Criminal - statutory changes

The criminal law provisions of the Policing and Crime Act 2017 have been brought substantially into force and with unusual speed.

Urgent provisions were brought into force on royal assent on 31 January 2017. These included a redefinition of ‘sexual exploitation’ in the Sexual Offences Act 2003 so as to include the streaming of indecent images. Anonymity provisions were introduced for those bringing complaints of forced marriage. All references to ‘tape recording’ were modernised to refer to ‘audio recording’ instead.

The critical provisions in relation to bail and the Police and Criminal Evidence Act 1984 (PACE) came into force on 3 April for matters commencing on or after that date. The most significant were in relation to bail. The effect appears to have been the exact opposite of what was intended. Most suspects are now ‘released under investigation’ for longer than bail would previously have extended.

The first change was to introduce a statutory assumption that bail is not required during an investigation. This applies at the time of an offence and, if an enquiry is continued, following an initial arrest. Solicitors at the police station should make appropriate representations. Bail should only be an issue when it is necessary and proportionate, which is likely to apply only when there are grounds justifying an arrest and bail conditions are required. There is now power to take samples without an arrest and section 18 searches can be carried out before a person is released under investigation.

This change was linked to the introduction of bail time limits. These are set out in the table. Representations from the suspect must always be sought before an extension is granted and five days will normally be allowed. Time does not count while the papers are with the Crown Prosecution Service. The most serious obstacle to an investigating officer seeking an extension of the very short initial time limit is likely to be the requirement for a superintendent’s (or senior civil servant’s or employee’s) consent to the first extension. The extensions by the court are likely to be easier to obtain. These are dealt with outside a formal court hearing for the first year unless the judge requires or can be persuaded to require a formal hearing. Solicitors making these representations, as well as those appearing in court, should claim the costs as advocacy assistance based on a form CRM3 and additional to the police station fixed fee. The work relates to a court hearing even if it is not in open court. The Criminal Procedure Rules have been amended to allow for these applications and objections to them and the relevant forms can be found on the procedure rules website. The statute also introduces a procedure for information sensitive to an investigation to be withheld from the defence if the court agrees (see table).

To assist those released under investigation the statute requires that they be advised if the enquiry has come to an end. But police officers are likely to be slow, in the absence of management controls, to acknowledge that this has occurred.

Notes: 1. The periods all run from the time of first arrest  2. Condition B applies when further investigation is required  3. Senior officials of the SFO CPS and FCA may designate cases as complex

The changes to PACE include the final amendments necessary to ensure that all 17-year-olds are treated as youths, for all purposes. Important changes are made for the mentally disabled. A wider range of premises may be used as places of safety and the use of police stations is restricted. They may not be used as a place of safety at all for youths and the time for which an adult may be held there in such circumstances is reduced to 24 hours or 36 hours in exceptional circumstances.

The maximum penalties for putting people in fear of violence and for stalking involving fear of violence or serious alarm or distress (sections 4 and 4A of the Protection from Harassment Act 1997) are increased for offences on or after 3 April to 10 years, and for racially aggravated offences to 14 years.

On 2 May 2017 important changes were made to the Firearms Act 1968, largely on the recommendations of the Law Commission. New definitions are intruded by section 125 and airsoft guns, in closely defined circumstances, are excluded from the provisions of the act. A new either-way offence, carrying five years’ imprisonment on indictment, is introduced for being in possession of an article with the intention of using it to convert an imitation firearm into a live one. Registered firearms dealers are exempt but most engineering firms would have suitable equipment so that the mental element is critical.

The requirement for individual firearm certificates is removed from those attending shooting events where it is on private proper ty and a person loaning the guns and holding a certificate is present.

Provisions under section 126 in relation to antique firearms are, at the time of writing, still to be brought in to force.

Sexual Offences Act 2003

Section 15A of the Sexual Offences Act 2003 was brought into force on 3 April. This created an either-way offence, carrying two years on indictment, of sexual communication with a child. It arises when a person (A) aged 18 or over: (a) for the purpose of obtaining sexual gratification, intentionally communicates with another person (B); (b) the communication is sexual or is intended to encourage B to make (whether to A or to another) a communication that is sexual; and (c) B is under 16 and A does not reasonably believe that B is 16 or over.

Investigatory Powers Act 2016

Little of this statute is yet in force but it will in due course replace the Regulation of Investigatory Powers Act 2000.

Criminal Finances Act 2017

This was passed just before the election and will, when in force, increase civil recovery powers in relation to money laundering and terrorist financing, including the introduction when in force of the unexplained wealth orders. However, new offences that can be committed only by a ‘relevant body’ and not by individuals will come into force on 30 September 2017.

Section 45 creates the offence of corporate failure to prevent the facilitation of tax evasion in relation to UK taxes. Section 46 creates an offence of corporate failure to prevent the facilitation of foreign tax evasion offences.

A relevant body (B) is guilty of an offence if a person commits a facilitation offence when acting in the capacity of a person associated with B. It is a defence for B to prove that, when the UK tax evasion facilitation offence was committed, either B had in place such prevention procedures as it was reasonable in all the circumstances to expect B to have, or it was not reasonable in all the circumstances to expect B to have any prevention procedures in place.