Offender Rehabilitation Act

This act came into force on 1 February 2015 for sentences imposed on or after that date. This is important for any defendant who receives a sentence of more than one day but less than two years, and who is over 18 on the day of their release. They will now be required to spend a total of one year either on licence or on supervision under the provisions introduced by this statute (section 256AA of the Criminal Justice Act 2003).

The change is significant for those who had previously been sentenced to a time period equivalent to that which they had already spent on remand. To avoid the risk of a breach of the supervision requirements, such defendants may be better served by a fine with a day in lieu under the provisions of section 135 of the Magistrates’ Court Act 1980.

New provisions have been introduced (section 256AB of the Criminal Justice Act 2003) in relation to breach, without reasonable excuse, of these new supervision requirements. If the breach is admitted or found proved, magistrates will be able to impose 14 days’ imprisonment or detention; a fine up to level 3; or a Supervision Default Order, which comprises unpaid work of between 20 and 60 hours or a curfew of between two and 16 hours for a minimum of 20 days. Breach of a supervision default order gives the court the same powers.

Supervision requirements and activity requirements attached to suspended sentence or community orders have been replaced by rehabilitation activity requirements (section 200A).

LASPO

On 8 March, Sexual Harm Prevention Orders replaced, for crimes on or after that date, Sexual Offence Prevention Orders (section 103A of the Sexual Offences Act 2003). Sexual Risk Orders replaced Risk of Sexual Harm Orders (section 122A).

On 12 March, section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was brought into force so as to allow unlimited fines in the magistrates’ courts. Any maximum fine set at level 5, or £5,000 or above, is now an unlimited fine.

However, there are complex exceptions to this rule contained in LASPO (Fines on Summary Conviction) Regulations 2015 (SI 2015/664) dealing primarily with financial offences. In a number of these cases the maximum fine is £20,000. The criminal practice direction contains provisions for the Crown to notify the court if very high fines are expected in summary proceedings so that an authorised district judge may sit at the relevant time.

Crime and Courts Act 2013

On 20 March, provisions were brought into effect to enable the legal aid fund to recover money from those with the benefit of a representation order, but subject to a restraint order, with assets sufficient to pay both a confiscation order and the cost of their legal representation.

Criminal Justice and Courts Act 2015

The major implementation of new legislation took place on 13 April.

Criminal investigations

Cautions and conditional cautions for those aged 17 should take place in the presence of an appropriate adult. The rules about simple cautions previously contained in government guidance have become statutory, so a caution should not, except in exceptional circumstances, be imposed if one has already been administered within the last two years or relates to an indictable-only offence or relates to a list of specified either-way offences.

Regulations identify the either-way offences which fall within the exceptional group. These include offences relating to crime against children, crime involving weapons, sexual crime and crime involving class A drugs (SI 2015/790).

Procedure

The act introduces the single justice procedure under section 16A of the Magistrates’ Court Act 1980. This will allow single justices to sit, other than in a courtroom, to decide uncontested cases. Such a justice is not able to disqualify or endorse a licence without the issue being expressly raised with a defendant. If the defendant agrees then the power exists, together with wide-ranging powers to impose penalties, charges and costs.

Section 121(5A) of the Magistrates’ Courts Act allows the use of appropriate fines beyond the £1 normally allowed when a single justice is sitting. There is a statutory declaration procedure where a defendant was unaware that the case was in progress.

A new time limit is introduced for summary offences under section 127 of the Communications Act 2003. The new limit is the earlier of three years from the date of the offence, or six months from the date on which evidence comes to the knowledge of a prosecutor sufficient to justify proceedings.

A significant change is made to the powers of a court dealing with a young offender in relation to grave crime. Section 3B of the Powers of Criminal Courts (Sentencing) Act 2000 is amended so that the court will have power to commit for sentence even after a trial. This power was considered in R (DPP) v South Tyneside Youth Court and B [2015] EWHC 1455.

The court identified that, because of this change, the appropriate approach in deciding whether a court should decline jurisdiction in relation to a grave crime is not any longer to take the prosecution case at its highest, but to have regard to all relevant factors. The court held that more information is likely to become available during the progress of the trial itself, thus enabling a committal for sentence if the offence requires long-term detention.

Although the court held that relevant considerations at the moment of allocation include the possibility of a jury trial and the need for privacy, it is difficult to find any statutory basis for that view because the act concentrates only on sentencing powers. The judgment recognises that it is undesirable for young offenders to be tried before a jury.

Section 45 of the Youth Justice and Criminal Evidence Act 1999 is finally brought into force at the same time as section 45A. Section 39 of the Children and Young Persons Act 1933 is now disapplied from criminal proceedings, although it remains relevant for civil proceedings including civil injunctions in the Youth Court.

Under section 45 the court may direct that no matter relating to any person concerned in the proceedings shall, while they are under 18, be included in any publication if it is likely to lead members of the public to identify them as a person concerned in the proceedings. It is this section that applies to the defendants themselves.

However, in relation to witnesses, regard should be had to section 45A. This can provide lifelong anonymity if the pre-conditions of section 45A(5) are satisfied. The court may make a reporting direction only if the quality of the evidence given by the person, or the level of co-operation given by the person to any party to the proceedings, is likely to be diminished by reason of fear or distress on the part of the person in connection with being identified by members of the public; subsection 6 sets out the relevant criteria.

These provisions, and the amended section 49 of the Children and Young Persons Act 1933 (applying to youth courts), now include within their remit not only television, radio and newspapers but also social media.

Anthony Edwards, TV Edwards

Topics