Legal Developments 2017
Alerts
The Drug Dealing Telecommunications Restriction Orders Regulations 2017 (SI 2017 No 1240)[Link]
This measure is described in the Explanatory Note as providing “a mechanism for a court to make a drug dealing telecommunications restriction order (“DDTRO”) requiring the disconnection of a communication device, phone number or something else used with a communication device which is being used in connection with drug dealing offences.”
The Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2017 SI 2017 No. 1114 [Link]
The purpose of the order is to bring methiopropamine or MPA related materials withing schedule 2 to the MDA 1971 as Class B drugs (from the 27th November 2017). These substances were “temporary class drugs” under the Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2016 (S.I. 2016/1126) which will lapse. See also: The Misuse of Drugs (Amendment) (No. 2) (EWS) Regulations 2017 [Link] and the Misuse of Drugs (Designation) (Amendment) (No. 2) (EWS) Order 2017 (SI 2017 No. 1118) [Link]
The Criminal Justice Act 1988 (Reviews of Sentencing) (Amendment) Order 2017 [Link]
The power of the Attorney General, with leave from the Court of Appeal, to refer specified cases to the Court of Appeal, where he or she considers that a sentence imposed in the Crown Court in that case was unduly lenient, is increased from the 8th August 2017. The power is extended not only in relation to specified terrorism offences, but also to (i) s 1(1) of the Criminal Damage Act 1971 (destroying or damaging property); (ii) s 1(1) and (3) of the CDA 1971 (arson); (iii) s 2 CDA 1971 (threats to destroy or damage property); (iii) an offence under ss 1 – 5 of the Forgery and Counterfeiting Act 1981, and (iv) s 20 of the Offences Against the Person Act 1861.
The Misuse of Drugs (Designation) (Amendment) (England, Wales and Scotland) Order 2017 (SI 2017 No.632) [Link]
The Order will come into force on the 31st May 2017. The Order amends the Misuse of Drugs (Designation) (England, Wales and Scotland) Order 2015 (S.I. 2015 No.704 as amended by S.I. 2016 No.1124). A synthetic opioid (U-47,700), several methylphenidate related materials, and a number of designer benzodiazepines are inserted into Part 1 of the Schedule to the 2015 Order. The practical effect of the 2015 Order is that the substances are ones which are considered to have no recognised medicinal applications.
The Misuse of Drugs (Amendment) (England, Wales and Scotland) Regulations 2017 (SI 2017 No.631) [Link]
The Order will come into force on the 31st May 2017 and amends the 2001 Misuse of Drugs Regulations by inserting into schedule 1 of those regulations a synthetic opioid (known as U-47,700), several methylphenidate related materials and a number of designer benzodiazepines.
The Misuse of Drugs Act 1971 (Amendment) Order 2017 (SI 2017 No.634) [Link]
The order will come into force on the 31st May 2017. The Explanatory Note states that the Order will bring a synthetic opioid known as “U-47,700” under the control of the MDA 1971 as a Class A drug, and that “several methylphenidate related materials” will be classified as Class B drugs. Note that several methylphenidate related materials, which were temporary class drugs [S.I. 2016 No.650] will cease to be so when the 2017 Order comes into force. Several so-called “designer benzodiazepines” will become Class C drugs.
Home Office Circular – amendments to Firearms Act 1968 by the PACA 2017 [Link]
See below – Policing and Crime Act 2017 (Commencement No.1) Regulations 2017.
The Prison (Amendment) Rules 2017 [Link]
From the 12 May 2017, the Prison Rules 1999 (S.I. 1999 No. 728) are amended by the insertion of new rule 46A to make provision for “separation centres” for those prisoners the Secretary of State directs be placed there on the grounds of “national security, preventing terrorism offences, preventing the dissemination of views that might encourage such offences, and preventing the use of particular views or beliefs to undermine good order and discipline” (Explanatory Note).
Policing and Crime Act 2017 (Commencement No. 2) Regulations 2017 [Link]
Part 8 of the Policing and Crime Act 2017 came into force on 1st April 2017 (in so far as provisions of that Part were not already in force).
