Legal Developments 2021

Legal Developments 2021

Legislation

Covid-19 Legislation (England)

For the Health Protection (Coronavirus, Restrictions) (Steps etc.) (England) (Revocation and Amendment) Regulations 2021 (SI 2021 No.848); in force from11.55 p.m. on 18th July 2021; see [Link]

[References to earlier covid-19 Statutory Instruments (which are now mainly of historic interest) have been removed from these pages] 

Other Legislation (England and Wales)

For the Policing and Crime Act 2017 (Commencement No. 11 and Transitional Provisions) (Amendment) Regulations 2021 (SI 2021 No.945) see [Link].  These Regulations amend the Policing and Crime Act 2017 (Commencement No. 11 and Transitional Provisions) Regulations 2021 (S.I. 2021/282). They made transitional provisions in respect of former antique firearms (noting the commencement of s.126 of the Act and the entry into force of the Antique Firearms Regulations).  Regulation 1 of S.I. 2021/282 provides a definition of “the transitional period” within which these transitional provisions apply.  These Regulations amend that definition “to provide for an extended transitional period (of 10 months from the commencement date as defined in [S.I. 2021/282]) in relation to vintage rifles, punt guns or shot guns with a bore greater than 10, while preserving the original definition (of 6 months from the commencement date) in relation to all other former antique firearms. This is done in order to ensure that the transitional provisions continue to apply to vintage rifles, punt guns or shot guns with a bore greater than 10 pending a proposed amendment to the Antique Firearms Regulations. Should the amendment be approved by Parliament and be made in accordance with section 58(2B)(b) and (2F) of the [Firearms Act 1968], it will include those firearms in the Schedule to those Regulations, and so ensure that they fall within scope of the definition of an antique firearm.” [Explanatory Note to SI 2021 No.945]

For the Misuse of Drugs Act 1971 (Amendment) Order 2021 (SI 2021 No.868) see [Link].

For the Offensive Weapons Act 2019 (Commencement No. 2) (England and Wales) Regulations 2021 (SI 2021 No.762), see [Link].

For the Proceeds of Crime Act 2002 (Investigative Powers of Prosecutors: Code of Practice) Order 2021 (SI 2021 No.747), see [Link]

For the Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: Code of Practice) (Northern Ireland) Order 2021 (SI 2021 No.729), see [Link]

For the Proceeds of Crime Act 2002 (Cash Searches: Code of Practice) Order 2021 (SI 2021 No.728), see [Link].

For the Proceeds of Crime Act 2002 (Recovery of Listed Assets: Code of Practice) Regulations 2021 (SI 2021 No.727), see [Link].

For the Proceeds of Crime Act 2002 (Investigations: Code of Practice) Order 2021 (SI 2021 No.726), see [Link].

For the Antique Firearms Regulations 2021 (SI 2021 No. 215), see [Link].

For the Domestic Abuse Act 2021, see [Link]

For the Forensic Science Regulator Act 2021, see [Link]

For the Counter-Terrorism and Sentencing Act 2021, see [Link]

For the Prisons (Substance Testing) Act 2021, see [Link]

Cases

R v Margelis [2021] EWCA Crim 1215 [Link]

The decision provides useful analysis and guidance as to the meaning of the expression “pyrotechnic effect” for the purposes of the Explosives Act 1875 and the Explosive Substance Substances Act 1883.  As the Court of Appeal (Criminal Division) pointed out (at [17]), the expression “pyrotechnic effect” is not defined in either the 1875 or the 1883 Act, but the expression “pyrotechnic article” has been defined in the Pyrotechnic Articles (Safety) Regulations 2015 which were made pursuant to European Union legislation.  The Court therefore concluded that it was legitimate to have regard to the 2015 Regulations when considering the meaning of “pyrotechnic” as used in the 1875 Act.  The Court observed that the expression “pyrotechnic effect” is an expression “where a jury would need to be given assistance. It would not be sufficient to say that this is an ordinary English expression on which the jurors could make up their own minds” (at [51], per Males LJ). 

