking,

checking (speculative searching) and retention of fingerprints, samples, footwear impressions and photographs when there are no prior grounds to believe that checking and comparing the fingerprints etc. or taking a photograph would provide relevant evidence of the person’s involvement in the offence concerned or would help to ascertain or verify their real identity.

2I The necessity criteria do not permit arrest for an offence solely because it happens to

be one of the statutory drug testing “trigger offences” (see Code C Note 17E) when there is no suspicion that Class A drug misuse might have caused or contributed to the offence.

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APPENDIX 5

Guidance in respect of defendants’ costs orders made in proceedings that commence on or after 1 October 2012

1. The provisions of Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”), which come into force on 1 October 2012, make significant changes to the system through which successful defendants and appellants in criminal proceedings may be awarded amounts from central funds in respect of costs incurred by them in those proceedings.

Application of the new system

2. The new system applies to all proceedings that commence on or after 1 October 2012. For these purposes proceedings commence:

(a) in a magistrates’ court, when a warrant, requisition or summons relating to the proceedings is issued;

(b) on an appeal to the Crown Court, when a notice of appeal is served;

(c) in the case of other proceedings in the Crown Court, when they are committed, transferred or sent to that court;

(d) in the High Court, when an application for leave to appeal by way of case stated is made or (in the absence of such an application) when notice of appeal is given;

(e) in the Court of Appeal, when an application for leave to appeal is made or (in the absence of such an application) when notice of appeal is given;

(f) in the Supreme Court, when an application for leave to appeal is made.

3. Proceedings commenced prior to 1 October 2012 will continue to be governed by the current system for awarding amounts from central funds to successful defendants and appellants in criminal proceedings in respect of costs incurred by them in those proceedings.

Legal costs

4. ‘Legal costs’ are defined in new section 16A(10) of the Prosecution of Offences Act 1985 (“POA”) (see at Annex A Part II of the POA as amended by Schedule 7 to LASPO, with LASPO amendments in italics) as fees, charges, disbursements and other amounts payable in respect of advocacy services or litigation services including, in particular, expert witness costs.

5. New section 16A(2) of the POA provides that legal costs cannot be included in a defendant’s costs order (DCO) other than in certain specified circumstances, as set out in new section 16A(3)-(5) of the POA.

6. The specific circumstances where a DCO may still include an amount in respect of legal costs are:

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• where the accused is an individual and the order is made under section 16(1), 16(3), or section 16(4)(a)(ii) or (iii) or (d) of the POA;

• where the accused is an individual and the legal costs were incurred in proceedings in a court below, which were either proceedings in a magistrates’ court, or proceedings on appeal to the Crown Court under section 108 of the Magistrates’ Courts Act 1980 (right of appeal against conviction or sentence); or

• where the legal costs were incurred in proceedings in the Supreme Court.

7. For companies and other legal persons, the effect of new section 16A(2)-(5) of the POA is that legal costs cannot be included in a DCO, except where the legal costs were incurred in proceedings in the Supreme Court.

8. For individuals, the effect of new section 16A(2)-(5) of the POA is as follows:

Magistrates’ court

Legal costs can be included in a DCO made in the magistrates’ court.

Crown Court

In the Crown Court, legal costs can only be included in a DCO made in appeal proceedings against a conviction or sentence of the magistrates’ court. In relation to Crown Court proceedings on indictment, legal costs cannot be included in a DCO.

Court of Appeal

In the Court of Appeal, legal costs cannot be included in a DCO except in limited circumstances relating to unfitness to plead and insanity, namely where the Court of Appeal—

(a) allows an appeal under Part I of the Criminal Appeal Act 1968 against—

(i) a verdict of not guilty by reason of insanity, or

(ii) a finding under the Criminal Procedure (Insanity) Act 1964 that the appellant is under a disability, or that he did the act or made the omission charged against him,

or

(b) allows, to any extent, an appeal under section 16A of that Act (appeal against order made in cases of insanity or unfitness to plead).

Legal costs can also be included in a DCO made by the Court of Appeal where the costs were incurred in a court below that was either a magistrates’ court, or the Crown Court dealing with an appeal against a magistrates’ court conviction or sentence.

Supreme Court

Legal costs can be included in a DCO made by the Supreme Court, but only in relation to the costs incurred in the Supreme Court. Legal costs can also be included in a DCO made by

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the Supreme Court where the costs were incurred in a court below that was either a magistrates’ court, or the Crown Court dealing with an appeal against a magistrates’ court conviction or sentence.

Extradition Act 2003 Proceedings

9. Schedule 7 to LASPO amends the Extradition Act 2003 in a similar way to the POA (see at Annex B the costs provisions of the Extradition Act 2003 as amended by Schedule 7 to LASPO, with LASPO amendments in italics). The effect of these amendments is that a court order awarding money from central funds to successful defendants and appellants in proceedings under that Act may only include an amount in respect of legal costs if the costs were incurred in the magistrates’ court or the Supreme Court.

