PENDING LEGISLATION - GOVERNMENT BILLS FOR 2009POLICING AND CRIME BILLCORONERS AND JUSTICE BILL

In the Queen’s Speech in December of last year, Her Majesty referred to a bill which intends to “increase the effectiveness and public accountability of policing, to reduce crime and disorder and to enhance airport security." The Bill to which she referred was the Policing & Crime Bill which had its Second Reading in the House of Commons on 19 January 2009.

Another bill currently in progress is the Coroners and Justice Bill, the government states the main purpose of this bill to be “to deliver a more effective, transparent and responsive justice and coroner service for victims, witnesses, bereaved families and the wider public.” This Bill, which had its Second Reading on 26 January 2009, creates a new national coroner service, seeks to provide increased protection for vulnerable witnesses and perhaps most significantly a reform of the law on homicide.

Policing & Crime Bill Police ReformPart 1 contains provisions placing an additional duty on police authorities to have regard to the public’s views on policing in their area and to require Her Majesty’s Inspectorate of Constabulary (HMIC) to report on this as part of their inspections of police authorities. It also seeks to address how senior officers are appointed and developed, with some positions being voted on by the public. This particular element has come under criticism from the Local Government Association on the basis that the project is a waste of tax payer’s money. Labour backbenchers have also voiced fears that should turnouts be low for such elections, the BNP could profit from reactionary community concerns about crime.Sexual Offences and EstablishmentsPart 2 aims to reduce the demand for prostitution and seeks to shift the focus of enforcement from those working as prostitutes to those that pay for sex. A new offence will be created of paying for sex with someone who is controlled for gain. The offence is one of strict liability; no mental element is required in respect of the offender’s knowledge that the prostitute was controlled for gain. The maximum penalty for this offence will be a fine not exceeding level 3 on the standard scale. Provisions are also included which create a new offence of soliciting. This replaces the existing offences of kerb-crawling and persistent soliciting for sex and offenders will be subject to prosecution for these offences without the need to prove “persistence”. Measures also include the creation of referral orders which can be used by courts as an alternative to a fine for those prosecuted for loitering and soliciting under section 1 of the Street Offences Act 1959.  In addition, Part 2 of the Bill seeks to amend how lap dancing is licensed so that it is treated in the same way as other sex establishments. The government will seek to transfer the opening and regulation of lap-dancing clubs to local authorities. The government hopes that this will result in a fall in the amount of such clubs. Alcohol Misuse Part 3 contains provisions intended to reduce alcohol misuse by amending police powers to deal with young people drinking alcohol in public. The maximum fine for consuming alcohol in a designated public place will be raised from level two (currently £500) to level four (currently £2,500).  Part 3 also introduces the new offence of persistently possessing alcohol in a public place. Young people under 18 can be prosecuted for this offence if they are caught with alcohol in a public place three times within a 12 month period. The maximum punishment for this is a level two fine (currently £500). The Home Secretary had wanted to ban young people from drinking in public places altogether; this Bill doesn't go quite that far, but will still criminalise under 18s who are repeatedly caught in possession of alcohol in a public place. This is a rather controversial provision given that it is not illegal for under 18s to drink alcohol. There are also provisions which will raise the maximum penalties for those premises that sell alcohol to young people and those people who refuse to stop drinking in public when instructed to by the police.

Other areas of law dealt with in this bill are Proceeds of Crime, Extradition and Aviation Security.

Coroners and Justice BillCoroners

The most controversial provision contained in Part 1 is the reintroduction of proposals to hold inquests relating to national security without a jury. Relatives and the press would also be excluded on the same grounds. The Bar Council has voiced its concern at this proposal stating whilst national security may require reporting restrictions in relation to inquests, the Bill, as presently drafted, risks normalising measures that should only be taken in the most extreme circumstances. These proposals were of course met with widespread opposition when the government first tried to introduce the proposal last year in the Counter Terrorism Act. The new proposals mean any decision by a minister to hold a secret inquest will be subject to judicial review, a safeguard that was not available first time around.  

Criminal Offences

Part 2 of the Bill significantly amends the law on homicide.

The partial defence of diminished responsibility will be based on the concept of a “recognised medical condition” that impairs the Accused’s ability to understand the nature of his conduct, to form a rational judgement and to exercise self control. This is of course spells out more clearly what aspects of a defendant’s functioning must be affected in order for the partial defence to succeed. It is proposed also that the existing common law partial defence of provocation is abolished and replaced with two new partial defences of killing in response to a fear of serious violence, and killing in response to words or conduct which caused the defendant to have a justifiable sense of being seriously wronged. A spouse who discovers the other has been unfaithful is unable to claim that they have been ‘seriously wronged’.

The partial defence of loss of control, often relied upon by victims of domestic abuse, will also be amended to allow them to cite the "slow burn" of attacks over a period of time i.e., the loss of control will not have to be sudden for the partial defence to be raised.

  Criminal evidence, investigations and procedure

Following the law lords’ ruling against anonymous evidence which led to the collapse of a murder trial at the Old Bailey in June last year, the government has sought to address the issue of anonymous evidence in this bill. Part 3 of the Bill seeks to afford witnesses, including those of gun and gang related violence, the best possible protection, right from the early stages of the criminal justice process by re-enacting the provisions of the emergency Criminal Evidence (Witness Anonymity) Act 2008 and introducing a new investigative witness anonymity order to protect witnesses to gang related homicides. The government has stated that the new law will be fully compliant with the relevant European Conventions.

The bill also intends extending the use of special measures in criminal proceedings so that vulnerable and intimidated witnesses can give evidence more freely.

 SentencingPart 4 of the bill proposes a more consistent and transparent sentencing framework.  It seeks to establish a new Sentencing Council for England and Wales, (replacing the Sentencing Guidelines Council (SGC) and the Sentencing Advisory Panel (SAP)) and seeks to address the Council’s functions and the duties of courts to follow its guidelines. The new body will produce comprehensive guidelines for sentencers, enhancing consistency of sentencing. Courts will be bound by statute to follow any sentencing guidelines unless it is satisfied that it would be contrary to the interests of justice to do so. Criminal Memoirs

Part 7 introduces a new civil recovery scheme through which courts can order offenders to pay amounts in respect of assets or other benefits derived by them from the exploitation of accounts about their crimes, for example, by selling their memoirs, or receiving payments for public speaking or media interviews. Accounts of prison life, will be exempt from the new provisions as will accounts of criminal activity that was never punished, accounts of other people's crimes or truly fictional works.