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Coroners and Justice Act 2009

The Coroners and Justice Act 2009 (“the Act”) changes the law on coroners and criminal justice in England and Wales. The Act is divided into nine parts which each deal with different areas of law.

The principal purpose of the Act is to establish a more effective, transparent and responsive justice and coroner service for victims, bereaved families and the wider public. It seeks to achieve this aim in a number of ways including through updating the criminal law, introducing a more consistent and transparent sentencing framework and improving the service bereaved families receive from the coroner system.

Part 1 of the Act reforms the law regarding certification and registration of deaths by the coroner and replaces the Coroners Act 1988. Chapter 1 of Part 1 deals with investigations into deaths including the general duty on the senior coroner, contained in section 1, to investigate deaths. Chapter 2 of Part 1 of the Act deals with notification, certification and registration of deaths. Chapter 3 concerns the appointment of coroners and coroner areas (Schedule 2). Chapter 4 deals with investigations where treasure is involved. Chapter 5 provides further provisions regarding investigations and deaths.

The appointment of Coroners is dealt with in Chapter 6. Section 35 deals with the appointment of the Chief Coroner and the Deputy Chief Coroners. The Chief Coroner provides national leadership for Coroners in England and Wales. The Chief Coroner has powers to intervene in certain circumstances and presides over appeals concerning the coroner system. The Chief Coroner also sets standards for all coroners and manages appointments.

Notably, section 42 empowers the Lord Chancellor to provide guidance to the Senior Coroner on the operation of the coroner system. Chapter 7 includes further supplementary provisions including a regulation making power of the Lord Chancellor in section 43. An example of regulations made under this power are the Coroners (Investigations) Regulations 2013. These regulations provide for, amongst other things, a register of reported deaths.

Part 2 of the Act makes several amendments to the criminal law. Chapter 1 of Part 2 concerns partial defences to murder. These changes are derived from the 2004 report by the Law Commission for England and Wales on Partial Defences. The partial defences are diminished responsibility and loss of control. The law relating to assisting or encouraging suicide is also clarified by section 59 of the Act. The possession of images of children which is pornographic or otherwise obscene or offensive in nature is prohibited by section 62 in Chapter 2. Chapter 3 amends the law in various areas including genocide and crimes against humanity. The offences of sedition, seditious libel, defamatory libel and obscene libel are abolished by section 73.

Part 3 of the Act covers criminal evidence, investigations and procedures. It includes provisions regarding investigation anonymity orders and measures used to protect vulnerable and intimidated witnesses in court proceedings.

Part 4 of the Act concerns sentencing. Chapter 1 of Part 4 establishes the Sentencing Council and the Sentencing Advisory Panel. The Sentencing Council is responsible for publishing guidelines related to the sentencing of offenders (section 120). These sentencing guidelines should be followed by courts in the sentencing process (section 125). Other provisions relating to sentencing are contained in Chapter 2 of Part 4. For instance, section 127 makes provision for the extension of disqualifications from driving in certain circumstances.

Part 5 of the Act contains miscellaneous criminal justice provisions. It amends the Domestic Violence, Crime and Victims Act 2004 and makes provision for the implementation of the EU E-Commerce and Services directives. It also amends a range of criminal procedure legislation to take account of the European Union Framework Decision 2008/675/JHA regarding the treatment in the UK of criminal offences committed elsewhere.

Part 6 of the Act concerns legal aid and other payment for legal services. It allows for the creation of pilot schemes in relation to civil legal aid in certain localities (section 149). It provides that a damages based agreement in relation to an employment matter between a client and a solicitor is not necessarily unenforceable if it meets certain conditions (section 154).

Part 7 of the Act concerns criminal memoirs and introduces a new scheme whereby offenders can be ordered to pay back any benefits they derive as a result of giving accounts of their crimes in the media. Section 156 qualifies which type of offender may be subject to this scheme. The amount which may be recovered from the offender is limited by section 163.

Part 8 of the Act makes amendments to the Data Protection Act 1998 in relation to the powers of the Information Commission. Finally, Part 9 of the Act contains various miscellaneous provisions including orders, regulations, extent and repeals.

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The Serious Crime Act 2007

The Serious Crime Act 2007 (“the Act”) received royal assent on 30 October 2007 and made several significant changes to the criminal law. The intention of the Act is to frustrate serious (often organised) crime by allowing the police to act without the necessity to bring criminal proceedings. The Home Office sought to pass the Act to enable the specific targeting of the leaders of known criminal organisations. The central measure introduced by the Act are Serious Crime Prevention Orders (SCPOs) which are similar to Control Orders which are used to restrict the movements and activities of terrorism suspects.

Part 1 of the Act creates SCPOs. The purpose of the SCPOs is to protect the public by preventing, restricting or disrupting involvement in serious crime. An SCPO can be imposed on an individual upon application to the High Court or the Crown Court upon conviction and breach of a SCPO amounts to a criminal offence. In order to impose the SCPO, the Court must be satisfied that the individual has been involved in a serious crime and that the SCPO is necessary to restrict or disrupt their involvement and protect the public. An SCPO may contain such prohibitions, restrictions, requirements or other terms as the Court considers necessary for the protection of the public.

