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w/criminal law update email spring 2017
CRIMINAL LAW UPDATE
Spring 2017
Anthony Edwards
TV Edwards LLP
www.tvedwards.com
Edition 1
March 2017
INDEX
1. STATUTORY CHANGE
2. CRIMINAL INVESTIGATIONS
3. PROFESSIONAL STANDARDS
4 PROCEDURE including civil jurisdiction
5 YOUTH JUSTICE
6 CRIMINAL LAW AND ROAD TRAFFIC
7 SENTENCING
8 EVIDENCE
9 COSTS AND LEGAL AID
Part 1 STATUTORY CHANGE
For Investigatory Powers Act 2016 see Pt 2
14th November 2016
The offence of racially or religiously aggravated harassment alarm or distress under s31(1)(C) CDA 1998 becomes a recordable offence
Policing and Crime Act 2017
The Policing and Crime Act received Royal Assent on 31 January 2017.
SUMMARY. [More detailed consideration is given below to underlined sections]
The Act further reforms policing and enables important changes to the governance of fire and rescue services.
The main provisions will:
· place a duty on police, fire and ambulance services to work together and enable police and crime commissioners to take on responsibility for fire and rescue services where a local case is made
· reform the police complaints and disciplinary systems to ensure that the public have confidence in their ability to hold the police to account, and that police officers will uphold the highest standards of integrity
Chapter 2 provides for a system of police super-complaints. This allows a designated body to make a complaint to Her Majesty’s Chief Inspector of Constabulary that a feature, or combination of features, of policing in England and Wales by one, or more than one, police force is, or appears to be, significantly harming the interests of the public
· further support the independence of HM Inspectorate of Constabulary and ensure that it is able to undertake end-to-end inspections of the police
· enable chief officers to make the most efficient and effective use of their workforce by giving them the flexibility to confer a wider range of powers on police staff and volunteers (while for the first time specifying a core list of powers that may only be exercised by warranted police officers)
A designated community support officer or community support volunteer may be given any power or duty of a constable, other than those listed in Part 1 of Schedule 3B (for example of arrest, stop and search and under terrorism legislation. A community support officer or volunteer may require a person to give his name and address if he has reason to believe that the person has committed a relevant offence. It confers a power to detain a person for up to 30 minutes for the arrival of a constable where he has failed to comply with a requirement to give his name or address, or where there is reason to believe the details given are inaccurate, or where there is reason to believe that the person is committing an offence under the Vagrancy Act 1824, s.3 or 4, he has been required to stop doing whatever gives rise to that belief and has failed to do so. It is a summary offence (level 3 fine) for the person simply to make off.
· increase the accountability and transparency of the Police Federation for England and Wales by extending its core purpose to cover the public interest and making it subject to the Freedom of Information Act 2000
· reform pre-charge bail to stop people remaining on bail for lengthy periods without independent judicial scrutiny of its continued necessity
· stop the detention in police cells of children and young people under 18 who are experiencing a mental health crisis (and restrict the circumstances when adults can be taken to police stations) by reforming police powers under sections 135 and 136 of the Mental Health Act 1983
· amend the Police and Criminal Evidence Act 1984, including to ensure that 17-year-olds who are detained in police custody are treated as children for all purposes, and to increase the use of video link technology
· amend the Firearms Acts, including to better protect the public by closing loopholes that can be exploited by criminals and terrorists
· make it an offence to possess pyrotechnic articles at qualifying musical events
· reform the late night levy to make it easier for licensing authorities to implement and put cumulative impact policies on a statutory footing
· better protect children and young people from sexual exploitation by ensuring that relevant offences in the Sexual Offences Act 2003 cover the live streaming of images of child sex abuse
· increase the maximum sentence from 5 to 10 years’ imprisonment for those convicted of the most serious cases of stalking and harassment
· confer an automatic pardon on deceased individuals convicted of certain consensual gay sexual offences which would not be offences today, and on those persons still living who have had the conviction disregarded under the provisions of the Protection of Freedoms Act 2012
Part 4 Police Powers
Chapter 1 Pre-Charge Bail In force for arrests on or after 3rd April 2017
Major change 1- presumption that release pending further investigation will be without bail
References are to amended sections of PACE once in force
s.30A enables a constable to release a person who is arrested other than at a police station without bail, unless the constable is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances, and a police officer of the rank of inspector or above authorises the release on bail. sections 18 (circumstances in which a search after arrest may be conducted) is amended
sections 34 (limitations on police detention) and 37 (duties of custody officer before charge establish a presumption that release of a person while an investigation continues should be without bail unless the pre-conditions of bail are satisfied
Section 37(7) is also amended to provide that, where a custody officer believes that he has enough evidence to charge an individual for the offence that he was arrested for, and the person is released for a police charging decision to be made, such release will be without bail unless the pre-conditions of bail are satisfied.
