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14 Contributions by 2BR Experts
PRACTICE NOTES
Once a defendant is found guilty of a criminal offence by a court in England and Wales, the court then considers what sentence should follow. See Practice Notes: Sentencing procedure in the magistrates’ and Crown Courts and Sentencing Code. This Practice Note outlines the purpose and reach of mitigation advanced on behalf of convicted defendants in England and Wales to lessen the sentence imposed by the court...
Factors determining sentence
Sentencing courts must have regard to any matters that, in the court’s opinion, are relevant in mitigation of sentence. Mitigation covers any element of a case that reduces the seriousness of the sentence to be passed, whether affecting its length or its type. By contrast, aggravating factors are those that increase the severity of the sentence. Before reaching conclusions for the purpose of imposing certain sentences, the court is required to consider both
Corporate Crime
PRACTICE NOTES
Background
The Computer Misuse Act 1990 (CMA 1990) was primarily passed to tackle the risk posed by unauthorised entry into computer systems, commonly labelled ‘hacking’ offences. It became clear that no suitable law existed to prosecute such activity, a gap highlighted especially by R v Gold & Schifreen, where the Court of Appeal set aside a conviction for making a false instrument, contrary to the Forgery and Counterfeiting Act 1981, in circumstances amounting to unauthorised access to BT’s Prestel Computer Network. The House of Lords affirmed that ruling, holding the behaviour fell beyond the false instrument offence because the false information—namely the passwords used to secure entry—had to be retained on the instrument for a meaningful period. At the time, the statute drew criticism as rushed and ill-conceived, and Parliament had no real conception of the ‘World Wide Web’, which did not achieve
Corporate Crime
PRACTICE NOTES
This Practice Note provides a practical overview of the impact that criminal investigations, prosecutions and convictions may have on healthcare practitioners, and on the integrity of the register that regulators have a statutory duty to maintain. It should be considered alongside the Practice Note: Common principles in fitness to practise proceedings and the relevant Practice Note for each regulator below:
General Dental Council—fitness to practise proceedings
General Medical Council—fitness to practise proceedings
General Optical Council—fitness to practise proceedings
General Pharmaceutical Council—fitness to practise proceedings
Health and Care Professions Council—fitness to practise proceedings
Nursing and Midwifery Council Proceedings—fitness to practise proceedings
Social Work England—fitness to practise proceedings
Function of criminal courts v fitness to practise proceedings
The distinct purposes of the criminal courts and professional regulators, and how they interact, were analysed in Bawa-Garba v GMC. The appeal centred on the
Local Government
PRACTICE NOTES
Who is the General Optical Council (GOC)
The General Optical Council (GOC), created as a corporate body by the Opticians Act 1989, exists to protect the public by promoting high standards in professional education, conduct and performance. Its purpose is to protect, promote and maintain:
the public’s health, safety and well-being
public confidence in the professions it regulates
professional standards and conduct for Registrants and prospective Registrants
proper standards and conduct for business Registrants
This Practice Note summarises GOC fitness to practise proceedings, investigations, and applications for restoration to the Register. The GOC regulates registered Optometrists and Dispensing Opticians. In this Practice Note, a ‘Registrant’ is:
a registered Optometrist
a Dispensing Optician
student Optometrists
a Registered Business
This Practice Note should be read with the following: Practice Notes—Common principles in fitness to practise
Local Government
PRACTICE NOTES
Who is the General Osteopathic Council (GOsC)?
The General Osteopathic Council (GOsC) is a corporate body established by the Osteopaths Act 1993 (OA 1993) with the overall role of advancing and overseeing the profession of osteopathy, with an overarching purpose, first and foremost, of protecting the public by:
protecting, promoting and upholding the public’s health, safety and wellbeing
promoting and sustaining public trust in the osteopathic profession, and
promoting and preserving appropriate professional standards and conduct among its members
This Practice Note outlines and provides guidance on GOsC fitness to practise processes, procedures and proceedings, inquiries and investigations, and applications for restoration to the Register. It is a criminal offence to call yourself an ‘osteopath’ without being registered with the GOsC. For clarity and ease of reference, this Practice Note should be read alongside Practice Notes: Common principles in fitness to practise proceedings and Criminal
Local Government
PRACTICE NOTES
This Practice Note seeks to summarise the leading case law and shared principles that arise in fitness to practise (FtP) proceedings before most healthcare regulators’ FtP panels. It sets out the common procedural phases, including investigation and the admissibility of evidence, the scope of case examiners’ powers, interim orders, and recurring themes such as dishonesty and racist language. The term ‘registrant’ refers to the regulated professional who is the subject of FtP proceedings. It should be read alongside Practice Note: Criminal proceedings and convictions in healthcare regulatory proceedings and the separate Practice Note for each regulator listed below:
General Dental Council—fitness to practise proceedings
General Medical Council—fitness to practise proceedings
General Optical Council—fitness to practise proceedings
General Pharmaceutical Council—fitness to practise proceedings
Health and Care Professions Council—fitness to practise proceedings
Nursing and Midwifery
Local Government
PRACTICE NOTES
This Practice Note outlines the National Health Service’s role in overseeing the professionals it engages to deliver NHS care. It sets out how performance lists for General Practice Medicine, Dentistry and Optometry operate to ensure that suitably qualified practitioners are available to work within the NHS. It describes the mandatory process for obtaining inclusion on the performance lists as the gateway for any professional seeking to practise in the NHS. It also explains the conditions attached to inclusion on the operating list, the ongoing duties placed on those listed, and the regulatory powers to examine suspected breaches of those conditions, including the conduct of hearings, the availability of appeals and the imposition of sanctions where non-compliance is proven.