For orders made in England and Wales, section 2 of the Act provides that a “serious offence” is one which, at the time when the Court is considering the application, is specified or falls within a description specified in Part 1 of Schedule 1 or, alternatively, is one which the Court considered to be sufficiently serious to be treated for the purposes of the application as if it were specified in Part 1 of Schedule 1. The offences listed in Part 1 of Schedule 1 to the Act include various offences under the Misuse of Drugs Act 1971 such as unlawful production or supply of controlled drugs, specified offences under the Customs and Excise Management Act 1979 such as the improper importation of goods and specified offences under the Criminal Justice (International Co-operation) Act 1990 such as using a ship for illicit traffic in controlled drugs. Section 2A and section 3 of the Act deal with the definition of serious crime in Scotland and Northern Ireland, respectively.

Under section 5 the types of provision which can be made in an SCPO are broad. Section 5 contains examples of the type of provision that may be made by an SCPO but it is not exhaustive. Some examples of the prohibitions, restrictions or requirements which may be made include provisions concerned with the financial, property or business dealings of the individual, the types of agreement to which the individual is party or the provision of goods or services by the individual.

Part 1 of the Act also outlines the general safeguards which are applicable to SCPOs. For instance, an individual subject to an SCPO must be over 18 years old (section 6) and parties have the right to make representations under section 9. Under section 16, an SCPO must state when it will come into force and also when it will cease to have effect.

The Act also amends the law relating to encouraging or assisting crime. Part 2 of the Act is based on the 2006 report of the Law Commission entitled “Inchoate Liability for Assisting and Encouraging Crime.” Under Part 2 of the Act, the common law of offence of incitement is abolished and several new offences including intentionally encouraging or assisting crime (section 44) are created. It is a defence to the offences contained in this part of the Act if the person concerned proves that he knew certain circumstances existed and that it was reasonable for him to act as he did in those circumstances (section 50). The Act also provides an exemption from liability for these offences where the offence encouraged or assisted was created in order to protect a category of people (and the person doing the encouragement or assistance fell into that category).

Part 3 of the Act deals with other measures to prevent or disrupt serious and other crime. Chapter 1 therein makes provision for the prevention of fraud. Chapter 2 amends the Proceeds of Crime Act 2002 to, amongst other things, transfer certain powers to the Serious Organised Crime Agency. Chapter 3 of Part 3 extends an existing police power to stop and search for dangerous instruments and offensive weapons without reasonable suspicion. Finally, Part 4 of the Act contains miscellaneous provisions including the procedure for making orders under the Act.

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Criminal Law Act 1977

The aim of the Criminal Law Act 1977 (“the Act”), which came into force on 8 September 1977, is to amend the law in England and Wales with regard to criminal conspiracy and replace the common law in that area. It also aims to restrict the use or threat of violence for securing entry into any premises and penalise unauthorised entry or remaining on premises in certain circumstances. It further amends the criminal law concerning the administration of criminal justice and makes amendments to various provisions including the Legal Aid Act 1974 and the law about juries and coroners’ inquests.

The statutory offence of conspiracy which is established in section 1 of the Act provides that if a person agrees with any other person or persons that a course of conduct shall be pursued which, if carried out, will amount to or involve the commission of any offence by one or more of the parties or would do so but for the existence of extraneous facts which prevent the offence, then that person is guilty of the offence of conspiracy. An “offence” means any offence which is triable under the law of England and Wales. The drafting of the statutory codification of the offence of conspiracy has been subject to significant interpretation in the courts as well as academic commentary. In particular, it is argued that section 1 of the Act is not clear on what the mental element of the offence is and whether conspiracy to commit an offence can be constituted by recklessness as to some circumstances.

Section 1A of the Act was inserted by the Criminal Justice (Terrorism and Conspiracy) Act 1998 and provides for the offence of conspiracy to commit offences outside England and Wales. A number of conditions apply to this offence. Most significantly, there must be an agreed course of conduct which at some stage would involve an act or the happening of some other event intended to take place outside England and Wales and the event or act or other event must constitute an offence under the law in force in that country or territory.

Section 2 of the Act provides exemptions to the crime of conspiracy. There will be no criminal offence where the only other person involved in the agreement is the individual’s spouse or civil partner, someone below the age of criminal responsibility or an intended victim of the offence in question. Under section 3 of the Act, a person may be subject to imprisonment or a fine for conspiracy, depending on the gravity of the offence. If the offence conspired to be committed is a summary offence then proceedings for conspiracy will not proceed unless with the express permission of the Director of Public Prosecutions (section 4).