Capping of awards in respect of legal costs at legal aid rates

10. In cases where a DCO may still include an amount in respect of legal costs, the amendments to the POA made by Schedule 7 to LASPO give the Lord Chancellor the power to cap the amount the court can award by means of rates and scales or other provision. The Lord Chancellor has exercised this power in the Costs in Criminal Cases (General) (Amendment) Regulations 2012 (“2012 Regulations”), which amend the Costs in Criminal Cases (General) Regulations 1986 (“1986 Regulations”) (see at Annex C the 1986 Regulations as amended by the 2012 Regulations, with the 2012 amendments in italics).

11. The rates and scales and other provisions in the accompanying document effectively require the court to calculate any award of legal costs in a DCO at the equivalent of legal aid rates. They apply to DCOs made pursuant to section 16A of the POA, as amended by LASPO, as well as to orders made under new sections 62B or 135B of the Extradition Act 2003. In some circumstances, the rates can be enhanced, but only as set out in the relevant section of the accompanying document.

Other requirements where a DCO includes an amount in respect of legal costs

12. Where the court itself fixes the amount payable under the DCO and it considers that there are circumstances that make it inappropriate for the accused to recover the full amount mentioned in subsection (6) the court may specify a lesser amount as it considers just and reasonable. See section16(6A). Where the court does not fix the amount payable, it may describe in the order any reduction required under subsection (6A).

13. Where legal costs are included in a DCO and the court fixes an amount itself, it must calculate the amount using the rates and scales in the accompanying document, whether or not that results in the fixing of an amount that the court considers reasonably sufficient or necessary to compensate the person, as per new regulation 4A of the 1986 Regulations, as inserted by the 2012 Regulations.

14. Where legal costs are included in a DCO, and the amount of such costs is assessed by the appropriate authority, the amount must be calculated using the rates in the accompanying document, whether or not that results in the fixing of an amount that the court considers reasonably sufficient or necessary to compensate the person, as per new regulation 7(6) of the 1986 Regulations, as inserted by the 2012 Regulations.

15. Where legal costs are included in a DCO, the amount of such costs must not exceed the rates set out in the accompanying document, as per new section 16A(9) of the POA.

16. Where legal costs are included in a DCO, the court must make a statement to that effect, as per new section 16A(8) of the POA.

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Other requirements in relation to a DCO

17. The costs awarded in a DCO are not to exceed the costs actually incurred, as per new regulation 7(4) of the 1986 Regulations, as inserted by the 2012 Regulations.

18. Any doubts which the appropriate authority may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved against the applicant. See regulation 7(3) as amended.

Calculation of amounts payable in respect of legal costs under defendants’ costs orders This document applies to defendants’ costs orders made under section 16 of the Prosecution of Offences Act 1985 (as amended by Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012), and sections 61 and 134 of the Extradition Act 2003 (as amended by Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012), in respect of proceedings commenced on or after 1 October 2012, except in relation to costs incurred in proceedings in the Supreme Court.

The provision in this document as to the calculation of amounts payable out of central funds under a costs order has been determined by the Lord Chancellor with the consent of the Treasury in accordance with regulation 7(7) of the Costs in Criminal Cases (General) Regulations 1986 (“the 1986 regulations”), as inserted by the Costs in Criminal Cases (General) (Amendment) Regulations 2012 (“the 2012 regulations”).

References in this document to the Criminal Defence Service (Funding) Order 2007 are to the version of the Order in force on the date that the proceedings to which the defendant’s costs order relates commenced.

9 July 2012

© Crown copyright Produced by the Ministry of Justice

Alternative format versions of this document are available on request from the Criminal Remuneration

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Branch, Access to Justice 020 3334 4211 David.Carter@justice.gsi.gov.uk

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Contents

Part 1 Magistrates’ Court 2

Part 2 Crown Court 5

Part 3 Court of Appeal 6

Part 4 Experts’ fees and rates (magistrates’ court, Crown Court, Court of Appeal) 9

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Part 1 Magistrates’ Court

Amounts payable out of central funds in respect of legal costs incurred in the magistrates’ court3 shall be calculated in accordance with the rates, scales and other provision set out below.

1.1 Litigators

All areas

Preparation - £49.70 per hour

Advocacy (including applications for bail and other applications to the court) - £62.35 per hour

Attendance at court where Counsel assigned (including conferences with counsel at court) - £34.00 per hour

Travelling and waiting - £26.30 per hour

Routine letters written and routine telephone calls - £3.90 per item

Mileage rate - 45p per mile

In respect of any individual item of work, fees may be allowed at less than the relevant rates specified above where it appears reasonable to do so having regard to the competence and dispatch with which the work was done.

