Criminal Law Legislation Update

Criminal Finances Act 2017 (Consequential Amendment) Regulations 2018

The Criminal Finances Act 2017 (Consequential Amendment) Regulations 2018 (SI 2018/80) are made under s. 54(1) Criminal Finances Act (CFA) 2017 and make an amendment to s. 278(7)(a) of the Proceeds of Crime Act 2002 (POCA 2002). These amendments come into force on 31 January 2018.

Under s. 278(7)(a) POCA 2002, a court may not make a recovery order under s. 266 POCA 2002 if the court considers that the enforcement authority’s right to recover the property has been satisfied by either a previous recovery order or a previous consent order. A previous forfeiture order is to be treated as a previous recovery order according to s. 278(7) POCA 2002. Section 278(7)(a) was amended by the CFA 2017 to include references to forfeiture orders made under the new powers to forfeit certain items of personal or moveable property and funds in bank accounts. These Regulations make a consequential amendment to that section, so that a forfeiture order made under s. 303R POCA 2002, to forfeit personal or moveable property, is captured. This ensures that a consistent approach is taken to all previous orders made against property.

Proceeds of Crime Act 2002 (Investigations: Code of Practice) Order 2018

This revised Code of Practice (SI 2018/84) comes into force on 31 January 2018 and is made by the Secretary of State under s. 377 of the POCA 2002. It relates to the exercise of functions under Part 8, Chapter 2 of POCA 2002 concerning the conduct by appropriate officers (defined in s. 378 of POCA 2002) of certain types of investigations which are authorised by the Act, concerned with the recovery of the proceeds of criminal conduct. In particular, it applies to the functions of the Director General and other officers from the National Crime Agency, officers of the Revenue and Customs, immigration officers, Financial Conduct Authority Officers and accredited financial investigators and constables (England and Wales only). The Code of Practice applies to England, Wales and Northern Ireland only. It was required as a result of amendments made to POCA 2002 by the CFA 2017 to extend and create new investigatory functions. In turn, the Proceeds of Crime Act 2002 (Investigations: Code of Practice) (England and Wales and Northern Ireland) Order 2016 (SI 2016/209) is revoked.

Criminal Finances Act 2017 (Commencement No. 4) Regulations 2018

These Regulations (SI 2018/78) are the fourth commencement regulations made under s. 58(1) and (7) of the CFA 2017, amending POCA 2002, the Terrorism Act 2000 (TA 2000) and the Anti-terrorism, Crime and Security Act 2001 (ACSA 2001). They come partly into force on 30 January 2018 and fully into force on 16 April 2018.

Regulation 2 brings into force certain powers for the Secretary of State to make regulations concerning the manner in which administrative forfeiture notices are to be given and the power to designate particular ranks of immigration officer as ‘senior officers’ for certain purposes. These provisions are being brought fully into force, on 30 January 2018, before the main powers to which they relate, to allow the relevant regulations and designations to be made and come into force at the same time as the main powers.

Regulation 3 brings into force, on 31 January 2018, several provisions that amend POCA 2002, namely the introduction of a new investigatory order (the unexplained wealth order) and a new procedure by which money in bank and building society accounts can be frozen and forfeited (this includes a power to forfeit the funds without court order, by giving an administrative forfeiture notice). The provisions give access to POCA powers by law enforcement agencies and allow certain law enforcement agencies greater access to the powers in POCA (including the Serious Fraud Office and Her Majesty’s Revenue and Customs). Additionally, the provisions create criminal offences of assaulting or obstructing law enforcement agents when carrying out POCA functions. Technical amendments are made to the confiscation procedure and to recovery orders involving heritable property and money received by administrators (in Scotland).

Regulation 3 also brings into force some amendments to TA 2000 regarding disclosure orders and to ACSA 2001, relating to the recovery of terrorist property (‘the terrorist financing provisions’). The definition of ‘cash’ now includes gaming vouchers, fixed-value casino tokens and betting receipts, and there is now a power to forfeit cash through an administrative forfeiture notice. The Regulation introduces new powers to forfeit certain listed terrorist assets and terrorist funds in bank and building society accounts, where the property is intended for use in terrorism, constitutes the proceeds of a proscribed organisation or is derived from terrorism, thus creating an equivalent to the powers in POCA 2002.

Regulation 4 provides that amendments to the definition of cash in POCA 2002 (as above) will come into force on 16 April 2018, along with a new procedure to seize, detain and forfeit certain listed items of property, which derives from, or is intended for use in, unlawful conduct. Regulation 5 brings into force various minor and technical provisions in Schedule 5 CFA 2017 and ensures that these provisions will commence in tandem with the main powers to which they relate.

