By Anthony Edwards, TV Edwards, London


Statutory change

Domestic Violence Crime and Victims Act 2004

On 1 July 2007, section 1 of this Act brought into force section 42A of the Family Law Act 1996. It makes the breach of a non-molestation order, made in family proceedings, an either-way offence carrying five years' imprisonment on indictment.



It is an offence when any person, without reasonable excuse, does anything that he is prohibited from doing by a non-molestation order. The defendant must have been aware of the order to be liable under this section. It is clear that a number of police officers do not understand the change that has been made and do not appreciate that bail can be granted for this offence. It is an offence like any other and normal police powers for bail apply.



A sentencing guideline (on breach of protective orders) has already been published in relation to breach of non-molestation orders. In all cases the order will have been made to protect an individual from harm and the court's action in response to breach should have, as its primary aim, the importance of ensuring that the order is complied with and that it achieves the protection it was intended to achieve. Thus when sentencing for breach, the aim should be to achieve future compliance with that order where that is realistic.



The custody threshold is reached when violence is involved. Aggravating factors will exist when the victim is particularly vulnerable; there is an impact on children; there is a proven history of violence or threats by the offender; where contact arrangements are used to instigate an offence; where a victim is forced to leave home; or where the breach is a further breach or one committed immediately or shortly after the order was made. Mitigating factors exist where the breach was committed after a long period of compliance, or the victim initiated the contact.



Road Safety Act 2006

Significant provisions of the Road Safety Act 2006 have been brought into force in relation to offences committed on or after 24 September 2007. Section 3ZA of the Road Traffic Act 1988 now defines careless and inconsiderate driving thus: 'A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver. In determining... what would be expected of a careful and competent driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware, but also to any circumstances shown to have been within the knowledge of the accused. A person is to be regarded as driving without reasonable consideration for other persons only if those persons are inconvenienced by his driving.'



Penalties have also been increased for certain offences committed on or after 24 September 2007. Offences of careless or inconsiderate driving now have a maximum of a level 5 fine. If a person commits a second offence of using a vehicle in a dangerous condition within those years, there is, absent special reasons, an obligatory disqualification of six months. The number of points to be endorsed for an offence under section 172 of the 1988 Act is increased to six.



Racial and Religious Hatred Act 2006

The whole of this Act was brought into force on 1 October, 2007. It inserts into the Public Order Act 1986 a new part 3A. It deals with religious hate crime. Religious hatred is defined as hatred against a group of persons defined by the reference to their religious belief or lack of religious belief.



The offence is committed only by the use of threatening words or behaviour rather than the fuller descriptions used in other parts of the Public Order Act. Furthermore, there is a requirement for the specific mental element that the defendant intends to stir up religious hatred.



There is a defence for the protection of freedom of expression: 'Nothing in this Part of the Act should be read or given effect in a way which prohibits or restricts discussion, criticism or expression of antipathy, dislike, ridicule, insult or abuse of particular religions or beliefs or practices of their adherents or of any other belief system or the beliefs or practices of its adherents or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.' The offence is an either-way offence carrying seven years on indictment.



Violent Crime & Reduction Act 2006

Provisions of this Act have been brought into force throughout 2007. On 6 April, the Act significantly extended the effect of section 51A of the Firearms Act 1968 so that it applies, if its detailed provisions are engaged, to offences under the following Firearms Act sections: section 16 (possession of firearm with intent to injure); section 16A (possession of firearm with intent to cause fear of violence); section 17 (use of firearms to resist arrest); section 18 (carrying firearm with criminal intent); section 19 (carrying a firearm in a public place); and section 20(1) (trespassing in a building with a firearm).



On the same day, sections 28 and 29 were brought into force, creating an offence of 'using another to look after, hide or transport a dangerous weapon when he does so under arrangements or in circumstances that facilitate or are intended to facilitate the weapons being available to him for an unlawful purpose'. This section is also subject to the provisions of section 51A.



On 1 October 2007, a new summary offence was created under section 34, inserting section 21A into the Firearms Act, whereby an offence is committed if a person has with him an air weapon on any premises and uses it for firing a missile beyond those premises. The offence will only be committed where the suspect does not have the consent of the owner of the land to shoot over that land. It carries a level 3 fine.



Criminal Defence Service (General) (No2) (Amendment No2) Regulations 2007

These amendments came into effect on 1 November 2007. A hearing in the magistrates' court when a case is sent to the Crown Court is deemed to be preliminary to the Crown Court proceedings. This means that the means test does not apply. However, an order covering the magistrates' court should still be obtained because it may be back-dated in its effect in accordance with the General Criminal Contract.



The opportunity has also been taken to update terminology so that those working to prepare cases in a solicitor's office are known as litigators and those presenting cases in court, whether solicitors or barristers, are known as advocates.



If a client is sentenced in the magistrates' court and wishes to appeal against the sentence, an oral application may now be made for the extension of the representation order, but the extension is not automatic.



All those under 18, whether in the adult or youth court, are now passported through the means test for a representation order, although they must pass the merits test.