1. The Criminal Justice & Courts Act 2015 What is in force on 13/4/15? Olwen M Davies Solicitor- Advocate &Paul Prior Barrister of the Year

2. Criminal Justice & Courts Act 2015 Royal Assent – 12/2/15. Criminal Justice & Courts Act 2015 (Commencement No1. Saving & Transitional Provisions )Order 2015 SI 2015 No 778 Some 80 sections come into force on 13/4/15. And most directly affect criminal practitioners.

3. Criminal Justice & Courts Act 2015 The Criminal Justice and Courts Act 2015 (Simple Cautions) (Specification of Either-Way Offences) Order 2015 SI 2015/ 790; The Criminal Justice and Courts Act 2015 (Simple Cautions) (Specification of Police Ranks) Order 2015 SI 2015/830. The Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015 (SI 2015/796)

4. Life sentences S 1-Life sentences – Max sentence increased to life for offences under S4 Explosive Substances Act 1883 s6(5)(a) (training for terrorism) Terrorism Act 2000 s54(6)(a) (weapons training for terrorism)TA 2000, neither are retrospective.

5. Life sentences S2- adds offences to Sch 15 CJA 2003 and removes some lesser ones. Not retrospective. S3 –adds to list of offences under Sch 15B CJA 2003. Not retrospective.

6. Parole matters S4 & 5 deal with the Parole Board and release of prisoners when serving extended sentences S6 – release by parole board of “offenders of particular concern” Of interest to prison law practitioners as are other sections in this part of the Act.. See Sch 1. Applies to those sentenced on /after 13/4/15.

7. Post- release by Parole Board s7-Electronic monitoring following release on licence Offenders released on licence may be electronically tagged, including GPS tagging; Amounts to beefing up an existing power. Applies to those released on /after 13/4/15.

8. Post- release by Parole Board s12 -New offence of remaining unlawfully at large after recall. Applies to people recalled before or after provision comes into force. Amends s32 Crime (Sentences) Act 1997; And s255 Criminal Justice Act 2003 (recall of prisoners) 2years / 6m on conviction Definition of “unlawfully at large”?

9. Post- release by Parole Board S13- creates a further offence- Remaining unlawfully at large after temporary release S 1 Prisoners (Return to Custody) Act 1995 amended 2years / 6m imprisonment “does not apply where the period of temporary release expired, or the order of recall was made, before this section comes into force.”

10. Prison law issues S16 - Drugs for which prisoners etc may be tested Extends drug tests beyond controlled substances e.g legal highs and the Prison Rules will be amended accordingly.

11. Cautions -Ss17 & 18 Major changes to the ability of the police to give cautions to those 18 or over; Indict –only offences –complete bar unless S17(2)- “in exceptional circumstances relating to the person or the offence, and (b)with the consent of the Director of Public Prosecutions.”

12. Cautions -Ss17 & 18 Either –way – “(3)If the offence is an either-way offence specified by order made by the Secretary of State, a constable may not give the person a caution except in exceptional circumstances relating to the person or the offence.”

13. Cautions -Ss17 & 18 “(4)If— (a)the offence is a summary offence or an either- way offence not specified under subsection (3), and (b)in the two years before the commission of the offence the person has been convicted of, or cautioned for, a similar offence, a constable may not give the person a caution except in exceptional circumstances relating to the person, the offence admitted or the previous offence.”

14. Cautions -Ss17 & 18 Who decides what is exceptional –”s17(5)It is for a police officer not below a rank of Supt /Insp. (a)whether there are exceptional circumstances for the purposes of subsection (2), (3) or (4), and (b)whether a previous offence is similar to the offence admitted for the purposes of subsection (4)(b). (6)A determination under subsection (5) must be made in accordance with guidance issued by the Secretary of State.”

15. Cautions -Ss17 & 18 SI’s- The Criminal Justice and Courts Act 2015 2015 No. 790 (Simple Cautions) (Specification of Either-Way Offences) Order 2015 – lists offences to which s17 applies; 2015 No. 830 Criminal Law, England And Wales The Criminal Justice and Courts Act 2015 (Simple Cautions) (Specification of Police Ranks) Order 2015 – lists ranks of determining officers

16. Cautions -Ss17 & 18 In force 13/4/15 so everyone attending police stations needs to download the SI of offences Expect a whole new definition of “exceptional” especially towards the end of the financial year... Expect lots of FPT’s /NFA decisions...

