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June 2014
5 things we've learned about the law this year...
  • Entrapment
  • Trial in the absence of the accused
  • Sentencing guidelines for sexual offences
  • Age of the defendant of offence/conviction/sentence
  • Reclassification of certain drugs
Entrapment

This case is a useful reminder of the Loosely principles when advising clients charged in “test purchase” operations who say that they were “set up” by undercover police officers.  The questions to be asked by the Court are :- i) was the police operation triggered by a reasonable suspicion of criminal activity ?  ii) was the operation properly authorised and supervised ?  iii) was the means employed necessary and proportionate ?  iv) did the police “cause” the offence or did they merely present the defendant with an unexceptional opportunity to commit it ?  v) was the evidence of the police properly authenticated ?  Good luck getting a Judge to answer the above questions in any way other than yes, yes, yes, no and yes. R v Moore, R v Burrows [2014] Crim L.R 364.

Trial in the absence of the accused

The Court of Appeal has embraced views expressed in local courts.  It has said that a defendant has a responsibility to maintain contact with his or her lawyer by means that allow for communication at short notice.  If the case is in the warned list, the defendant should contact his or her solicitor on a daily basis to find out whether the case has been listed for the following day ; R v Lopez [2014] Crim L.R 384.

Sentencing guidelines for sexual offences

The new guidelines change the basis for sentencing in cases involving the possession of indecent images of children.  In the past, a defendant charged with possessing thousands of level 1 images and a handful of level 5 images would be sentenced on the basis of the level 5 possession.  In the new guidelines, the Sentencing Council says “in most cases the intrinsic character of the most serious of the offending images will initially determine the appropriate category.  If, however, the most serious images are unrepresentative of the offender’s conduct, a lower category may be appropriate”. (page 77)

Age of defendant at date of offence/conviction/sentence

We all know that it is the date of the conviction that matters for the purpose of sentence ; and we’ve all had 18 year old defendants sentenced according the “adult” guidelines and been left with a feeling that it’s not quite right.  The Court of Appeal has now helped out a little.  In cases where the defendant was aged 17 at the commission of the offence but 18 at the date of conviction, the Court of Appeal has said that regard should be had to the sentence that would have been imposed had he been sentenced as a young offender and that this would be a powerful factor, albeit not the sole determining one, in deciding what the sentence should be ; R v Y [2014] 1 Cr.App.R (S.) 39.  Although in that case, the Court of Appeal did not interfere with the sentence of 5 years’ detention in a Young Offenders’ Institution for the appellant who was aged 17 at the date of the offence, the same sentence having been imposed upon his adult co-accused.

Reclassification of certain drugs

From 10th June 2014, ketamine goes from class C to class B.  Tramadol and Zopiclone become class C drugs ; Misuse of Drugs Act 1971 (Ketamine etc) (Amendment) Order 2014 (S.I 2014 No. 1106).

Jason Beal
jasonbeal@devonchambers.co.uk
Jason became Head of Chambers in 2012. He practises exclusively in criminal law with almost 20 years' experience. He has a particular expertise in fraud, financial crime, money laundering and drug conspiracies.
Our Criminal Team:
Jason Beal |  Nigel Lickley QC |  Garth Richardson |  Paul Rowsell
Barrie van den Berg |  Rupert Taylor |  Edward Bailey |  Ramsay Quaife
Piers Norsworthy |  Kelly Scrivener |  Emily Cook |  Joanna Martin
Julia Cox |  Sarah Vince |  Sally Daulton |  Scott Horner
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