Posts Tagged ‘law commission’
Sentencing Act 2020 given Royal Assent
On 22 October 2020, the Sentencing Act 2020 received the Royal Assent. A commencement date has not yet been set, but once it is, the Sentencing Code – which the Act contains – will come into force.
I have considered the content of the Code at https://martinpartington.com/2020/07/21/enacting-the-sentencing-code/
This is a significant achievement, undertaken by the Law Commission, which hopefully will bring greater clarity to the rules which the courts must apply when they sentence those convicted of crimes.
A press notice is at https://www.gov.uk/government/news/sentencing-code-granted-royal-assent
Search warrants: proposals from the Law Commission
One of the important powers the police have when they are investigating crime is the power to search premises and if necessary seize property that might be evidence to be used in a subsequent prosecution. A search warrant is an authorisation by a magistrate giving the police (or other investigtors) to make a search.
Around 40,000 search warrants are issued in England and Wales every year. There are over 175 different powers to issue search warrants. Some, like the general power under section 8 of the Police and Criminal Evidence Act 1984 (“PACE”), are used to look for evidence of a criminal offence. Some more specific powers allow the searcher to remove stolen goods, drugs, firearms or other dangerous materials, or to rescue people or animals in danger or distress. Other powers relate to complex financial or specialised investigations.
However, as the Law Commission notes, there are problems with the current system. These include:
- Error: A 2016 review by the National Crime Agency found that 79% of investigations had defective warrants (of which 8% had significant deficiencies).
- Inefficiency: Sometimes it can take three weeks to obtain a search warrant, during which time evidence might have been lost and further crimes committed.
- Insufficient powers: Law enforcement agencies do not have effective powers to obtain electronic evidence, which might be stored on remote servers in an unknown jurisdiction. Such material can be vital for the successful prosecution of serious criminal offences.
- Inadequate safeguards: There is currently not enough protection for individuals whose electronic devices are seized. Safeguards also vary depending on the type of warrant issued, so some individuals have fewer statutory protections than others.
To meet these shortcomings, the Law Commission has made a number of recommendations:
- Strengthened law enforcement powers: These include:
- Updating law enforcement powers so that they more clearly apply to electronic devices and data and allow digital evidence to be seized and copied.
- The expansion of “multiple entry warrants” which would allow for a property to be searched on multiple occasions and “all premises warrants” which would allow all premises occupied or controlled by a specified person to be searched.
- Permitting a police constable to search a person found on premises under the authority of a search warrant issued under PACE.
- Giving the Insolvency Service and NHS Counter Fraud Authorities in England and Wales the ability to apply for and execute search warrants.
- Improved process: The Law Commission makes recommendations to improve procedural efficiency, reduce the scope for serious errors and ensure that the issuing authority, a magistrate or judge, is presented with an accurate and complete picture of the investigation. These include: ensuring that the duty of an applicant to provide full and frank disclosure to the court is properly adhered to; introducing standardised entry warrant application forms and a template for entry warrants; considering the possibility of creating an online search warrants application portal; improving procedures for hearing search warrant applications to ensure that there is adequate judicial oversight.
- Electronic evidence and materials: Amending the legal framework that currently governs the search and seizure of electronic material to facilitate the collection and examination of electronic material in a way which does not inhibit criminal investigations or impose unreasonable demands on law enforcement agencies. This could allow for electronic devices to be searched and data to be copied while on the premises. (The Government should consider whether this should include data stored remotely (even if in another jurisdiction).) The Commission also recommends measures to ensure transparency and accountability and limit the interference with property and privacy rights. Unneeded data should be swiftly deleted, and devices returned as soon as is practical.
- Safeguards: These should be reformed to ensure that non-police investigators, such as members of the Serious Fraud Office, are subject to similar safeguards as the police. The Commission also recommends that an occupier should have a right to ask for a legal representative to be present to observe the execution of a warrant.
- Personal records and journalistic material: In relation to personal records and confidential journalistic material, we conclude that they should remain obtainable under PACE in very limited circumstances. We recommend that the Government considers whether the law governing access to these categories of material under PACE strikes the right balance between the competing interests at play, and whether the law ought to be reformed.
As this project was undertaken at the request of the Home Office, there is reasonable likelihood that firm policy proposals will emerge in due course.
Source: adapted from https://www.lawcom.gov.uk/project/search-warrants/
Enacting the Sentencing Code
In 2018, the Law Commission published the final report on one of its largest law consolidation exercises – the creation of a Sentencing Code. The Sentencing Code does not make new law, but consolidates into a single place all the law relating to sentencing.