17. Cautions -Ss17 & 18 Can a victim challenge a caution? Yes –and bring an HRA 1998 claim; Guest v Director of Public Prosecutions [2009] 4 Archbold News 2, D.C. Jones v Whalley [2007] 1 A.C. 63, H.L. A promise is only as good as the circumstances in which it was made- R v Abu Hamza [2006] EWCA Crim (2918)

18. New offences-neglect /ill-treatment S20-Ill-treatment or wilful neglect: care worker offence “(1)It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual. (2)An individual guilty of an offence under this section is liable— (a)on conviction on indictment 5 years / fine (or both); (b)on summary conviction, 12 months or a fine (or both).”

19. New offences-neglect /ill-treatment Definitions- “(3)“Care worker” means an individual who, as paid work, provides— (a)health care for an adult or child, other than excluded health care, or (b)social care for an adult, including an individual who, as paid work, supervises or manages individuals providing such care or is a director or similar officer of an organisation which provides such care. “

20. New offences-neglect /ill-treatment “(4)An individual does something as “paid work” if he or she receives or is entitled to payment for doing it other than— (a)payment in respect of the individual's reasonable expenses, (b)payment to which the individual is entitled as a foster parent, (c)a benefit under social security legislation, or (d)a payment made under arrangements under section 2 of the Employment and Training Act 1973 (arrangements to assist people to select, train for, obtain and retain employment)”

21. New offences-neglect /ill-treatment “(5)“Health care” includes— (a)all forms of health care provided for individuals, including health care relating to physical health or mental health and health care provided for or in connection with the protection or improvement of public health, and (b)procedures that are similar to forms of medical or surgical care but are not provided in connection with a medical condition, and “excluded health care” has the meaning given in Schedule 4. “

22. New offences-neglect /ill-treatment S21 Ill-treatment or wilful neglect: care provider offence “(1)A care provider commits an offence if— (a)an individual who has the care of another individual by virtue of being part of the care provider's arrangements ill- treats or wilfully neglects that individual, (b)the care provider's activities are managed or organised in a way which amounts to a gross breach of a relevant duty of care owed by the care provider to the individual who is ill-treated or neglected, and (c)in the absence of the breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur.”

23. New offences-neglect /ill-treatment “(3)An individual is “part of a care provider's arrangements” where the individual— (a)is not the care provider, but (b)provides health care or social care as part of health care or social care provided or arranged for by the care provider, including where the individual is not the care provider but supervises or manages individuals providing health care or social care as described in paragraph (b) or is a director or similar officer of an organisation which provides health care or social care as described there. “

24. New offences-neglect /ill-treatment “(4)A “relevant duty of care” means— (a)a duty owed under the law of negligence, or (b)a duty that would be owed under the law of negligence but for a provision contained in an Act, or an instrument made under an Act, under which liability is imposed in place of liability under that law, but only to the extent that the duty is owed in connection with providing, or arranging for the provision of, health care or social care. “

25. New offences-neglect /ill-treatment “(5)For the purposes of this section, there is to be disregarded any rule of the common law that has the effect of— (a)preventing a duty of care from being owed by one person to another by reason of the fact that they are jointly engaged in unlawful conduct, or (b)preventing a duty of care being owed to a person by reason of that person's acceptance of a risk of harm. (6)A breach of a duty of care by a care provider is a “gross” breach if the conduct alleged to amount to the breach falls far below what can reasonably be expected of the care provider in the circumstances.”

26. New offences-neglect /ill-treatment Rest of Section contains more definitions but these are the main ones. S22 Care provider offence: excluded care providers- Definitions of who isn’t liable/ when. See Sch 4 too.

27. New offences-neglect /ill-treatment S23-penalties “(1)A person guilty of an offence under section 21 is liable, on conviction on indictment or summary conviction, to a fine. (2)A court before which a person is convicted of an offence under section 21 may make either or both of the following orders— (a)a remedial order; (b)a publicity order; (whether instead of or as well as imposing a fine). “

28. New offences-neglect /ill-treatment “(3)A “remedial order” is an order requiring the person to take specified steps to remedy one or more of the following— (a)the breach mentioned in section 21(1)(b) (“the relevant breach”); (b)any matter that appears to the court to have resulted from the relevant breach and to be connected with the ill-treatment or neglect; (c)any deficiency in the person's policies, systems or practices of which the relevant breach appears to the court to be an indication.”

29. New offences-neglect /ill-treatment SS(4)“A “publicity order” is an order requiring the person to publicise in a specified manner— (a)the fact that the person has been convicted of the offence; (b)specified particulars of the offence; (c)the amount of any fine imposed; (d)the terms of any remedial order made.”

