Developments in the Law: 2015
Useful Cases and Materials
THE PSYCHOACTIVE SUBSTANCES BILL
NOTE: For documents relating to this important Bill see the following link: [link].
COMMENT: The aim of the Bill is to impose a blanket ban on all “psychoactive substances”. A number of specified substances (listed in Schedule 1) fall outside the proposed statutory controls and these include (but not limited to) “alcohol”, “nicotine and tobacco products”, “caffeine”, specified “medicinal products”, and “controlled drugs”.
Each of those substances would satisfy the proposed definition of a “psychoactive substance” but rather than treating each as being exempted from the statutory regime, the Bill creates the fiction that it is not “psychoactive” for the purposes of the Bill.
Among other criticisms that can be levelled at the Bill, there are two major drafting errors which the Government continues not to correct despite the writer’s efforts to persuade it to do so (including in the version of the Bill as amended in Public Bill Committee (HC; October 2015): [link]
Clause 19(5)(d) and Clause 54(11)(c) refer to “an offence of inciting….”].
Clause 19(5)(e) and Clause 54(11)(d) refer to an offence of “aiding, abetting”.
However, clause 19(5)(d) and Clause 54(11)(c) can only be referring to incitement as it existed at common law. The PSB does not contain an offence equivalent to s.19 of the MDA 1971 (inciting the commission of an MDA offence). The common law offence of incitement was abolished by Parliament by virtue of section 59 of the Serious Crime Act 2007!
Conduct that would have been caught by incitement at Common Law would now be caught by Part 2 of the Serious Crime Act 2007 – which is covered by clause 19(5)(c) and clause 54(11)(b) of the Bill.
Section 8 of the Accessories and Abettors Act 1861 does not create offences of “aid, abetting” (etc). The section is purely procedural.
This commentator suggests that the Government should amend the Bill as follows:
(1) OMIT Clause 19(5)(d) and Clause 54(11)(c) – [“an offence of inciting..”]
(2) OMIT Clause 19(5)(e) and Clause 54(11)(d) [“aiding, abetting”..]
AMEND Clause 19(5)(a) — “….an offence under any of sections 4 to 8 (including aiding, abetting, counselling or procuring the commission of any such offence)….”
AMEND Clause 54(1)(a) — “….an offence under any of sections 4 to 8 and section 25 (including aiding, abetting, counselling or procuring the commission of any such offence), or……”
NOTE: For more generalised criticims and comments, see for example, the article in Chemistry World: [link].
NOTE: There has been important correspondence between the ACMD and the Home Secretary regarding the Bill. See, for example, the letter of the ACMD (13th July 15): [link].
This commentator has repeatedly pointed out that a fundamental weakness in the Bill is the means by which it can be adequately and routinely proved (in the absence of human testing trials) that a given substance has “psychoactive effect”. On this point, the ACMD could not be clearer (letter, 13 July 2015):
“….psychoactivity in humans cannot be definitively established in many cases in a way that would definitely stand up in a court of law where a high threshold of evidence is required. There is currently no way to define psychoactivity through a biochemical test, therefore there is no guarantee of proving psychoactivity in a court of law. The only definitive way of determining psychoactivity is via human experience, which is usually not documented.”
The prosecution of the proposed ‘trafficking’ offences (production, supply, importation/exportation) set out in the Bill, depend upon the agency in question being able to prove that the substance under consideration is a forbidden, non-exempted, “psychoactive substance”. Certain civil powers require proof on a balance of probabilities that the substance is psychoactive, but certain other civil powers (notably the powers of senior police officers and local authorities to issue prohibition and premises notices) do not require proof that the substance is psychoactive at all — reasonable belief being sufficient (it would seem).
OTHER STATUTORY REFORMS
NOTE: The Misuse of Drugs Act 1971 (Temporary Class Drug) (No. 3) Order 2015 that came into force on 27th November 2015(SI 2015 No.1929), see [link].
NOTE: The Criminal Procedure (Amendment) Rules 2015: Important provision is made under these amendments: see the following link: [link].
NOTE: Joint Enterprise: Issues around so-called “joint enterprise” are likely to feature prominently in academic writings and judicial decisions this year. See an important article by Professors W. Wilson and D. Ormerod, “Simply Harsh to Fairly Simple”  Crim. L.R.3. The topic is one that has been controversial for well over 20 years: see R. Fortson, “Joint Enterprise and Secondary Liability“, Focus, Current Law, Sweet & Maxwell, c.1995/1996” [link].