Fees may be allowed at more than the rates above where it appears, taking into account all the relevant circumstances of the case, that:

(a) the work was done with exceptional competence, skill or expertise; or

(b) the work was done with exceptional dispatch; or

(c) the case involved exceptional circumstances or complexity.

Where it is considered that any item of work should be allowed at more than the rates above, a percentage enhancement shall be applied to that item of work in accordance with the provisions below.

In determining the percentage by which fees should be enhanced above the prescribed rate, regard shall be had to:

(a) the degree of responsibility accepted by the solicitor and his or her staff;

(b) the care, speed and economy with which the case was prepared;

(c) the novelty, weight and complexity of the case.

3 Legal costs can only be included in defendants’ costs orders made in the magistrates’ court in accordance with

the provisions of section 16A of the Prosecution of Offences Act 1985, which was inserted by paragraph 3 of

Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

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Except in proceedings that relate to serious or complex fraud, the percentage above the rate above by which fees for work may be enhanced shall not exceed 100 per cent.

Where proceedings relate to serious or complex fraud, the percentage above the rate above by which fees for work may be enhanced shall not exceed 200 per cent.

Regard may be had to the generality of proceedings to which these provisions apply in determining what is exceptional.

1.2 Counsel

Basic fee (for preparation including preparation for a pre-trial review and, where appropriate, the first day’s hearing including, where they took place on that day, short conferences, consultations, applications and appearances (including bail applications, views and any other preparation))

Maximum amount: Junior Counsel - £468.00

Queens Counsel - £4,446.00

Refresher fee (for any day or part of a day during which a hearing continued, including, where they took place on that day, short conferences, consultations, applications and appearances (including bail applications), views and any other preparation)

Maximum amount: Junior Counsel - £162.00 per day

Queens Counsel - £297.00 per day

Subsidiary fees:

Attendance at consultations, conferences and views not covered by the basic fee or the refresher fee

Junior Counsel - £29.25 per hour, minimum amount £14.50

Queens Counsel - £54.50 per hour, minimum amount £28.00

Written work (on evidence, plea, appeal, case stated or other written work)

Maximum amount: Junior Counsel - £51.25

Queens Counsel - £105.00

Attendance at pre-trial reviews, applications and other appearances (including bail applications and adjournments for sentence) not covered by the basic fee or the refresher fee

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Maximum amount: Junior Counsel - £94.00

Queens Counsel - £205.00

Where it appears in respect of any item of work, taking into account all the relevant circumstances of the case, that owing to the exceptional circumstances of the case the amount payable above would not provide reasonable remuneration for some or all of the work allowed, such amounts may be allowed as appear to be reasonable remuneration for the relevant work. Reasonable remuneration is to be interpreted as if the determination was being conducted under the Criminal Defence Service (Funding) Order 2007.

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Part 2 Crown Court

Amounts payable out of central funds in respect of legal costs incurred in the Crown Court4 shall be calculated in accordance with the rates, scales and other provision set out below.

2.1 Litigators in the Crown Court

Fees in respect of work done by litigators in the Crown Court will not exceed the fees set out in Schedule 2 to the Criminal Defence Service (Funding) Order 2007 in force at the time the proceedings commenced.

2.2 Advocacy in the Crown Court

Fees in respect of work done by advocates in the Crown Court will not exceed the fees set out in Schedule 1 to the Criminal Defence Service (Funding) Order 2007, as amended, that applied at the time the proceedings commenced. Where the fees allowed are based on the provisions of paragraph 17(4) of Schedule 1, reasonable remuneration is to be interpreted as if the determination was being conducted under the Criminal Defence Service (Funding) Order 2007.

4 Legal costs can only be included in defendants’ costs orders made in the Crown Court in accordance with the

provisions of section 16A of the Prosecution of Offences Act 1985, which was inserted by paragraph 3 of

Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

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Part 3 Court of Appeal

Amounts payable out of central funds in respect of legal costs incurred in the Court of Appeal5 shall be calculated in accordance with the rates, scales and other provision set out below.