30. New offences-neglect /ill-treatment “(5)A remedial order— (a)may be made only on an application by the prosecution which specifies the terms of the proposed order, (b)must be made on such terms as the court considers appropriate having regard to any representations made, and any evidence adduced, in relation to its terms by the prosecution or by or on behalf of the person convicted, and (c)must specify a period within which the steps specified in the order must be taken.”

31. New offences-neglect /ill-treatment S 24 Care provider offence: application to unincorporated associations. “(1)For the purposes of sections 21 and 23, an unincorporated association is to be treated as owing whatever duties of care it would owe if it were a body corporate. (2)Proceedings for an offence under those sections alleged to have been committed by an unincorporated association must be brought in the name of the association (and not in that of any of its members).” etc..

32. New offences-neglect /ill-treatment s25 Care provider offence: liability for ancillary and other offences. “(1)An individual cannot be guilty of— (a)aiding, abetting, counselling or procuring the commission of an offence under section 21, or (b)an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) by reference to an offence under section 21.”

33. New offences-neglect /ill-treatment “(2)Where, in the same proceedings, there is— (a)a charge under section 21 arising out of a particular set of circumstances, and (b)a charge against the same defendant of a relevant offence arising out of some or all of those circumstances, the defendant may, if the interests of justice so require, be convicted of both offences. “

34. New offences-neglect /ill-treatment “(3)A person convicted of an offence under section 21 arising out of a particular set of circumstances may, if the interests of justice so require, be charged with a relevant offence arising out of some or all of those circumstances.” So risk of double jeopardy but permitted by statute so unlikely to be susceptible to challenge.

35. New offences-neglect /ill-treatment “(4)“Relevant offence” means an offence under an Act, or an instrument made under an Act, dealing with— (a)health and safety matters, or (b)the provision of health care or social care.” Advantages to Pros of sequential prosecutions?

36. New offences-neglect /ill-treatment In force 13/4/15.

37. Police /prison officer offences S26-”(1)A police constable listed in subsection (3) commits an offence if he or she— (a)exercises the powers and privileges of a constable improperly, and (b)knows or ought to know that the exercise is improper. (2)A police constable guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both).” (3) - definition of police officer.

38. Police /prison officer offences “(4)For the purposes of this section, a police constable exercises the powers and privileges of a constable improperly if— (a)he or she exercises a power or privilege of a constable for the purpose of achieving— (i)a benefit for himself or herself, or (ii)a benefit or a detriment for another person, and (b)a reasonable person would not expect the power or privilege to be exercised for the purpose of achieving that benefit or detriment.”

39. Police /prison officer offences “(5)For the purposes of this section, a police constable is to be treated as exercising the powers and privileges of a constable improperly in the cases described in subsections (6) and (7).”

40. Police /prison officer offences “(6)The first case is where— (a)the police constable fails to exercise a power or privilege of a constable, (b)the purpose of the failure is to achieve a benefit or detriment described in subsection (4)(a), and (c)a reasonable person would not expect a constable to fail to exercise the power or privilege for the purpose of achieving that benefit or detriment.”

41. Police /prison officer offences “(7)The second case is where— (a)the police constable threatens to exercise, or not to exercise, a power or privilege of a constable, (b)the threat is made for the purpose of achieving a benefit or detriment described in subsection (4)(a), and (c)a reasonable person would not expect a constable to threaten to exercise, or not to exercise, the power or privilege for the purpose of achieving that benefit or detriment.”

42. Police /prison officer offences Jurisdiction- (8) act or omission in question must take place in the United Kingdom/ United Kingdom waters. “(9)In this section— “benefit” and “detriment” mean any benefit or detriment, whether or not in money or other property and whether temporary or permanent;” in force 13/4/15.

43. Tariff for murder S27-Increase in tariff for murder, Sch 21 CJA 2003 Term of imprisonment for murder of police or prison officer –start point now 30 years. Applies to offences committed on or after 13/4/15.

44. Disqualified drivers S30 -offences- s3ZC RTA 1988-Causing death by driving: disqualified drivers- Becomes indictable- only.

45. Disqualified drivers New 3ZD-Causing serious injury by driving: disqualified drivers- “(1)A person is guilty of an offence under this section if he or she— (a)causes serious injury to another person by driving a motor vehicle on a road, and (b)at that time, is committing an offence under section 103(1)(b) of this Act (driving while disqualified). (2)In this section “serious injury” means—...physical harm... amounts to grievous bodily harm”

46. Disqualified drivers Penalties- Causing death by driving: disqualified drivers on indictment 10 years /fine / both 3-11 PP/ oblig. disqualification; Causing serious injury by driving: disqualified drivers - Summarily – 6m/ fine; Indictment- 4 years /fine /both; Oblig. Disqualification, 3-11 PP. See too Sch 6 CJCA 2015. In force 13/4/15.

