Crime Brief

Contracts and legal aid

On Friday 4 April a new unified criminal contract was published, intended to come into force on 14 July 2008. Important changes to the duty solicitor regulations will take effect on the same date. Suppliers needs to be conscious of the timetable below.
The unified contract makes substantial changes to the current general criminal contract and all criminal lawyers are advised to go through it with a fine toothcomb in order to understand the new contracting regime. Key features are:
 Removal of most of the key performance indicators published in the draft contract.
 Right to inspect firm’s accounts if there is concern over a firms financial standing, eg there was evidence it was not paying third-party disbursements).
 A right to amend the contract only: for legislative changes/court decisions etc; for external changes to the justice system; to correct mistakes and ambiguities; and to make minor, technical or procedural changes.
 Obligation to use online reporting of claims.
 An obligation only to use experts who agree to time record their work, and make those records available on demand to the Legal Services Commission (LSC).
 Publishing of payment and audit performance information on individual firms.
 

Where has all the work gone?

There has been strong anecdotal evidence of a downturn in general criminal work. The LSC  has just made available the data in the table on p 519.
It can be clearly seen that since 2002–03 there has been a dramatic drop in volume, although surprisingly the greatest drop (in 2004–05) did not coincide with means testing as many had suspected. Separate data released by the LSC shows that grant of representation following means testing has now stabilised at around the 50,000 cases per month mark (suggesting that case volumes for 2007–08 may drop to the 600,000 mark).
Over the same period there has been a dramatic rise in average case cost, although you do have to be cautious when considering the figures, as these are core costs, and do not reflect fixed fee amounts paid—suggestive that profit will be falling significantly.
 

Serious crime

April is a busy month in relation to serious crime measures. On the 1 April the Assets Recovery Agency was abolished and transferred of all its function to the Serious Organised Crime Agency and National Policing Improvement Agency.
On 6 April a large number of measures that make adjustments to the existing schemes for investigating, restraining and forfeiting the proceeds of criminal conduct came in to force. Practitioners with an interest in this particular area need to take a look at Serious Crime Act 2007  (Commencement No 2 and Transitional and Transitory Provisions and Savings) Order 2008 (SI 2008/755).
The main event on 6 April was however the introduction of Serious Crime Prevention Orders —otherwise known as an ASBO for Mr Big. The orders are provided for under the Serious Crime Act 2007, s 1 and can only be obtained in the High Court on freestanding application, or in the crown court following conviction. If a person breaches an order he commits a criminal offence.
Subsection (1) sets out the test which the High Court must apply to determine whether  or not such an order can be made. It provides that an order may be made if the court is satisfied that a person has been involved in serious crime, whether that involvement was in England and Wales or elsewhere in the world, and where it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales. Under the first part of the test in s 1(1)(a) a person can be involved in serious crime that has occurred in England and Wales or elsewhere. Under the second part of the test in s 1(1)(b) the public must be protected from the involvement of a person in serious crime in England and Wales only. Being “involved” in serious crime in England and Wales or elsewhere is defined in ss 2 and 4. “Involvement” in serious crime in England and Wales is defined in s 2(3). Subsection (3) provides that the court may impose such terms in the order, whether prohibitions, restrictions, requirements or other terms, as it considers appropriate so as to protect the public by preventing, restricting or disrupting the involvement of the subject of the order in serious crime.
The Criminal Defence Service (General) (No 2) (Amendment) Regulations 2008 (SI 2008/725) provide for legal aid in relation to orders made in the crown court, and on appeal to the court of appeal. Note, however, that for proceedings in the High Court, only civil legal aid is available, subject to eligibility.
 

Terrorism

The Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2008 (SI 2008/559) continues in force, for a period of one year, ss 1 to 9 of the Prevention of Terrorism Act 2005 (which would otherwise have expired at the end of 10 March 2008) pursuant to Art 2 of the Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2007 (SI 2007/706).
Sections 1 to 9 of the Prevention of Terrorism Act 2005 enable the secretary of state to make a control order against an individual where she has reasonable grounds for suspecting that individual is or has been involved in terrorism-related activity and it is necessary to impose obligations on that individual for purposes connected with protecting members of the public from a risk of terrorism.
 