Section 37CA (breach of bail following release under s.37(7)(b) provides that, where a person was bailed for a police charging decision and then arrested for breach of that bail, release from such custody will only be on bail if the pre-conditions of bail are met.
section 41 (limits on period of detention without charge provides that, where a person who has been held in detention for 24 hours after the “relevant time” and who has not been charged is released, such release should normally be without bail, unless the pre-conditions of bail are satisfied. Equivalent amendments are made to section 42 in respect of a person whose continued detention has been authorised for up to 36 hours and who is then released at that point, section 43 in respect of a person who is being released from extended detention authorised by a warrant of further detention, or where an application for such a warrant has been refused and section 44 in respect of a person being released from such a warrant where an application to extend it has been refused
The “pre-conditions of bail” are defined in new section 50A as the custody officer being satisfied that bail is necessary and proportionate in all the circumstances (having regard, in particular, to any bail conditions that would be imposed) and bail is authorised by a police officer of the rank of inspector or above (having considered any representations made by the person or their legal representative).
The powers to take fingerprints and DNA, and the supporting power to require the person’s attendance at a police station under Schedule 2A remain available to the police.
Notes
The presumption that release will be without bail does not apply if a case is referred to the CPS for decision (s37(7)(a)) When case is referred for a charging decision by the CPS there must either be remand or bail
A 28 day limit on bail is agreed by an inspector
A 3 months extension requires a superintendent
S18 as amended allows a search in the presence of the suspect who is not bailed
Major change 2- time limits for bail Effective for arrests on or after 3rd April 2017
For forms refer to Crim PR Pt 14.21 and .22 and see Appendix 1
Section 30B provides that the notice given to a person granted “street bail” under section 30A must specify a time 28 + 1 days later on which the person must attend the specified police station, and to provide that, whilst the time or police station may be altered by further notice, the date may not be delayed.
Section 47ZA to 47ZM. set time limits on pre-charge bail and provide for extensions.
Routine / SFO / Designated complexInitial bail period / 28 days / 3 months / 3 months
Designated Officer / 3 months / 6 months / 6 months
Court / 6 months or 9 months if condition B requires it / 9 months or
12 if condition B requires it / 9 months or
12 if condition B requires it
Court( on continuing basis / Every 3 months / Every 6 months / Every 6 months
Section 47ZA provides that a person who is bailed must be required to answer that bail on the day the “applicable bail period” ends. However, a custody officer may set an earlier, but not a later, date where the person is already on pre-charge bail for another offence and it is felt appropriate to set the same return date for all cases, or where the custody officer believes that a decision as to whether to charge the person will be made before the end of the applicable bail period.
The initial bail period will be three months for SFO and “designated” serious cases, or 28 days in all other cases . Cases may be designated by identified officials of SFO or FCA or DPP
Section 47ZC sets out four conditions that apply to decisions about extensions.
Condition A is that there are reasonable grounds to suspect that the person in question is guilty of the offence in question.
Condition B is that there are reasonable grounds for believing either that further time is needed for the police to make a charging decision under police‐led prosecution arrangements (where the person has been bailed for that purpose) or that further investigation is necessary.
Condition C is that there are reasonable grounds for believing that the charging decision or investigation (as applicable) is being conducted diligently and expeditiously.
Condition D is that releasing the person on bail continues to be both necessary and proportionate in all the circumstances (having regard, in particular, to any bail conditions that are or would be imposed).
Section 47ZD allows a senior police officer to extend bail in non-designated cases from 28 days to three months where conditions A to D are met. That officer must arrange for the suspect or his legal representative to be invited to make representations.
Section 47ZE provides that pre-charge bail beyond three months after arrest must be authorised by a magistrates’ court. Where a case has been designated as “exceptionally complex” by a qualifying prosecutor, bail may be extended to a point six months after arrest if the decision-maker is satisfied that conditions A to D are met.
Section 47ZF provides for a magistrates’ court to extend bail beyond three or six months on the application of the police or prosecutor where conditions B to D are met. Generally, the court may extend the period for a further three months, but if the nature of the decision or further investigations mentioned in condition B means that the decision is unlikely to be made or those investigations completed within the additional three months, it may extend the period by a further six months.
Section 47ZG allows the court to authorise further extensions for periods of three or six months depending on the same conditions as set out in section 47ZF.
Section 47ZH allows sensitive information relevant to an application to a court to be withheld if there are reasonable grounds to believe that disclosure would lead to evidence being interfered with, a person coming to harm, another suspect escaping arrest, or would hinder the recovery of property.
Section 47ZL provides that the bail time limits do not apply in cases where
· an individual is rebailed under section 37C(2)(b) (breach of bail following release)
· under s.37(7)(a) while waiting for a charging decision to be made by the Director of Public Prosecutions. However, where the director requests further information from the police before reaching that decision, the bail time limits will apply during the period that the police are gathering the information, and the police must, therefore, set a new bail return date that is not after the end of the person’s applicable bail period. If, at the point that the request for further information is made, the person’s applicable bail period would end within seven days of the request, the period is extended to seven days from that request in order to give the police time to gather the information, seek a bail extension or release the suspect from bail. Once the information is provided, the bail time limit is again suspended.
If on the day that a person’s applicable bail period would end he is in hospital as an in-patient, the applicable bail period is suspended for so long as he remains an in-patient.
Note If a person absconds the bail limitation period still applies and extensions must be sought (though once they are arrested there is no time limit)