Previous posts on this blog have considered LASPO Part 1, Part 2, Part 3 Chapter 1 and Part 3 Chapters 2 to 8. This post is the final one of this series on LASPO and looks at Part 3 Chapter 9 where a number of new criminal offences are created.
I hope that this series will give the reader at least an overview of this very detailed and far-reaching legislation.
Chapter 9 comprises sections 142 to 148.
: Threats involving weapons :
Section 142 - Amends both the Prevention of Crime Act 1953 and the Criminal Justice Act 1988.
A new section 1A is inserted into the Prevention of Crime Act 1953 (Offence of threatening with offensive weapon in public)
(1) A person is guilty of an offence if that person -
(a) has an offensive weapon with him or her in a public place,
(b) unlawfully and intentionally threatens another person with the weapon, and
(c) does so in such a way that there is an immediate risk of serious physical harm to that other person.
(2) For the purposes of this section physical harm is serious if it amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861.
(3) In this section “public place” and “offensive weapon” have the same meaning as in section 1.
(4)A person guilty of an offence under this section is liable -
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 4 years or to a fine, or to both.
(5) Where a person aged 16 or over is convicted of an offence under this section, the court must impose an appropriate custodial sentence (with or without a fine) unless the court is of the opinion that there are particular circumstances which—
(a) relate to the offence or to the offender, and
(b) would make it unjust to do so in all the circumstances.
(6)In this section “appropriate custodial sentence” means—
(a) in the case of a person who is aged 18 or over when convicted, a sentence of imprisonment for a term of at least 6 months;
(b) in the case of a person who is aged at least 16 but under 18 when convicted, a detention and training order of at least 4 months.
(7) In considering whether it is of the opinion mentioned in subsection (5) in the case of a person aged under 18, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933.
(8) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (4)(a) to 12 months is to be read as a reference to 6 months.
(9) In relation to times before the coming into force of paragraph 180 of Schedule 7 to the Criminal Justice and Court Services Act 2000, the reference in subsection (6)(a) to a sentence of imprisonment, in relation to an offender aged under 21 at the time of conviction, is to be read as a reference to a sentence of detention in a young offender institution.
(10) If on a person’s trial for an offence under this section (whether on indictment or not) the person is found not guilty of that offence but it is proved that the person committed an offence under section 1, the person may be convicted of the offence under that section.”
Section 139A of the Criminal Justice Act 1988 deals with having an article with a blade or point (or offensive weapon) on school premises. A new section 139AA (Offence of threatening with article with blade or point or offensive weapon) is inserted into the Criminal Justice Act 1988.
(1) A person is guilty of an offence if that person -
(a) has an article to which this section applies with him or her in a public place or on school premises,
(b) unlawfully and intentionally threatens another person with the article, and
(c) does so in such a way that there is an immediate risk of serious physical harm to that other person.
(2) In relation to a public place this section applies to an article to which section 139 applies.
(3) In relation to school premises this section applies to each of these -
(a) an article to which section 139 applies;
(b) an offensive weapon within the meaning of section 1 of the Prevention of Crime Act 1953.
(4) For the purposes of this section physical harm is serious if it amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861.
(5) In this section—
“public place” has the same meaning as in section 139;
“school premises” has the same meaning as in section 139A.
(6) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 4 years or to a fine, or to both.
(7) Where a person aged 16 or over is convicted of an offence under this section, the court must impose an appropriate custodial sentence (with or without a fine) unless the court is of the opinion that there are particular circumstances which- (a) relate to the offence or to the offender, and (b) would make it unjust to do so in all the circumstances.
(8)In this section “appropriate custodial sentence” means - (a) in the case of a person who is aged 18 or over when convicted, a sentence of imprisonment for a term of at least 6 months; (b) in the case of a person who is aged at least 16 but under 18 when convicted, a detention and training order of at least 4 months.
(9) In considering whether it is of the opinion mentioned in subsection (7) in the case of a person aged under 18, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933.
(10) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (6)(a) to 12 months is to be read as a reference to 6 months.
(11) In relation to times before the coming into force of paragraph 180 of Schedule 7 to the Criminal Justice and Court Services Act 2000, the reference in subsection (8)(a) to a sentence of imprisonment, in relation to an offender aged under 21 at the time of conviction, is to be read as a reference to a sentence of detention in a young offender institution.
(12) If on a person’s trial for an offence under this section (whether on indictment or not) the person is found not guilty of that offence but it is proved that the person committed an offence under section 139 or 139A, the person may be convicted of the offence under that section.
Section 142 also activates Schedule 26 (knives and offensive weapons: minor and consequential amendments).