3.1 Litigators

Class of work Grade of fee earner Rate Variations

Preparation Senior solicitor £53.00 per hour

£55.75 per hour for a litigator whose office is situated in London

Solicitor, legal executive or fee earner of equivalent experience

£45.00 per hour

£47.25 per hour for a litigator whose office is situated in London

Trainee or fee earner of equivalent experience

£29.75 per hour

£34.00 per hour for a litigator whose office is situated in London

Advocacy Senior solicitor £64.00 per hour

Solicitor £56.00 per hour

Attendance at court where more than one representative assigned

Senior solicitor £42.25 per hour

Solicitor, legal executive or fee earner of equivalent experience

£34.00 per hour

Trainee or fee earner of equivalent experience

£20.50 per hour

Travelling and waiting Senior solicitor £24.75 per hour

Solicitor, legal executive or fee earner of equivalent experience

£24. 75 per hour

Trainee or fee earner of £12.50

5 Legal costs can only be included in defendants’ costs orders made in the Court of Appeal in accordance with

the provisions of section 16A of the Prosecution of Offences Act 1985, which was inserted by paragraph 3 of

Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

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equivalent experience per hour

Routine letters written and routine telephone calls

£3.45 per item

£3.60 per item for a fee earner whose office is situated in London

The “London” rate applies where the litigator’s office is situated in the Cities of London or Westminster or a London borough.

3.1.1 In respect of any item of work, the appropriate authority may allow fees at less than the relevant prescribed rate specified above where it appears to him reasonable to do so having regard to the competence and despatch with which the work was done.

3.1.2 (1) Upon a determination of fees the appropriate authority may, subject to the provisions of this paragraph, allow fees at more than the relevant prescribed rate specified above for preparation, advocacy, attendance at court where more than one representative is assigned, routine letters written and routine telephone calls, in respect of offences in Class A, B, C, D, G, I, J or K in the Table of Offences in Schedule 1 of the Criminal Defence Service (Funding) Order 2007.

(2) The appropriate authority may allow fees at more than the prescribed rate where it appears to him, taking into account all the relevant circumstances of the case, that—

(a) the work was done with exceptional competence, skill or expertise;

(b) the work was done with exceptional despatch; or

(c) the case involved exceptional complexity or other exceptional circumstances.

(3) Where the appropriate authority considers that any item or class of work should be allowed at more than the prescribed rate, he must apply to that item or class of work a percentage enhancement in accordance with the following provisions of this paragraph.

(4) In determining the percentage by which fees should be enhanced above the prescribed rate the appropriate authority may have regard to—

(a) the degree of responsibility accepted by the fee earner;

(b) the care, speed and economy with which the case was prepared; and

(c) the novelty, weight and complexity of the case.

(5) The percentage above the relevant prescribed rate by which fees for work may be enhanced must not exceed 100 per cent.

(6) The appropriate authority may have regard to the generality of proceedings to which these provisions apply in determining what is exceptional within the meaning of this paragraph.

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3.2 Counsel

Junior counsel

Type of proceedings

Basic fee Full day refresher

Subsidiary fees

Attendance at consultation, conferences and views

Written work Attendance at pre-trial reviews, applications and other appearances

All appeals Maximum amount: £545.00 per case

Maximum amount: £178.75 per day

£33.50 per hour, minimum amount: £16.75

Maximum amount: £58.25 per item

Maximum amount: £110 per appearance

QC

Type of proceedings

Basic fee Full day refresher

Subsidiary fees

Attendance at consultation, conferences and views

Written work Attendance at pre-trial reviews, applications and other appearances

All appeals Maximum amount: £5,400.00 per case

Maximum amount: £330.50 per day

£62.50 per hour, Minimum amount: £32.00

Maximum amount: £119.50 per item

Maximum amount: £257.50 per appearance

3.2.1 Where an hourly rate is specified in the Table above, the appropriate authority must determine any fee for such work in accordance with that hourly rate; provided that the fee determined must not be less than the minimum amount specified.

3.2.2 Where a refresher fee is claimed in respect of less than a full day, the appropriate authority must allow such fee as appears to him reasonable having regard to the fee which would be allowable for a full day.

3.2.3 Where it appears to the appropriate authority, taking into account all the relevant circumstances of the case, that owing to the exceptional circumstances of the case the amount payable by way of fees in accordance with the Table above would not provide reasonable remuneration for some or all of the work he has allowed, he may allow such amounts as appear to him to be reasonable remuneration for the relevant work. Reasonable remuneration is to be interpreted as if the determination was being conducted under the Criminal Defence Service (Funding) Order 2007.

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Part 4 Experts’ fees and rates (magistrates’ court, Crown Court, Court of Appeal)

Where legal costs incurred in any court other than the Supreme Court include the fees of an expert witness, amounts payable out of central funds in respect of such fees shall be calculated in accordance with the rates, scales and other provision set out below.

Where an expert witness has been instructed on behalf of a defendant or appellant, whose fees fall within a defendant’s costs order, the applicable hourly rates are those set out in Schedule 6 to the Criminal Defence Service (Funding) Order 2007.

Signed, with the consent of the Treasury and by authority of the Lord Chancellor

Jonathan Djanogly

Parliamentary Under Secretary of State

Ministry of Justice

9 July 2012

APPENDIX 6 Diagrammatic representation of the procedure after abolition of

committal proceedings

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APPENDIX 7

Definition of Prescribed proceedings

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