The law on sentencing was spread throughout a large number of enactments. It had become particularly complex because changes in the law often resulted in earlier pieces of legislation being repealed except for specific provisions relating to sentencing. Thus the law applicable to any particular offence could be very hard to discover. Indeed, it was so hard to discover that, in 2012, an analysis of 262 randomly selected cases in the Court of Appeal (Criminal Division) found that 36 percent had received unlawful sentences. The Law Commission attributed these results to the level of complexity in the existing legislation.
In order to achieve this outcome, two pieces of legislation are required:
- The Sentencing (Pre-consolidation Amendments) Act 2020
- The Sentencing Bill
Sentencing (Pre-consolidation Amendments) Act 2020
This is a very technical piece of legislation which amends current law so that it is brought into a state to be consolidated when the Sentencing Code itself comes into effect (which will be on 1 October 2020). Once the Code is effective, the pre-consolidation Act becomes redundant.
The Sentencing Bill 2020
The Sentencing Bill which contains the Sentencing Code is a consolidation bill. It does not therefore need to go through the normal Parliamentary Process. Instead it is considered by a specially constituted Joint Committee on Consolidation Bills. At the time of preparing this note, the Bill has been introduced into the House of Lords where it has received its second reading. However, the Joint Committee has not yet been established.
Sentencing code: structure
The code is set out in Parts 2 to 13 of the bill. The code’s structure follows the chronology of a sentencing hearing, as follows:
(a) Before sentencing:
• Part 2 is about powers exercisable by a court before passing sentence.
(b) Sentencing:
• Part 3 is about court procedure when sentencing.
• Part 4 is about the discretion a court has when sentencing.
(c) Sentences:
• Part 5 is about absolute and conditional discharges.
• Part 6 is about orders relating to conduct.
• Part 7 is about fines and other orders relating to property.
• Part 8 is about disqualification.
• Part 9 is about community sentences.
• Part 10 is about custodial sentences.
• Part 11 is about behaviour orders.
(d) General:
• Part 12 contains miscellaneous and general provisions about sentencing.
• Part 13 deals with interpretation.
As a consolidation bill does not alter the law, there are no explanatory notes. However the House of Lords Library has provided an excellent short introduction to the Bill, available at https://lordslibrary.parliament.uk/research-briefings/lln-2020-0084/
What about new offences or new sentences? Keeping the Code up to date
As is well known, Governments frequently change the criminal law, adding new offences of amending existing ones. Henceforth the sentencing implications of such changes are to be dealt with by way of amendments to the Sentencing Code. The intention is that the Code will automatically be updated as new sentencing provisions are enacted. One of the first examples of changes to the Code can be found in the Counter Terrorism and Sentencing Bill 2020, currently before Parliament. See https://services.parliament.uk/Bills/2019-21/counterterrorismandsentencing/documents.html
Up to date electronic versions of the Code will be available online.
The role of the Sentencing Council
Sentencing powers give sentencers considerable discretion. The role of the Sentencing Council, giving guidance on how that discretion should be exercised, is unaffected by the Sentencing Act and the creation of the Sentencing Code.
Passing of the Divorce, Dissolution and Separation Act 2020: reforming divorce law
The Divorce, Dissolution and Separation Act 2020 received the Royal Assent on 26 June 2020. It comes into force on a date to be determined, probably later in 2020. A transition period is required so that new court forms and procedures, including those to be used online, can be written and agreed.
As modern Acts of Parliament go, this measure is modest in length – a mere 9 sections. But, as I have noted in this blog before, the Act
- replaces the current requirement to evidence either a conduct or separation ‘fact’ with the provision of a statement of irretrievable breakdown of the marriage (for the first time, couples can opt to make this a joint statement).
- removes the possibility of contesting the decision to divorce, as a statement will be conclusive evidence that the marriage has irretrievably broken down.
- introduces a new minimum period of 20 weeks from the start of proceedings to confirmation to the court that a conditional order of divorce may be made, allowing greater opportunity for couples to agree practical arrangements for the future where reconciliation is not possible and divorce is inevitable.
The history of the campaign to reform the law of divorce is a long and tortuous one. The Church of England report, Putting Asunder, was published in 1964. It was the subject of one of the Law Commission’s earliest report, published in 1966. The Commission published its proposals for a single ground for divorce in 1990. Many commentators take this as the starting date for the campaign for reform which has culminated in the present Act.
The Act itself can be found at https://services.parliament.uk/Bills/2019-21/divorcedissolutionandseparation.html
The 1966 Law Commission report is at https://www.lawcom.gov.uk/project/reform-of-the-grounds-of-divorce-the-field-of-choice/#related
The 1990 Law Commission report is at https://www.lawcom.gov.uk/project/family-law-the-ground-for-divorce/
Creating a Sentencing Code: proposals from the Law Commission
Way back in May 2016 I noted the publication of a Consultation by the Law Commission on the creation of a single code of law on sentencing for criminal offences. Well, the outcome of that consultation is now published. It is a great law reform effort and one that deserves to be implemented at the earliest opportunity.