Policing and Crime Act 2017 (Commencement No. 1) Regulations 2017 [Link]
Note that significant reforms relating to the Firearms legislation (see Part 6 of the PCA) came into force on 2nd May 2017. The provisions in force on that date are ss. 36 and 37 (inspection), s.125 (Firearms Act 1968: meaning of “firearm”) in so far as it is not already in force; s.127 (possession of articles for conversion of imitation firearms); s.128 (controls on defectively deactivated weapons); s.129 (controls on ammunition which expands on impact); and s.130 (authorised lending and possession of firearms for hunting etc).
The Misuse of Drugs Act 1971 (Temporary Class Drug) (No. 2) Order 2016 [SI 2016 No. 1126] [Link]
This TCDO (in force from 27th Nov 2016) applies to: (a) N-methyl-1-(thiophen-2-yl)propan-2-amine (methiopropamine or MPA); (b) any stereoisomeric form of N-methyl-1-(thiophen-2-yl)propan-2-amine; (c) any salt of a substance specified in paragraph (a) or (b); and (d) any preparation or other product containing a substance specified in any of paragraphs (a) to (c).
The Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2016 [SI 2016 No. 650] [Link]
The TCDO (in force: 27 June 16) applies to 3,4-Dichloromethylphenidate (3,4-DCMP); 4-Methylmethylphenidate; Ethylnaphthidate; Ethylphenidate; Isopropylphenidate (IPP or IPPD); Methylnaphthidate (HDMP-28); Propylphenidate.
It also applies to any stereoisomeric form, or any salt or preparation, or product containing, any of the aforementioned of a substances. NOTE now SI 2017 No.634 (see above).
Cases
R v Rejmanski [2017] EWCA Crim 2061 (19 December 2017) [Link]
This is an important decision in respect of three appellants that raised the issue of the extent to which a mental disorder can be relevant to an assessment of “the circumstances of the defendant”, when considering the partial defence of loss of control provided by s.54(1) Coroners and Justice Act 2009.
Marwaha v UK Border Revenue Agency (Cash And Compensation Team) [2017] EWHC 2321 (Admin) [Link]
Part IV to Schedule 2 of the MDA defines “poppy straw” as “….all parts, except the seeds, of the opium poppy, after mowing”. Poppy-straw and concentrate of poppy-straw are Class A drugs. However, under the MD Regs 2001, the simple possession, production and supply of “poppy straw” are not unlawful under the MDA (see reg.4). However, the importation or exportation of “poppy straw” is prohibited unless authorised (e.g. by licence). The question that arose in this case was whether the picking of the opium poppy constituted “mowing”. The answer given by the Administrative Court was “no”. COMMENT: the outcome, on the facts of this case, arguably accords with common sense, but the Court did not provide a comprehensive definition of what “mowing” does mean for the purposes of the MDA. At para.20 (judgment) Mr Justice Charles said: “As was said without demur during the hearing as a matter of the ordinary use of language it would not be said that bunches of tulips or daffodils or poppies that could be used in flower arrangements had been mown. Rather, it would be said that had been picked or harvested as flowers.” Crops are “harvested” – usually having been cut (mowed?). Is the distinction whether the harvested plant is a food crop or a flower intended for decorative use?
R v Chapman and others [2017] EWCA Crim 319 [Link]
In an important judgment handed down by the Court of Appeal (Criminal Division), the Court held that canisters of nitrous oxide (“nox”, or N2O) designed and intended for food use and not for a medicinal purpose, are not “medicinal products” (within the meaning of the Human Medicines Regulations 2012) for the purposes of the Psychoactive Substances Act 2016. The result is – I suggest – correct, and it accords with the reasons given in my earlier blog and article on the PSA 2016: see “The Psychoactive Substances Act 2016“, R. Fortson, Criminal Law Review [2016] Crim L R 303. N2O is used for many commercial purposes (rather than medicinal). The Court said (at para.32):
“The gas no doubt modifies the physiological functions of those who inhale it, but it brings neither short term nor long-term beneficial effects to human health in these circumstances. The canisters in question were in fact manufactured for use unconnected with medical purposes, widely available and distributed for use in catering, which in itself is a strong indicator that they were not medicinal products. Furthermore, the purpose for which it was intended to supply the canisters was purely recreational with nothing whatsoever to do with health. This last feature coupled with the fact that the gas was intended to be used in circumstances which were not beneficial to health, indeed import some risk to health, was sufficient to take it outside the definition of medicinal product whatever label may have been on the boxes in which the canisters were originally packed.”
