Criminal Law Update 2018
Nicola Robinson, PNLD Legal Adviser, provides an overview of Anthony Edwards criminal law update as presented at our Criminal Law Conference on Thursday 4th October 2018.
Firstly, he referred to the Policing and Crime Act 2017, which came in force on 11th December 2017. This made significant changes regarding places of safety in relation to the Mental Health Act 1983; police stations should now be avoided as a place of safety and certainly not used in relation to under 18’s. He also referred to the power in section 136 of the Mental Health Act being extended so that police can now intervene on private property that is not a private dwelling.
Another significant change noted was the Criminal Finances Act 2017. He explained that on 30th January 2018, section 15 extended cash forfeiture to include precious metals, art collections and face value vouchers – some of the areas in which criminals are now investing. On 31st January 2018, Unexplained Wealth Orders were created under sections 1-6. Anthony explained that these have allowed legal action to be taken against a person who has committed money laundering in any situation – if they tell the truth, a confiscation order can be used; if they lie, they can be prosecuted; and if they give no explanation for the source of their money, an Unexplained Wealth Order can now be used.
Anthony went on to note that in June 2018, section 3 of the Investigatory Powers Act 2016 created the offence of unlawful interception. He explained that this Act has been gradually replacing RIPA, being brought in almost section by section. Anthony’s advice was to refer to the Codes of Practice, as these cover all the sections already brought in force.
Next, Anthony referred to two smaller, but more recent Acts -
The Laser Misuse (Vehicles) Act 2018 came in force in July 2018; mirroring the powers in the Air Navigation Order and extending the protection to vehicles and air traffic controllers. There are defences of reasonable excuse or due diligence in relation to this offence, although Anthony commented that he was not sure how these could be used in relation to this offence.
The Assaults on Emergency Workers (Offences) Act 2018 comes in force on 13th November 2018. This Act creates an aggravated version of common assault and battery. Anthony noted that in cases involving emergency workers, the courts have previously been perfectly capable of dealing with this and classing the involvement of such workers as an aggravating factor. In his opinion, the new offence could be counter-productive due to the practical consequences. The new offence is an either way offence, which means that cases can be progressed to Crown Court which will cause delays and additional costs, and decisions will be left to the jury. He noted that as well as this new offence, the Act states that in relation to other specific offences, the fact that they have been committed against an emergency worker ‘shall’ be deemed an aggravating factor (in relation to any other offences, this ‘may’ be deemed an aggravating factor). In relation to this Act, Anthony was asked about the status of the offence of assaulting a police officer; to which he replied that the offence is still in force, and remains a summary only offence. It was Anthony’s view that assaulting a police officer may end up being used in order to keep the offence in the Magistrates’ Court.
Finally in relation to legislation, Anthony referred to the changes to PACE Codes C, H, E and F, which came in force in July. He noted the new definition of ‘vulnerable’ in Code C and the duty to get an appropriate adult in relation to such a person. He also touched upon the rise in voluntary interviews and the duty under the Codes to explain rights and offer a solicitor in the same way as for arrested suspects; ensuring that voluntary suspects are aware of the seriousness and importance of the situation.
Anthony proceeded to note a number of cases in relation to various aspects of criminal law -
In relation to lies told by a defendant, Anthony referred to R v Cooper  EWCA Crim1454, where the defendant lied in interview, stating that he had not taken any drugs. In fact, he had taken cocaine. The significance of the drugs was disproved; however, the fact that the defendant had lied about the drugs was admitted as evidence relating to his credibility.
In relation to the defence of duress, Anthony noted that this must be raised at the investigative stage. In R v Petgrave  EWCA 1397, it was accepted that the defendant was at risk of gang violence and had acted under duress, however, as this was not raised at the investigative stage (the defendant gave a ‘no comment’ interview), he could not rely upon the defence in court.