To remind readers, the current law is so complicated that judges frequently get their sentencing decisions wrong. As the Commission itself noted:
The current law of sentencing is inefficient and lacks transparency. The law is incredibly complex and difficult to understand even for experienced judges and lawyers.
It is spread across a huge number of statutes, and is frequently amended. Worse, amendments are brought into force at different times for different cases. The result of this is that there are multiple versions of the law that could apply to any given case.
This makes it difficult, if not impossible at times, for practitioners and the courts to understand what the present law of sentencing procedure actually is.
This leads to delays, costly appeals and unlawful sentences.
There is near unanimity from legal practitioners, judges and academic lawyers that the law in this area is in urgent need of reform.
A new Sentencing Code has three key benefits:
- it makes the law simpler and easier to use;
- it increases public confidence in the criminal justice system; and
- it increases the efficiency of the sentencing process.
The benefits claimed for the new code are that it would:
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help stop unlawful sentences by providing a single reference point for the law of sentencing, simplify many complex provisions and remove the need to refer to historic legislation;
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save up to £256 million over the next decade by avoiding unnecessary appeals and reducing delays in sentencing clogging up the court system;
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rewrite the law in modern language, improving public confidence and allowing non-lawyers to understand sentencing more easily;
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remove the unnecessary layers of historic legislation; and
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allow judges to use the modern sentencing powers for both current and historic cases, making cases simpler to deal with and ensuring justice is better served.
It is hoped that the Sentencing Code could be enacted as a Consolidation Bill which would take up far less Parliamentary time than a normal bill. Progress ought to be made on this during 2019, if the political will is there.
For further information see https://www.lawcom.gov.uk/project/sentencing-code/ which provides links to the Report and the Draft Code
Employment Law Hearing Structures: Consultation from the Law Commission
The headline features of the Transformation: Courts and Tribunals 2022 programme have been about major changes to the ways in which courts and tribunals work: on-line courts, digitization of process, investment in IT and so on.
But in parallel with these major changes, other more technical changes are being contemplated which it is hoped will improve the efficiency of the work of courts and tribunals.
The recently announced (26 September 2018) consultation paper Employment Law Hearing Structures is an example of how the government is seeking to take this opportunity to make some technical changes to the ways in which courts and tribunals dealing with employment and discrimination cases interact.
For example:
- At present Employment Tribunals can only claims for contractual damages, where the damages claimed are below £25,000;
- Employment Tribunals operate on a ‘no-costs’ basis – i.e. the winner of the case cannot seek an order for costs from the losing party;
- Employment Tribunals have no power to make an order to enforce a decision that it has made.
- Courts have exclusive jurisdiction over no-employment discrimination cases
These and other rules mean that there can be circumstances in which cases have to go to courts that might be better dealt with by the tribunal, and vice versa.
The detail of the proposals in the Consultation Paper are not considered here, though of great importance to specialist employment lawyers and other interested in employment matters.
But the existence of the consultation is flagged here to indicate yet more ways in which the detailed work of courts and tribunals is likely to be amended under the general banner of the Transformation programme.
(A similar exercise, though not currently the subject of a public consultation, is ongoing in the context of the resolution of housing and property disputes where complex boundaries have to be negotiated between tribunals and courts which mean that cases may need to be launched in more than one forum. There is likely to be greater public debate on these issues when the promised Consultation Paper on a new Housing Court is published later in 2018.)
The Law Commission’s Consultation Paper can be seen at https://www.lawcom.gov.uk/consultation-launched-into-how-employment-law-disputes-are-decided/
The Consultation runs till January 2019. Final recommendations will be published in 2019.
The work of the Law Commission: Justice Committee inquiry 2018
In the summer 2018, the House of Commons Justice Committee announced that it would start an inquiry into the work of the Law Commission. To date it has received oral and written evidence from the Law Commission.
The evidence shows that over the last 8 years, the core funding for the work of the Commission has been cut by over 50%.
To make up the short-fall, the Commission has been undertaking a number of projects funded by Government Departments, which fall outside the programme of Law Reform which the Commission had itself determined and agreed with the Government.
In oral evidence, the then Chair, Sir David Bean made the point that, while funded projects were important, it could mean that other important projects would have to be dropped or postponed, because they did not fit the political priorities of the day.
The final outcome of the inquiry is currently awaited.
The written and oral evidence is available at https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/work-of-the-law-commission-17-19/publications/
Search warrants – reform proposals
As a keen follower of the work of the Law Commission (I was once a Commissioner), I confess I had not spotted the fact that the Commission was undertaking work relating to the law on search warrants. It did not get a mention in either its 12th or 13th programmes.
