News & Insights

Statutory Updates

05/07/2022

An overview of the latest statutory updates, produced by Laurence Harris, Payton Goodred-Vaucrosson and Christina Courquin.

Circular 001/2022: Reclassification of GHB and related substances

On 13th April 2022 the Misuse of Drugs Act 1971 (Amendment) Order 2022 reclassified GHB, GBL and 1,4-BD as Class B drugs under paragraph 1(a) of Part 2 of Schedule 2 to the Misuse of Drugs Act 1971.

Non-fatal strangulation and suffocation

Section 70 of the Domestic Abuse Act 2021 inserted section 75A into Part 5 of the Serious Crimes Act 2015, creating two new offences of non-fatal strangulation and non-fatal suffocation. These came into force on 7 June 2022.

In the newly created section 75A(1)(a), a person commits the offence of non-fatal strangulation if a person (A) intentionally strangles another (B).

‘Strangulation’ or ‘strangles’ is to be given its proper meaning of compressing the blood vessels or airways by pressure on the neck. Crucially, this offence does not require a certain amount of pressure or restriction of the airways and does not require proof of injury. The mens rea required is that of intention to strangle; mere recklessness would not be enough.

In section 75(A)(1)(b), a person commits the offence of non-fatal suffocation if:

  • A does any other act that:
    • Affects Bs ability to breathe, and;
    • Constitutes a battery of B.

This allows for the legislation to cover a broader category of actions such as putting a hand over the mouth and nose, or any other suppression that can affect breathing. The mental element of this offence is also wider and can include recklessness.

It is a defence, in response to these offences, for A to show that B consented to the strangulation or other act, however the Act states that this defence does not apply if:

  • B suffers serious harm as a result of the strangulation or other act, and;
  • A either:
    • intended to cause B serious harm, or
    • was reckless as to whether B would suffer serious harm.

These offences are triable either way, and liable on summary conviction of imprisonment for up to 12 months, or on conviction on indictment for up to 5 years, or a fine or both.

Judicial Review and Courts Act 2022

Section 13 of the Act provides that from Monday 2nd May 2022, a Magistrates’ court may impose a sentence of 12 months’ imprisonment for a single offence that is triable either way in place of the current maximum of 6 months’ imprisonment. This applies to offences committed on/after 2 May 2022.

The Criminal Justice Act 2003 (Commencement No. 33) and Sentencing Act 2020 (Commencement No. 2) Regulations 2022

Section 11 of the new Act is in force. S 11 inserts a new s 46ZA Senior Courts Act 1981 to allow a crown court, in certain circumstances, to remit a matter sent for trial back to the magistrates court.

Police, Crime, Sentencing and Courts Act 2022

On 28 June 2022, the following legislative changes will come into force:

Section 2: assault on an emergency worker

The maximum sentence for this offence will double to 2 years imprisonment.

Section 3: manslaughter of an emergency worker

There will be a required life sentence for manslaughter of an emergency worker.

Section 47: ss.16-19 Sexual Offences Act

These sections have been amended to increase the scope of the ‘positions of trust’.

Section 50: criminal damage to memorials

This section adds criminal damage to memorials to Schedule 2 of the Magistrates’ Court Act 1980, offences for which the value involved is relevant to the mode of trial.

Section 83: new offence of residing on land without consent in or with a vehicle

This new offence is liable on summary conviction to a maximum of three months’ imprisonment.

Section 86: causing death by dangerous driving or careless driving when under the influence of drugs

These two offences will carry maximum life imprisonment.

Section 87: causing serious injury by careless, or inconsiderate driving

This new offence is an either way offence, and carries a maximum sentence of 2 years imprisonment.

Section 122: child cruelty

This section increases the maximum sentence from 10 to 14 years. 

Section 125: premeditated child murder

This section mandates a whole life order as a starting point for premeditated child murder.

Section 126: whole life orders and young adult offenders

This section creates provision for whole life orders for young adult offenders in exceptional cases.

Section 127:  new starting points for murder committed when under 18

This section sets out the appropriate starting point corresponding to the age of the offender.

Section 150: increases in maximum daily curfew hours and curfew requirement period

This section sets out increases in both maximum daily curfew hours and the requirement period.

The Sentencing Act 2020 (Surcharge) (Amendment) Regulations 2022

Regulation 2 of these regulations increases the amounts payable for surcharge, thereby updating the 2012 Schedule to the Criminal Justice Act 2003 (Surcharge) (Order) 2012.
What is the surcharge? – Sentencing (sentencingcouncil.org.uk)


Case Law Updates

Martin [2022] EWCA Crim 342

A sentence was reduced by 4 months to reflect credit for late plea which was initially refused by the sentencing judge. The Court of Appeal held:

“In the present case, although the appellant only pleaded guilty on the day of the trial, he did so on an accepted basis prior to the jury being sworn. In these circumstances, whether or not this delay may have been, as the Recorder described it, a “tactical” decision on his part, we consider that in order to reflect the benefits on an accused’s acceptance of guilt, the Recorder should have reduced the notional post‑trial sentence of three years’ imprisonment by approximately 10 per cent.”