Comment: Given that the new offences require "an immediate risk of serious physical harm" (i.e. grievous bodily harm) to the other person, the new offences are clearly aimed at the most serious cases of threats with weapons. For this reason, the fact that an appropriate custodial sentence must be imposed is not, in my view, particularly objectionable and, in any event, the court has a certain leeway if, for example, there are particularly circumstances relating to the offender which would make it unjust to impose custody. The possibility that a defendant might be convicted of an alternative offence should be noted and this applies also to summary trial in the Magistrates' Court.
: Causing serious injury by dangerous driving :
Section 143 - Offence of causing serious injury by dangerous driving. The Road Traffic Act 1988 is amended by the insertion of a new section 1A.
A person who causes serious injury to another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.
“Serious injury” means - (a) in England and Wales, physical harm which amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861, and (b) in Scotland, severe physical injury. The new offence will be punishable with up to 5 years imprisonment if tried in the Crown Court.
Section 143 also activates Schedule 27 (causing serious injury by dangerous driving: minor and consequential amendments).
This new offence adds to the spectrum of serious road traffic offences and closes what many viewed as a serious gap in the law. The driving has to be "dangerous" (as defined in the Road Traffic Act) and the injury very serious.
: Squatting :
Section 144 - Offence of squatting in a residential building
(1) A person commits an offence if - (a) the person is in a residential building as a trespasser having entered it as a trespasser, (b) the person knows or ought to know that he or she is a trespasser, and (c) the person is living in the building or intends to live there for any period.
(2) The offence is not committed by a person holding over after the end of a lease or licence (even if the person leaves and re-enters the building).
“Building” includes any structure or part of a structure (including a temporary or moveable structure), and a building is “residential” if it is designed or adapted, before the time of entry, for use as a place to live.
For the purposes of this section the fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser.
A person convicted of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks or a fine not exceeding level 5 on the standard scale (or both). However, in relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in to 51 weeks is to be read as a reference to 6 months.
For the purposes of this offence it is irrelevant whether the person entered the building as a trespasser before or after the commencement of this section.
This criminalisation of squatting will be welcome to many whose homes have been invaded by squatters. However, as the Guardian article "The sinister logic behind criminalising squatting" shows, the new offence is not without controversy or difficulties. Significantly, section 144 amends the Police and Criminal Evidence Act 1984 section 17 to give the Police power of entry for the purposes of making arrest for this new offence.
: Scrap Metal :
Section 145 - increases penalties for certain offences under the Scrap Metal Dealers Act 1964.
Section 146 - inserts a new section 3A into the Scrap Metal Dealers Act 1964 so as to create a new summary offence of buying scrap metal for cash etc.
Section 147 -is an interesting provision in that a review of the offence of buying scrap metal for cash etc. must be conducted before the end of 5 years beginning with the day on which section 146(2) comes into force. The Secretary of State must - (a) carry out a review of the offence created by that subsection, and
(b) publish a report of the conclusions of the review. The report must in particular - (a) set out the objectives intended to be achieved by creating the offence, (b) assess the extent to which those objectives have been achieved, and (c) assess whether it is appropriate to retain the offence to achieve those objectives.
: Reasonable Force in self defence :
Section 148 - The Criminal Justice and Immigration Act 2008 section 76 (reasonable force for the purposes of self-defence etc) was enacted to amend the law relating to reasonable force used in self-defence. Section 76 is now amended by LASPO section 148.
As amended by section 148, section 76 will read: (Changes shown in blue)
Reasonable force for purposes of self-defence etc.
(1) This section applies where in proceedings for an offence - (a) an issue arises as to whether a person charged with the offence (“D”) is entitled to rely on a defence within subsection (2), and (b) the question arises whether the degree of force used by D against a person (“V”) was reasonable in the circumstances.
(2) The defences are - (a) the common law defence of self-defence; (aa)the common law defence of defence of property; and (b) the defences provided by section 3(1) of the Criminal Law Act 1967 (c. 58) .....
.
(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.
(4) If D claims to have held a particular belief as regards the existence of any circumstances - (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but (b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not - (i) it was mistaken, or (ii) (if it was mistaken) the mistake was a reasonable one to have made.
(5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.
(6) The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.
(6A) In deciding the question mentioned in subsection (3), a possibility
that D could have retreated is to be considered (so far as relevant) as a
factor to be taken into account, rather than as giving rise to a duty
to retreat.
(7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case) -
(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and
(b) that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.
(8) Subsections (6A) and (7) are not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).
(9) This section is intended to clarify the operation of the existing defences mentioned in subsection (2).
(10) In this section -
(a)“legitimate purpose” means—
(i)the purpose of self-defence under the common law,
(ia) the purpose of defence of property under the common law, or
(ii)the prevention of crime or effecting or assisting in the lawful arrest of persons mentioned in the provisions referred to in subsection (2)(b);(b)references to self-defence include acting in defence of another person; and
(c)references to the degree of force used are to the type and amount of force used.
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