R v Lanning & Camille [2021] EWCA Crim 450 [Link]

This is an interesting decision, particularly in the case of Camille (who was convicted of manslaughter) insofar as it touches upon the principle of an “overwhelming supervening act” (see  R v Jogee [2016] UKSC 8; R v Tas [2018] EWCA Crim 2603; R v Harper [2019] EWCA Crim 343).  The decision, useful as it is, does however, leave a number of issues concerning the application of this principle, unanswered.  

Collins v The DPP [2021] EWHC 634 (Admin) [Link]

The Divisional Court answered in the negative the question posed by the Court below: “”Was I wrong in law, in declining to endorse the warrant of commitment to prison, in respect of [JKC] for non-payment of his confiscation order, that any term of imprisonment served by a person in default of payment of a confiscation order made in relation to the same joint benefit should reduce the term of imprisonment to be served by [JKC] for his default of payment?”

London Borough of Barnet v Kamyab [2021] EWCA Crim 543 [Link]

This is an important decision that exposes what seems to be a drafting weakness in the wording of s.31 POCA [prosecutor’s appeal in respect of a confiscation order made by the Crown Court].  The literal terms of POCA 32(1), in clear contrast to s. 32(2), currently contains no explicit power to remit to the Crown Court a confiscation order that was incorrectly made (as opposed to a case where the Crown Court failed or declined to make a confiscation order).  The powers of the CACD under s.32(1) are currently limited to confirming, quashing or varying the confiscation order.  The Court, in this case, remarked that “disposing of confiscation proceedings on a preliminary issue of law is, as the powers of this court currently stand, a dangerous course and one which we do not expect to see again”. It is respectfully submitted that the scope and purpose of POCA s.8(1) and (2), ought not to be overstated given that those subsections apply to ‘criminal lifestyle’ cases as well as to cases of ‘particular criminal conduct’ .  

R v Court [2021] EWCA Crim 242 [Link]

This is a confiscation case [under Pt 2 POCA 2002] with an extraordinary and unfortunate history but which also carries a number of ‘object lessons’. 

R v Patel [2021] EWCA Crim 231 [Link]

This is an important sentencing decision in relation to the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 that came into force on 1 April 2020: “It changes, for certain offenders sentenced to a fixed-term custodial sentence, the point at which the offender is entitled to release. Before the 2020 Order came into force, such an offender was entitled to release once one half of the sentence had been served. The 2020 Order changes that to the two-thirds point. So, where the 2020 Order applies, an offender sentenced to a 12 year term is entitled to release at the 8 year point, rather than the 6 year point. The 2020 Order applies to sentences passed on or after 1 April 2020, even if the offence was committed before 1 April 2020, and even if the offender was convicted before that date. That means that the length of time that an offender spends in custody will depend on whether they happen to be sentenced before or after 1 April 2020” (per Dame Victoria Sharp P [QBD], at [1]).  NOTE that the Court merely took “12 years” as an example.  Where the sentence imposed by the sentencer is for a term of seven years’  imprisonment or more, and is imposed for a “relevant violent or sexual offence”, the proportion of that sentence that must be served will be two thirds of the sentence.  A “relevant violent or sexual offence” means an offence listed in Part 1 or 2 of Schedule 15 to the Criminal Justice Act 2003 for which a sentence of life imprisonment may be imposed. 

R v Wainwright [2021] EWCA Crim 122 [Link]

The case considers the relationship between section 34 of the Criminal Justice and Public Order Act 1994 and R v Lucas [1981] Q.B. 720. 

R v Thomasson [2021] EWCA Crim 114 [Link]

An important decision that confirms that e-fit pictures constitute hearsay evidence within the meaning, and for the purposes of, the Criminal Justice Act 2003.