Legislation

Covid-19 Legislation (England)

See the See the Health Protection (Coronavirus, Restrictions (Obligations of Hospitality Undertakings) (England) Regulations 2020 [England “second lockdown”] in force from 5th November 2020 (SI 2020 No. 1200) [Link]. 

See the Health Protection (Coronavirus, Restrictions) (Obligations of Hospitality Undertakings) (England) Regulations 2020 (SI 2020 No. 1008) [Link].

See the Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements) Regulations 2020 (SI 2020 No. 1005) [Link].

See the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 4) Regulations 2020 (SI 2020 No. 986) in force from 12.01 a.m. on 14th September 2020 [Link].

See the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) Regulations 2020 (SI 2020 No. 906) in force 28th August 2020 [Link].

See the Health Protection (Coronavirus) (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020 (SI 2020 No. 907) in force 28th August 2020 [Link].

See the Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 10) Regulations 2020 (SI 2020 No.890) in force on 22nd August 2020 (but to be laid before Parliament on the 24th August).  NOTE that this will revoke SI 2020 No. 881: [Link] 

See the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) (No. 2) (SI 2020 No. 882), in force from 22nd August 2020 [Link].

See the The Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 9) Regulations 2020 (SI 2020 No.881) in force from 4.00 a.m. on 22nd August 2020 [Link]

See the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) Regulations 2020 (SI 2020 No.839) in force 8th August 2020 [Link].

See the Health Protection (Coronavirus, International Travel)(England) (Amendment) (No. 7) Regulations 2020 (SI 2020 No.841) in force at different times (by the latest on 11 August 2020) [Link]

For the Health Protection (Coronavirus, Restrictions on Gatherings) (North of England) Regulations 2020 (SI 2020 No.828) in force 5th August 2020, see [Link].

For guidance “on the gradual and safe resumption of operations of cruise ships in the European Union in relation to the COVID-19 pandemic” (27 July 2020) see [Link].

See the Health Protection (Coronavirus, Restrictions) (Leicester)(Amendment) (No. 3) Regulations 2020 (SI 2020 No.823) in force 3rd August 2020 [Link].

See the Health Protection (Coronavirus, Restrictions) (Blackburn
with Darwen and Bradford) Regulations 2020 (SI 2020 No.822) in force 1st August 2020 [Link].

See the Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 6) Regulations 2020 (SI 2020 No.819) in force 3.00 p.m. on 31st July 2020 [Link].

See the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 (SI 2020 No.791) [Link].  These need to be read together with SI 2020 No.592 (face coverings on public transport).  

For the Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Luton) Regulations 2020 (SI 2020 No.800) see [Link].

For the Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 3) Regulations 2020 (SI 2020 No.799) see [Link]

See the Motor Vehicles (Tests) (Amendment) (Coronavirus) (No. 2) Regulations 2020 (SI 2020 No.790) [Link].

See the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 2) Regulations 2020 (SI 2020 No.788) [Link]

See the Health Protection (Coronavirus, Restrictions) (Leicester (Amendment) (No. 2) Regulations 2020 (SI 2020 No.787) [Link].

See the Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020 (SI 2020 No.750), which came into force at 12.01 a.m. on 18th July 2020 [Link].  A local authority may give a direction under regs. 4(1), 5(1) or 6(1) only if the authority considers that the conditions set out in reg.2 are met.  A local authority may give a direction imposing prohibitions, requirements or restrictions in relation to the entry into, departure from, or location of persons in, specified premises in the local authority’s area (reg.4); or imposing prohibitions, requirements or restrictions in relation to the holding of an event in its area (reg.5), or to certain public outdoor places (reg.6).  The Secretary of State may give a direction to a local authority requiring the authority to give a direction under reg. 4(1), 5(1) or 6(1), if the Secretary of State considers that the conditions in reg.2(1) would be met in relation to the local authority direction (reg.3).

See the Health Protection (Coronavirus, Restrictions) (Leicester) (Amendment) Regulations 2020 (SI 2020 No.754), in force on 18 July 2020 [Link].