R v Pritchard [2017] EWCA Crim 1267 [Link]
The Court of Appeal (Criminal Division) considered the issue of the correct approach to be adopted when the Crown Court is considering making a “compliance order” that includes a foreign travel restriction order, under section 13A of the Proceeds of Crime Act 2002. The CACD held that on the facts of the case, an indefinite travel restriction order was not justified and was not appropriate. It is not a jurisdictional condition precedent of s 13A POCA that the court considers it to be necessary to make a “compliance order” to ensure that the “confiscation order” is effective. The word “appropriate”, as used in s 13A, does not require any gloss, but a “compliance order” must be justified, and it can only be made if there is proper reason for so doing. Each case is fact and circumstance specific. Considerations of proportionality were involved in the decision making process.
R v Parveaz [2017] EWCA Crim 873 (available on WestLaw)
The Court of Appeal (Criminal Division) allowed an appeal by the prosecution (under s.31(2), POCA 2002) against the refusal of the judge (at a preliminary hearing and without hearing full evidence on the substantive confiscation issues) to permit confiscation proceedings to proceed to a final hearing. The judge decided that it would be disproportionate and unjust to allow the statutory assumptions (s.10, POCA) to be made, and he declined to make a confiscation order. P was convicted of producing cannabis (Class B) contrary to s.4(1) of the Misuse of Drugs Act 1971. Following a Newton hearing, the judge ruled that he was not satisfied “to the point where I am sure of it” that P grew cannabis for commercial supply. In relation to confiscation proceedings, the judge, having considered Waya [2012] UKSC 51 and Shabir [2008] EWCA Crim 1809, said “I have to consider the disparity between growing a few plants of cannabis and the many thousands that are sought by way of confiscation. That is not a proportionate approach to these proceedings and in my judgment is oppressive and as such should not be countenanced by this court.” The judge made it clear that he did not decide the matter on the footing that a stay should be granted on the ground of abuse of process (at [28]). The Court of Appeal held: (i) that at the Newton hearing the judge had not been made sure to the criminal standard that there had been production for commercial supply; (ii) that the true nature of confiscation proceedings was to focus on P’s alleged “general criminal conduct” and not the “particular criminal conduct”; (iii) the judge was not entitled to address the question of whether or not it was proportionate to embark upon a Proceeds of Crime application seeking many thousands of pounds. The decision was one for the prosecution: “They elected to pursue confiscation proceedings and, under section 6, it was then required that such proceedings should go ahead. It was not for the judge, even if he himself may have thought that this was not a good use of court time, to query the propriety of the prosecution’s decision so to proceed” (at [30]); (iv) it could not be said that the ‘lifestyle’ provisions of POCA (as amended) were inherently incompatible with or contrary to the ECHR or Article 1 Protocol 1, or inherently disproportionate (at [32]; citing para.25 of Waya); (v) the Crown did not bind itself, at the sentencing stage, not to pursue a confiscation claim based on the lifestyle provisions (contrast R v Lunnon [2004] EWCA Crim 1120, and R v Lazarus [2004] EWCA Crim 2297); (vi) the definition of “general criminal conduct” in POCA is wide; (vii) the conclusion which the judge reached was not on the evidence compelled by the decision in Waya (and considering R v Wilkes [2003] EWCA Crim 848). Per curiam: “….there may be exceptional cases where, possibly, such a course might perhaps be appropriate. But that is not so in this case and we venture to suggest that it is likely to be an exceptional case that a confiscation proceeding of this kind can be decided on the basis that it was decided here in advance of the final hearing” (Per Davis LJ, at [45]). COMMENT: This is an important decision that merits careful consideration in respect of matters of principle and policy. The Court cited a passage in R v Waya (UKSC) where it was said that although the starting point is that, in a lifestyle case, the statutory assumptions ‘must’ be made (s.10(1)), this duty is subject to two qualifications contained in s.10(6), namely, that the assumptions should not be made if they are shown to be incorrect (s.10(6)(a)), or if making them would give rise to a risk of serious injustice (s.10(6)(b)): “The combination of these provisions, and especially the latter, ought to mean that to the extent that a confiscation order in a lifestyle case is based on assumptions it ought not, except in very unusual circumstances, to court the danger of being disproportionate because those assumptions will only be applied if they can be made without risk of serious injustice.” (Waya, at para.25, emphasis added). However, the precise scope of the second exception is unclear and, arguably, not necessarily as wide as the passage in R v Waya might suggest. For example, in R v Delaney and Hanrahan [1999] EWCA Crim J0514-12, the Court said of the ‘serious risk of injustice’ exception (albeit in the context of s.72AA(5)(c), CJA 1988), “….subsection (5)(c) must be read in conjunction with (5)(b) [shown to be incorrect], which is concerned with protecting a defendant from a form of double counting. In our judgment it is the serious risk of injustice of that nature that the subsection contemplates, rather than the broader question of whether it is appropriate to apply the assumptions at all”.
