Criminal law roundup

The Domestic Abuse Act 2021 received royal assent on 29 April. ‘Domestic abuse’ is defined more widely than violence and includes economical, psychological, emotional or other abuse.

When fully in force this will bring about far-reaching changes to how such offending is to be prosecuted and managed. On 29 June, it will be possible to prosecute in England and Wales, when allegedly committed abroad by a UK national or a person habitually resident in England and Wales, murder, manslaughter, certain sexual offences, offences contrary to the Protection from Harassment Act 1997, controlling and coercive behaviour in an intimate or family relationship and certain offences contrary to the Offences Against the Person Act 1861.

Threatening to disclose private sexual photographs or films, rather than disclosing such material, will also become an offence on that day, punishable with up to two years’ imprisonment. The act will also, when the relevant commencement order is issued, do away with the domestic violence protection notice and order regime. Under the terms of the new domestic abuse protection orders, either the police or the complainant can apply to the court for such an order, the definition of abuse being as above. The court can make such an order in civil, criminal or family proceedings and in criminal proceedings do so on acquittal. The order can include requirements and prohibitions.

The test is that, on the civil standard of proof, the person who is to be subject to the order has been abusive to a person over the age of 16 to whom they are personally connected (no longer ‘in an intimate relationship with’) and it is necessary to make the order to protect the other person from, or from the risk of, domestic abuse. These orders can be made without notice. Breach of such an order will now be an either-way criminal offence, punishable by up to five years’ imprisonment, rather than by way of a committal for contempt for up to 28 days.

These provisions bring the new regime into alignment with the provisions for breaching: (a) a non-molestation order issued by the family court; or (b) a restraining order issued by the criminal courts. The act will also create a standalone either-way offence of strangulation or suffocation, not requiring there to be any domestic relationship between the offender and victim, punishable by up to five years’ imprisonment.

Credit for a guilty plea

There is a distinction as to whether a defendant needs further information, assistance or advice before indicating a guilty plea or merely delays that plea in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal. The former may enable a defendant to retain full credit for a guilty plea entered beyond the first available opportunity to do so, the latter will not (R v Plaku [2021] EWCA Crim 568), referencing section F of the Sentencing Council’s definitive guideline on ‘Reduction in sentence for a guilty plea’.

Crown court judges acting as district judges (magistrates’ court)

If the Crown court judge is to correct errors made by the CPS and magistrates’ courts by using section 66 of the Courts Act 2003, they must be clear as to what sentence they impose as a circuit judge and which as a district judge (MC). The Crown court must notify the magistrates’ court of the decision, so that the latter court’s register can be corrected. Once the magistrates’ court has sent or allocated a defendant for trial, or committed for sentence, it is functus, so the Crown court cannot use section 66 to make any order which a DJ(MC) could no longer make. If a committal is bad on its face, the conclusion must be that the case never left the magistrates’ court so it must be relisted at the lower court for the error to be corrected. The Crown court cannot quash the erroneous allocation, this power is reserved to the High Court. The Crown court may use section 66 to allow a new charge to be laid, take a plea, deal with allocation and commit for sentence, but only to tie up loose ends (R v Gould and others [2021] EWCA Crim 447).

Drink driving

The divisional court has provided a reminder in Hani Ali v DPP [2020] EWHC 2864 QBD that when the defence wish to challenge the accuracy of an evidential breath alcohol reading recorded on a breath test machine, the following principles apply: (1) there is a presumption that the reading produced on that machine shows that the defendant had at least that level of alcohol when driving (section 10(2) Road Traffic Act 1988); (2) that presumption can be rebutted by evidence, which, if believed, provides grounds for inferring that the machine did not provide a reliable reading; (3) if that evidence is adduced, the prosecution must prove to the criminal standard that the reading is reliable; and (4) assertions based on alleged failure to comply with the machine’s manufacturers’ instructions are not sufficient to challenge the statutory presumption.

Sexual harm prevention orders

An indefinite order of this nature should only be made if it is necessary and proportionate. Reasons for such a course should be given. One consequence of an order of that length is that the recipient will be subject to notification requirements for the rest of their life (R v Howarth [2021] EWCA Crim 445).

Alcohol abstinence and monitoring

As of 19 May, the courts can impose such a requirement to a community order or suspended sentence order, if use of alcohol was an element of the offence or factor that contributed to the offence for which the order was imposed. The defendant must not be alcohol dependent (other, more appropriate requirements, may be available, such as alcohol treatment). If the monitoring is available, the defendant must abstain from consumption or not exceed a court-set limit during the relevant period, up to a maximum of 120 days. Non-compliance will trigger breach proceedings leading to potential harshening of the requirements or revocation and resentencing.

Adrian Lower is a district judge (magistrates’ courts)