Legal Developments 2023

Legal Developments 2023


For the Economic Crime and Corporate Transparency Act 2023, see [Link].

For the Misuse of Drugs (England and Wales and Scotland) (Amendment) Regulations 2023 (SI 2023 No.1099; in force, 8th Nov.23) [Link].  Part of the Explanatory Note to the SI reads “….new regulation 4C of the 2001 Regulations (inserted by regulation 5) makes it lawful for persons to import, export, produce, supply (including by way of administration), offer to supply and possess nitrous oxide in certain circumstances. Specifically, persons may undertake those activities except where, dependent on the offence, they intend, know or are reckless as to whether the substance is likely to be wrongfully inhaled by a person. ‘Wrongful inhalation’ means any inhalation which is not for a medical or dental purpose (for example, recreational inhalation for psychoactive effect) or is not of nitrous oxide which has been released into the atmosphere (for example, directly from a cannister or a balloon). Medical purposes are (by the definition inserted by regulation 3) defined in regulation 2 of the 2001 Regulations as the purposes of preventative medicine, medical diagnosis or the provision of medical care and treatment.”

For the Misuse of Drugs Act 1971 (Amendment) Order 2023  (SI 2023 No.1091), which comes into force on the 8th November 2023, see [Link].  The effect of the Order is to make nitrous oxide a Class C drug.  Presumably, exceptions and savings will follow in amending provisions to the Misuse of Drugs Regulations 2001.  Just how practical and effective this measure turns out to be in achieving the Government’s stated aim remains to be seen.  This is the first gas to be made a “controlled drug” under the MDA 1971. 

For the Criminal Justice (Specified Class A Drugs) Order 2023 (SI 2013 No.784), which comes into force on 2nd August 2023, see [Link].  The Explanatory Memorandum reads (in part) [Link]: “6.4 This Order revokes and replaces the 2001 Order. It expands the list of ‘specified Class A drugs’ to all substances and products which are specified, at the date this Order enters into force (2nd August 2023), in paragraphs 1 to 5 of Part 1 of Schedule 2 to the 1971 Act. This captures all Class A drugs presently controlled under the 1971 Act, with the exception of preparations of Class B drugs designed for injection (which are Class A drugs under the 1971 Act by virtue of paragraph 6 of Part 1 of Schedule 2).  6.5 If the list of substances and products specified as Class A drugs under the 1971 Act is amended in the future, the Class A drugs specified under this Order will not be automatically updated. Where appropriate, this Order will be amended, or revoked and replaced, at the same time as any amendment to the 1971 Act.”

For the Firearms (Air Weapons) (England and Wales) Rules 2023 (SI 2023 No.768), see [Link], which sets out the minimum storage requirements for an air weapon to comply with section 24ZA(1) of the Firearms Act 1968. 

For the Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2023 (SI 2023 No.298) in force from 30th March 2023, see [Link].  Regulation 2 reduces the applicable limit for a triable either way offence to one of 6 months from 12 months.  According to the Explanatory Memorandum (para.7.6, 7.7): “We are currently experiencing downstream pressures in the criminal justice system….and it is important that the government ensures a cohesive cross-system response to this growing pressure. Whilst increased MSPs [magistrates’ sentencing powers] is not the only factor behind this pressure and the data on the impact of MSPs is still limited, it is safest to temporarily reduce MSPs to 6 months so that the Crown Court retains power over decisions in respect of longer sentences, particularly given the Crown Court backlog is again recovering following the impact of the Criminal Bar Association strike action.  ….The varying power allows us to extend sentencing powers back to 12 months in the future should circumstances allow, and we will keep the effect of reducing sentencing powers to 6 months under review.”

On 7th March 2023, the UK Government introduced in Parliament the Illegal Migration Bill [Link] which includes a statement made under section 19(1)(b) of the Human Rights Act 1998: “I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights, but the Government nevertheless wishes the House to proceed with the Bill“.   This is not the first time that a Bill has been so marked.  The first occasion was the Communications Bill 2002.  The statement featured in the judgment of the European Court of Human Rights in Animal Defenders International v. the United Kingdom (22 April 2013).  On 22nd November 2002, the then Secretary of State for the Department of Culture, Media and Sport said: “I must ask the House to consider this Bill with a section 19(1)(b) of the Human Rights Act 1998 statement attached to it. That does not mean that we believe the Bill to be incompatible with the ECHR, and we would mount a robust defence if it were legally challenged. Of course, if that defence subsequently failed before the domestic courts, we would need to reconsider our position. Beyond that, we take our international obligations extremely seriously and we would seek to amend the ban in accordance with any judgment of the European Court of Human Rights in Strasbourg that ruled against the UK legislation. As things stand, however, the Government believe that it is right to ask the House to continue the ban on political advertising.”

For the Police, Crime, Sentencing and Courts Act 2022 (Commencement No. 1) (England and Wales) Regulations 2023 (SI 2023 No.227), in force from specified dates, see [Link]

For the Judicial Review and Courts Act 2022 (Magistrates’ Court Sentencing Powers) Regulations 2023 (SI 2023 No.149), which makes amendments to various pieces of legislation to reflect the changes made by section 224 of the Sentencing Act 2020 which specifies that the maximum penalty that the magistrates’ court may impose is 6 months for a summary offence and 12 months for a triable either way offence: see [Link]

For the The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code H) Order 2023 (SI 2023 No.141) described in the Explanatory Note as the Code that deals with “….the detention, treatment and questioning by police officers of persons under certain terrorism powers”: see [Link].

For the Firearms (Amendment) Rules 2023 (SI 2023 No.77); in force from 27th July 2023; see [Link]

For the Youth Justice and Criminal Evidence Act 1999 (Commencement No. 30) Order 2023 (SI 2023 No.100) in force from 1st February 2023: see [Link].