R v Rose [2017] EWCA Crim 1168 [Link]
R was a registered optometrist who was convicted of gross negligence manslaughter. The alleged breach of the duty of care was R’s failure to examine the deceased’s optic discs and R’s consequent failure to make the deceased the subject of an urgent referral to a registered medical practitioner at the conclusion of her examination when she came to decide whether he needed any treatment (at [32]). R’s conviction was quashed on appeal. The Court of Appeal held that in assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, it is not appropriate to take into account what the defendant would have known but for his or her breach of duty. “Were the answer otherwise, this would fundamentally undermine the established legal test of foreseeability in gross negligence manslaughter which requires proof of a ‘serious and obvious risk of death’ at the time of breach. The implications for medical and other professions would be serious because people would be guilty of gross negligence manslaughter by reason of negligent omissions to carry out routine eye, blood and other tests which in fact would have revealed fatal conditions notwithstanding that the circumstances were such that it was not reasonably foreseeable that failure to carry out such tests would carry an obvious and serious risk of death” (per Sir Brian Leveson P., at [94]).
R v Nevitt [2017] EWCA Crim 421 [Link]
The Court of Appeal applied the decision of that Court in R v Spearing [2011] 1 Cr App. R(S) 101 that, for the purposes of Pt 6 of the CJA 1988, there is nothing in Pt 6 which precludes confiscation proceedings taking place in the absence of a defendant who has voluntarily absconded (noting R v Jones [2003] 1 AC 1. COMMENT: see the commentary to R v Okedare [2014] Crim. L.R 914. Provisions relating to absconders in confiscation proceedings that exist in POCA 2002 (and which existed in the DTA 1994), were not replicated in Pt VI of the CJA 1988, but there had been recommendations from a Home Office Working Group that they should be: Home Office Working Group on Confiscation, 3rd Report: Criminal Assets (November 1998), para.3.10.
R v Rashid [2017] EWCA Crim 2 [link]
The Court of Appeal (Crim Div) refused an application to appeal against conviction where the principal grounds related to R’s capacity to understand questions at the police interview and, similarly, questions at trial and the way that the trial proceeded. The trial judge permitted R to have an intermediary during his evidence, but he contended that he needed an intermediary not only when he gave evidence, but also during the whole of the trial. There had been an interlocutory application by R for permission to appeal against the rulings (under s.35(1) of the Criminal Procedure and Investigations Act 1996) – see R v R [2015] EWCA Crim 1870 [link] – but that Court dismissed the appeals holding that: (i) The judge’s ruling on the admissibility of the interview was properly reasoned, took account of the relevant matters, had in mind the correct legal test and resulted in a conclusion that was eminently sustainable, and (ii) the Court did not have jurisdiction to hear an appeal from the case management decision of the judge on the use of the intermediary, but in any event, it did not disagree with the judge’s decision. The CACD had already determined the issue of admissibility of the interview on the interlocutory appeal brought by R. It was not open to R to re-open that issue. That is the end of the matter. In any event, the decision was correct. On the question of the need for an intermediary, the Court, in R (OP) v Ministry of Justice [2014] EWHC 1944 (Admin) [link], distinguished between two distinct needs during a trial: the first is founded in general support, reassurance and calm interpretation of unfolding events.