47. Disqualified drivers S 30 Extension of disqualification from driving where custodial sentence also imposed- Effect- where D is sentenced to immediate custody, any driving ban will last until at least his release; Time spent on remand does not justify a shorter ban. Effectively a restatement of provisions under the CAJA 2009 which needed tidying up.

48. Offences causing others anxiety or distress S32-Sending letters etc with intent to cause distress or anxiety- ss(1)increases the max sentence under s 1 Malicious Communications Act 1988 (offence of sending letters etc with intent to cause distress or anxiety), (a)on conviction on indictment -two years /fine /both; (b)on summary conviction to imprisonment for a term not exceeding 12 months / fine /or both.

49. Offences causing others anxiety or distress S33 Disclosing private sexual photographs and films with intent to cause distress “(1)It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made— (a)without the consent of an individual who appears in the photograph or film, and (b)with the intention of causing that individual distress.”

50. Offences causing others anxiety or distress “(3)It is a defence for a person charged with an offence under this section to prove that he or she reasonably believed that the disclosure was necessary for the purposes of preventing, detecting or investigating crime”

51. Offences causing others anxiety or distress “(4)It is a defence for a person charged with an offence under this section to show that— (a)the disclosure was made in the course of, or with a view to, the publication of journalistic material, and (b)he or she reasonably believed that, in the particular circumstances, the publication of the journalistic material was, or would be, in the public interest.”

52. Offences causing others anxiety or distress (5)It is a defence for a person charged with an offence under this section to show that— (a)he or she reasonably believed that the photograph or film had previously been disclosed for reward, whether by the individual mentioned in subsection (1)(a) and (b) or another person, and (b)he or she had no reason to believe that the previous disclosure for reward was made without the consent of the individual mentioned in subsection (1)(a) and (b).

53. Offences causing others anxiety or distress “(6)A person is taken to have shown the matters mentioned in subsection (4) or (5) if— (a)sufficient evidence of the matters is adduced to raise an issue with respect to it, and (b)the contrary is not proved beyond reasonable doubt.” Evidential or legal burden on D? See Sheldrake HL [2004] UKHL 43

54. Offences causing others anxiety or distress “(7)For the purposes of subsections (1) to (5)— (a)“consent” to a disclosure includes general consent covering the disclosure, as well as consent to the particular disclosure, and (b)“publication” of journalistic material means disclosure to the public at large or to a section of the public.”

55. Offences causing others anxiety or distress S 34 Meaning of “disclose” and “photograph or film”- Definitions for s33 & 35; “(2)A person “discloses” something to a person if, by any means, he or she gives or shows it to the person or makes it available to the person.”

56. Offences causing others anxiety or distress “(3)Something that is given, shown or made available to a person is disclosed— (a)whether or not it is given, shown or made available for reward, and (b)whether or not it has previously been given, shown or made available to the person.”

57. Offences causing others anxiety or distress “(4)“Photograph or film” means a still or moving image in any form that— (a)appears to consist of or include one or more photographed or filmed images, and (b)in fact consists of or includes one or more photographed or filmed images.”

58. Offences causing others anxiety or distress “(5)The reference in subsection (4)(b) to photographed or filmed images includes photographed or filmed images that have been altered in any way.” “(6)“Photographed or filmed image” means a still or moving image that— (a)was originally captured by photography or filming, or (b)is part of an image originally captured by photography or filming.”

59. Offences causing others anxiety or distress “(7)“Filming” means making a recording, on any medium, from which a moving image may be produced by any means. 8)References to a photograph or film include— (a)a negative version of an image described in subsection (4), and (b)data stored by any means which is capable of conversion into an image described in subsection (4).”

60. Offences causing others anxiety or distress S35 Meaning of “private” and “sexual” (1)definitions for s33; “(2)A photograph or film is “private” if it shows something that is not of a kind ordinarily seen in public. (3)A photograph or film is “sexual” if— (a)it shows all or part of an individual's exposed genitals or pubic area, (b)it shows something that a reasonable person would consider to be sexual because of its nature, or (c)its content, taken as a whole, is such that a reasonable person would consider it to be sexual.”