Part 2 of the Act deals with offences relating to entering and remaining on property. It largely follows the recommendations of the Law Commission for England in Wales in its 1976 report on conspiracy and criminal law reform. Under section 6 of the Act, any person who, without lawful authority, uses or threatens violence for the purpose of securing entry into any premises for himself or for any other person is guilty of an offence. Section 7 of the Act covers adverse occupation of residential premises and provides that an offence has been committed where a trespasser on such premises fails to leave them when required to do so by the displaced residential occupier or an individual who is a protected intending occupier of the premises. Section 8 covers trespassing with a weapon of offence and section 9 prohibits trespassing on the premises of foreign diplomatic missions.

Part 3 of the Act makes provisions in relation to criminal procedure and penalties. Section 15 of the Act provides that certain offences are to be triable only summarily (as opposed to being triable on indictment). Many of these offences are listed in Schedule 1 to the Act.

Certain of the provisions in Part 3 have now been repealed including the procedure for determining the mode of trial of certain offences (sections 19-26). These sections were repealed by the Magistrates' Courts Act 1980.

Finally, Part 4 of the Act contains various miscellaneous provisions. Section 51 of the Act creates an offence relating to bomb hoaxes. Recently, this offence was dealt with in the case of R. v Upex [2015] EWCA Crim 2290 in which the Court of Appeal held that a starting point of three years imprisonment was appropriate for the offence of communicating false information with intent contrary to section 51(2) of the Act.

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Criminal Attempts Act 1981

The Criminal Attempts Act 1981 (“the Act”) is an Act which amends the law of England and Wales regarding attempts to commit offences and conspiracy to commit offences which, in the circumstances, cannot ultimately be committed. It abolishes the offence of attempt at common law. It also repeals the provisions of section 4 of the Vagrancy Act 1824 which established the offence of “loitering with intent.” Furthermore, it makes provision against unauthorised interference with vehicles. The Act was commenced on 27 August 1981.

Under common law conspiracy it was possible to commit the offence of conspiracy where the act which it was conspired to do was not criminal. This common law position was amended by the Criminal Law Act 1977 which introduced the statutory offence of conspiracy. The 1997 Act was later amended by the 1981 Act.

Section 1 of the Act covers attempts to commit an offence. If, with the intent to commit an offence to which section 1 applies, a person does an act which is more than merely preparatory to the commission of the offence then he is guilty of attempting to commit the offence. A person may be guilty of an attempt to commit an offence even where the circumstances are such that the commission of the offence is impossible. A criminal attempt may be committed under this section with respect to any offence which, if it were completed, would be triable in England and Wales as an indictable offence (except conspiracy, aiding or abetting or encouraging or assisting suicide).

The words “more than merely preparatory” in section 1 have been subject to considerable interpretation by the courts. For instance, in R. v Jones [1990] 3 All E.R. 886, it was held that the words "more than merely preparatory" do not mean the "last act within his power." In addition, it has been held that it is not sufficient for the purposes of section 1(1) to enter into an agreement to aid and abet; the Court of Appeal quashed convictions for conspiracy to aid and abet the production of cannabis as the actus reus of the offence under section 1(1) had not been committed in R. v Kenning [2008] EWCA Crim 1534.

Moreover, judicial and academic opinion on what the mens rea for an attempted crime should be is varied, especially on whether it should include recklessness. In R. v Khan [1990] 2 All E.R. 783, the mens rea for rape and attempted rape were deemed to be the same.In its 2007 paper, Conspiracy and Attempts A Consultation Paper, the Law Commission suggested that the law in this area was in need of reform. It suggested that section 1 be repealed and replaced with two separate offences of “criminal attempt” and “criminal preparation.”

The Criminal Justice Act 1993 inserted section 1A into the Act. Section 1A applies to so called “Group A” offences which includes theft, false accounting and blackmail. Section 1A applies where an act is done in England and Wales and that act would have fallen into the definition of an attempted crime in terms of section 1 of the Act if it were not for the fact that the offence, if completed, would not be triable in England and Wales. The effect of section 1A is therefore to extend the jurisdiction of the Act in relation to certain types of attempted crime.

Other statutes may create specific crimes of attempt but according to section 3 of the Act, where another Act creates an offence of attempt, similar rules apply to that offence as the rules in section 1. However, this section does not have retrospective effect. Section 4 sets out the penalties applicable to attempted crimes.

As a result of the enactment of the Act, the offence of attempt at common law and any offence at common law of procuring materials for crime were abolished for all purposes not relating to acts done before the commencement of the Act. For any offences committed after the commencement of the Act, references to attempt at common law in previous statutes should be construed as references to the offence as defined in section 1 of the Act.

As noted above, the Act (section 8) abolishes the crime of “loitering with intent” under the Vagrancy Act 1824. In addition, section 9 of the Act creates an offence of “interference with vehicles.” A person is guilty of this offence if he interferes with a motor vehicle or trailer or with anything carried in or on a motor vehicle or trailer with the intention that another offence (such as theft or taking and driving away without consent) shall be committed by himself or by some other person. According to M (Neil) (A Juvenile) v DPP [2000] Crim. L.R. 316, the maximum sentence for this offence is three months.


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