R (Andrew) v Chief Constable of Thames Valley Police [2022] EWHC 887 (Admin)

The claim concerns the interpretation and application of the Dangerous Dogs Act 1991 (“the Act”). In summary the issues are:

  1. Whether the police may lawfully seize a dog under s.5(1)(c) of the Act if, on the occasion of seizure, the dog has done nothing to give grounds for reasonable apprehension that it will injure any person but there are grounds for reasonable apprehension that it will injure any person pursuant to s.10(3) of the Act, based on its conduct on a previous occasion.
  2. Whether a dog can be “dangerously out of control” for the purposes of s.5(1)(c) if the dog is held securely on a lead.

It was held that [they] “cannot accept the claimant’s submission that a dog on a lead cannot be considered to be dangerously out of control. Contrary to the claimant’s submission, that is not the effect of ss.3(5), 4(a) or 7 of the Act. A dog owner or dog walker may easily lose control of a dog on a lead, particularly if the dog is powerful. That is illustrated by the facts of the Gedminintaite case, where the dog was on a lead at the time of the attack. The statutory powers to require a lead to be used which are found in the Act, and in other legislation referred to by the claimant, are a means of control of dogs, but it cannot be inferred from those powers and the existence of those powers that Parliament has decided that a dog on a lead can never be dangerously out of control for the purposes of s.5(1)(c).

In assessing whether the threshold of reasonable apprehension has been crossed, it is helpful, as the defendant suggests, to consider by way of analogy the test of reasonable suspicion for arrest under the Police and Criminal Evidence Act. Such a threshold does not require an officer to conclude that a dog will, on the balance of probabilities, injure someone, but merely to have a reasonable apprehension that it will do so.”


Sentencing Guidelines Updates

Domestic, Non Domestic and Aggravated Burglary Offences

The Sentencing Council has published updated sentencing guidelines for domestic, non-domestic and aggravated burglary offences in England and Wales following consultation.

The revised guidelines follow the stepped format of more recent guidelines issued by the Council and introduce new middle categories for both culpability and harm factors. This revised structure gives sentencers greater flexibility and reflects the full range and seriousness of offences that come to court.

Child sexual offences

New guidelines have been published in order to assist courts sentencing in circumstances where no child exists or is harmed. This prevents these conditions from being used a mitigation. Relatedly, there is a new sentencing guideline for the offence of Sexual Communication with a Child, which comes into effect on 1 July 2022.

The Youth Justice and Criminal Evidence Act 1999 (Commencement No. 24) Order 2022

On 12 May 2022, section 28 of the Youth Justice and Criminal Evidence Act 1999 came into force, providing that in cases where a pre-recorded video interview was admitted to stand as that witness’ evidence in chief pursuant to section 27, the court can now also order that any cross-examination and re-examination be video recorded and admitted as evidence.

However, this development is limited to proceedings before the following courts:

  • Sheffield Combined Court Centre;
  • Newcastle-upon-Tyne;
  • Doncaster Justice Centre South;
  • Portsmouth Combined Court Centre;
  • Southampton Combined Court Centre;
  • Winchester Combined Court Centre;
  • Truro Combined Court Centre;
  • Bristol;
  • Plymouth Combined Court;
  • Isle of Wight Combined Court;
  • Gloucester;
  • Bournemouth Combined Court;
  • Exeter and
  • Salisbury.

It is also limited to cases where witnesses are eligible under section 17(4) of the same Act (complainants in respect of a sexual offence or a modern day slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences).

Consultation Updates

Animal Cruelty: Consultation

A consultation paper on the sentencing of animal cruelty offences was published on 10 May 2022.

“In 2021, Parliament passed the Animal Welfare (Sentencing) Bill, which increased the maximum sentence for specific offences under the 2006 Act from six months’ to five years’ custody and made these either way offences, meaning they could be heard in magistrates’ courts or the Crown Court. The following offences were impacted by the change:

  • Causing unnecessary suffering (section 4, Animal Welfare Act 2006);
  • Carrying out a non-exempted mutilation (section 5, Animal Welfare Act 2006);
  • Docking the tail of a dog except where permitted (section 6(1) and 6(2), Animal Welfare Act 2006);
  • Administering a poison to an animal (section 7, Animal Welfare Act 2006); and
  • Involvement in an animal fight (section 8, Animal Welfare Act 2006).

In light of this legislative change, we are seeking to revise and update the sentencing guideline for animal cruelty, to provide fuller guidance to sentencers. This will also replace the interim guidance that was issued when the statutory maximum penalty was increased”.

Attorney Generals Guidelines on Disclosure

On 26 May 2022, the Attorney General released new guidelines pertaining to disclosure and the resolution of disclosure related issues for investigators, prosecutors and defence practitioners.

Essentially, these guidelines lay out the principles which should be followed in all cases where the disclosure regime plays a role. This revised guidance replaces the previous Disclosure Guidelines that came into force on 31 December 2020. These guidelines will be effective from 25 July 2022.

New Service for sending legal mail to prisons

The Ministry of Justice has developed a new service for sending legal and other confidential information to prisons. This service is now operational and should be used when sending such documents to the following prisons:

  • HMP Leeds
  • HMP Risely
  • HMP Holme House
  • HMP Swaleside
  • HMP Stocken

It is planned that, after a short pilot testing phase, this new service will be rolled out nationwide.

To use the service, an application must be made using a CJSM email address. The service generates secure barcodes for each item which is then printed as a separate sheet or part of a letter. This barcode is then able to be scanned through the window of an envelope to allow for efficient processing and sending.

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