Legal Developments 2022

Legal Developments 2022


Covid-19 Legislation (England)

For the The Health Protection (Coronavirus, International Travel and Operator Liability) (Revocation) (England) Regulations 2022 (SI 2022 No.317); in force from14.00 a.m. on 18th March 2022 ; 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)

See the Football Spectators (Relevant Offences) Regulations 2022 (SI 2022 No.1168) [Link].  Part of the Explanatory Note reads “These Regulations amend Schedule 1 to the Football Spectators Act 1989 (c. 37) to add the offences of supply and possession of Class A drugs to the list of relevant offences that may prompt a court to issue a banning order. A banning order, made under section 14A of that Act, prevents the person who is subject to the order from entering premises in England and Wales for the purpose of attending a regulated football match, as prescribed in article 3 of the Football Spectators (Prescription) Order 2022 (S.I. 2022/617). These Regulations do not apply to an offence committed before the day the Regulations come into force.” 

For the Approved Premises (Substance Testing) Act 2022, see [Link].  The Act received Royal Assent on the 28th April 2022, and it will come into force on the 3rd October 2022 (see SI 2022 No. 1013: Link).  The Act will have fairly limited reach applying to “approved premises”, that is to say “(a) for persons granted bail in criminal proceedings (within the meaning of the Bail Act 1976 (c. 63)); or (b) for, or in connection with, the supervision or rehabilitation of persons convicted of offences” (s.13(1), Offender Management Act 2007 (as amended)).

For the Misuse of Drugs (Amendment) (Revocation) (England, Wales and Scotland) Regulations 2022 (SI 2022 No.559) see [Link].  This revokes SI 2021 No. 1427.  By way of explanation, under Reg.4B of the MD Regs 2001, Gamma–butyrolactone and 1,4-butanediol are currently excepted from sections 3(1) (import and export), 4(1) (production and supply) and 5(1) (possession) of the Act – save where a person imports, exports, produces, supplies or offers to supply either substance, or has either substance in his possession, knowing or believing that it will be used for the purpose of human ingestion whether by himself or another person other than as a flavouring in food.
SI 2021/1427 would have revoked that qualified exemption from June 15, 2022). 
SI 2022 No. 559) revokes that revocation from the 14th June 2022.  This means that the qualified exemption in regulation 4B of the 2001 Regulations will remain in force. It also means that 1,4-Butanediol (1,4-BD) and Gamma-butyrolactone (GBL) will not be placed in Schedule 1.  Accordingly, a Home Office controlled drugs licence will not be required to lawfully import, export, produce, supply or possess these drugs.  Whether a licence would still be required if the intention was to use either substance for the purpose of human consumption other than as a flavouring in food, needs to be carefully considered. 
The Government’s reasoning for this reversal is as follows:
    “The Home Office considered the impact on legitimate industry in the impact assessment accompanying the 2021 Regulations, and while this was based on the available information from the sector at that time, the impact was significantly underestimated.
   This is particularly due to the breadth and scale of the use of GBL and 1,4-BD in products where the GBL and 1,4-BD is in solution or blend, without having undergone chemical reaction, meaning that suppliers and end-users, not just manufacturers using neat GBL and 1,4-BD, would require licences. Given the impracticality and disproportionality of so many end users obtaining licences, these sectors are at risk of not being able to comply and potentially having to stop using or selling certain products, resulting in a significant negative impact on businesses.
   Therefore, the Government has decided to revoke the 2021 Regulations and to consult with industry on how best to deliver the ACMD’s recommendation without causing disproportionate harm to business. The Government’s initial view, subject to consultation, is that we will seek views on introducing a licensing requirement that captures neat GBL and 1,4-BD, but otherwise contains exemptions, including exemptions for end-products containing GBL and 1,4-BD in blend or solution, and end-products containing trace amounts of GBL and 1,4-BD as a by-product of reactive processes, from the need to acquire a licence. The revocation will mean that, as is the case now, no business will require a Home Office controlled drugs licence to lawfully import, export, produce, supply or possess these drugs from 15 June 2022.”

