Tag Archives: LASPO

Regulation, Regulation, Regulation

 

Regs

In most jobs, there is a regulatory body to answer to, a code of conduct or a list of rules to abide by.

If you are a teacher, you are under the watchful eye of the LEA and abide by Government set rules and regulations. If you are a doctor, you can be called to appear before the General Medical Council where fitness to practise is called into question.

Law is no exception of course. We were sent some information which took a look at just how solicitors are regulated, and the various bodies and statutes etc. to which solicitors (as individuals and firms) are subject.

You might be surprised…

A non-exhaustive list of some of the Acts of Parliament, Regulations and other instruments which form part of the legislative, regulatory and high-risk landscape affecting firms of solicitors today

· Solicitors Act 1974 (This governs the admission, professional practice & discipline of solicitors.)

· Civil Procedure Rules 1998 (These have changed the procedures governing civil litigation.)

· Data Protection Act 1998 (This grows in significance as solicitors & courts increasingly rely on IT.)

· Human Rights Act 1998 (This effectively requires solicitors to protect the rights of their clients.)

· Financial Services and Markets Act 2000 (This affects solicitors whether or not FSA-authorised.)

· Terrorism Act 2000 (This is one of a series of acts relating to anti-terrorism & financial sanctions.)

· Proceeds of Crime Act 2002 (In view of this Act, each firm must have a ‘Money Laundering Reporting Officer’ & be vigilant in case a client or other party is involved in money laundering.)

· Finance Act 2003 (This introduced the complex Stamp Duty Land Tax regime & convoluted forms.)

· Constitutional Reform Act 2005 (This restructured the Judiciary & Supreme Court.)

· Fraud Act 2006 (This deepens the risk that solicitors may unwittingly handle the proceeds of fraud.)

· Companies Act 2006 (This is the largest Act in history & affects all solicitors with company clients.)

· Money Laundering Regulations 2007 (This requires solicitors to conduct due diligence measures.)

· Tribunals, Courts and Enforcement Act 2007 (This has restructured the tribunals & other courts.)

· Legal Services Act 2007 (This has formed the background to the establishment of the Solicitors Regulation Authority in 2007, the Legal Ombudsman in 2010 and the Legal Services Board in 2010.)

· Terrorist Asset-Freezing etc Act 2010 (This affects solicitors with clients from trouble-spots.)

· Bribery Act 2010 (This effectively requires solicitors to adopt ‘adequate’ anti-bribery ‘procedures’.)

· Solicitors Regulation Authority Handbook 2011 (This embodies various documents including the SRA Accounts Rules & SRA Code of Conduct.  As of 2013, each firm must have a ‘Compliance Officer for Legal Practice’ plus a ‘Compliance Officer for Finance and Administration’.)

· Legal Aid, Sentencing & Punishment of Offenders Act 2012 (This affects legal aid.)

· Criminal Procedure Rules 2012 (These have changed the procedures governing civil litigation.)

N.B. 1: The above list does not include changes brought about by case law.

N.B. 2: The ‘high risk’ environment of today is a product of various developments, including the Money Laundering Regulations 2007, the Bribery Act 2010 and SRA Code of Conduct 2011, all of which contain risk-related provisions.

N.B. 3: Solicitors are not just regulated professional people but also officers of the court who are subject to the inherent supervisory jurisdiction of the court.

N.B. 4: Clients, banks & professional indemnity insurers are becoming increasingly demanding.

A non-exhaustive list of some of the bodies which are directly or indirectly involved in the regulation, discipline, investigation or oversight of firms of solicitors and individual solicitors

· The Court

As solicitors are citizens, they are subject to the ordinary criminal & civil law of the land

o As officers of the court, solicitors are also subject to the inherent jurisdiction of the court

· The Solicitors Disciplinary Tribunal (This body has the power to strike off or discipline solicitors.)

· The Solicitors Regulation Authority (This regulates solicitors i.e. it is the regulator of solicitors.)

· The Legal Services Board (This body regulates the SRA & other regulators of legal services.)

· The Legal Ombudsman (This body has formal powers to resolve complaints about legal services.)

· The Legal Services Commission (This body oversees the provision of legal aid.)

· The Ministry of Justice (This has responsibility for the justice system of which solicitors form part.)

· The Financial Services Authority (This body regulates solicitors who provide financial services.)

· The Serious Organised Crime Agency (This body fields suspicious activity reports from solicitors.)

· The Police (The police may investigate breaches of criminal law perpetrated by solicitors.)

· The Information Commissioner’s Office (This body oversees data protection law.)

· The Office of Fair Trading (This body enforces consumer protection law and competition law.)

· HM Revenue & Customs (This body assesses the tax returns of firms, LLPs & individual solicitors.)

· Companies House (This body holds information about firms which are LLPs or companies.)

· The Local Council (This enforces, inter alia, waste disposal, environmental law & planning law.)

 

Image taken from blog.coltinfo.co.uk

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LASPO changes – more discretionary life sentences?

Ministry-of-Justice-006

On 3 December, the LASPO Act 2012 made changes to the way in which dangerous offenders are sentenced. With just 16 days’ notice between the Statutory Instrument confirming the commencement, and the actual commencement, we can be forgiven for getting the sense that it has all been a bit rushed, a bit last minute and bit careless.