Commissioning services in the NHS
The NHS does not share a single structure across the UK. It is first divided by country (for example, NHS England and NHS
Local Government
PRACTICE NOTES
Who is the Nursing and Midwifery Council (NMC)
The Nursing and Midwifery Council (NMC) is a statutory corporate body established by the Nursing and Midwifery Order 2001. Its general function is to promote standards of education, training, conduct and performance for those it regulates, with the overriding objective of safeguarding the public.
All nurses, nursing assistants and midwives must be registered with the NMC, whether roles are temporary or permanent, paid or voluntary, across the NHS or the independent sector.
The NMC’s role is to protect, promote and maintain:
the health, safety and well-being of the public
public confidence in the professions it regulates
professional standards and conduct for Registrants
This Practice Note offers a guide to Nursing and Midwifery Council (NMC) fitness to practise proceedings, investigations, and applications for restoration to the Register.
The NMC regulates:
nurses
midwives
and, from 28
Local Government
PRACTICE NOTES
in judicial proceedings
Perjury is an indictable-only offence, attracting a maximum of seven years’ imprisonment and/or a fine.
The constituent parts of this offence are set out as follows:
being a witness or an interpreter who has been duly sworn
in judicial proceedings
wilfully making a material statement that is false,
and knowing it is untrue or not believing it to be true
Assisting, encouraging or procuring perjury contrary to section 1 of the Act 1911 (PeA 1911) is likewise an indictable offence and also carries the same ceiling penalty.
Where the principal wrongdoing amounts to a lesser offence triable either way, the maximum sentence available on indictment is two years’ custody and/or a fine; if dealt with summarily, the court may impose an unlimited fine and/or a custodial term not exceeding the general limit in a magistrates’ court (or both). See Practice Note: Sentences imposed following
Corporate Crime
PRACTICE NOTES
This Practice Note outlines the remit, powers and duties of the for Health and Social Care (PSA). The PSA was established to draw together the bodies regulating healthcare professions and to secure a cohesive, co-ordinated approach to standard-setting, performance oversight, and to inspection and validation...
Regulatory reform of healthcare regulators
On 17 February 2023, the Department for Health and Social Care (DHSC) set out proposals to modernise the legislative framework for nine health and care professional regulators via a series of statutory instruments, giving each regulator fresh powers to shape their own regulatory processes to enhance patient safety and streamline the healthcare system. These include:
General Chiropractic Council (GCC)
General Dental Council (GDC)
General Medical Council (GMC)
General Optical Council (GOC)
General Osteopathic Council (GOsC)
General Pharmaceutical Council (GPhC)
Health and Care Professions Council (HCPC)
Nursing and
Local Government
PRACTICE NOTES
Public interest immunity and disclosure
The right to a fair hearing rests on the equality of arms, a principle under which a vital component is access to material gathered by the prosecution during its investigation. Disclosure is governed by a single statutory test: any item that could reasonably be thought to weaken the prosecution’s case, or to aid the defence, ought to be revealed. That entitlement to disclosure is curtailed by the doctrine of public interest immunity (PII), permitting the court to keep relevant information from the defence where it concludes that the public interest requires non-disclosure. The court must conduct a balancing exercise, weighing the defendant’s interest in receiving all information pertinent to their defence against the state’s interest in safeguarding sensitive material. See Practice Note: Obtaining disclosure of unused evidence. The doctrine originated in the civil courts, where it was held that
Corporate Crime
PRACTICE NOTES
This Practice Note addresses restitution and deprivation orders following conviction under the Sentencing Act 2020 (SA 2020). It sets out the court’s authority in criminal proceedings to order the return of stolen property to victims, and the means of appealing a restitution order. It also outlines the courts’ power to order the forfeiture of property connected with the commission of an offence by making a deprivation order, together with the procedure for obtaining such an order and its effect.
Restitution orders
A restitution order allows the court to restore to a victim the goods, or the value of goods, that were stolen or otherwise unlawfully taken, using money found in the offender’s possession on arrest. On conviction, the magistrates’ court or the Crown Court before which the defendant is convicted may order restitution of goods. The court may make such an order of its own
Corporate Crime
PRACTICE NOTES
Practice Note: Criminal offences under the Data Protection Act 2018 (DPA 2018)
This Practice Note outlines the criminal offences set out in the Data Protection Act 2018 (DPA 2018). Those provisions took effect on 25 May 2018. For details of the DPA 2018’s aims and coverage, see Practice Note: The Data Protection Act 2018. The DPA 2018 repealed the Data Protection Act 1998 (DPA 1998) on 25 May 2018. However, data protection offences committed before 25 May 2018 may still be pursued under the DPA 1998 notwithstanding its repeal. For guidance on data protection and data handling offences under the DPA 1998, see Practice Notes: Unlawfully obtaining data under the Data Protection Act 1998 [Archived] and Notification offences under the Data Protection Act 1998 [Archived]. The DPA 2018 was later amended by the Data Protection, Privacy and Electronic
Corporate Crime
PRACTICE NOTES
Intimidation of witnesses and jurors
Intimidating witnesses and/or jurors in criminal proceedings is an offence under section 51 of the Criminal Justice and Public Order Act 1994 (CJPOA 1994). A person commits this offence if they:
carry out an act that intimidates, and is meant to intimidate, another person (the victim)
do so knowing or believing that the victim is assisting in the investigation of an offence, or is a witness or potential witness, or a juror or potential juror in proceedings for an offence
act with the intention of causing the investigation or the course of justice to be obstructed, perverted, or interfered with
‘Investigation into an offence’ means an inquiry by the police or any other person charged with the duty of investigating offences or charging offenders. ‘Offence’ includes an alleged or suspected offence. ‘Potential’, in relation to a juror, means
Corporate Crime
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