61. Offences causing others anxiety or distress “(4)Subsection (5) applies in the case of — (a)a photograph or film that consists of or includes a photographed or filmed image that has been altered in any way, (b)a photograph or film that combines two or more photographed or filmed images, and (c)a photograph or film that combines a photographed or filmed image with something else.”

62. Offences causing others anxiety or distress “(5)The photograph or film is not private and sexual if— (a)it does not consist of or include a photographed or filmed image that is itself private and sexual, (b)it is only private or sexual by virtue of the alteration or combination mentioned in subsection (4), or (c)it is only by virtue of the alteration or combination mentioned in subsection (4) that the person mentioned in section 33(1)(a) and (b) is shown as part of, or with, whatever makes the photograph or film private and sexual.”

63. Offences causing others anxiety or distress Some exceptions for the media under Sch 8. In force 13/4/15

64. Grooming S 36 CJ-amends 15(1)(a) Sexual Offences Act 2003 (meeting a child following sexual grooming etc)- P need now only prove one or more occasions, rather than two or more; Not retrospective.

65. Possession of extreme pornographic images S 63 CJIA 2008—definition by s37 CJCA 2015 widened to include “(7A)An image falls within this subsection if it portrays, in an explicit and realistic way, either of the following— (a)an act which involves the non-consensual penetration of a person's vagina, anus or mouth by another with the other person's penis, or (b)an act which involves the non-consensual sexual penetration of a person's vagina or anus by another with a part of the other person's body or anything else, and a reasonable person looking at the image would think that the persons were real. “

66. Possession of extreme pornographic images (7B)-gives definitions; s66 CJIA (defence: participation in consensual acts) is amended- (c)if the image portrays an act within section 63(7)(c), that what is portrayed as a human corpse was not in fact a corpse, and (d)if the image portrays an act within section 63(7A), that what is portrayed as non-consensual penetration was in fact consensual.”

67. Possession of extreme pornographic images NB offences not covered by Sentencing Guidelines –see Banks on Sentence for help. In force 13/4/15

68. Possession of extreme pornographic images “(c)if the image portrays an act within section 63(7)(c), that what is portrayed as a human corpse was not in fact a corpse, and (d)if the image portrays an act within section 63(7A), that what is portrayed as non- consensual penetration was in fact consensual.”, Intended to criminalise possession of images of rape/assault by penetration.

69. At the police station S41 Youth cautions and conditional cautions: involvement of appropriate adults- Tidying- up provision following R (on the application of HC) v (1) Secretary of State for the Home Department and (2) Commissioner of Police for the Metropolis (2013) EWHC 982 (requirement that PACE Codes of Practice C & H need be amending to provide 17-year olds with an AA and so that the police must inform a parent / legal guardian of their detention, as is for 12 to 16 year olds in police custody). In force 13/4/15.

70. Referral orders- what’s new? S 43 alternatives to revocation for breach of youth offender contract- where a breach of a referral order contract has been found, fine (maximum of £2,500) or extend the youth offender contract up to a maximum overall length of 12 months. Providing that the contract has not expired; The offender must be present in court for this to occur.

71. Referral orders- what’s new? Breaches- “the offender is referred back to court for failure to attend any part of a panel meeting (under section 22(2)(b) of PCC(S)A 2000); the offender has been referred back to the court for failure to attend the progress meeting (under section 26(5) of PCC(S)A 2000); the panel determine at the final meeting that the offender’s compliance with the terms of the contract has not been such as to justify the conclusion that the offender has satisfactorily completed the contract (under section 27(4) of PCC(S)A 2000)”.

72. Referral orders- what’s new? Not retrospective; Section amends Schedule 1 Powers of Criminal Courts (Sentencing) Act 2000.

73. Referral orders- what’s new? S44 Referral orders: extension on further conviction. New para’s 10-12 Sch 1,PCC(S)A 2000 “(10)(1)applies where— (a)an offender aged under 18 is subject to referral, and (b)a relevant court is dealing with the offender for an offence in relation to which paragraphs (a) to (c) of section 16(1) apply.”

74. Referral orders- what’s new? “(2)The relevant court may sentence the offender for the offence by making an order extending any compliance period. (3)The relevant court may not extend the length of a compliance period so that it becomes longer than 12 months. (4)In this paragraph and paragraph 13 “relevant court” means a youth court or other magistrates' court.””

75. Referral orders- what’s new? S45 Referral orders: revocation on further conviction. amends paragraph 14(1)(b) Sch 1 PCC(S)A— (circs. when court must revoke RO) Court not now obliged to revoke if D is sentenced to either an absolute,or now, a conditional discharge for the new offences.