Proceeds of Crime Act 2002 (Recovery of Listed Assets: Code of Practice) (England and Wales and Scotland) Regulations 2018

These Regulations (SI 2017/85) bring a new Code of Practice into force on 16 April 2018. This relates to the powers under s. 303C POCA 2002 (as amended by CFA 2017), which permit officers of Revenue and Customs, constables, Serious Fraud Office officers and accredited financial investigators to search persons, vehicles and premises for certain listed assets which derive from, or are intended for use in, unlawful conduct. The Code provides guidance and procedural requirements for the exercise of these powers.

Terrorism Act 2000 (Code of Practice for Authorised Officers) Order 2018

This Order (SI 2018/81) brings a revised Code of Practice, made under Paragraph 7 of Schedule 14 of the TA 2000 on 31 January 2018. The Code of Practice relates to the exercise of functions by authorised officers for the purposes of the terrorist property provisions within Schedule 1 of the ACSA 2001. The revised Code of Practice incorporates all the amendments made to the TA 2000 and ACSA 2001 made by the CFA 2017.

Proceeds of Crime Act 2002 (Cash Searches: Code of Practice) Order 2018

This Order (SI 2018/83) creates a Code of Practice in connection with powers conferred by s. 289 of the POCA 2002 relating to the search, seizure and detention of unlawful cash. The Code comes into force on 16 April 2018.

Waste Enforcement (England and Wales) Regulations 2018

These Regulations, currently in draft form (SI 2018/draft), introduce enhanced powers to tackle illegal activity at waste sites as a consequence by amending the Environmental Protection Act 1990 (adding new s. 59ZB and 59ZC) and the Environment Act 1995 (adding new s. 109A-N). They allow waste regulation authorities and waste collection authorities in England and Wales the ability to require waste from a site to be removed if it has been unlawfully kept or disposed of. Notice is required to exercise this power, and it includes the ability to remove waste that was originally lawfully deposited. In addition, the Environment Agency and Natural Resource Body for Wales has the power, by notice or application can apply to court for an order, to restrict access to premises and to restrict the importance of waste.

Pharmacy (Preparation and Dispensing Errors – Registered Pharmacies) Order 2018

The Medicines Act 1968 (MA 1968) is amended to create new defences to the criminal offences of contravening ss 63 and 64 of the MA 1968 (adulteration of medicinal products and protection of purchasers of medicinal products, respectively). The defences relate to the preparation or dispensing errors by registered pharmacy professionals acting in the course of their profession in registered pharmacies, usually community pharmacies.

Following a breach of s. 63 MA 1968 (adulteration of medicinal products), the defendant is required to show the person who adulterated the product is or was supervised by a registered pharmacy professional who was acting in the course of his or her profession; the adulteration must have taken place at the registered pharmacy; if the product has been sold or supplied, it must have been sold or supplied in pursuance of a prescription or direction or under arrangements for the emergency supply of prescription only medicines and; if an appropriate person becomes aware of the problem, they promptly take all reasonable steps to ensure the patient is notified.

In relation to a breach of s. 64 MA 1968 (protection of purchasers of medicinal products), the defendant must show the product was dispensed by or under the supervision of a registered pharmacy professional who was acting in the course of his or her profession; the dispensing must have taken place at the registered pharmacy; the sale or supply must have been in pursuance of a prescription, or directions in the case of a sale or be an emergency supply of prescription only medicines in circumstances where a prescription could not be obtained without undue delay; and if an appropriate person becomes aware of the problem, they promptly take all reasonable steps to ensure the patient is notified.

These changes take effect from 8 March 2018.

Criminal Procedure (Amendment) Rules 2018

The Criminal Procedure (Amendment) Rules 2018 (SI 2018/132) amends the Criminal Procedure Rules 2015 (SI 2015/1490). The changes come into force on 2 April 2018.

In particular, the Criminal Procedure Rules 2015 now contain new, more detailed rules about applications to start prosecutions in magistrates’ courts and revised rules about the procedure on an application to introduce the evidence of a complainant’s previous sexual behaviour under s. 41 of the Youth Justice and Criminal Evidence Act 1999. They now contain new, more detailed, rules about the material to be supplied to an advocate appointed by the court to cross-examine a witness whom an unrepresented defendant is not allowed to cross-examine. New rules are added about the procedure to follow where the Court of Appeal is asked to reopen previous appeal proceedings, and there are new rules about applications for further information orders under the TA 2000 and the POCA 2002, both as amended by the CFA 2017.

Previous rules are amended in relation to the ordering of separate Crown Court trials; the supply of a transcript of Crown Court proceedings; the arrest warrant that a magistrates’ court must issue where a defendant is sentenced to imprisonment or detention in his or her absence; the identification of those upon whose preparatory work an expert witness relies; the taking of a jury’s verdicts where more than one offence is charged; the content of grounds of appeal to the Court of Appeal; and references and applications by the Attorney General to the Court of Appeal. There are a number of minor amendments and corrections also made.