Case law update
 

R v James [2007] EWCA Crim 1906

Defendant arraigned on a charge of assault occasioning actual bodily harm and pleaded guilty to common assault—a plea accepted by the prosecution. The defendant also fell to be sentenced for a further two common assaults. He received a total of nine month’s imprisonment.

HELD The sentence was unlawful as the court was bound by the maximum sentence that could be imposed in the magistrates’ court.
 

R v Pattison [2007] EWCA Crim 1536

The defendant purchased a house at undervalue to frustrate confiscation proceedings against another person. He purchased the house by way of loan. It was held that the benefit of the criminality was the value of the house (plus any residual income such as rent). The loan could not be taken into account and off-set against the value.
 

Norris v Government of the United States [2008] UKHL 16, [2008] All ER (D) 158 (Mar)

The US government sought extradition in relation to price fixing charges (cartel offences)
alleged between 1999 and 2000.

HELD (i) At time those activities were not offences in the UK, accordingly the offence was not an extradition offence (s 137 of the Extradition Act 2003). (ii) The House of Lords was satisfied that it had an inherent power to remit the case back for consideration by the magistrates’ court of issues surrounding the three remaining extradition charges.
 

R (White) v Crown Court at Blackfriars [2008] EWHC 510 (Admin)

An interesting case as to whether or not the court ought to impose a football banning order. The claimant’s case was:

  “That in a moment of madness the claimant opted to do an act that was extraordinary for him. He acted in a way that he has not done before or since and there is no reason to suppose that he might engage in such activity again. It is submitted that the court failed to assess his own conduct and personal circumstances in imposing the order and wrongly based its decision on the general deterrence such an order would have. The imposition of the order in the circumstances of this case, just because of the claimant’s conviction for an isolated act of violence, is said to be disproportionate.”

HELD
(i) As a starting point, a banning order should only be imposed where there are strong grounds for concluding that the individual subject of the order has a propensity for taking part in football hooliganism.
(ii) The court was entitled to take into account and to give great weight to deterrence. There are clear benefits in it being widely known that a person who assaults an official at a football match is liable to be made the subject of a football banning order even if the incident was, for that person, an isolated one.
(iii) In the instant case the parties, through inaction on the part of the solicitor was out of time to appeal by way of case stated, accordingly counsel advised judicial review. The court should be slow to entertain an application for judicial review as an alternative to an appeal by way of case stated just because the time limit for an appeal has been missed, even if the fault lies with the claimant’s solicitors rather than with the claimant personally. There may be cases where judicial review is nonetheless appropriate, in particular to avoid a serious injustice.
 

Thornhill v Uxbridge Magistrates’ Court [2008] EWHC 508 (Admin), [2008] All ER (D) 08 (Mar)

The applicant pleased guilty to failing to provide a specimen of breath. All parties agreed that this plea was in error and the matter was reopened. The Crown Prosecution Service later applied (later than six months after the date of offence) to amend the charge to one of failing to provide a specimen of urine. The justices allowed the application and the defendant appealed.

HELD “There is a substantial difference…between the decision in Ex parte McPhee and Gallagher [1998] 162 JPR 635 and the present case because the wrongdoing in the present case was very different from that which led to the original charge. There is a distinct difference between a failure to provide a specimen of urine and one of breath. In those circumstances the decision of the justices should be quashed.” (Mr Justice Silber at para 8).
 

R v Lamaletie [2008] EWCA Crim 314, [2008] All ER (D) 425 (Feb)

 It was good practice for the prosecution when seeking to introduce evidence under the Criminal Justice Act 2003, 101(1)(d) to provide full particulars of the convictions relied upon. However, this was not mandatory and a list of convictions may suffice as to definition of “character” was wide.