Legal Developments 2018

Legal Developments 2018

Alerts

The Proceeds of Crime Act 2002 (Investigative Powers of Prosecutors: Code of Practice) Order 2018 (SI 2018 No.93) [Link]

The revised code of practice (in force on 31st Jan 2018) relates to the exercise of functions under Chapter 2 of Part 8 of the Act by the  DPP, the Director of the SFO and the DPP for Northern Ireland, as well as officers of the Serious Fraud Office.  It revokes the Proceeds of Crime Act 2002 (Investigative Powers of Prosecutors: Code of Practice) (England and Wales and Northern Ireland) Order 2016.

The Proceeds of Crime Act 2002 (Recovery of Listed Assets: Code of Practice) (EW&S) Regulations 2018 (SI 2018 No 85) [Link]

The Regulations come into operation on the 16th April 2018

The Proceeds of Crime Act 2002 (Investigations: Code of Practice) Order 2018 (SI 2018 No.84) (Link)

The Order comes into force on the 31st January 2018

The Proceeds of Crime Act 2002 (Cash Searches: Code of Practice) Order 2018 (SI 2018 No. 83) (Link)

The Order comes into operation on 16th April 2018

The Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: Code of Practice) Order 2018 (SI 2018 No.82) (Link)

The Order comes into operation on 31st January 2018.

The Criminal Finances Act 2017 (Consequential Amendment) Regulations 2018 (SI 2018 No.80) (Link)

The Regulations come into force on the 31st January 2018.

The Criminal Finances Act 2017 (Commencement No. 4) Regulations 2018 (SI 2018 No.78) (Link)

The Regulations come into force at different times.



Cases

R v Rochester [2018] EWCA Crim 1936

In R v Rochester [2018] EWCA Crim 1936, decided on 17th August 2018, the Court of Appeal (Criminal Division) concluded that the Psychoactive Substances Act 2016 does not require a “psychoactive substance” to be capable of producing its “psychoactive effect” by directly stimulating or depressing the central nervous system. Indirect effect is sufficient.  The substance in that case was nitrous oxide, commonly known as “laughing gas”.

The appellant’s contention was that the effect must be direct.  The argument was largely fuelled by events after the Act appeared on the statute book (28 January 2016) but before it came into force (26 May 2016).  Concern had been raised in Parliament that alkyl nitrites (“poppers”) – when used as a sexual aid – would be caught by the PSA.  The Home Office commissioned the Advisory Council on the Misuse of Drugs (AMCD) to provide an assessment of the harms and psychoactivity of alkyl nitrites when used in that way.

On 16 March 2016, the ACMD provided a report stating that poppers dilate blood vessels and relax muscles, including the bladder, digestive tract, vagina and anal sphincter. The Council remarked that “The brain receives a transient ‘rush’ or ‘high’ as an indirect effect caused by increased blood flow caused by the dilation of blood vessels in the brain and periphery.” [Link]  Importantly, the ACMD said:

“The [Council’s] consensus view is that a psychoactive substance has a direct action on the brain and that substances having peripheral effects, such as those caused by alkyl nitrites, do not directly stimulate or depress the central nervous system.”

It was therefore unnecessary to add alkyl nitrites to the list of exempted substances and products in schedule 1 to the Act.  By letter dated 22 March 2016, the Minister for Preventing Abuse, Exploitation and Crime wrote to the ACMD “…Having given due consideration, the Government agrees with your advice and interpretation of the definitionWe do so in the understanding that ‘poppers’ have these unique indirect effects.” [Emphasis added]  See, to similar effect, a letter from the Minister to Mike Freer MP [Link].

The issue raised on appeal was foreshadowed in an article written by this commentator in Criminal Law Review ([2018] Crim. L.R. 329, Issue 3).

The question now is: “where does this case leave the legal status of poppers when produced, supplied, imported or exported for recreational use?”  The answer may be that unless Parliament makes an exemption in the PSA, poppers may fall within the Act as a ‘psychoactive substance’”.

This commentator has previously warned that statements made in correspondence between the ACMD and the Minister do not have the force of law.  The Court of Appeal cannot be criticised for noting and placing reliance on the fact that the PSA does not expressly require a “psychoactive effect” to be direct.  The ACMD had also noted that the definition of a ‘psychoactive substance’ in the PSA “is not explicit with respect to direct or indirect effects on the central nervous system” (para.2.5).

As for the ACMD’s view on the meaning of a “psychoactive substance”, the Court remarked that this was “not an admissible aid to construction; neither is the minister’s acceptance of that view”.   Limits are placed on the use of out-of-court statements as an aid to statutory interpretation.  The Courts tend to analyse the language and structure of the statute under consideration.  In any event, despite the Minister’s reassuring statement, there was a time when the Government was minded to bring “poppers” within the terms of the PSA (see Hansard, House of Commons, 27th Oct 2015, e.g., col.38).

The Court said that the “precise boundaries between direct and indirect effect” had not been explored in the materials before it and “may not be free from difficulty”.  It added, “Were a distinction to be drawn between direct and indirect effects, we see considerable scope for expert disagreement about where those boundaries lie.”

The problem with the PSA is that it sets no clear boundaries and is laced with conceptual and forensic difficulties.

 

R (on the application of Gibson) (Appellant) v Secretary of State for Justice (Respondent) [2018] UKSC 2 [Link]

The UK Supreme Court held that the default term in the case of Crown Court orders (including those imposed in respect of confiscation orders) must be the term that court imposed at the time of making its order.  The words of  s.79(2) of the  Magistrates’ Courts Act 1980 suggest the natural construction that the starting point for the arithmetical calculation of  the reduction in days of imprisonment, is the sum outstanding at the time of the Crown Court order.  Before the UKSC, the parties were agreed that in the case of a Crown Court confiscation order or fine, the period of imprisonment in default of payment was “imposed”, for the purposes of s.79, when the Crown Court discharged its statutory duty under s.139(2) of the 2000 Sentencing Act and fixed the (anticipatory) term in default.