76. Referral orders- what’s new? “(b)for paragraph 14(2) substitute— “(2)The court may revoke the referral order (or any one or more of the referral orders) if it appears to the court to be in the interests of justice to do so. (2A)The revocation of a referral order under sub-paragraph (2) has the effect of revoking any related order under paragraph 9ZD or 10.”, and”

77. Referral orders- what’s new? Essentially the duty to revoke has become the power to revoke; “(3)In section 18....insert— “(3A)Where a court makes a referral order in respect of an offender who is subject to an earlier referral order, the court may direct that any youth offender contract under the later order is not to take effect under section 23 until the earlier order is revoked or discharged.” Not retrospective.

78. What’s new in the Mags Court? Briefly Ss 46-50 create a new power of trial before a single justice on paper. (Adults only) No obligation to hold a trial in open court; Summary-only, non-imprisonable offences; Defendant need not attend; Pros should identify suitable cases for this procedure; P must serve the charge and evidence on D;

79. What’s new in the Mags Court? Applies where D has not indicated either that he wants to plead not guilty or that he does not want to be tried under this procedure. New section 16A(7)MCA 1980 the court can try the case in the absence of the parties, Even if a party appears then the court must proceed as if that party was absent.

80. What’s new in the Mags Court? New s16C - single justice proposes to order a driver disqualification under s34 / 35 Road Traffic Offences Act 1988. D must be given a chance to appear; The case can no longer be considered by a single justice. D is summonsed to appear before a normal court.

81. What’s new in the Mags Court? Provisions create a new s16A-D MCA 1980 to facilitate this new procedure; S 16E MCA -new statutory declaration procedure for where D did not know of / proceedings trial by the single justice ; Renders the proceedings void; 21 days to make the declaration,as now, and D must enter a plea to the single justice procedure as well.

82. What’s new in the Mags Court? S 16F MCA Admissibility of statements “(1)A statement contained in a document is admissible in proceedings conducted in accordance with section 16A as evidence of a matter stated if, in the particular case— (a)the document is one in relation to which section 16A(1)(c) is satisfied, or (b)section 16A(4) applies to the information in that document (as the case may be).”

83. What’s new in the Mags Court? “(2)Subsection (1) does not prevent a court taking into consideration the nature of the evidence placed before it when deciding whether it is appropriate to try the written charge in accordance with section 16A. (3)In this section “statement” means any representation of fact or opinion.”” You should read the new S16A-F before advising anyone on it.

84. What’s new in the Mags Court? S 49 Trial by single justice on the papers: sentencing etc- Amends s121 MCA-“ (5A)”A magistrates' court that is trying a summary offence in accordance with section 16A is restricted to the following in dealing with the accused for the offence—” Lists penalties –fines, costs, ancillary orders thereto e.g. collection order

85. What’s new in the Mags Court? Power to order back duty, disqualify etc Also power to discharge absolutely or conditionally. See also Sch 11.

86. New offences S51 amends s127 Communications Act 2003 from 13/4/15- “(5)An information or complaint relating to an offence under this section may be tried by a magistrates' court in England and Wales..if it is laid or made— (a)before the end of the period of 3 years beginning with the day on which the offence was committed, and (b)before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings.”

87. New offences “Ss(7)-A certificate of a prosecutor as to the date on which evidence described in subsection (5)(b) or (6)(b) came to his or her knowledge is conclusive evidence of that fact.” Not retrospective.

88. Youths and committal for sentence S53- Amends s3B PCC(S)A 2000 (committal for sentence on indication of guilty plea by child or young person), Now reads “(1)This section applies where on the summary trial of an offence mentioned in section 91(1) of this Act a person aged under 18 is convicted of the offence.”

89. Youths and committal for sentence Effect- court may commit for sentence in any case where it is of opinion that D is under 18; has been convicted summarily of a serious offence listed in s 91(1) PCC(S)A ; and should be sentenced by the Crown Court. Not retrospective i.e. first hearing must come on or after 13/4/15.

90. The criminal courts charge In force for all cases where the offence(s) was committed on or after 13/4/15. S54/55 CJCA 2015 introduces a charge to be paid on conviction by D’s aged 18 or over – whether by G plea or after trial or after losing an appeal, failing to get leave to appeal in the CA. creates a new 21A POA 1985

91. The criminal courts charge Means of D irrelevant; Sols/Direct Access Bar-needs to go in client care letter; Levy ranges from £100-£1200! S 21E Power to remit criminal courts charge- Can only be remitted if “(2)(a)it is satisfied that the person has taken all reasonable steps to pay it, having regard to the person's personal circumstances, or (b)it is satisfied that collection and enforcement of the charge is impracticable.”