NOTE: The Criminal Justice (Specified Class B Drugs) Order 2015: Note that (in force from 1st February 2015) cannabis, cannabis resin, and amphetamine (its salts and any preparation or other product containing amphetamine or its salts) are further specified Class B drugs under s.70(1) of the Criminal Justice and Court Services Act 2000, with the result that offenders can be tested when they are subject to licence conditions or post sentence supervision requirements for drug testing pursuant to s.64 of the Criminal Justice and Court Services Act 2000 (as amended by section 11 of the Offender Rehabilitation Act 2014), or pursuant to s.256D of the Criminal Justice Act 2003 (inserted by para.2 of Schd.1 to the Offender Rehabilitation Act 2014): see the Explanatory Notes to the Order: link: [link].
NOTE: The Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2014 (SI 2014 No. 3271), see [link]; and The Misuse of Drugs (Designation) (Amendment) (No.3)
(EWS) Order 2014 (SI 2014 No. 3276), see [link], and The Misuse of Drugs (Amendment No. 3) (EWS) Regulations 2014 (SI 2014 No. 3277), see [link], came into force on the 7th January 2015 and bring various drugs under the control of the Misuse of Drugs Act 1971, including “a synthetic opiate, known as AH-7921, various tryptamines and LSD related compounds” (Class A): see the respective Explanatory Notes. Note that so far as SI 2014 No.3277 is concerned, “Regulation 4 replaces the definition of tryptamine compounds in Schedule 1 with a wider generic definition. Regulations 5 and 6 move 4-Hydroxy-n-butyric acid (‘GHB’) from Part 1 of Schedule 4 to the Regulations to Schedule 2” (see the Explanatory Note).
NOTE: The Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2015 that came into force on 10th April 2015(SI 2015 No.1027), see [link].
NOTE: The Misuse of Drugs Act 1971 (Temporary Class Drug) (No. 2) Order 2015 that came into force on 27th June 2015 (SI 2015 No.1396), see [link]. This SI effectively supercedes SI 2015 No.1027 and adds a couple of other drug substances:
Isopropylphenidate (IPP or IPPD)
And their stereoisomeric forms, preparations or products.
NOTE: Serious Crime Act 2015 (Commencement No. 1)
Regulations 2015: The following sections amend POCA 2002 in significant respects; and come into force on the 1st June 2015: see the following link: [link]
(a) sections 1 to 4 (confiscation: assets held by defendant and other);
(b) section 5 (time for payment);
(c) section 6 (confiscation and victim surcharge orders);
(d) section 7 (orders for securing compliance with confiscation order);
(e) section 8 (variation or discharge);
(f) section 9 (absconding defenders);
(g) section 10 (default sentences);
(h) section 11 (conditions for exercise of restraint order powers);
(i) section 12 (continuation of restraint order after quashed conviction);
(j) section 14 (seized money etc);
(k) section 37 (exemption from civil liability for money-laundering disclosures);
(l) section 39 (external orders and investigations: meaning of “obtaining property”);
(m) section 40 (confiscation orders by magistrates’ courts);
New section 10A is potentially very important. It is intended to be used in relatively straightforward cases, and it seems clear that the third party will have a right to be heard and (presumably to be legally represented) if that party so wishes.
10A Determination of extent of defendant’s interest in property.
(1)Where it appears to a court making a confiscation order that—
(a)there is property held by the defendant that is likely to be realised or otherwise used to satisfy the order, and
(b)a person other than the defendant holds, or may hold, an interest in the property,
the court may, if it thinks it appropriate to do so, determine the extent (at the time the confiscation order is made) of the defendant’s interest in the property.
(2)The court must not exercise the power conferred by subsection (1) unless it gives to anyone who the court thinks is or may be a person holding an interest in the property a reasonable opportunity to make representations to it.
(3)A determination under this section is conclusive in relation to any question as to the extent of the defendant’s interest in the property that arises in connection with—
(a)the realisation of the property, or the transfer of an interest in the property, with a view to satisfying the confiscation order, or
(b)any action or proceedings taken for the purposes of any such realisation or transfer.
(a)is subject to section 51(8B), and
(b)does not apply in relation to a question that arises in proceedings before the Court of Appeal or the Supreme Court.
(5)In this Part, the “extent” of the defendant’s interest in property means the proportion that the value of the defendant’s interest in it bears to the value of the property itself.”
COMMENT: A number of points arise in relation to this provision. This commentator has long contended that there are circumstances in which the extent of a defendant’s interest should be determined at the time of making a confiscation order and not left until the ‘enforcement stage’, not least by virtue of section 79(3) of POCA which states, “(3) But if at that time another person holds an interest in the property its value, in relation to
the person mentioned in subsection (1) [e.g. the defendant], is the market value of his interest at that time, ignoring any charging order under a provision listed in subsection (4)”. It is therefore an improvement that 3rd parties can make representations. Presumably it is a power that may be exercised by the court of its own volition, or by a party to the proceedings on application to the court.