The second requires skilled support and interpretation with the potential for intervention and on occasion suggestion to the Bench associated with the giving of the defendant’s evidence. The first was readily achievable by an adult with experience of life and the cast of mind apt to facilitate comprehension by a worried individual on trial. The second requires developed skills of the type contemplated by inclusion in the [Witness Intermediary] Scheme. In the instant case, the court was of the view that the Court in R(OP) was right in stating that there are two distinct types of assistance which may be required. Courts after determining the mental capacity of the defendant must distinguish between them in determining what is necessary for the particular defendant. That view was reflected by Parliament in 2009 when it inserted s.33BA into the Youth Justice and Criminal Evidence Act, as it provided for an intermediary only for the evidence of the defendant. The Law Commission in their Report Unfitness to Plead (Law Com No 354) agreed (para.2.48) with the distinction made by Rafferty LJ in R(OP). In considering what is needed in a particular case, a court must also take into account the fact that an advocate, whether a solicitor or barrister, will have undergone specific training and must have satisfied himself or herself before continuing to act for the defendant or in continuing to prosecute the case, that the training and experience of that advocate enabled him or her to conduct a case in accordance with proper professional competence. Such competence includes the ability to ask questions without using tag questions, by using short and simple sentences, by using easy to understand language, by ensuring that questions and sentences were grammatically simple, by using one ended prompts to elicit further information and by avoiding the use of tone of voice to imply an answer. A judge must therefore make the assessment of what type of assistance is required on the basis that that proper level of professional competence from an advocate is available.
There is no suggestion whatsoever in the present case that either the applicant’s advocate, or the advocate for the prosecution, lacked such competence; indeed they self-evidently displayed such competence. If it transpired that either advocate lacked that competence, providing an intermediary for the defendant for the whole trial is not the remedy, as it is simply imposing significant extra costs on the administration of criminal justice that should be provided by competent advocacy. The remedy is to inform those responsible for instructing the advocate respectively for the Crown Prosecution Service or for the defence, or if the defence advocate has no one responsible for instructing that advocate, the legal aid authorities who bear the ultimate and real responsibility for ensuring that it will only authorise a representation order for those actually competent to conduct the case in question. In the present case, the advocates were, as an ordinary part of their duties as competent advocates, able to do what was needed so that the applicant was fully able to participate in every aspect of the trial (when no intermediary was present) until the applicant gave evidence. In the event that one of the advocates asked a question that was too complex or tagged, then the judge as part of the usual trial management by any judge would have intervened to correct the error.
COMMENT: In the present case, the Court described the pleading of the grounds of appeal as being “excessively lengthy” [31 pages]. It added that “prolix and unfocussed documents are becoming an increasing problem which needs to be addressed by effective measures to ensure that grounds of appeal are set out within a proper compass” (per Lord Thomas of Cwmgiedd, CJ).
R. v Porja and another [2017] EWCA Crim 17 [link]
P and AK, and two codefendants, were convicted of being concerned in the supply of a controlled Class A drug to another (s.4(3)(b), Misuse of Drugs Act 1971). The indictment alleged that the four defendants were concerned with each other in the supply of the drug to another. The appellants submitted that the focus of the Crown’s case was that a co-defendant, acting as a middleman, had arranged for P to supply 1 kg cocaine to AK. P and AK contended on appeal that (1) they could not be convicted of being concerned with each other in supplying a controlled class A drug to another when, on the Crown’s case, the first defendant was the “another”, and that there had been no focus, or direction to the jury, on any possible onward supply; and (2) the first defendant could not be validly convicted of the offence as no “actual” supply had been made to him. Held, the appeal was dismissed. (1) For the purposes of s.4(3)(b) of the 1971 Act, the person whom the defendant is alleged to have supplied, or been concerned in the supply of, a controlled drug, may be a defendant charged in another count of the indictment, but may not be a co-defendant in the same count. Nothing said in R. v Martin (Dwain) [2014] EWCA Crim 1940 was intended to or did cast any doubt on this line of authority. However, the decisive factual consideration as to the scope of the trial was that the case was concerned with 1kg of cocaine. That quantity spoke for itself, which was clearly not for the first defendant’s personal use but for onward supply by him. The count, therefore, was not confined to dealings between co-defendants in the same count but contemplated supply to “another” who was not included in the preceding wording “each other”. Nothing in the judge’s summing-up suggested that the court was exclusively concerned with the dealings between the co-defendants: Adepoju [1988] Crim LR 378, Connelly, 156 JP 406, and Reeves [2001] EWCA Crim 91 considered. (2) The word “supply” had a broad meaning. It was not confined to “actual delivery” or “past supply”’ but referred to the entire process of supply. Accordingly, the question of whether there had been an “actual supply” to the first defendant was irrelevant. R. v Martin (Dwain) [2014] EWCA Crim 1940; [2015] 1 Cr.App.R. 11, CA applied; R. v Hughes (Robert) (1985) 81 Cr.App.R. 344, CA and R. v Akinsete (Marcel) [2012] EWCA Crim 2377, CA considered.
