Paul Morris, Ellen Peart and David Hardstaff of BCL Solicitors LLP
The last year has seen a number of significant procedural and legal developments throughout the criminal justice system, with an emphasis on ‘efficiency savings’ and an increased reliance on technology. Whilst the number of prosecutions concerning alleged sexual offences has continued to rise, the decision to take no further action in relation to a handful of investigations concerning high-profile suspects has fuelled the debate surrounding police bail periods and pre-charge anonymity for suspects.
Notable legal developments include the landmark Supreme Court judgment in the case of Jogee, concerning joint enterprise; a number of new offences, including the offence of controlling or coercive behaviour in an intimate or family relationship; and a raft of new sentencing guidelines.
News and debate
The year began with the abolition of the unpopular Criminal Courts Charge, the introduction of which saw the resignation of dozens of magistrates in protest at its rigid, and often disproportionate application. The U-turns continued with a reprieve for thousands of firms potentially facing closure as the controversial two-tier scheme in relation to duty solicitor contracts was scrapped by then Lord Chancellor, Michael Gove.
The number of investigations and prosecutions concerning sexual offences has continued to rise, reaching the highest total in a decade. At the same time a number of high-profile investigations have concluded with no further action being taken, reigniting the debate concerning pre-charge bail and anonymity for suspects. The Policing and Crime Bill continues to make its way through parliament, promising, if passed, to reform pre-charge bail by restricting the ability of the police to impose lengthy bail periods without independent judicial scrutiny. On the subject of anonymity for suspects, progress has been limited since the publication of the Home Affairs Committee’s report on police bail, which recommended that suspects should have the same right to anonymity as the complainant in sexual offences, until such time that they are charged.
A spike in hate crimes in the wake of the June EU referendum has led to calls for prosecutors to push for tougher sentences in cases concerning racially or religiously aggravated offences. More widely, Brexit’s potential impact on domestic criminal law and trends is unlikely to be understood or felt for some time.
A number of notable procedural changes have been implemented in relation to the introduction of a defendant’s own bad character and in the identification of issues at the beginning of summary trials. New allocation guidelines, introduced by the Sentencing Council on 1 March 2016, have seen a push to keep more cases in the magistrates’ court in an effort to deliver efficiency across the criminal justice system.
Delivering efficiency has been the order of the day, as undoubtedly the most significant procedural developments have come about as a result of the introduction of the Better Case Management (BCM) protocol, which forms part of the implementation of Sir Brian Leveson’s report 'Review of Efficiency in Criminal Proceedings'. The protocol represents a major overhaul of procedure at the Crown Court, in many cases reducing the number of pre-trial hearings to one and putting more emphasis on engagement and hands-on case management by all parties at an early stage in proceedings. Early indications are that the scheme has been successful in delivering efficiency benefits, decreasing by almost 50% the number of hearings required to resolve a guilty plea in the Crown Court. However, whilst the changes will no doubt result in savings, practitioners have criticised the scheme for placing an unreasonable burden on the defence to take full instructions and advise clients within a short space of time. Anecdotal evidence suggests that the time limits imposed by the new regime may be unworkable for cases involving defendants in custody, given the difficulties lawyers can face in securing prison visits.
Efforts to pull the criminal justice system into the 21st century and to move to paperless working have continued through the introduction of the Digital Case System (DCS) for Crown Court cases, and the roll out of Wi-Fi at most courts. Whilst still in its infancy, practitioners have welcomed the idea of DCS’s common platform and the emphasis on accountability and case ownership that it bestows on all parties.
The Sentencing Council’s consultation on a revised guideline for reductions in sentence for guilty pleas has sparked controversy across the defence community. If implemented, the proposals would see the point at which defendants can expect a full discount of one-third limited to the ‘first stage in proceedings’, often before the prosecution has served its case. Practitioners have criticised the proposals as eroding the principle that it is for the prosecution to prove its case. The definitive guidelines are expected to be published in spring of 2017.
The new offence of controlling or coercive behaviour in an intimate or family relationship, contrary to section 76 of the Serious Crime Act 2015 (SCA), came into force on 29 December 2015. The offence, which does not have retrospective effect, is committed where person A 'repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive', and, at the time of the behaviour, A and B are personally connected, the behaviour has a serious effect on B, and A knows or ought to know that the behaviour will have a serious effect on B. Intended to close a gap in the law around patterns of controlling or coercive behaviour, it remains to be seen whether difficulties in evidencing offending behaviour will put prosecutors off charging the section 76 offence, when existing legislation, such as harassment laws, may offer a more straightforward response.
At the time of writing, other new offences include throwing articles into prison (section 79 SCA), further offences concerning slavery and trafficking (Modern Slavery Act 2015) and a range of ‘prohibited activities’ in relation to psychoactive substances, aimed at criminalising, amongst other things, the possession, supply, and importation of ‘legal highs’ (Psychoactive Substances Act 2016).
In case law, the Supreme Court case of Jogee saw a major overhaul of the law in relation to secondary liability for murder, or ‘joint enterprise’. The judgment, which has been heralded as bringing an end to 30 years of incorrectly applied law, found that it was wrong to treat ‘foresight’ as a sufficient test when considering the liability of secondary participants in murder cases. The judgment lays the foundation for potentially hundreds of appeals. A wide range of new sentencing guidelines have been introduced in relation to theft, robbery, health and safety offences, corporate manslaughter, food safety and hygiene offences and dangerous dogs.
Contributed by Paul Morris, Ellen Peart and David Hardstaff of BCL Solicitors LLP