Legislative changes

Criminal investigations

New codes C, H, E and F under the Police and Criminal Evidence Act 1984 came into force on 31 July. The main revisions to code C concern safeguards for vulnerable suspects, voluntary interviews and amendments to PACE introduced by the Policing and Crime Act 2017. 

There is a new definition of ‘vulnerable’ to describe a person for whom an appropriate adult must be called. This is supported by a new requirement for proactive steps to be taken to identify and record factors that indicate whether a suspect may require help and support from an appropriate adult, an updated role description of the appropriate adult and specification as to who may or may not act in this capacity. The requirement to identify particular factors that indicate vulnerability is also extended to juveniles.

For voluntary suspect interviews, the rights, entitlements and safeguards that apply and the procedure to be followed when arranging for the interview to take place are extended. These changes take account of concerns that suspects might not realise that a voluntary interview is just as serious and important as being interviewed after arrest. This applies particularly when the interview takes place in the suspect’s own home rather than a police station. The approach mirrors that which applies to detained suspects on arrival at a police station with the interviewer standing in for the custody officer. In particular, it requires the suspect to be informed of all the rights, entitlements and safeguards that will apply before they are asked to consent to the interview and to be given a notice to explain those matters.

Procedure

Dougall v CPS [2018] EWHC 1367 (Admin) confirms that an allegation of indictable crime, preferred outside the relevant time limit for summary proceedings, cannot then be amended to lay a summary-only charge. A critical procedural change takes effect on 1 October under Criminal Procedure Rule 39.2 in relation to appeals from the Crown court. On new forms NG these must be lodged direct at the Court of Appeal and no longer at the Crown court; preferably by email at criminalappealoffice.applications@hmcts.x.gsi.gov.uk or by post to The Registrar, Criminal Appeal Office, Royal Courts of Justice, Strand, London WC2A 2LL.

Sentencing

Two significant new sentencing guidelines take effect on 1 October for all cases sentenced on or after that date, whenever the offence was committed. Other guidance and guidelines have been published.

Breach offences: 

The new breach guideline contains guidance for:

• Breach of a community order
  The appropriate penalty is based on the level of compliance. 
• Breach of a suspended sentence order
  When considering whether activation of the suspended sentence (in full or in part) would be unjust in all the circumstances, the predominant factors are the nature of the breach and the prior level of compliance. Only new and exceptional factors or circumstances not present at the time the suspended sentence order was imposed should otherwise be taken into account. Such factors may include any strong personal mitigation, whether there is a realistic prospect of rehabilitation and whether immediate custody will result in significant impact on others (it should be noted that a suspended sentence is a single sentence which, if activated, cannot be activated a second time in respect of a constituent element of the original sentence (R v Bostan [2018] EWCA Crim 494)).
• Breach of post-sentence supervision
  The appropriate penalty is based on the level of compliance.
• Failing to surrender to bail
  Where a custodial sentence is available within the category range and the substantive offence attracts a custodial sentence, a consecutive custodial sentence should normally be imposed for the bail offence. The penalties for more serious cases are now more severe than under the previous guideline.
• Breach of a protective order (restraining and non-molestation orders)
  The penalties for more serious cases are now more severe. Contact not initiated by the offender can now only be considered a mitigating factor after a careful examination of all the circumstances.
• Breach of criminal behaviour order (CBO).
  The penalties for more serious cases are now more severe. For breach of a CBO, when assessing harm the court must have regard to whether the breach demonstrates a continuing risk of criminal or anti-social behaviour. Delay is unacceptable (R v Khan [2018] EWCA Crim 1472, following Boness [2005] EWCA Crim 2395, confirms that CBOs are not to be lightly made; the terms must be precise and capable of being understood by the offender. The terms must be tailored to the circumstances of the individual defendant and capable of being understood by the defendant. They must be reasonable, proportionate, realistic and practical. Exclusion zones must be delineated; individuals banned from contact must be clearly identified). 

The risk of harm or of distress must now also be taken into account when assessing harm for breach of sexual harm prevention orders, failure to comply with notification requirements, and breach of disqualification from acting as a company director or from keeping an animal.

• Breach of a sexual harm prevention order (also applicable to breach of a sexual offences prevention order and to breach of a foreign travel order).
• Failing to comply with notification requirement.
• Breach of disqualification from acting as a director.
• Breach of disqualification from keeping an animal.

The guidelines set out a number of other breach offences, for which it states that a court should refer to the sentencing approach contained in step one of the guideline for breach of a criminal behaviour order to determine culpability and harm. 

These offences are: 

• Breach of a football banning order. 
• Failure to comply with a direction to disperse.
• Failure to comply with a community protection notice.
• Breach of a public places protection order. 
• Contravention of a closure notice or order.

Intimidatory offences 

The offences covered by the guideline are:

• Harassment (putting people in fear of violence).
• Protection from Harassment Act 1997 (section 4).
• Stalking (involving fear of violence or serious alarm or distress) Protection from Harassment Act 1997 (section 4A).
• Racially or religiously aggravated harassment (putting people in fear of violence) Crime and Disorder Act 1998 (section 32(1)(b)).
• Racially or religiously aggravated stalking (involving fear of violence or serious alarm or distress) Crime and Disorder Act 1998 (section 32(1)(b)).

Harassment  

• Protection from Harassment Act 1997 (section 2).
• Stalking Protection from Harassment Act 1997 (section 2A). 
• Racially or religiously aggravated harassment Crime and Disorder Act 1998 (section 32(1)(a)).
• Racially or religiously aggravated stalking Crime and Disorder Act 1998 (section 32(1)(a)). 

Disclosing private sexual images 

• Criminal Justice and Courts Act 2015 (section 33).
• Controlling or coercive behaviour in an intimate or family relationship.
• Serious Crime Act 2015 (section 76)

Threats to kill 

Offences Against the Person Act 1861 (section 16).

The guideline confirms that where offences are committed in a domestic context, reference should also be made to the overarching principles: domestic abuse guideline. As to stalking and so on, sentencers should consider whether to ask for psychiatric reports in order to assist in the appropriate sentencing. 

Special provision is made for racially and religiously aggravated harassment and stalking offences.

Psychoactive substances

The Sentencing Council has published ‘guidance’ on the sentencing of drug offences involving newer and less common drugs. The matter was also considered in R v Waka [2018] EWCA Crim 1145.

Manslaughter 

This guideline is effective for all those sentenced on or after 1 November. This provides separate guidelines for:

• Unlawful act manslaughter. 
• Gross negligence manslaughter.  
• Manslaughter by reason of loss of control. l Manslaughter by reason of diminished responsibility.

Anthony Edwards is a solicitor at TV Edwards