The Crime and Courts Act 2013 received royal assent on 25 April. That brought immediately into effect section 43 on the use of self-defence at a place of residence. This has been achieved by amendments to section 76 of the Criminal Justice and Immigration Act 2008. The change applies only in a ‘householder case’, which is where:

  • The defence concerned is the common law defence of self-defence.
  • The force concerned is used by the defendant (D) while in or partly in a building, or part of a building that is a dwelling or is forces accommodation.
  • D is not a trespasser at the time the force is used.
  • At that time D believed the complainant to be in or entering the building or part of a building as a trespasser.

In those circumstances, the common law has been amended. Otherwise a defendant may use such force as is reasonable in the circumstances as s/he honestly believed them to be. When this amendment applies the defendant is to be regarded as having used reasonable force, notwithstanding that it is disproportionate. However, the degree of force used by the defendant cannot be regarded as reasonable in the circumstances as the defendant believed them to be if it was grossly disproportionate.  

Case management

On 1 April the Criminal Procedure Rules were amended. Most of these changes are technical, but part 3 now requires the court to facilitate the participation of anyone taking part, including both witnesses and defendants. This should provide additional assistance to those with learning or communication difficulties.

Part 37 is subject to a number of changes, including:

  • Prosecutors must provide details of the effect of the offence on the victim and the victim’s family and others.
  • The defence must provide financial information in the form and by any date specified by the court.
  • There can be disclosure of information to a trial court in advance of the actual hearing. Witness statements and record of taped interviews should not be disclosed unless they have been agreed. The rule allows the disclosure of court orders that evidence may be admitted whether as hearsay or bad character, but not the application itself or orders that such evidence be excluded. An issue remains over the disclosure of a case management form which may contain information which, following R v Newell [2012] EWCA Crim 650, would not be admissible in evidence. If the court wishes to see this document, and it is inappropriate for it to do so, an application will have to be made to exclude it as hearsay.  

T v R [2012] EWCA Crim 2358 makes clear that breach of procedural rules did not make evidence admissible that was not otherwise properly admitted under the hearsay provisions. In this case the late notification of the issues by the defence could not affect the law on the admissibility of that evidence.  

The abolition of committal proceedings took effect throughout the country in relation to all proceedings where the first appearance was on or after 28 May 2013.

Bail

R (E) v Wood Green Crown Court [2013] EWHC 1869 (Admin) confirms that, in considering objections to bail, the court should consider all aspects of the strength of the evidence. There is no requirement, and it is wrong in law, to consider the case on the basis of the prosecution case at its highest. In R (Charles) v Central Criminal Court [2013] EWHC 2581 (Admin) the High Court confirmed that it did have jurisdiction to consider, by way of judicial review, bail decisions made at any stage in Crown court proceedings. Section 29 of the Senior Courts Act 1981 was disapplied by implication following the abolition of the defence’s right to apply to the High Court for bail.

Cautions  

The law on cautions imposed at the police station has been the subject of a number of court decisions and statutory intervention. Two cases have identified the issues which will go to the validity of the caution. In Caetano v Metropolitan Commissioner [2013] EWHC 375 (Admin) the content of the suspect’s interview had been misrepresented to those making the decision to caution. On the true admission of two slaps under great provocation, the public interest in the proper application of Home Office guidelines did not require a caution even in a domestic violence situation. It was therefore quashed. In R (Strathon) v Chief Constable of Thames Valley [2013] EWHC 1561 (Admin) the court accepted it was a case where there was sufficient evidence and public interest to prosecute.

However, the caution was quashed because the court found that the suspect did not fully understand the implications of the caution for her; in particular the requirement that she disclose it in all future applications to work as a nanny. In the absence of informed consent the caution could not stand. The court acknowledged that cautions form part of a criminal record and their disclosure could cause significant difficulty.

The same reasoning had been used by the Court of Appeal in R (T) v Chief Constable of Manchester [2013] EWCA CIV 25, when it held that the duty to disclose all convictions and cautions to employers, and the current list of exclusions from the Rehabilitation of Offenders Act 1974, were incompatible with article 8 of the European Convention on Human Rights. This has led to the coming into force of a series of statutory instruments.

The effect of these amendments is to create, in relation to enhanced criminal record certificates, ‘protected convictions’ and ‘protected cautions’.

Disclosure for convictions

Convictions that resulted in a custodial sentence, convictions for serious sexual or violent offences, and convictions for certain other specified offences will always be disclosed.

In relation to all other convictions for persons aged 18 or over, convictions that fall within an 11-year period ending with the day on which the certificate is issued will be disclosed.

In relation to all other convictions for persons aged under 18, convictions that fall within a five-and-a-half-year period will be disclosed; but persons with more than one conviction will have all their convictions disclosed.

Disclosure for cautions

Cautions for serious sexual and violence offences, and certain other offences, will always be disclosed.

In relation to all other cautions for persons aged 18 or over, cautions that fall within a six-year period will be disclosed.

In relation to all other cautions for persons aged under 18, those that fall within a two-year period will be disclosed.

The Rehabilitation of Offenders Act 1974 is no longer disapplied in respect of a protected caution or protected conviction as defined in these regulations.

17-year-olds in police stations

In HC (by CC) v Home Secretary and the Metropolitan Police Commission [2013] EWHC 982 (Admin), the court held that the treatment of 17-year-olds in police stations as if they were adults is unlawful. As a result, the Association of Chief Police Officers has issued new guidance ahead of changes to code C of the Police And Criminal Evidence Act. It now advises that in all cases 17-year-olds should be provided with an appropriate adult. The custody officer should ask if the 17-year-old wants this to be a parent or guardian, but if the youth does not wish them to be advised, a professional appropriate adult should be used. Also, 17-year-olds have the right to notify persons of their arrest, but any wish not to notify their parents must be respected. If, after consultation with the appropriate adult, the 17-year-old wishes to continue without them, that view is also to be respected on the advice given by ACPO.

Anthony Edwards, TV Edwards

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