See the Health Protection (Coronavirus, Restrictions) (No. 2) (England (Amendment) Regulations 2020 (SI 2020 No.719 (Link) which, coming into force at different times, permit the following to open: outdoor swimming pools and water parks (from 11th July 2020); nail bars and salons, tanning booths and salons, spas and beauty salons, massage parlours, tattoo parlours, and body and skin piercing services (from 13th July 2020). 

See the Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 2) Regulations 2020 (SI 2020 No.724) [Link].

See the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020 No. 684) [Link].  This is a new set of regulations that will, from 4th July 2020, substantially replace SI 2020, 350, 447, 500, 558, 588.  The new regulations apply to England (other than Leicester, in respect of which, see SI 2020 No.685 [Link]).     

See the Electric Scooter Trials and Traffic Signs (Coronavirus) Regulations and General Directions 2020 (2020 No. 663) [Link] in force from the 4th July 2020.  The aim of the Regs is to allow representative, on-road trials of e-scooters to begin in order to gather evidence on their use and impact and to inform possible future legalisation (see the accompanying Explanatory Memorandum).

See the Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020 (SI 2020 No.592) [Link] in force 15th June 2020. 

See the Health Protection (Coronavirus, Restrictions)(England)(Amendment)(No. 4) Regulations 2020 (SI 2020 No. 588) [Link].  Regulations 2(1), (2), (4)(c), (5), (6)(a) and (c), (7), (8) and (9) come into force on 13th June 2020, the rest on the 15th June 2020.

See the Health Protection (Coronavirus, International Travel) (England) Regulations 2020 (SI 2020 No. 568) [Link].  For the Explanatory Memorandum, see the [Link].

Note the Prosecution of Offences Act 1985 (Specified Proceedings) (Amendment) Order 2020 (SI 2020 No. 562) [Link] in force from 3rd June 2020.  The Order enables the DPP to take over the conduct of criminal proceedings initiated by the police under the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (S.I. 2020/350, as amended by S.I. 2020/447, 500 and 558).

Note the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No.3) Regulations 2020 (SI 2020 No. 558) [Link] in force from 1st June 2020.

Note the Prison and Young Offender Institution (Coronavirus) (Amendment) (No. 2) Rules 2020 (SI 2020 No. 508) (the majority of the provisions in force from 15th May 2020) [Link]

Note The Misuse of Drugs (Coronavirus) (Amendments Relating to the Supply of Controlled Drugs During a Pandemic etc.) Regulations 2020 (which extend to England, Wales and Scotland, are in force from 30th April 2020) [Link]

Note the Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 [Link] in force from 11.00 a.m. on 22nd April 2020.

General Legislation

For the European Union (Future Relationship) Act 2020 see [Link]

See the European Union (Future Relationship) Act 2020 (Commencement No. 1) Regulations 2020 [Link}

The Criminal Procedure Rules 2020 (SI 2020 No.759) come into force from 5th October 2020 [Link].

The Business and Planning Act 2002 received Royal Assent on the 22nd July 2020 [Link] and which makes provision for (among other things) ‘pavement licences’ and  modification of premises licences to authorise off-sales for a limited period.

Note that the  Corporate Insolvency and Governance Act 2020 received Royal Assent on 25th June 2020. [Link]

Note the Misuse of Drugs (Amendment) (England, Wales and Scotland) Regulations 2020 (SI 2020 No. 558) [Link] in force from 24th June 2020.  The Explanatory Notes states “These Regulations amend the Misuse of Drugs Regulations 2001 (S.I. 2001/3998) to provide for a specified cannabis-based medicine called Epidyolex to be placed in Schedule 5 of the Regulations.  The effect of this is that the specified medicine is exempt from the prohibitions on import, export and possession under sections 3 and 5 of the Misuse of Drugs Act 1971.”

