Crime analysis: What new offences have been introduced by the Criminal Justice and Courts Act 2015?

Brett Wilson LLP partner and leading criminal defence solicitor Nick Brett is interviewed by Nicola Laver. 

What are the key provisions and changes around dangerous offenders? How will these work in practice?

The Criminal Justice and Courts Act 2015 ('CJCA 2015') increases the number of offences for which the 'dangerous offenders' provisions are applicable. In effect, the dangerous offenders provisions (a concept introduced under the Criminal Justice Act 2003) are simply extended to cover those convicted of additional offences (seemingly with terrorism very much in mind). There is also a new category of 'offenders of particular concern' classified again by criteria determined predominantly by conviction of certain offences (for example, offences including causing bodily injury by explosives and attempting to cause an explosion)--those offences are added to the list of offences that require discretion exercised by the Parole Board before the perpetrators of them can be released.

How will the provisions around release and recall operate in practice? Do these provisions raise any concerns?

These provisions are also contained in CJCA 2015, Pt 1. For the first time it qualifies the right to automatic release from determinate sentences by providing authority for the Secretary of State to prevent such release where she believes they are likely to breach a licence condition. It is difficult to understand how such opinion could be formed during the custodial part of the sentence and it does raise concerns about an encroachment into judicial territory.

Judges are tasked with passing sentence after having heard and considered the evidence in any given case. When passing a determinate sentence, the judge exercises that role and the offender has a legitimate expectation as to the point of release from a custodial term (at least in a general sense). If, at that point of release, the Secretary of State exercises a power preventing release, based on concerns that are not linked to the sentencing process (seriousness and culpability), then that has the effect of usurping the judicial function.

What offences are created by CJCA 2015?

There are a number of new offences created by CJCA 2015, including:

• specific offences of ill-treatment or neglect by care-workers (s 20) or care providers (s 21)
• corrupt or improper exercise of police powers and privileges (s 26), and
• causing death or serious injury while driving disqualified (s 29)

Perhaps most eye catching are the so-called 'revenge porn' offences contained within CJCA 2015, s 33.

How will the offences involving ill-treatment or wilful neglect work in practice? Are there any concerns?

The ill-treatment offences have been specifically created as a result of the media exposure of the assault and abuse of vulnerable and elderly people in care homes. The offences are notable first as a result of the higher sentences applicable to those directly responsible for the ill-treatment, but second because of the additional burden placed on those care providers to ensure that their 'arrangements' do not lead to ill-treatment. Such vicarious liability does not extend to local authorities.

The obvious concern is the extent to which employers should be held criminally responsible for the actions of their employees, particularly as the committing of this type of offence would almost certainly fall foul of the criminal law in any event (common assault, minor public order offences). Of course, any employer would never condone the criminal behaviour of its employees and so should it be held criminally responsible in this context?

The 'revenge porn' provisions have received widespread attention--are they likely to be effective in tackling it?

The new offence was introduced because of the inability of prosecutors to use the Protection from Harassment Act 1997 (PHA 1997) in numerous situations where it did not amount to 'a course of conduct'. The new provisions in CJCA 2015, s 33 make disclosure of private sexual photographs or films without consent an offence, and provide for higher penalties than those available under existing legislation. The penalties are more than those available following conviction under PHA 1997, s 2--on conviction on indictment the maximum sentence is two years and, summarily, 12 months.