For the Offensive Weapons Act 2019 (Commencement No. 2 and Saving Provision) Regulations 2022 (SI 2022 No.418) see [Link].  This SI has been long awaited and brings into force – from 6 April 2022 – provision concerning the supply etc of certain corrosive products and corrosive substances, and other provisions relating to bladed articles and other offensive weapons.   See also the Home Office Statutory Guidance (April 22) in relation to this Act [Link]

For the Misuse of Drugs Act 1971 (Amendment) Order 2022 (SI 2022 No.322) see [Link].  The Order reclassifies 1,4-Butanediol (1,4-BD), Gamma-butyrolactone (GBL) and 4-Hydroxy-nbutyric acid (GHB) from Class C to Class B drugs for the purposes of control under the Misuse of Drugs Act 1971

POCA Reform

Law Commission: Confiscation of the proceeds of crime after conviction: a final report [Link]  

The Law Commission for England and Wales published its Final Report in respect of reforming Part 2 of the Proceeds of Crime Act 2002 on the 9th November 2022 [Link].


R v Luckhurst (Respondent) [2020] UKSC 23 [Link]

The UKSC answered in the negative, the question ““Does section 41(4) of POCA preclude an exception to a restraint order to make provision for reasonable legal expenses incurred by the defendant or the recipient of a tainted gift where those expenses incurred by the defendant or the recipient of a tainted gift are in respect of civil proceedings founded on the same or similar allegations, alleged facts and/or evidence as those of the offence(s) (within the meaning of section 41(5)) which gave rise to the making of the restraint order?”.  The Court’s primary reasons for answering the certified question in the negative were “the natural meaning of the words ‘relate to an offence’ in their context; and that, consistently with that meaning, the purpose or policy of section 41(4) is best understood as not precluding an exception for legal expenses in respect of civil proceedings for causes of action. In contrast, the provision precludes the legal expenses of defending the alleged criminal offence(s) and resisting the confiscation and restraint orders themselves. On the correct interpretation, legal expenses in respect of civil proceedings for causes of action (such as for torts or equitable wrongs) are not precluded but are controlled by the courts’ discretion in the same way as, for example, living expenses” (per Lord Burrows (at [42]) (with whom Lord Hodge, Lord Kitchin, Lord Hamblen, and Lord Stephens agreed).

Chang, R. v [2022] EWCA Crim 463 [Link]

The Court of Appeal (Criminal Division) has held that section 54(3)(a) of the Firearms Act 1968 exempts a police officer from the provisions of section 5 of the 1968 Act [prohibited weapons and prohibited ammunition] only if the officer is acting officially as such at the relevant time.  That would be a question of fact. It would not necessarily be coincident with the concept of being “on duty”.  

Keal, R. v [2022] EWCA Crim 341 [Link]

The Court of Appeal (Criminal Division) has held that “In order to establish the defence of insanity within the M’Naghten Rules on the ground of not knowing the act was ‘wrong’, the defendant must establish both that (a) he did not know that his act was unlawful (i.e. contrary to law) and (b) he did not know that his act was ‘morally’ wrong (also expressed as wrong “by the standards of ordinary people”). In our judgment, “wrong” means both against the law and wrong by the standards of ordinary reasonable people. Strictly a jury must be satisfied that the defendant did not know that what he was doing was against the law nor wrong by the standards of reasonable ordinary people. In practice how the jury is directed on this issue will depend on the facts and issues in the particular case” (per Lord Burnett of Maldon CJ., at [41]).

Field, R. v [2022] EWCA Crim 316 [Link]

In this unusual case, which is well worth reading, the Court of Appeal (Criminal Division) said that “practitioners must clearly understand that the jurisdiction conferred by Crim PR 36.15 [application to the the CACD to reopen a decision that determined an appeal or reference] is extremely limited and that the jurisdiction can indeed only be exercised in exceptional circumstances. Parties may disagree, even profoundly disagree, with the reasoning and conclusion of an appellate decision. But such disagreement gives no basis whatsoever for an application under this Rule. It is inappropriate and wrong to make such an application, with the ultimate aim of getting another constitution of the court to re-consider the merits of an appeal, by means of claims of procedural unfairness or of bias which have no sustainable basis. To do so will be an abuse of process. The court will be vigilant to ensure that applications under the Rule will be confined to those narrow and exceptional circumstances where the Rule is properly to be invoked” (per Dame Victoria Sharp, P, at [75].