Note that the  Magistrates’ Courts (Knife Crime Prevention Orders) Rules 2020 will be in force from 30 March 2020 [Link]

Note that the Controlled Drugs (Supervision of Management and Use) (Amendment) Regulations 2020 will be fully in force by 1 April 2020 [Link]

Note the correspondence between the Home Secretary and the Advisory Council on the Misuse of Drugs “COVID-19: ACMD advice on proposed legislative changes to enable supply of controlled drugs during a pandemic” (April 2020) [Link] which may result in temporary measures being introduced by amending the Misuse of Drugs Regulations 2001.

Cases

R v Westbrook [2020] EWCA Crim 1243 [Link]

It was held (at [39]) that there is nothing in s.6(5) POCA or any other section which suggests that a “confiscation order” is invalid (in the sense of being a nullity) unless made in writing. The fact that, eg, the Criminal Procedure Rules contemplate that a formal order will be drawn up and a copy sent to the parties does not mean that an order solemnly made by a judge has no legal existence unless and until draw up in a formal written document. In this regard, orders made by judges under POCA are no different from any other orders. The fact that there may be administrative delays or failures in resulting or drawing up the order, does not mean that no order exists or came into existence when uttered by the judge.

Roth [2020] EWCA Crim 967 [Link]

R had obtained benefit, namely, the receipt of rents for twelve flats, as a result of or in connection with his criminal conduct in failing, for 53 months, to comply with remedial action required in an Enforcement Notice (contrary to s.179(1) and (2) of the Town and Country Planning Act 1990). See also Bajaj [2020] EWCA Crim 1111 as another example of problems that can arise when determining the value of benefit in respect of certain regulatory statutory regimes. Sumal and Sons (Properties) Limited [2012] EWCA Crim 1840, [2013] 1 WLR 2078, Palmer [2016] EWCA Crim 1049, [2017] 4 WLR 15, Hussain [2014] EWCA Crim 2344, and Del Basso [2010] EWCA Crim 1119, [2011] Cr. App. R (S) 41, were considered in Roth [2020] EWCA Crim 967.
See also Ryder and Green [2020] EWCA Crim 1110 where it was held that the saving of costs, by failing to remove contaminated waste that was stored on a site owned and controlled by the appellants, in breach of the Environmental Permitting (England and Wales) Regulations 2010, can be a pecuniary advantage and thus a “benefit” from criminal conduct (citing Morgan [2013] EWCA Crim 1307, [2014] 1 WLR 3450, R.J Holbrook Limited [2015] EWCA Crim 1908).

Munir [2020] EWCA Crim 1549

It was held, citing May [2008] 1 AC 1028, Sivaraman [2009] 1 Cr App R (S) 80, and Allpress [2009] 2 Cr App R (S) 58, that a defendant who receives property solely on behalf of another, who cannot be said to be receiving it for his own benefit, whether sole or joint, does not obtain such property for the purposes of s.76(4) of the 2002 Act.  The court added that a person who receives property solely by way of possession on behalf of another and without obtaining a proprietary interest himself does not obtain the benefit of the value of the property within the meaning of the 2002 Act (at [15]). M contended that since he was a mere custodian of controlled drugs, they did not constitute his property and thus their street value was not a “benefit” to him. The Court concluded that M was (on the basis of his basis of plea) “a mere custodian who did not receive the property for his own benefit whether jointly or solely. He received possession merely as a bailee” (at [16]).

Forte [2020] EWCA Crim 1455 [Link]

Hilton was considered in this case.  The Court of Appeal remarked that where the real issue at the confiscation stage, is a third party interest in property, then it may be convenient to deal with it under s.10A “even if it is a significant issue” (at [11]):
“We doubt if the Supreme Court intended to give case management guidance to the Crown Court judges of England and Wales on the management of proceedings of this kind. Many of those judges will see an advantage in having one contested hearing at which all issues are resolved, rather than two contested hearings in each such case. If that is their view, then they are not inhibited from taking that course.“
The proper classification of proceedings under s10A of the 2002 Act, as well as in respect of, (i) the burden of proof; (ii) the standard of proof; and (iii) what the proper approach should be where a person could have given evidence in his or her own case, but elected not to, was that which applies to civil proceedings: Forte (at [14-15]).