Summary

In summary, the changes are as follows:

IPP and DPP (the indeterminate sentences for public protection) are repealed.

A new Extended Determinate Sentence (‘EDS’) was commenced.

A new automatic life sentence was commenced.

No problems there then. Out with the old and in with the new? Not quite.

A little more detail

The circular issued by the MoJ explaining the changes can be seen here.

IPP was repealed (LASPOA 2012 s 123), meaning that, from 3 December, no offender can receive an IPP, DPP or Extended Sentence (2003 Act extended sentence).

The new EDS sentence was commenced (LASPOA 2012 s 124). However, this sentence will be applied retrospectively. By virtue of Criminal Justice Act 2003 s 226A(1)(a) (inserted by LASPOA 2012 s 124), an offender can receive an EDS sentence irrespective of when his or her offence was committed, provided that the statutory requirements are met.

The new automatic life provisions were commenced (LASPOA 2012 s 122), however these are only available for offences committed after the section was commenced. They apply where the offender has committed a second serious sexual or violent offence, and the sentence would have been at least 10 years, notwithstanding the automatic life sentence. That date was the 3 December.

Although that appears simple, the myriad of LASPOA 2012 sections, schedules, commencement and transitory and saving provisions orders make trying to fathom what the position is far from easy. I think

So where does that leave us?  Well, I think I have got the hang of it, thanks to a helpful civil servant and some serious Westlaw searching.

Offence and sentence prior to 3 December

If an offender committed his or her offence prior to 3 December and were sentenced prior to 3 December, then he or she are liable for an IPP sentence. Although the repeal was announced many months prior to the commencement date, IPP sentences were still available and were still being imposed, despite the widespread acknowledgement, by lawyers and politicians alike, that the sentence was unfair, unpredictable and generally a complete disaster.

Offence and sentence on or after 3 December

If and offender committed his or her offence after 3 December (and therefore were sentenced after also), then they are liable for either and EDS sentence or automatic life (where the statutory requirements are made out).

But what if your offence was committed before 3 December, but you are to be sentenced after 3 December?

Well, it depends when you were convicted. If you are convicted after 3 December, you can’t get IPP. You also can’t get automatic life (if it would have applied). You can however get an EDS sentence. If you were convicted before 3 December, then you can get IPP or the old 2003 Extended Sentence, but you cannot get the EDS sentence. So what is the problem?

A civil servant informed me that there is no lacuna for offenders who fall into the third category where their offence and sentence date fall either side of the magical 3 December date. The reason for this is that automatic life doesn’t replace IPP – EDS does. Why then, you might ask, do we need the automatic life sentence? Well as with any mandatory sentence, it tends to be political posturing over any real substantive need, but that is another story.

So, EDS is to replace the (now) old (but actually new, just not ‘new new’) Extended Sentences under the 2003 Act and IPP/DPP sentences. That purports to cover all manner of dangerous offenders, which previously would have attracted the shortest possible extended sentence, right the way up to the toughest IPP – which remember, the LCJ says is practically a life sentence, R v Lang 2005 EWCA Crim 2864 para 8
.

EDS – When can it be passed?

The new EDS works in a similar way to the previous extended sentences:

1. The Offence must be a specified offence under the 2003 Act. A full list is here – it should be noted that this is much wider than the Sch 15B offences. For example, racially aggravated common assault is included.

2. The dangerousness test must be passed – i.e. that there is a significant risk of serious harm to members of the public.

3. Qualifying Conditions

a)  D has been previously convicted of a Sch 15B Offence at the time the offence was committed, or

b)  The appropriate custodial term is at least 4 years

EDS – What does it mean?

An EDS sentence is one where the judge specifies the custodial term and then specifies a period of extended licence. This is in addition to the licence that the offender would be subject to on release from the custodial term. Offenders serve 2/3 of the custodial term before being considered for release by the parole board. Unlike IPP sentences, the offender cannot be kept in prison beyond the expiry of their custodial term.

So, if someone received 6 years custody and a 3 year extended licence, they would serve at least 4 years in custody and be subject to  a 5-year extended licence. This will have conditions attached to it with which the offender must comply.

Potential problems

The EDS sentence should be unproblematic for offenders who would previously have received an Extended Sentence (2003 Act) or an IPP sentence with a shorter minimum term.

However, where an offender would have previously received a lengthy minimum term with an IPP sentence, because there is a real need to protect the public, the judge will only be able to pass a determinate sentence in the form of an EDS sentence. Where the judge feels that the parole board will need to assess when, if at all, the offender will be safe to be released, the EDS sentence will not be sufficient.

The result may be that judges feel that due to the limitations of the EDS sentence, and its limited public protection element, that a discretionary life sentence (where available) is the only option. Where a discretionary life sentence is not available, it may be that EDS sentences are imposed with longer custodial terms than commensurate with the seriousness of the offence(s).

The result can surely only be more problems – incorrect sentences (like we need more of those), more people in prison for longer than they ought to be (echoing IPP) and more discretionary life sentences (which essentially mirror the IPP sentence).

LASPO 2012 – another criminal justice policy disaster?