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Criminal law: a roundup | Feature

Police execution of duty

Many practitioners will be faced with a potential argument that a police constable who makes physical contact with a defendant has acted beyond the execution of their duty. In Pegram v Director of Public Prosecutions [2019] EWHC 2673 QBD, the court provided a useful reminder that if the constable has a power, they may use reasonable force in the exercise of that power.

What is reasonable is a matter of fact and degree. There is a grey area as to whether force used prior to the actual exercise of the power is lawful. While an officer physically detaining someone without intending to arrest etc will be an assault, moderate physical contact for the purposes of attracting someone’s attention (for example, a tap on the shoulder) will not amount to an assault justiciable in law.

Careless driving

This offence (and that of dangerous driving) cannot be established by the state of the driver alone, however concerning the motorist’s mental or physical state may be. The offence relates to the manner of driving.  (Jones v CPS [2019] EWHC 2826 (Admin).)

Obtaining majority between offence and sentence

This is now a regular conundrum to confront the courts, given the use of the postal requisition to bring defendants before the court many months after the date of the alleged offence(s). It is important for the advocates and courts to be aware that sentencing a defendant who has crossed a significant age threshold since the offence was committed and the date of sentence, should be sentenced with regard to the principles set out in the Sentencing Guidelines ‘Sentencing Children and Young People’ at paragraphs 6.1-6.3. The maximum sentence available to the court on the date of a finding of guilty may be greater than that on the date the offence was committed. Defendants who find themselves in this position may benefit from a reduction in sentence. (R v Amin [2019] EWCA Crim 1583.)

Case management

The lord chief justice in R v Walsall Magistrates’ Court, R v Lincoln Magistrates’ Court [2019] EWHC 3317 (Admin) held that the defence could not expect to wait until the day of trial in order to air for the first time with the court that the prosecution had failed to comply with the disclosure regime, or by analogy, court directions and receive a favourable result. Such an approach is contrary to the letter and spirit of Criminal Procedure Rules 1 and 3, and such a delay would justify the court ruling robustly against the defence. The judgment also reiterated the requirements of Crim PR 19 and Crim PD 19A, so far as the form and content of expert reports are concerned, and the professional duties of instructing solicitors.

Committals for sentence

The cases of R v Potter [2019] EWCA Crim 1533 and R v Garthwaite [2019] EWCA Crim 2357 make clear that there is no ‘ways and means’ provision that enables the magistrates’ court to commit standalone summary-only matters to the Crown court in a common scenario, where a defendant awaits sentence on unrelated either-way or indictable-only offences. It is suggested that the proper course is either to adjourn the summary matters to await the outcome of the Crown court proceedings, so that the prosecution may ‘take a view’ depending on sentence passed at the Crown court, or for the summary matters to take their own course by way of guilty plea or trial and then, if appropriate, sentence.

Mental health

There is, currently, no sentencing guideline that deals specifically with issues relating to mental health conditions, although the Sentencing Council is consulting on this. Offence-specific guidelines do state that poor mental health is a mitigating factor that the court may take into account in determining sentence. In PS, Abdi Dahir, CF v R [2019] EWCA Crim 2286, the Court of Appeal has set out the proper approach to sentencing offenders who suffer from autism or mental health conditions. The condition may be relevant to the assessment of culpability, the type of sentence to be imposed (particularly whether a Mental Health Act 1983 disposal is appropriate), whether the court may choose to suspend a sentence of imprisonment, any assessment of dangerousness and length of sentence. Many defendants experience poor mental health. Practitioners and judges will be greatly assisted by this case.

Sentencing guidelines

The Sentencing Council has issued new guidelines for sentencing offences contrary to the Public Order Act 1996, including the racially or religiously aggravated form of these offences and the stirring up of racial or religious hatred or hatred based on sexual orientation. These guidelines apply to any defendant sentenced on or after 1 January 2020, regardless of the date of offence.

 Adrian Lower is a district judge (magistrates’ courts)


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