R v Johnson (Wayne) [2017] EWCA Crim 189 [link]
This is an important case regarding the reach of offences charged under s.40B and s.40C of the Prison Act 1952, where D is alleged to have conveyed unauthorised articles into a prison. In August 2015, J conveyed into a prison a package that contained three sets of items, namely, (i) two packets of pills containing oxymetholone, a Class C drug [schd.2, Misuse of Drugs Act 1971]; (ii) 3 SIM cards; and (iii) three packets of what the Court described as “‘spice’ a synthetic cannabis ‘legal high’”. J pleaded guilty to the so-called “spice” in the Magistrates’ Court (charged as conveying a List C article into prison contrary to s.40C(2)(a), a summary only offence). This charge was not the subject of appeal before the CACD. Following the ruling of the trial judge at the Crown Court, J pleaded guilty to an offence of conveying a ‘List A’ article (oxymetholone) into a prison (s.40B(1)(a), PA 1952 (count 1)), and conveying a ‘List B’ article (the SIM cards) into a prison (s.40C(1)(a), PA (count 2)). At trial and on appeal, the Crown contended that it was sufficient that J knowingly conveyed the package into the prison and there was no requirement to prove he knew the nature of its contents. J submitted that the Crown had to prove, (i) that he knew the nature of the contents, (ii) that, for the purposes of s.40B(1)(a), he knew that the package held pills, and (iii) that, for the purposes of s.40C(1)(a) he knew that the package held SIM cards. The appellant purporting to rely on R v M (D) [2009] EWCA Crim 2615, submitted that the offences required proof that a defendant knew the nature of the items he brought with him. Held. The appeal against conviction on counts 1 and 2 was dismissed. In R v M(D) the Court of Appeal concluded that neither s.40B(1)(a) nor s.40C(1)(a) created an offence of strict liability. J took into the prison a package that contained “spice”, which is “a prohibited article” [13]. He knew that he was carrying into the prison something prohibited: he believed it to be “spice” [20]. The mental element was thus made out by his knowledge of the prohibition [14]. It was not an innocent mistake or forgetfulness that was capable of setting up a defence in reliance on R v M [20]. It was not necessary to prove that J knew what the items were, or under what statutory list they fell [14]. It was common ground that the mens rea that the Crown had to prove was J’s knowledge that he was carrying into the prison something prohibited [16]. It was also common ground that the mens rea did not necessarily involve his knowledge that the article in question was a listed prohibited one [17, 18]. Any other reading of the statute would create a defence for an individual who was given a package, told not to open it, and who had been reassured that he or she would be safe from conviction provided that he or she remained in ignorance of the contents [19]. Per curiam. The extent of a defendant’s knowledge “will be of great significance in considering where, in the scale, the offence lies. That will be a matter of evidence capable of going to sentence and might in some circumstances require a Newton hearing” (per Rafferty LJ, at [21]).