The reason for this is that in December 2016, they were give a specific commission by the Home Office to undertake work in this area. The first fruits of this project have now been published in the form of a Consultation Paper setting out the Commission’s initial ideas as to how the law might be reformed.
A search warrant is a written authorisation that allows an investigator to enter premises to search for material or individuals. Search warrants are usually issued by a court following an application by a police officer or other investigator. Most search warrants authorise the investigator to seize and retain relevant material found during the search.
Surprisingly, perhaps, detailed analysis of the law reveals that there over 175 different powers to issue search warrants. Some, like the general power under section 8 of the Police and Criminal Evidence Act 1984, are used to look for evidence of a criminal offence. More specific powers allow the searcher to remove stolen goods, drugs, firearms or other dangerous materials or to rescue people or animals in danger or distress. Other powers relate to complex financial or other types of specialised investigation.
The Commission identified a number of problems with the current law:
- the sheer number of provisions, coupled with their complexity, leads to a confusing legislative landscape;
- there is inconsistency across search warrant provisions and in the procedure for obtaining a search warrant. Importantly, there is inconsistency in the applicability of statutory safeguards and the protection afforded to particular categories of material;
- a large proportion of the legislation, in particular the Police and Criminal Evidence Act 1984, predates the advent of electronic material and risks failing to deal with emerging digital technology and the forms in which criminal activity now takes place; and
- the number of appeals generated by search warrants legislation, and the legal fees incurred, creates excessive cost for all parties.
In the light of their analysis, the Commission has made proposals to:
- simplify the law and procedure governing search warrants by rendering it more rational and accessible at all stages of the search warrant process;
- make the law fairer by extending protections, improving judicial scrutiny and making the law more transparent;
- modernise the law to ensure that it reflects the changing nature of investigations and is equipped to deal with current technology; and
- make the law more cost-effective by introducing a streamlined way to obtain a search warrant and a new procedure to challenge and correct procedural deficiencies.
The consultation runs until 5 September 2018.
For further details and links to the consultation go to https://www.lawcom.gov.uk/project/search-warrants/
Controlling trolling? A job for the Law Commission
Although the Law Commission’s 13th Programme of Work was announced only in December 2017, the Commission has already had those plans amended by the Government asking whether changes to the law are needed to ensure that internet trolling can be controlled. More specifically the government has asked the Law Commission to review the laws around offensive communications and assess whether they provide the right protection to victims online.
This is a serious problem. Research shows that nearly a third of UK internet users were on the receiving end of trolling, harassment or cyberbullying in 2017.The Commission will review the current laws and set out how they apply to online communications. Its work be informed by developing Government policy in the Government Digital Charter. (See https://www.gov.uk/government/publications/digital-charter published in January 2018.)
Among issues to be addressed are the following:
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How the Malicious Communications Act 1988 deals with offensive online communications
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How the Communications Act 2003 deals with online communications
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What “grossly offensive” means and whether that poses difficulties in legal certainty
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Whether the law means you need to prove fault or prove intention to prosecute offensive online communications
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The need to update definitions in the law which technology has rendered obsolete or confused, such as the meaning of “sender”
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How other parts of the criminal law overlap with online communications laws
It is intended that thw work should be undertaken swiftly. A consultation paper is expected within 6 months.
For further detail see https://www.lawcom.gov.uk/government-asks-law-commission-to-look-at-trolling-laws/
Law Commission: 13th Programme announced
After delay resulting from the calling of the General Election in May 2017, the Law Commission has just (14 December 2017) announced its latest programme of law reform projects which it intends to take forward over the next three years.
The list is an interesting one containing a wide variety of topics.
A number of these can be see to be a response to technological change. Projects on Automated Vehicles, Electronic Signatures, Intermediated Securities or Smart Contracts would not have been on such a list, even three years ago (when the 12th Programme was published).
The general area of property law attracts a number of projects. These include: Modernising Trust Law for a Global Britain, Registered Land and Chancel Repair Liability, Museum Collections, Residential Leasehold, and Unfair Terms in Residential Leasehold.
There is a number of projects that will examine how current processes, which affect the public, might be reformed. These include: Administrative Review, Employment Law Hearing Structures, and Simplifying the Immigration Rules.
Controversial issues concerning both the start and end of life are reflected in proposals to review Surrogacy and A Modern Framework for Disposing of the Dead.
In addition to these new projects, the Law Commission will continue to work on items brought over from the 12th Programme of work, including work on Sentencing, and Search warrants.
The Law Commission also lists a number of other topics which is considered for inclusion but which do not appear in the current programme.
Further details of all these projects can be found at https://www.lawcom.gov.uk/project/13th-programme-of-law-reform/
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 