There is a curious line at para.20 of the Expanatory Notes that state, “The right to make representations also extends to the defendant”. One might think this to be self-evident, but the thinking behind it may be that the issue under s.10A is one that could be determined at a discrete hearing, prior to the date set for the full hearing.
The Explanatory Notes state:
“21. It is envisaged that the Crown Court would only make such determinations in relatively straightforward cases, that is where the court considers that it can, without too much difficulty, determine the defendant’s interest in particular property. In deciding whether to make a determination in any particular case, it is expected that judges will exercise this power to determine the defendant’s interest in property only in those cases where
their experience (including in respect of matters as regards to property law), the nature of the property, and the likely number and/or complexity of any third party interests allows them to do so.”
Note s.10A(3) – the extent to which a determination will be “conclusive”. A representative at a recent seminar on confiscation, raised the question of whether such a determination could be conclusive as to interests where this is a live issue in other proceedings (e.g. family courts) [21st April, ‘Confiscation Law’, North Eastern Circuit and the Leeds Law Society].
It will be interesting to see how many “Compliance Orders” are made. The section is silent as to the range of conditions that a court may impose – except the one stated in new s.13A(4):
“In considering whether to make a compliance order, the court must, in particular, consider whether any restriction or prohibition on the defendant’s travel outside the United Kingdom ought to be imposed….”
Note, too, the ‘sting in the tail’ where (under the new default terms of imprisonment in default of payment) a person, against whom a confiscation order for “more than” £10 million has been made, will not be eligible for early release in respect of the term in default:
“Subsection (3) inserts new subsections (2B) and (2C) into section 258 of the Criminal Justice Act 2003, which governs the release of persons serving a default sentence under POCA. By virtue of section 258(2) of the Criminal Justice Act 2003 persons serving a default sentence are automatically eligible for release at the half way point of the default sentence. New subsection (2B) of section 258 of the Criminal Justice Act 2003 disapplies subsection (2) of that section where the default sentence relates to the nonpayment of a confiscation order of more than £10 million. In such cases, therefore, the person would be required to serve the full default sentence until such time as the confiscation order is discharged on full payment.”
There are transitional provisions in the SCA 2015 that must be noted.
- R v Davenport  EWCA Crim 1731. [transcript].
In cases where the Crown seeks both a compensation order and a confiscation order, but in circumstances where POCA 2002, s.13(5) and (6) are not applicable, the Court of Appeal gave the following guidance to judges (irrespective of whether or not they are proceeding under POCA 2002, s. 6(6)): see R v Davenport  EWCA Crim 1731 (R v Waya  I AC 294,  UKSC 51, and R v Jawad  1 WLR 3861,  EWCA Crim 644, considered and applied):
1) The Court is empowered to make both a confiscation order and a compensation order.
2) The court should be alert to any risk of double counting inherent in such a combination of orders and should be alert to the risk of making a confiscation order which is disproportionate.
3) The court ordinarily should not make both a compensation order and a confiscation order representing the full amount of the benefit where there has been actual restitution to the victims prior to the date of the confiscation hearing: Waya; Jawad.
4) Where it is asserted by a defendant that there will be restitution made after the date of the hearing then the court should scrutinise very carefully and critically the evidence and arguments raised in support of such assertion.
5) If the court remains uncertain whether the victims will be repaid under the compensation order then a confiscation order which includes that amount will not ordinarily be disproportionate: Jawad.
6) Mathematical certainty of restitution is not required. The court should approach matters in a practical and realistic way in deciding whether restitution is assured.
7) Restitution to the victims in the future is capable of being properly assessed as assured, depending on the particular circumstances, notwithstanding that such restitution will not be immediate, or almost immediate, at the time of the confiscation hearing. The longer the time frame the greater force there will be to an argument that restitution is not assured: but a prospective period of delay in realisation is not of itself necessarily a conclusive reason for proceeding to make a combination of such orders without adjusting the amount of the confiscation order.
8) Whilst a defendant who is truly intent on making restitution in full to his victims ordinarily should be expected to have arranged such restitution prior to the date of the confiscation hearing there may sometimes be cases where that is not possible. If, in such a case, the court has firm and evidence-based grounds for believing that restitution may nevertheless be forthcoming, albeit that cannot be taken as “assured” at the time of the hearing, the court has power in its discretion to order an adjournment to enable matters to be ascertained.
9) Each case must be decided on its own facts and circumstances.
The Court did not offer those “pointers” [at 75] as “either prescriptive or exhaustive”.
- R v Hunter and oths  EWCA Crim 631. [transcript].
An important decision by a 5-judge court in respect of “good character” directions.