Summer Update - Criminal Law

Summer Update - Criminal Law

Summer Update – Criminal Law

The past few months have been unusual for criminal practitioners because in the absence of meetings, strikes and rallies etc, most have been able to return to doing what they do best – helping clients in police stations and courts. After years of ongoing battles with the government, the recent status quo has allowed time for reflection, taking stock, and consideration of what the future may hold. This update can therefore focus on developments in law and procedure…

Courts update

Further to the decision in February relating to court closures, as it presently stands St Helens Magistrates’ Court will shut its doors on 24th June. Notification of the changes relating to how the St Helens duty rota will be incorporated into the Liverpool and Knowsley Scheme will be issued at the start of June with the new rota to take effect from 27th June.

BCM and DCS continue to operate in the Crown Court and, for those interested, it seems that DCS will soon be rolled out in the Court of Appeal. Digital working is still evolving but the feedback about the profession’s engagement, most notably from Lord Justice Fulford in the 7th issue of the BCM newsletter, continues to be positive.

Some will have be interested, others dismayed, at the announcement that Liverpool will be a pilot area for the Common Platform – expected to be launched later this year. The various engagement events that are taking place provide defence practitioners with an opportunity to shape the product that is currently being developed. If you want more information, please feel free to email Leanne Galbraith (leanne.galbraith@legalaid.gsi.gov.uk) or, at the very least, sign up to the email updates through the MoJ website.

In March, it was also announced that Liverpool will be one of eight courts nominated as part of a “not-for-broadcast” pilot for cameras in courts. The cameras will only film the judge in sentencing cases. The pilot will run for a period of three months with timescales to be set depending on the passage of the legislation through Parliament.

Law & Sentencing

New guidelines for dangerous dog offences will come into force on 1st July 2016. The guidelines have been issued following changes to dangerous dogs offences in 2014 such as offences being committed on private property and the increase in maximum sentences.

The Psychoactive Substances Act 2016 comes into force on 26th May 2016. The Act makes it an offence to produce, supply or offer to supply any psychoactive substance if the substance is likely to be used for its psychoactive effects, regardless of its potential for harm – carrying a maximum sentence of 12 months.

On 12th May the Sentencing Council issued a consultation into “Sentencing Youths – Overarching Principles and Offence-Specific Guidelines for Sexual Offences and Robbery”. For anyone who deals with youth cases regularly – particularly cases that trouble the Crown Court – new guidance will be welcomed. The consultation period concludes on 3rd August.
For Crown Court practitioners, it is also worth noting that the Bench Book has been updated in the form of a two part Compendium. The first part deals with trial management and summing up – and the second deals with sentencing. The Compendium can be accessed through the Courts and Tribunals Judiciary website.

Cases

The most significant case in recent months (if not years) was the conjoined appeals of R v Jogee [2016] UKSP 8 and Ruddock v The Queen [2016] UKPC 7 in February. The case allowed the Supreme Court and the Judicial Committee of the Privy Council to reconsider the doctrine of “parasitic accessory liability” – otherwise known as the law relating to secondary party guilt in the course of a joint enterprise.

The doctrine was first laid down by the Privy Council in Chan Wing-Siu v The Queen (1985)] and developed in later cases – most importantly in the House of Lords in R v Powell and R v English (1999).

In a lengthy judgment which included a detailed history of the evolution of the law relating to joint enterprise, the unanimous conclusion of the Court was that the law took a “wrong turn” in Chan Wing-Siu and Powell & English. In allowing the appeals, the Court stated that the correct approach is that “foresight” on behalf of the secondary party is simply evidence of the intent to encourage or assist – which is the proper mental element for the establishment of secondary liability.

At paragraphs 80-84, the Court succinctly set out its five principle reasons for correcting the “wrong turn” that the law had taken – but were then quick to point out (paragraph 100) that the judgment will not open the floodgates for appeals. There will undoubtedly be appeals, some of which may well be successful, but irrespective of the progress of cases through the appellate courts, the clarification of the principles for secondary party guilt is long overdue.

A brief mention of some cases that may be of interest:

R (Haines) v Worcester Crown Court [2015] EWHC 4132 Admin

Not necessarily any points of law of note, but an interesting case where a non-represented defendant appealed his magistrates’ court conviction to the Crown Court, and after his appeal was dismissed, successfully judicially reviewed the Crown Court Judge. The Judge had refused to state a case on the basis that it was a “frivolous application”. The Administrative Court disagreed, allowed the appeal and quashed the conviction for making off without payment.

Higgins v CPS [2015] EWHC 4129 (Admin)

A domestic violence case where the District Judge convicted the defendant based on what many defence lawyers would consider to be limited evidence (hearsay, circumstantial and inferences). The Defence application for judicial review failed and the Court fully supported the Judge in his decision.

Thomas v CPS [2015] EWHC 4079 (Admin)

This is a useful case where the court reviewed the procedure for applying for bail pending appeal from the magistrates’ court to the Crown Court. As highlighted in the case, this is an area often misunderstood by the judges, legal advisors and solicitors – sometimes resulting in defendants spending unnecessary time in custody.

R v Needham [2016] EWCA Crim 455

An important case where the Court set out guidance on sections 35A and 35B of the Road Traffic Offenders Act 1988 which deals with extended disqualification for defendants who receive custodial sentences.

R v Cornish [2016] EWHC 779 (QB)

A case involving the failed prosecution of a doctor for gross negligence manslaughter and an NHS trust for corporate manslaughter. The defence succeeded in submissions of no case to answer and subsequently made wasted costs applications against the CPS. The applications failed and the court set out principles that reiterated the high threshold for such applications to succeed.

Term time holidays

The case, however, that seemed to generate the most amount of public interest was the Administrative Court decision in Isle of Wight Council v Jon Platt (unreported) on 13th May. This was the man who took his child out of school to go on holiday to Florida and, having refused to pay the £120 fine, was prosecuted for an offence under section 444(1A) of the Education Act 1996. His case was dismissed by the magistrates due to his daughter’s high attendance record throughout the school year and the Council appealed by way of case stated. In refusing the appeal, the Court held that the definition of “regularly” under the Act must include reference to the child’s academic attendance record as a whole – and not just the period limited to the absence whilst on holiday.

The judgment was welcomed by some, and roundly criticised by others. The Department for Education moved quickly to suggest that amendments to the law will be proposed – although concerns that the case paves the way for parents to take their children out of school for up to three weeks of the year are probably misguided.

In 2015 a petition was submitted to Parliament arguing for the introduction of an allowance of up to two weeks’ term time leave from school for holidays. It received over 120,000 signatures and was debated on 26th October. In refusing to relax the rules the government pointed out that if implemented, the proposals would mean that if a child was taken out of school for two weeks every year (together with an average number of days off for illness), by the time they left school at 16 they would have missed almost a year of education.

The case may well prompt the government to revisit the law in the not too distant future – although given the strength of feeling in favour of the judgment, it might be something that is approached with care. In the meantime, I’m not sure I would encourage anyone to book a term time holiday for their children on the back of the case.

Either way, criminal practitioners will no doubt hope that the government’s time is taken up with legal points such as this rather than returning to issues surrounding funding and legal aid. I suspect that most practitioners have enjoyed being able to spend more time focusing on their core work, and long may it continue.

Originally written by Nick Cockrell for the June 2016 issue of Liverpool Law Magazine.

Nick Cockrell is the Head of Crime at Linskills.

Linskills are a law firm that help people accused of criminal offences throughout England and Wales. For a free consultation call 0800 0963 238 or send us a message.