92. The criminal courts charge 2015 No. 796 The Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015- contains table of fees You still have to pay if you change your plea to G! SI- para 4. ” The period specified for the purposes of section 21E(4) of the POA 1985 (power to remit criminal courts charge) is— (a)where the person liable to pay the charge has made the application to a magistrates’ court to remit the charge, two years; (b)in any other case, 12 months.”

93. The criminal courts charge (3) -Can not be lodged” “(4)It may not remit the charge unless each of following has expired— (a)a specified period beginning with the day on which an order under section 21A was last made in respect of the person; (b)a specified period beginning with the day on which the person was last convicted of an offence; (c)where relevant, a specified period beginning with the day on which the person was last released from prison.”

94. The criminal courts charge When don’t you incur liability? SI-Para 2.—(1) absolute discharge; “(b)s 37(1) of the MHA 1983... /....or a direction under section 45A(3)the MHA 1983... (c)Crown Court dismisses an appeal against conviction /sentence for the offence following a reference by the Criminal Cases Review Commission under section 11(1) of the CAA 1995 (cases dealt with summarily in England and Wales); (d)where the Court of Appeal dismisses an appeal for the offence under Part 1 of the CAA 1968 following a reference by the Criminal Cases Review Commission under section 9(1) of the CAA 1995 (cases dealt with on indictment in England and Wales).”

95. The criminal courts charge If you prosecute you may not get an order for costs as the priorities will be compensation,VS and this charge. If you defend private-payers get your money upfront!

96. The criminal courts charge s55 Duty to review criminal courts charge- Provision to abandon the whole thing once it loses credibility...

97. Fines S56 /sch 5 -Variation of collection orders etc Principally of interest to those charged with enforcing fines etc -Defence lawyers-D can now apply to vary an arrangement to pay when in default – previously he could only seek a variation if not in default

98. Jurors S 68 Upper age limit for jury service to be 75. S69 Jurors and electronic communications devices- Power to order jurors to hand over phones, iPads etc whilst at court. Ss(5)- penalty for disobedience –contempt. S70 –power to search and seize devices from jurors by court security staff at judge’s behest.

99. Jurors S71 Research by jurors. Creates new offence under s20A Juries Act 1974 of” research by jurors” 2 years /fine/ both). ss(9) need consent of the Attorney General to prosecute. Expect a few dock briefs if you practice in the Crown Ct as a result!

100. Jurors Further new offence- S72 CJCA 2015-s20B Juries Act 1974-Offence: sharing research with other jurors. Same penalties and need for A’s consent as s71.

101. Jurors S73 Jurors engaging in other prohibited conduct New s20C Juries Act 1974: jurors engaging in other prohibited conduct “(1)It is an offence for a member of a jury that tries an issue in a case before a court intentionally to engage in prohibited conduct during the trial period, subject to the exceptions in subsections (4) and (5). (2)“Prohibited conduct” means conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue.”

102. Jurors Strict liability! Same penalties as other two offences, AG’s consent needed. Exemptions- “(4)It is not an offence under this section for a member of the jury to research the case (as defined in section 20A(2) to (4)). (5)It is not an offence under this section for a member of the jury to disclose information to another member of the jury.”

103. Jurors S20E-Offence of disclosing jury's deliberations: initial exceptions, mens rea –intent. S20F- Offence of disclosing jury's deliberations: further exceptions. S20G -Offence of disclosing jury's deliberations: exceptions for soliciting disclosures or obtaining information. Same penalties as before /need for AG’s consent.

104. Jurors S75/ Sch 13 like provisions for inquest jurors. Same penalties as other offences described here; AG’s consent needed. Offences indictable –only. Sch 2-does not apply to jurors sworn to try a case before 13/4/15.

105. Reporting restrictions for life S78-creates new s45A YJCEA-under 18’s. S45A Ss(2)Power to “a reporting direction”- “no matter relating to a person mentioned in subsection (3) shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings.”

106. Reporting restrictions for life “(3)A reporting direction may be made only in respect of a person who is under the age of 18 when the proceedings commence and who is— (a)a witness, other than an accused, in the proceedings; (b)a person against whom the offence, which is the subject of the proceedings, is alleged to have been committed.”