Bevan [2020] EWCA Crim 1345 [Link]

The prosecution contended, in relation to the s.10A procedure that, under the principles of Stack v Dowden [2007] 2 AC 432 and Jones v Kernott [2012] 1 AC 776, the appraisal – when searching for the presumed intention of the parties as to their respective interests in property – has to be across the whole course of dealings, taking an objective viewpoint. The Court did not doubt this to be right but it added that the matter (on the facts in Bevan) was “overtaken by the acceptance at the hearing below” and by the finding of the trial judge, that the mutual agreement from the outset was that there be equal ownership in the equity of the property; and that never altered (at [14]). The court observed that although there are cases where the underlying beneficial interest can be at variance with the ostensible legal title (e.g. Reid [2019] EWCA Crim 690), the prosecution identified no statutory or other provision (where the tainted gift provisions were not invoked) whereby the legal and equitable rights could be adjusted in Bevan’s case, under Pt2 POCA, so as to cause such interests to be adjusted away from the legal and beneficial ownership and the parties’ mutual agreement. The prosecution’s argument was essentially one of “fairness” or “public policy”, with regard to depriving a criminal of the proceeds of his or her criminality, as a means for altering the otherwise clear and established legal and equitable entitlements of the relevant owners. In any event, the argument was contrary to the decision in Gibson v Revenue and Customs Prosecution Office [2008] EWCA Crim Civ 645; [2009] QB 348 which, although decided under the Drug Trafficking Act 1994, was equally applicable in the context of confiscation proceedings under POCA 2002 (at [37-42]).

Lowther [2020] EWCA Crim 1387 [Link]

Cramer (1992) 13 Cr App R (S) 390 was cited in Lowther which held that the costs of sale of any properties included in the benefit figure, fell to be deducted against the defendant’s realisable assets in calculating the “available amount” (at [54]). There was no requirement to reduce the amount of the benefit figure, since at the benefit stage the market value of the property was what somebody would be prepared to pay for it on the open market, not the net proceeds of sale which the defendant would obtain form its sale (at [57], having cited, at [56], Pattison [2008] 1 Cr App R (S) 51).

R v Andrewes [2020] EWCA Crim 1055 [Link]

The Court of Appeal (Criminal Division) made it clear (among other issues) that the issue of disproportionality, by reference to s.6(5), POCA 2002 Act, is to be assessed by reference to the making of a confiscation order: it is not to be assessed by reference to the amount of benefit.  COMMENT: this is an important decision, not least, on the issue of “proportionality” and “disproportionality” in the context of confiscation proceedings conducted under POCA 2002.  

R v Hilton (Respondent) (Northern Ireland) [2020] UKSC 29 [Link]

This is an important decision concerning s.160A (NI) POCA 2002 – s.10A (England and Wales).  The section enacts a procedure by which 3rd parties may make representations in confiscation proceedings where (and only where) the Crown Court is minded to make a determination under s.10A (s.160A (NI)).  It is not the case that on every occasion that 3rd party interests arise, the court must proceed under that section.   Were that to be the position then this would inevitably introduce a cumbersome procedure in the making of a confiscation order.  
The position of 3rd parties has been the subject of detailed discussion by this commentator for decades: see R. Fortson, Chpt.13-177, ‘Misuse of Drugs and Drug Trafficking Offences‘ (6th ed., 2012, Sweet & Maxwell). 

Lord Advocates Reference No. 1 of 2020 [2020] HCJAC 25 [link]

It was held by the Appeal Court, High Court of Justiciary, that whether – for the purposes of s.5(1A)(a), Firearms Act 1968 – a firearm is “disguised as another object” (in this case a stun gun that also functioned as a torch) requires “a straightforward objective assessment of whether the item is presented in such a way as to conceal that amongst its functions is that of a firearm”. This is “critically a question of fact for the jury to determine on all the facts of the case”. The normal meanings of the word ‘disguise’ are to be adopted, and the matter “must be determined from the perspective of the ordinary person in the street”(per Lady Dorrian, the Lord Justice Clerk (at [23-24])).  Thus, the question is not whether the item was a multi-function device.