In the case of Miller v DPP  EWHC 262 (Admin), the defendant had been arrested for drink driving and subsequently for failing to provide a specimen. He had learning difficulties and was autistic and on previous occasions in police custody, an appropriate adult had been called. In this situation, an appropriate adult was not called, as it was felt that the delay would affect the alcohol readings and that a sample therefore needed to be taken as soon as possible. The defendant refused to comply. In this case, it was held that the defendant had been deprived of an appropriate adult who would have possibly persuaded him to provide a sample. The evidence was excluded. In relation to this case, Anthony expressed his view that the outcome of this case may have been different if the police had made an attempt to call an appropriate adult; he believes that a significant factor in this case was that the police made no attempt to do so.
Anthony went on to outline cases in relation to search warrants, noting beforehand that the Law Commission is expected to complete a consultation in the next 12 months that may lead to legislation rationalising this whole area of law.
In R (A and others) v CCC  EWHC 70, it was held that a search warrant can be issued for a telephone, computer or hard disc, because it is a single object, without having to provide a breakdown of what you wish to find on it; although the warrant can contain controls regarding downloading information from such items.
Also in relation to the seizure of electronic devices, Anthony noted the case of Business Energy Solutions Ltd v Preston Crown Court  EWHC 1534 (Admin), which referred to the seizure of copies. This case held that there is a duty to return a copy in the same way as an original item. It was also noted in this case that search records did not need to break down the contents of a computer, but once a copy of an individual item is made, that item has a separate existence of its own and should be listed.
Anthony finished his first presentation with a case in relation to memory refreshing, DPP v Sugden  EWHC 544 (Admin), highlighting that copies can be used if an original document is not available; it is acceptable for a person to refresh their memory from a copy document.
Anthony opened his second presentation with comments regarding child criminal exploitation, reference to county lines, and the section 45 defence in the Modern Slavery Act 2015. He said that he found it fascinating that this offence can be used where a child is being trafficked from one area to another, but not where a child is being exploited in one local area. In relation to the section 45 defence (compulsion attributable to relevant exploitation), Anthony noted the case of R v MK; R v Gega  EWCA Crim 667, in which it was held that such a defence must be raised at the investigative stage.
Anthony went on to outline cases across other areas of criminal law –
One case noted was R v Brown  EWCA Crim 1870, in relation to joint enterprise. Where a defendant believed that a co-defendant was carrying one particular weapon, when in fact it was a different weapon, this can be used as evidence as to their state of mind, but the fundamental question is whether he intended to assist the intentional infliction of at least grievous bodily harm.
In R v Taj 2018 EWCA Crim 1743, in relation to self-defence, it was held that section 76(5) of the Criminal Justice and Immigration Act 2008 includes intoxication prior to the moment of the incident. However, Anthony noted that alcohol dependency would fall outside of section 76, where it has developed into a long term mental illness, caused by alcohol misuse.
Anthony went on to look at a case regarding causation in murder, R v Berlinah Wallace  EWCA Crim 690. This case involved an acid attack, which did not directly kill the victim, but caused significant injuries and the victim subsequently underwent euthanasia. It was argued that the euthanasia was an intervening act, but the court held that there was causation, because of the part the attack played in the victim’s decision to undergo euthanasia.
In relation to dishonesty, Anthony noted the case of Ivey v Genting Casinos (UK) Ltd  UKSC 67, which removed the second limb of the Ghosh test (i.e. did the defendant believe that a reasonable man would have acted the same way?). Anthony expressed concerns over this change in relation to people on the autistic spectrum and young people who have not yet established an understanding of what is reasonable, as these people may have a different mind-set on what is dishonest; he believes that a case in relation to this issue is needed to balance the principle.
One of the last cases of note in Anthony’s presentation was R v Chapman  EWCA Crim 17, in relation to psychoactive substances, specifically nitrous oxide. It was held in this case that although this substance is used in medical procedures, it will be deemed a psychoactive substance when used for recreational purposes, and as such will be covered by the Psychoactive Substances Act 2016.
The information provided above is a brief overview of some notable points from Anthony’s presentation. Other cases and changes were mentioned and more are covered in his speaker notes. For further information, please see the related link to Anthony’s speaker notes.
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Download Anthony's speaker notes (PDF 526KB)
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Thursday 17th October 2019