107. Reporting restrictions for life “(4)For the purposes of subsection (2), matters relating to a person in respect of whom the reporting direction is made include— (a)the person's name, (b)the person's address, (c)the identity of any school or other educational establishment attended by the person, (d)the identity of any place of work of the person, and (e)any still or moving picture of the person.”

108. Reporting restrictions for life “(5)The court may make a reporting direction in respect of a person only if it is satisfied that— (a)the quality of any evidence given by the person, or (b)the level of co-operation given by the person to any party to the proceedings in connection with that party's preparation of its case, is likely to be diminished by reason of fear or distress on the part of the person in connection with being identified by members of the public as a person concerned in the proceedings. “

109. Reporting restrictions for life (6)In determining whether subsection (5) is satisfied, the court must in particular take into account— lists factors to consider; Defences to breach of order-amended- s50 (6A) (YJCEA ) “Where— (a)a person is charged with an offence under section 49, and (b)the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 45A(2),” it shall be a defence, unless subsection (6B) or (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication. “ (6B)Written consent is not a defence by virtue of subsection (6A) if the person was under the age of 18 at the time the consent was given.”

110. Reporting restrictions for life “it shall be a defence, unless subsection (6B) or (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication. “ (6B)Written consent is not a defence by virtue of subsection (6A) if the person was under the age of 18 at the time the consent was given.”

111. Reporting restrictions for life S79 Reporting restrictions in proceedings other than criminal proceedings (1)Section 39 CYPA 1933 (power to prohibit publication of certain matter in newspapers) amended - Application of s39 now limited to non- criminal cases;

112. Reporting restrictions for life S45 & Schedule 2 YJCEA 1999 come in- Applies to criminal proceedings other than those in the Youth Court and on appeal from the Youth Court.( They are covered by s49 CYPA) Effect- replaces s39 CYPA Creates a power “to impose no restrictions at all or direct that the reporting ban is to have effect with specified exceptions. The restrictions will apply until the person reaches the age of 18 unless, in the meantime, the court decides to lift or relax them.” (Explan. Notes YJCEA)

113. Reporting restrictions for life There is a lot of recent case law on s39. If you are arguing over reporting restrictions,you need to interpret those decisions against the new provisions. New definition of publication- S39 (3) “publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include a document prepared for use in particular legal proceedings; “

114. Reporting restrictions for life S80 –deals with breaches of orders by “information society service providers”; Also Sch 15 CJCA 2015- primarily of interest to the media. All in force 13/4/15

115. In force 17/7/15 S28 Minimum sentence for repeat offences involving offensive weapons etc Applies to offences under – S1 Prevention of Crime Act 1953; S139 Criminal Justice Act 1988; s139AZA -Offences under sections 139 and 139A

116. In force 17/7/15 New regime dictates –for each offence- where— (a)a person is convicted of a (qualifying) offence committed after this subsection is commenced, and (b)when the offence was committed, the person was aged 16 or over and had at least one relevant conviction.

117. In force 17/7/15 - the court must impose an appropriate custodial sentence (with or without a fine) unless the court is of the opinion that there are particular circumstances which— (a)relate to the offence, to the previous offence or to the offender, and (b)would make it unjust to do so in all the circumstances.

118. In force 17/7/15 “appropriate custodial sentence” means— (a)in the case of a person who is aged 18 or over when convicted, a sentence of imprisonment for a term of at least 6 months; (b)in the case of a person who is aged at least 16 but under 18 when convicted, a detention and training order of at least 4 months.

119. In force 17/7/15 Youths – when considering whether it is of the opinion mentioned...in the case of a person aged 16 or 17, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933 (general considerations).

120. In force 17/7/15 See too Sch V CJCA 2015 What is “exceptional?” See case law under s110/111 PCC(S)A 2000 R v Stone [2012] 2 Cr App R (S) 50(12), C A R v Taylor [2014] 2 Cr App R (S) 658(85) C A R v Lucas [2012] 1 Archbold Review 4 C A And case law for firearms minimum sentences s51A FA 1968

121. In force 26.10.15 SI 2015/1778 S42-”Duties of custody officer after charge: arrested juveniles” Gives parity to those over 17 but under 18 at the police station when under arrest. So where a 17 year old is arrested and charged but not released police will be required to transfer them to local authority accommodation, as per S 38(6) PACE;

122. In force 26.10.15 unless a custody officer certifies that to do so is impractical. So a 17 year old should not normally now be kept in police custody before appearing in court. where transfer to local authority accommodation is not practicable, S38(6)(a) requires the police to complete a certificate to explain the continued detention overnight at the police station.