COMMENT: Even if one reads the judgment as deciding that D must know that the article in question is ‘prohibited’ from being conveying into prison without authority, the CACD clearly took the view that this was established by J’s plea in respect of the so-called “spice”. Given that it seems that no issue was taken on appeal as to the correctness of this charge, it is unsurprising that the CACD reasoned as it did. However, it should be noted that in terms of chemical nomenclature, there is no such drug as “Spice”. “Spice” is a colloquialism that refers to compounds that are synthetic cannabinoid receptor agonists (or products containing them) mixed with herbal material. It should not be assumed that all synthetic cannabinoids have the same effect on the body. Furthermore three ‘generations’ of synthetic cannabinoids have been added (as controlled drugs) to Schedule 2 of the MDA 1971 (by way of generic definitions): see SI 2009 No 3209 (1st generation); SI 2013 No. 239 (2nd generation), and SI 2016 No.1109 (3rd generation). There is currently a fourth and a fifth generation of synthetic cannabinoids that may not be captured by the three generic definitions (but which might be caught by the Psychoactive Substances Act 2016). As for “List C” articles, these are prescribed by the Prison Rules 1999 (in the case of adult offenders), but the relevant list is List 70A which does not specify any psychoactive substances (tobacco aside). Under s.9 of the Psychoactive Substances Act 2016 (in force 26 May 2016), it is an offence for a person, in a “custodial institution” (s.6(10) PSA), to be in possession of a “psychoactive substance” (s.2(1), PSA) in circumstances where he/she knows or suspects that the substance is a “psychoactive substance”, and he/she intends to consume it for its “psychoactive effects” (s.2(2) PSA). The offence can be committed inchoately and/or on a secondary liability basis. The s.9 PSA offence is not confined to detained persons. However, for the full offence, the substance must be proved to be one that is capable of producing a “psychoactive effect” in a person – i.e. “by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state” (s.2(2) PSA). This is an element that the prosecution must prove to the criminal standard of proof. The identity of the chemical substance or product, and the question of whether or not it has “psychoactive effect”, are matters that will usually require expert opinion.
Att-Gen v Knowles Jnr & Anor (Bahamas) [2017] UKPC 5 (20 March 2017) [Link]
The case concerned an “external confiscation order” (defined by s.49(4) of the Proceeds of Crime Act 2002). A point of interest is asset-recovery nomenclature: when is an order a “confiscation order” within the meaning of POCA 2002? The Privy Council noted that in Bahamian law, as in England and Wales, there is a difference between a confiscation order and a forfeiture order: “A confiscation order, post-conviction at least, relates to the value of benefit obtained as a result of, or in connection with, crime. It is not an order to surrender specific property, but an order to pay a sum of money. If the stipulated sum is not paid, the order may be enforced against any assets held by the defendant, whether honestly or criminally acquired. Forfeiture, on the other hand, in Bahamian and English law, is an order to surrender specific property, generally on the grounds that it has been used in the course of crime. The same terminology is not in use in the United States, where ‘forfeiture’ encompasses what in The Bahamas would be called confiscation” (per Lord Hughes). It was submitted by the respondents that a US “forfeiture” order sought in the present case was ambiguous and left open the possibility that it related to money used rather than obtained in the course of crime, in which event it would not be within the definition in s.49(4) of an “external confiscation order”. The PC held that, on the facts of the instant case, although the terminology of the US order was on its face capable of ambiguity, partly because of the difference of language in that country and partly because a pro-forma was used, the order was for the payment of the value of money obtained by or in connection with crime. Accordingly, the order was an external confiscation order.
R v Reynolds [2017] EWCA Crim 57 [Link]
The appellant submitted that the court should take into account the consequences of a confiscation order upon an innocent third party, in this case the Appellant’s husband, who jointly owned the property, given that an alternative mechanism to secure repayment of unlawfully obtained benefits had been agreed. The Court of Appeal held that it was not disproportionate to make a confiscation order (notwithstanding the repayment plan) and that the appropriate time for consideration of whether the house in which the Appellant and her husband live has to be sold is at the enforcement stage, if it be reached.
R v Halim [2017] EWCA Crim 33 [Link]
With regards to the question of what constitutes “exceptional circumstances” for the purposes of the postponement provisions of POCA 2002, the Court of Appeal said that it doubted that it was “either possible or desirable to provide an all-embracing definition of what may amount ‘exceptional circumstances’, but a consideration of the circumstances will plainly involve looking at the entire history of the proceedings to see whether circumstances exist which may exceptionally justify a postponement” (per Simon LJ at [35]).
R v Gor [2017] EWCA Crim 3 [Link]
The “market value” of relevant property for the purposes of s. 79(2) of POCA 2002 was its value in the ‘open market’ and not its value under a forced sale (i.e. forced by virtue of the requirement to satisfy a confiscation order made under POCA).